HomeMy WebLinkAbout2011-02-09 e-packetPEOPLE OF SOUTH SAN FRANCISCO
You are invited to offer your suggestions. In order that you may know our method of conducting Agency
business, we proceed as follows:
The regular meeting of the Redevelopment Agency is held on the second Wednesday of each month at
6:30 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco,
California.
Public Comment: For those wishing to address the Board on any Agenda or non - Agendized item, please
complete a Speaker Card located at the entrance to the Community Room and submit it to the Clerk,
Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment.
California law prevents Redevelopment Agency from taking action on any item not on the Agenda
(except in emergency circumstances). Your question or problem may be referred to staff for investigation
and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive
action or a report. When your name is called, please come to the podium, state your name and address for
the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for
your cooperation.
The Clerk will read successively the items of business appearing on the Agenda. As she completes
reading an item, it will be ready for Board action.
KEVIN MULLIN
Chair
RICHARD A. GARBA.RINO
Vice Chair
PEDRO GONZALEZ
Boardmember
RICHARD BATTAGLIA
Investment Officer
BARRY M. NAGEL
Executive Director
AGENDA
REDEVELOPMENT AGENCY
CITY OF SOUTH SAN FRANCISCO
REGULAR MEETING
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, FEBRUARY 9, 2011
6:30 P.M.
PLEASE SILENCE CELL PHONES AND PAGERS
HEARING ASSISTANCE EQUIPMENT IS AVAILABLE FOR USE BY THE HEARING - IMPAIRED AT REDEVELOPMENT AGENCY MEETINGS
In accordance with California Government Code Section 54957,5, any writing or document that is a public record, relates to an open
session agenda item, and is distributed less than 72 hours prior to a regular meeting will be made available for public inspection in the
City Clerk's Office located at City Hall. !f; however, the document or writing is not distributed until the regular meeting to which it
relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda. The
address of City Hall is 400 Grand Avenue, South San Francisco, California 94080.
KRISTA MARTINELLI
Clerk
STEVEN T. MATTAS
Counsel
MARK N. ADDIEGO
Boardmember
KARYL MATSUMOTO
Boardmember
CALL TO ORDER
ROLL CALL
AGENDA REVIEW
PUBLIC COMMENTS
CONSENT CALENDAR
1. Motion to approve the minutes of January 12, 2011 and. January 26, 2011.
2. Motion to approve expense claims of February 9, 2011.
3. Resolution authorizing the expenditure of up to $187,500 in tax increment funds to
provide required local matching funds for an MTC /ABAG FOCUS Program grant for the
preparation of a Station Area and Land Use Plan for the Downtown/Central Project Area.
Resolution approving an assignment and assumption and notice of transfer agreement
between Genentech, Inc., Genentech Oyster Point LLC and HCP Life Science REIT, Inc.
ADMINISTRATIVE BUSINESS
5. Resolution Approving the acquisition of property located at 636 El Camino Real;
approving the disposition of such property pursuant to ground leases to two Mid -
Peninsula Housing Corporation affiliates; approving the report required in connection
with such disposition by Health and Safety code section 33433; approving the provision
of loans for development of the property; approving the form of the Loan Agreements,
Promissory Notes, deeds of trust, Affordable Housing Regulatory Agreements and deeds
of trust to be subordinated to construction lenders; authorizing the regulatory agreements
and deeds of trust to be subordinated to construction lenders; adopting findings in
connection with the foregoing transactions; authorizing; the execution of an easement and
joint use agreement; and authorizing the execution of a master lease for the
retail /commercial space to be developed on the property.
ADJOURNMENT
REGULAR REDEVELOPMENT AGENCY MEETING FEBRUARY 9, 2011
AGENDA PAGE 2
4 1JFOR A
Submitted by
Krist• . • artinel
City of South San Francisco
MINUTES Qe
REGULAR MEETING
REDEVELOPMENT AGENCY
CITY OF SOUTH SAN FRANCISCO
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, JANUARY 12, 2011
CALLED TO ORDER: 6:32 p.m.
ROLL CALL: Present: Boardmernbers: Addiego, Gonzalez and
Matsumoto, Vice Chairman Garbarino and
Chairman Mullin.
Absent: None.
AGENDA REVIEW
None.
PUBLIC COMMENTS
None.
CONSENT CALENDAR
1. Motion to approve the minutes of December 8, 2010.
2. Motion to approve expense claims of January 12, 2011.
Motion— Boardmember Addiego /Second— Boardmember Gonzalez: to approve the Consent
Calendar. Unanimously approved by voice vote.
ADJOURNMENT
Being no further business, Chairman Addiego adjourned the meeting at 6:37 p.m.
Approved:
Kevin Mullin, Chairman
City of South San Francisco
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2. Roll Call.
•
Anna M. Brown
Deputy City Clerk,
City of South San Francisco
MINUTES
SPECIAL MEETING
REDEVELOPMENT AGENCY
OF THE
CITY OF SOUTH SAN FRANCISCO
P.O. Box 711 (City Hall, 400 Grand Avenue)
South San Francisco, California 94083
Meeting to be held at:
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
33 ARROYO DRIVE
SOUTH SAN FRANCISCO, CA
WEDNESDAY, JANUARY 26, 2011
Purpose of the meeting:
1. Call to Order. TIME: 9:55 p.m.
PRESENT: Boarmembers Addiego, Gonzalez and Matsumoto,
Vice Chair Garbarino and Chair Mullin.
ABSENT: None.
3. Agenda Review.
No changes.
4. Public Comments — comments are limited to items on the Special Meeting Agenda.
None.
5. Resolution Approving an amendment to extend the Memorandum of Understanding among
the City of South San Francisco, Redevelopment Agency of the City of South San Francisco
and the San Mateo County Harbor District for Potential Development of the Oyster Point
Marina and Oyster Point Business Park.
Motion — Boardmember Gonzalez /Second — Boardmember Addiego: to approve Resolution
No. 2 -2011. Unanimously approved by voice vote.
6. Being no further business, Chair Mullin adjourned the meeting at 9:55 p.m.
Submitted by: Approved by:
Kevin Mullin
Redevelopment Chair,
City of South San Francisco
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M1717 T7,
LIFOR
I certify that the payments shown on this payment register are
accurate and sufficient funds were available for payment.*
DATED ,?•/"( (I(
*Note: Items below do not include payroll related payments
Checks:
F ANCE DIRECTOR
Date Amount
01/07/11
01/12/11
01/14/11
01/19/11
01/21/11
01/26/11
01/28/11
69,226.59
3,661.47
47,075.97
14,035.74
59,332.00
2,939.25
29,585.34
Electronic Payments:
Date Amount To Description
01/25/11 35,746.50 Bank of New York RDA Debt Service
01/28/11 301,405.64 Stewart Title Guaranty 207 Grand Ave Acquisition
Total Payments $ 563,008.50
Listing of RDA Payments for Council Review
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Redevelopment Agency
StaffReport
DATE: February 9, 2011
TO: Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: LOCAL MATCHING FUNDS FOR STATION AREA AND LAND
USE PLANNING PROGRAM GRANT
RECOMMENDATION
It is recommended that the Agency Board adopt a Resolution authorizing the expenditure of up
to $187,500 in tax increment funds to provide local matching funds for an MTC /ABAG
FOCUS Program grant for the preparation of a Station Area and Land Use Plan for the
Downtown /Central Project Area.
BACKGROUND /DISCUSSION
The Station Area and Land Use Planning Program is one of the major grants available under the
FOCUS Program, a joint initiative led by the Metropolitan Transportation Commission (MTC) and
the Association of Bay Area Governments (ABAG). The FOCUS program promotes a more compact,
sustainable land use pattern for the Bay Area by linking transportation and land use planning to
encourage livable communities in areas served by transit.
Cities with Priority Development Areas (PDAs) are eligible to apply for the Station Area and Land
Use Planning grants. Both the Downtown area and the El Camino Corridor are designated PDAs,
which are locally - selected, infill development opportunity areas near transit stations and hubs.
This grant application asks for funding to prepare a Station Area and Land Use Plan for the
Downtown PDA. Essentially a specific plan, it would position the City to promote infill
development, add new housing, retail and commercial services to underutilized sites, increase transit
ridership and enhance linkages between the Downtown and the Caltrain Station. The geographic
boundaries would encompass both the 150 -acre Downtown PDA and an adjacent area just east of the
Caltrain Station.
Such a plan would build upon the City's previous smart growth planning efforts, including the
Bicycle Plan, the Municipal and the Community -wide Emissions Inventories, and the 2009
Downtown Vision which outlined a strategy for achieving new, more intense development served by
transit and focused on a walkable retail corridor.
Staff Report
Subject: LOCAL MATCHING FUNDS FOR STATION AREA AND LAND USE
PLANNING PROGRAM GRANT
Page 2
The grant program requires the City to provide a 20% cash match to leverage the MTC /ABAG grant
dollars. To that end, the attached Redevelopment Agency resolution would, upon approval, obligate the
local cash match. Preparation of a Station Area and Land Use Plan is consistent with the goals laid out in
the Redevelopment Agency's Five -Year Implementation Plan.
The grant application is due by March 1, 2011. MTC /ABAG expects to announce the grant awards
and enter into funding agreements with grant recipients in the spring of 2011. Grant recipients would
then have 30 months from the effective date of the funding agreement to complete a Station Area and
Land Use Plan.
FUNDING
Staff is working to finalize the exact amount of the grant request but the maximum grant request is
$750,000 with a 20% local cash match of $187,500. The City's 20% cash match of $187,500 would
be added to the grant dollars for total project funding of $937,500. This would fund preparation of
the Station Area Plan and related implementation actions, such as adoption of a General Plan
Amendment and zoning changes to implement the Plan upon adoption. It would also fund a
program -level Environmental Impact Report.
Redevelopment Agency funding is available in the current year's budget for the mandatory local cash
match should the Council approve submittal of the grant application.
CONCLUSION
It is recommended that the Agency Board adopt a Resolution authorizing the expenditure of up to
$187,500 in tax increment funds to provide local matching finds for an MTC /ABAG FOCUS
Program grant for the preparation of a Station Area and Land Use Plan for the Downtown/Central
Project Area.
By:
MLD / sm
Marty Van Duyn
Assistant Executive Di
Attachment: Resolution
tor
Approve
. Nagel
Executive Director
RESOLUTION NO.
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING THE EXPENDITURE OF UP TO $187,500 IN
TAX INCREMENT FUNDS TO PROVIDE REQUIRED LOCAL MATCHING
FUND FOR AN MTC /ABAG FOCUS PROGRAM GRANT FOR PREPARATION
OF A STATION AREA AND LAND USE PLAN FOR THE
DOWNTOWN /CENTRAL PROJECT AREA
WHEREAS, the Redevelopment Agency of the City of South San Francisco (the
"Agency ") has responsibility for implementing the Redevelopment Plan for the
Downtown/Central Redevelopment Project Area. (the "Project Area "), pursuant to
California Community Redevelopment Law, Health and Safety Code Section 33000 et
seq. (the "CRL ");
WHEREAS, the Agency Board has considered the staff report accompanying this
Resolution, and has determined that it would be beneficial to participate in the Station
Area and Land Use Planning Program, as described in the Staff Report;
WHEREAS, the undertaking of planning activities as described in the Staff
Report is consistent with the revitalization goals for the Project Area as set forth in the
Redevelopment Plan adopted for the Project Area and the Implementation Plan adopted
in connection therewith:
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the
City of South San Francisco as follows:
1. The Agency hereby approves the expenditure of tax increment funds in an amount
not -to- exceed $187,500 for the purpose of providing mandatory local cash matching
funds for a grant from MTC /ABAG in the maximum amount of $750,000 for the
preparation of a Station Area and Land Use Plan for the Downtown/Central Project Area.
2. The Executive Director of the Agency is authorized to execute such documents
and take such actions as necessary to carry out the intent of this Resolution.
*
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Agency Secretary
I hereby certify that the foregoing Resolution was regularly introduced and
adopted by the Redevelopment Agency of the City of South San Francisco at a
meeting held on the day of , 2011 by the following vote:
11 S44
y
0
Redevelopment Agency
StaffReport
DATE: February 9, 2011
TO: City Council and Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: RESOLUTIONS APPROVING ASSIGNMENT OF GENENTECH OWNER
PARTICIPATION AGREEMENT TO HCP AND AUTHORIZING THE
REDEVELOPMENT AGENCY TO ASSIGNS ITS RIGHTS AND
OBLIGATIONS UNDER THE OWNER PARTICIPATION AGREEMENT
TO THE CITY IN THE EVENT THE REDEVELOPMENT AGENCY IS
TERMINATED DURING THE TERM OF THE OPA
RECOMMENDATION
It is recommended that the City Council and the Redevelopment Agency Board adopt a
resolution approving an Agreement assigning the rights and obligations of Genentech, Inc.
( "Genentech ") and Genentech Oyster Point, LLC ( "Genentech Oyster Point ") to HCP Life
Science REIT, Inc., or its affiliate ( "HCP ") under that certain Owner Participation Agreement
between the Agency, Genentech and Genentech Oyster Point and also authorizing the City to
be designated as the Assignee of any rights and obligations currently held by the
Redevelopment Agency in the event the Redevelopment Agency is terminated by action of the
State government.
BACKGROUND /DISCUSSION
The Agency approved an Owner Participation Agreement ( "OPA ") with Hines Oyster Point LLC
( "Hines ") in November of 2000. In 2004, Hines sold its rights and interests in the Office Parcels to
Genentech, and retained ownership of the Hotel Parcel. According to the terms of the OPA no sale or
assignment may occur without the Agency's prior written consent. In September, 2004, the Agency
provided its written consent to the assignment of the Office Parcels from Hines to Genentech.
Subsequently, on May 3, 2007, HMS Oyster Point, LLC, a Delaware limited liability company
(previously known as Hines) transferred its rights and interests in the Hotel Parcel to HMS Oyster
Point 4, LLC. Genentech Oyster Point became the owner of the Hotel Parcel as the successor by
merger to HMS Oyster Point 4, LLC, a Delaware limited liability company.
Genentech and Genentech Oyster Point now wish to transfer its rights and obligations under the OPA
to a new assignee HCP. The attached Assignment and Assumption and Notice of Transfer satisfies
the obligation for written notice and has been reviewed by staff and legal counsel. No other terms of
1585258.1
Staff Report
Subject: Resolution Approving Assignment of Genentech Owner Participation Agreement
Page 2
the OPA are affected by this assignment of rights.
In addition, the State is presently considering a proposal to end Redevelopment Agencies. Thus, in
the event that the Redevelopment Agency ceases to exist, this agreement authorizes the Agency to
assign its rights and obligations under this agreement to the City of South San Francisco. Genentech,
Genentech Oyster Point and HCP all agree with this assignment.
CONCLUSION
Staff recommends the City Council and Redevelopment Agency Board approve the resolutions (1) approving
the Agreement assigning the rights of Genentech and Genentech Oyster Point to HCP and (2) authorizing
the Redevelopment Agency to assign its rights and obligations under the Owner Participation Agreement to
the City effective upon termination of the Redevelopment Agency.
}
By: (/ -C,L-- % ove :
y � � .�A�ppr d
Marty Van Duyn
Assistant Executive 'rector
Attachment: Resolutions
C
rry M. Nagel
Executive Director
RESOLUTION NO
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING THE CITY TO ACCEPT AN ASSIGNMENT OF
RIGHTS AND OBLIGATIONS OF THE SOUTH SAN FRANCISCO
REDEVELOPMENT AGENCY IN THE OPA ASSIGNED TO HCP LIFE SCIENCE
REIT, INC. IN THE EVENT THE SOUTH SAN FRANCISCO REDEVELOPMENT
AGENCY IS TERMINATED DURING THE TERM OF THE OPA
WHEREAS, the Redevelopment Agency of the City of South San Francisco (the
"Agency ") entered into a Owner Participation Agreement ( "OPA ") with Hines Oyster Point,
LLC ( "Hines ") dated November 21, 2000, recorded in the official records of the County of San
Mateo, California (the "Official Records ") on April 20, 2001, as Document No. 2001- 054835 as
amended by that certain First Amendment to Owner Participation Agreement dated September
26, 2001 recorded in the Official Records on December 6, 2001, as Document No 2001 - 197921
(collectively, the "OPA "), which relates development of Parcel 1 of Parcel Map No. 97 -027 as
recorded in Volume 70, pages 33 -40, Official Records ( "Parcel 1 "); and
WHEREAS, after the execution of the OPA, Parcel 1 was subdivided into six (6) separate
parcels, referred to in the OPA as the "Office Parcels" and "Hotel Parcel ", respectively
(collectively, the "Parcels "); and
WHEREAS, on September 8, 2004 Hines transferred its rights and interests in the Office
Parcels to Genentech, Inc., a Delaware corporation ( "Genentech ") by entering into a Assignment
and Assumption and Notice of Transfer of the Owner Participation Agreement; and
WHEREAS, on September 8, 2004, the Agency approved of the assignment and transfer
of the Office Parcels from Hines to Genentech; and
WHEREAS, on May 3, 2007, HMS Oyster Point, LLC, a Delaware limited liability
company (previously known as Hines Oyster Point, LLC) transferred its rights and interests in
the Hotel Parcel to HMS Oyster Point 4, LLC, a Delaware limited liability company by entering
into a Assignment and Assumption Agreement; and
WHEREAS, Genentech Oyster Point, LLC, a Delaware limited liability company
( "Genentech Oyster Point ") is the successor by merger to HMS Oyster Point 4, LLC, a Delaware
limited liability company; and
WHEREAS, now Genentech and Genentech Oyster Point wish to transfer its rights and
interests in the Parcels to HCP Life Science REIT, Inc., or its affiliate; and
WHEREAS, Section 5.3 of the OPA requires the Agency to provide its written approval
of any transfer of rights.
1585230.1
WHEREAS, the Governor has proposed and the State Legislature is considering
legislation that would terminate redevelopment agencies.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
South San Francisco that it hereby:
1. Authorizes the acceptance of assignment of rights and obligations of the Redevelopment
Agency in the OPA to the City of South San Francisco in the event and at such time that the
South San Francisco Redevelopment Agency is terminated during the term of the OPA.
2. Authorizes the City Manager to undertake such actions and to execute such instruments
as may be necessary or desirable in order to carry out the intent of this Resolution.
*
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City
Council of the City of South San Francisco at a meeting held on the day of
, 2011 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
1585230.1 2
7
City Clerk
RESOLUTION NO.
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION APPROVING AN ASSIGNMENT AND ASSUMPTION AND
NOTICE OF TRANSFER AGREEMENT BETWEEN GENENTECH, INC.,
GENENTECH OYSTER POINT, LLC, AND HCP LIFE SCIENCE REIT, INC.
WHEREAS, the Redevelopment Agency of the City of South San Francisco (the
"Agency ") entered into a Owner Participation Agreement ( "OPA ") with Hines Oyster Point,
LLC ( "Hines ") dated November 21, 2000, recorded in the official records of the County of San
Mateo, California (the "Official Records ") on April 20, 2001, as Document No. 2001 - 054835 as
amended by that certain First Amendment to Owner Participation Agreement dated September
26, 2001 recorded in the Official Records on December 6, 2001, as Document No 2001 - 197921
(collectively, the "OPA "), which relates development of Parcel 1 of Parcel Map No. 97 -027 as
recorded in Volume 70, pages 33 -40, Official Records ( "Parcel 1"); and
WHEREAS, after the execution of the OPA, Parcel 1 was subdivided into six (6) separate
parcels, referred to in the OPA as the "Office Parcels" and "Hotel Parcel ", respectively
(collectively, the "Parcels "); and
WHEREAS, on September 8, 2004 Hines transferred its rights and interests in the Office
Parcels to Genentech, Inc., a Delaware corporation ( "Genentech ") by entering into a Assignment
and Assumption and Notice of Transfer of the Owner Participation Agreement; and
WHEREAS, on September 8, 2004, the Agency approved of the assignment and transfer
of the Office Parcels from Hines to Genentech; and
WHEREAS, on May 3, 2007, HMS Oyster Point, LLC, a Delaware limited liability
company (previously known as Hines Oyster Point, LLC) transferred its rights and interests in
the Hotel Parcel to HMS Oyster Point 4, LLC, a Delaware limited liability company by entering
into a Assignment and Assumption Agreement; and
WHEREAS, Genentech Oyster Point is the successor by merger to HMS Oyster Point 4,
LLC, a Delaware limited liability company; and
WHEREAS, now Genentech and Genentech Oyster Point, LLC, a Delaware limited
liability company ( "Genentech Oyster Point ") wish to transfer its rights and interests in the
Parcels to HCP Life Science REIT, Inc., or its affiliate ( "HCP "); and
WHEREAS, Section 5.3 of the OPA requires the Agency to provide its written approval
of any transfer of rights.
1585228.1 1
3
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the
City of South San Francisco that it hereby:
1. Approves the Assignment and Assumption from Genentech and Genentech Oyster Point
to HCP attached hereto as Exhibit A.
2. Authorizes the assignment of any rights and obligations that the Agency possesses under
the OPA to the City of South San Francisco in the event that the South San Francisco
Redevelopment Agency is terminated during the term of the OPA.
3. Authorizes the Executive Director to undertake such other actions and to execute such
other instruments as may be necessary or desirable in order to carry out the intent of this
Resolution.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by
the Redevelopment Agency of the City of South San Francisco at a meeting
held on the day of , 2011 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
1585228.1 2
4
ATTEST:
Agency Secretary
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Genentech, Inc.
1 DNA Way, M/S 49
South San Francisco, CA 94080
Attn: Margaret N. Fitzgerald, Esq.
ASSIGNMENT AND ASSUMPTION
AND NOTICE OF TRANSFER
(OWNER PARTICIPATION AGREEMENT)
This Assignment and Assumption and Notice of Transfer (Owner Participation
Agreement) (the "Assignment") is entered into as of , 2011, by and
among GENENTECH, INC., a Delaware corporation and GENENTECH OYSTER POINT,
LLC., a Delaware limited liability company (collectively, "Assignor "), and
[ 1, a Delaware limited liability company ( "Assignee ").
RECITALS
A. This Assignment relates to that certain Owner Participation Agreement
between Assignor and the City of South San Francisco Redevelopment Agency (the "Agency ")
dated November 21, 2000 recorded in the official records of the County of San Mateo,
California (the "Official Records ") on April 20, 2001, as Document No. 2001- 054835 as
amended by that certain First Amendment to Owner Participation Agreement dated September
26, 2001 recorded in the Official Records on December 6, 2001, as Document No 2001 - 197921
(collectively, the "OPA "), which relates to Parcel 1 of Parcel Map No. 97 -027 as recorded in
Volume 70, pages 33 -40, Official Records ( "Parcel 1").
B. After the execution of the OPA, Parcel 1 was subdivided into six (6)
separate parcels. Assignor, as seller, and Assignee, as buyer, have entered into a purchase and
sale agreement by which Assignor will sell and transfer to Assignee all six (6) parcels of real
property, as more particularly described on Schedule 1 attached hereto (referred to in the OPA as
the "Office Parcels" and "Hotel Parcel ", respectively) (collectively, the "Parcels ").
C. Sections 5.3 — 5.5 of the OPA allow Assignor to transfer the Parcels to
Assignee so long as Assignor assigns and conveys all of its right, title, interest and obligations
under the OPA relating to the Parcels to Assignee and Assignee assumes the payment and
performance of all of the covenants, debts, duties, liabilities and obligations of Assignor under
the OPA with respect to the Parcels.
5
D. Section 5.4 of the OPA requires that any transferee of any part of Parcel 1
"shall be subject to all of the Conditions of Approval, Mitigation and Monitoring Measures,
conditions of approval and mitigation and monitoring measures required in connection with
future approvals for the Project or the development of the Property, covenants, obligations and
restrictions of this Agreement which pertain to such portion of the Property and Improvements
transferred."
E. This Assignment is executed by Assignor and Assignee and delivered to
Agency for its written approval required by Section 5.3 of the OPA.
AGREEMENT
1. Assignor hereby sells, assigns and transfers unto Assignee, all of
Assignor's rights, title and interest in and under the OPA, to have and to hold the same unto
Assignee, its successors and assigns from and after the date hereof for all of the rest of any term
thereof, subject to the covenants, conditions and terms thereof.
2. Assignee, by its acceptance of this Assignment, hereby expressly assumes
all of the covenants and obligations of Assignor under the OPA relating to the Parcels, and
agrees to be subject to all of the conditions and restrictions to which Assignor is subject as a
result of the OPA. This Assignment shall be binding on Assignee and Assignor and their
respective heirs, executors, administrators, successors in interest and assigns.
3. This Assignment is subject to the approval of the Agency. Upon receiving
the approval of the Agency to this Assignment and recordation of this Assignment as required by
the OPA, Assignor shall have no further benefit for those benefits, or obligation for those
obligations, set forth in the OPA.
4. Assignor represents and warrants to Assignee that (i) Assignor has the
legal power, right and authority to enter into this Assignment, (ii) the OPA is in full force and
effect, (iii) to the best of Assignor's knowledge, Assignor and the Agency are not in default
under the OPA, and (iv) Assignor has received no notice that any event has occurred which with
the giving of notice or the passage of time, or both, would constitute a default of Assignor or the
Agency under the OPA.
5. Assignor represents and warrants to Assignee that the penalty sums to the
City set forth in Section 2.10 of the OPA have been paid in full.
6. Assignee represents and warrants to Assignor that Assignee has the legal
power, right and authority to enter into this Assignment.
7. Assignor and Assignee agree and authorize the assignment of any rights
and obligations that the Agency possesses under the OPA to the City of South San Francisco in
the event that the South San Francisco Redevelopment Agency is terminated during the term of
the OPA.
[SIGNATURE PAGE FOLLOWS]
6
2
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
this day of , 2011.
ASSIGNOR:
ASSIGNEE:
GENENTECH, INC.
a Delaware limited liability company
By:
Name:
Title:
GENENTECH OYSTER POINT, LLC.,
a Delaware limited liability company
By: Genentech, Inc.,
a Delaware corporation,
its Managing Member
By:
Name:
Title:
[ 1,
a Delaware limited liability company
By:
Name:
Title:
[SIGNATURE PAGE CONTINUES]
7
3
This Assignment and transfer of the Parcels to Assignee are hereby approved by the
Agency. Furthermore, Agency hereby confirms to Assignee that (i) the OPA is in full force and
effect, and (ii) Agency is not aware of any default of Agency or Assignor under the OPA.
Furthermore, Agency authorizes the assignment of any rights and obligations that the Agency
possesses under the OPA to the City of South San Francisco in the event that the South San
Francisco Redevelopment Agency is terminated during the terns of the OPA.
AGENCY:
CITY OF SOUTH SAN FRANCISCO
REDEVELOPMENT AGENCY
By:
Name:
Title:
[ACKNOWLEDGEMENTS FOLLOW]
R
4
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer), personally appeared _
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer), personally appeared _
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
9
5
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer), personally appeared _
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA
COUNTY OF
On , before me,
(here insert name and title of the officer), personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
10
6
Real property in the City of South San Francisco, County of San Mateo, State of
California, described as follows:
Parcel One:
Parcel A, as shown on the map entitled, "Parcel Map No. 00-60", filed September 23, 2002 in
Book 74 of Parcel Maps, Pages 47 through 48, inclusive, San Mateo County Records.
Assessor's Parcel No.: 015- 010 -740
Parcel Two:
Parcels B, C, D, E and F, as shown on the Map entitled "Parcel Map No. 00- 060 ", filed
September 23, 2002, Book 74 of Parcel Maps, Pages 47 through 48, inclusive, San Mateo
County Records.
Assessor's Parcel Nos.: 015- 010 -750; 015- 010 -760; 015- 010 -770; 015- 010 -780 and 015 -010-
790
Parcel Three:
Parcel Four:
Schedule 1
Non - exclusive easements appurtenant to Parcels One and Two above, for the purposes set forth
in 4(b)(i), 4(b)(ii), 4(b)(v) and 4(b)(vi) of the Declaration of Covenants, Conditions, Restrictions
and Reciprocal Easements for Shearwater Project Recorded January 22, 1998, Instrument No.
98- 008276, San Mateo County Records.
Amended and Restated Declaration Recorded August 28, 2009, as Instrument No. 2009 - 116231.
Non - exclusive easements appurtenant to Parcels One and Two above, for the purposes set forth
in Section 2 of the Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements
for Shearwater Project Recorded September 23, 2002, Instrument No. 2002 - 188161, San Mateo
County Records, and that certain amended and Restated Reciprocal Easement Agreement,
Recorded concurrently herewith.
11
7
8 s,�
Redevelopment Agency
StaffReport
DATE: February 9, 2011
TO: Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: RESOLUTION APPROVING THE ACQUISTTION OF PROPERTY
LOCATED AT 636 EL CAMINO REAL; APPROVING THE DISPOSITION
OF SUCH PROPERTY PURSUANT TO GROUND LEASES TO TWO MID -
PENINSULA HOUSING CORPORATION AFFILIATES; APPROVING THE
REPORT REQUIRED IN CONNECTION WTTH SUCH DISPOSITION BY
HEALTH AND SAFETY CODE SECTION 33433; APPROVING THE
PROVISION OF LOANS FOR DEVELOPMENT OF THE PROPERTY;
APPROVING THE FORM OF THE LOAN AGREEMENTS, PROMISSORY
NOTES, DEEDS OF TRUST, AFFORDABLE HOUSING REGULATORY
AGREEMENTS, AND RELATED DOCUMENTS; AUTHORIZING THE
REGULATORY AGREEMENTS AND DEEDS OF TRUST TO BE
SUBORDINATED TO CONSTRUCTION LENDERS; ADOPTING
FINDINGS IN CONNECTION WITH THE FOREGOING TRANSACTIONS;
AUTHORIZING THE EXECUTION OF AN EASEMENT AND JOINT USE
AGREEMENT; AND AUTHORIZING THE EXECUTION OF A MASTER
LEASE FOR THE RETAIL /COMMERCIAL SPACE TO BE DEVELOPED
ON THE PROPERTY
RECOMMENDATION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing
(i) the acquisition of property at 636 El Camino Real; (ii) approving the disposition of such
property pursuant to ground leases to two Mid - Peninsula Housing Corporation affiliates;
(iii) approving the report required in connection with such disposition by Health and Safety
Code Section 33433; (iv) approving the provision of loans for development of the property;
(v) approving the form of the loan agreements, promissory notes, deeds of trust, affordable
housing regulatory agreements and related documents to be executed in connection with
such loans; (vi) authorizing the regulatory agreements and deeds of trust to be
subordinated to construction lenders; (vii) adopting findings in connection with the
foregoing transactions; (viii) authorizing the execution of an easement and joint use
agreement; and (ix) authorizing the execution of a master lease for the retail/commercial
space to be developed on the property.
Staff Report
Subject: Acquisition of 636 El Camino Real, Ground Lease and Loans
Page 2
BACKGROUND /DISCUSSION
On September 24, 2008, the Redevelopment Agency of the City of South San Francisco (Agency)
and MP South City L.P., (MPSC), an affiliate of Mid - Peninsula Housing Corporation, entered into
an Owner Participation and Loan Agreement (OPA) to develop a mixed -use, affordable rental
housing project at the trailer park next to South San Francisco High School (636 El Camino Real).
The proposed development presents the City and Agency with an excellent opportunity to
revitalize a blighted area of El Camino Real and address the housing needs of very low- and low -
income families in South San Francisco.
In September, 2008, the Agency provided MPSC with a $4,950,000 loan to purchase the two -acre
site and pay for predevelopment expenses ($4,470,000 for acquisition and $480,000 for
predevelopment expenses). Following approval of the OPA, MPSC hired BAR Architects to
design a mixed -use project with 109 residential units and 5,000 square feet of commercial space.
The Planning Commission reviewed the project on June 3, 2010 and the City Council approved it
on June 23, 2010.
On June 23, 2010, the Redevelopment Agency Board also approved $9,509,000 in loans to two
affiliates of Mid - Peninsula Housing Corporation for the development of the project contingent on
Mid - Peninsula Housing Corporation being able to secure tax credits for the project. Although the
development is one project, it will be split into two phases for the purposes of financing —one
phase would be financed with 9% tax credits and the other with 4% tax credits. Both phases would
be built simultaneously.
Because of the high level of Agency funding required for the project, the Agency Board also
approved an Agency option to purchase the property from MPSC for the $4,470,000 original
acquisition price. Upon Agency's acquisition of the land, MPSC's original loan of $4,950,000 will
decrease by the acquisition price, resulting in a total loan to Mid-Peninsula Housing Corporation
affiliates in the amount of $9,989,000 ($480,000 predevelopment loan and $9,509,000 construction
loan). In return for ownership, the Agency agreed to lease the land to the two Mid - Peninsula
Housing Corporation affiliates for 75 years. The Agency Board also approved an Agency option to
master lease the retail /commercial space to be developed as part of the project.
Last September, the State of California notified Mid - Peninsula Housing Corporation that it had
been awarded $15,279,682 in 9% tax credits for the development of phase A. With notification of
the 9% tax credit award, funding for both phases is now in place and groundbreaking will occur at
the end of February. The development budgets and the additional sources of financing for each
phase of the project are described in financing plans attached as exhibits to the Loan Agreements.
These additional sources include conventional construction financing, County HOME /CDBG
funds, Genentech/HEART funds, tax - exempt bond financing and 4% tax credits for phase B, and
State of California MHSA funds.
Staff Report
Subject: Acquisition of 636 El Camino Real, Ground Lease and Loans
Page 3
FUNDING
On June 23, 2011, the Agency Board authorized the loan funds and approved a budget amendment to
the Agency's Low/Mod Housing Operating Budget. No additional funds are necessary.
CONCLUSION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing (i) the
acquisition of property at 636 El Camino Real; (ii) approving the disposition of such property
pursuant to ground leases to two Mid - Peninsula Housing Corporation affiliates; (iii) approving
the report required in connection with such disposition by Health and Safety Code Section 33433;
(iv) approving the provision of loans for development of the property; (v) approving the form of
the loan agreements, promissory notes, deeds of trust, affordable housing regulatory agreements
and related documents to be executed in connection with such loans; (vi) authorizing the
regulatory agreements and deeds of trust to be subordinated to construction lenders; (vii) adopting
findings in connection with the foregoing transactions; (viii) authorizing the execution of an
easement and joint use agreement; and (ix) authorizing the execution of a master lease for the
retail /commercial space to be developed on the property.
Approval will result in Agency ownership of the land valued at $4,470,000, an Agency master
lease of the retail /commercial space to be constructed, and outstanding loans to two Mid -
Peninsula Housing Corporation affiliates equal to a total of $9,989,000.
arty Van Duyn : arry M. Nagel
Executive Director
Assistant Executive Director
Attachment: Resolution
Reuse Report (33433 Report)
Phase A Ground Lease
Phase A Loan Agreement
Note (Exhibit B)
Leasehold Deed of Trust (Exhibit C)
Regulatory Agreement (Exhibit D)
Assignment Agreement (Exhibit E)
Master Lease Agreement (Exhibit F)
Financing Plan (Exhibit G)
Approv
Staff Report
Subject: Acquisition of 636 El Camino Real, Ground Lease and Loans
Page 4
BMN:MVD:AFS
1464588.2
Phase B Ground Lease
Phase B Loan Agreement
Note (Exhibit B)
Leasehold Deed of Trust (Exhibit C)
Regulatory Agreement (Exhibit D)
Assignment Agreement (Exhibit E)
Financing Plan (Exhibit F)
Easement and Joint Use Agreement
Subordination Agreement (Union Bank)
Ground Lessor Estoppel Certificate (Union Bank)
Lease Rider Agreement (Ca1HFA)
Subordination, Nondisturbance and Attornment Agreement (Union Bank)
RESOLUTION NO
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION APPROVING THE ACQUISITION OF PROPERTY LOCATED
AT 636 EL CAMINO REAL; APPROVING THE DISPOSITION OF SUCH
PROPERTY PURSUANT TO GROUND LEASES TO TWO MID - PENINSULA
HOUSING CORPORATION AFFILIATES; APPROVING THE REPORT
REQUIRED IN CONNECTION WITH SUCH DISPOSITION BY HEALTH AND
SAFETY CODE SECTION 33433; APPROVING THE PROVISION OF LOANS
FOR DEVELOPMENT OF THE PROPERTY; APPROVING THE FORM OF
THE LOAN AGREEMENTS, PROMISSORY NOTES, DEEDS OF TRUST,
AFFORDABLE HOUSING REGULATORY AGREEMENTS, AND RELATED
DOCUMENTS; AUTHORIZING THE REGULATORY AGREEMENTS AND
DEEDS OF TRUST TO BE SUBORDINATED TO CONSTRUCTION LENDERS;
ADOPTING FINDINGS IN CONNECTION WITH THE FOREGOING
TRANSACTIONS; AUTHORIZING THE EXECUTION OF AN EASEMENT
AND JOINT USE AGREEMENT; AND AUTHORIZING THE EXECUTION OF
A MASTER LEASE FOR THE RETAIL /COMMERCIAL SPACE TO BE
DEVELOPED ON THE PROPERTY
WHEREAS, the Redevelopment Agency of the City of South San Francisco
( "Agency ") is a redevelopment agency existing pursuant to the Community
Redevelopment Law, California Health and Safety Code Section 33000, et seq. (the
"CRL "), and pursuant to the authority granted thereunder, has the responsibility to carry
out the Redevelopment Plan (the "Redevelopment Plan ") for the El Camino Corridor
Redevelopment Project Area (the "Project Area");
WHEREAS, MP South City, L.P., a California limited partnership ("MP"), an
affiliate of Mid - Peninsula Housing Corporation, a California nonprofit public benefit
corporation owns that certain real property located in the City of South San Francisco
adjacent to the Project Area at 636 El Camino Real and known as San Mateo County
Assessor's Parcel No. 014- 160 -040 (the "Property ");
WHEREAS, MP purchased the Property using Agency financing pursuant to an
Owner Participation and Loan Agreement dated as of November 19, 2008 and executed
by and between the Agency and MP (the "OPA ");
WHEREAS, pursuant to the OPA, the Agency provided an
acquisition /predevelopment loan to MP in the amount of Four Million Nine Hundred
Fifty Thousand Dollars ($4,950,000) (the "Acquisition /Predevelopment Loan ") using
1584105.2 1
r
funds from the Agency's Low and Moderate - Income Housing Set -Aside Fund ( "Housing
Fund ");
WHEREAS, on June 23, 2010, MP and the Agency executed an Option and
Purchase and Sale Agreement (the "Option Agreement ") pursuant to which the Agency
has the right to acquire the Property provided that the Agency concurrently leases the
Property back to the Developers (defined below) for development of the Project (defined
below);
WHEREAS, the Agency desires to exercise its option to purchase the Property in
exchange for forgiveness of $4,470,000 of the outstanding Acquisition/Predevelopment
Loan which sum is equal to the original purchase price for the Property;
WHEREAS, concurrently with the Agency's acquisition of the Property, the
Agency proposes to ground lease a portion of the Property (the "Phase A Parcel ") to MP
pursuant to a ground lease (the "Phase A Ground Lease ") with a term of seventy -five
(75) years, for construction of a mixed -use residential development (the "Phase A
Project ") consisting of sixty -two (62) units of multi - family rental housing, common
areas, a subterranean parking garage, and approximately 5,700 square feet of
commercial /retail space together with surface parking spaces dedicated for use by the
tenants and invitees of the commercial /retail space (the "Retail/Commercial
Component "), and related improvements;
WHEREAS, concurrently with the execution of the Phase A Ground Lease, the
Agency proposes to enter into a master lease (the "Master Lease ") pursuant to which
MP would lease the Retail /Commercial Component back to the Agency for the full term
of the Phase A Ground Lease;
WHEREAS, the Agency proposes to ground lease the remainder of the Property
(the "Phase B Parcel ") to MP South City II, L.P., a California limited partnership, an
affiliate of Mid - Peninsula Housing Corporation ( "MP Ii" and collectively with MP,
hereafter, the "Developers ") pursuant to a ground lease (the "Phase B Ground Lease ")
with a term of seventy -five (75) years, for construction of a multi - family development
consisting of forty-seven (47) units of multi - family rental housing, common areas, a
subterranean parking garage, and related improvements (the "Phase B Project ", and
collectively with the Phase A Project, hereafter, the "Project ");
WHEREAS, to assist in financing the construction of the Project, the Developers
have requested, and the Agency has agreed to provide, consistent with actions approved
by the Agency by resolution adopted June 23, 2010, construction/permanent financing in
the form of residual receipts loans to MP in the amount of $4,290,373 (the "Phase A
Loan ") and to MP II in the amount of $5,698,627 (the "Phase B Loan ");
WHEREAS, in connection with the Phase A Ground Lease and the Phase A Loan,
MP has agreed to restrict 61 of the residential units in the Phase A Project for occupancy
by low- and moderate - income households for a period of 75 years pursuant to an
1584105.2 2
Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants by
and between the Agency and MP (the "Phase A Regulatory Agreement ");
WHEREAS, in connection with the Phase B Ground Lease and the Phase B Loan,
MP II has agreed to restrict 47 of the residential units in the Phase B Project for
occupancy by low- and moderate - income households for a period of 75 years pursuant to
an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
by and between the Agency and MP II (the "Phase B Regulatory Agreement ");
WHEREAS, MP and Agency staff have negotiated the terms of the Master Lease,
the Phase A Regulatory Agreement, the Phase A Ground Lease, a loan agreement (the
"Phase A Loan Agreement "), a Secured Promissory Note (the "Phase A Note ") to be
executed by MP to evidence its obligation to repay the Phase A Loan, a Leasehold Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Phase A
Deed of Trust ") pursuant to which the Agency will be provided a security interest in the
Phase A Project to secure repayment of the Phase A Loan and compliance with the Phase
A Regulatory Agreement, and an Assignment Agreement (the "Phase A Assignment
Agreement ") pursuant to which the Agency will be provided a security interest in the
Phase A Project plans, subject to the rights of senior lenders;
WHEREAS, MP II and Agency staff have negotiated the terms of the Phase B
Regulatory Agreement, the Phase B Ground Lease, a loan agreement (the "Phase B
Loan Agreement "), a Secured Promissory Note (the "Phase B Note ") to be executed by
MP II to evidence its obligation to repay the Phase B Loan, a Leasehold Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing (the "Phase B Deed of
Trust ") pursuant to which the Agency will be provided a security interest in the Phase B
Project to secure repayment of the Phase B Loan and compliance with the Phase B
Regulatory Agreement, and an Assignment Agreement (the "Phase B Assignment
Agreement" and collectively with the Phase A Assignment Agreement, hereafter the
"Assignment Agreements ") pursuant to which the Agency will be provided a security
interest in the Phase B Project plans, subject to the rights of senior lenders;
WHEREAS, in connection with the lease of the Property to the Developers, the
Agency and the Developers propose to execute and record an easement and joint use
agreement (the "REA ") pursuant to which the present and future owners of the Phase A
Parcel and the Phase B Parcel would grant to each other certain reciprocal access,
stormwater and utility easements and would accept certain restrictions upon the use of the
Retail /Commercial Component consistent with the Project's residential character;
WHEREAS, CRL Section 33433 provides that prior to a redevelopment agency's
sale of property acquired with tax increment funds (i) the agency must prepare and make
available to the public a report (the "Reuse Report ") describing the terms of the sale and
development of the property, (ii) the legislative body must hold a public hearing
following notice, and (iii) the legislative body must approve the conveyance by a
resolution adopting specified findings;
1584105.2 3
3
WHEREAS, the Agency has caused a Reuse Report to be prepared, and the
Agency and the City have caused notice to be published and have conducted public
hearings in accordance with all legal requirements;
WHEREAS, the City Council has approved the Reuse Report, has adopted the
findings required by CRL Section 33433, and has approved the lease of the Property
pursuant to the Phase A Ground Lease and the Phase 13 Ground Lease;
WHEREAS, Union Bank, N.A. (the "Bank ") will provide a construction/
permanent loan to partially finance the Phase A Project;
WHEREAS, the California Municipal Finance Authority, a joint exercise of
powers agency ( "CMFA ") will issue tax - exempt bonds to partially finance the Phase B
Project, and the Bank, acting as CMFA's agent, will provide construction/permanent
financing for the Phase B Project;
WHEREAS, the Bank has asked the Agency to subordinate certain documents
executed in connection with the Agency's conveyance of the Property and financing of
the Project, including the Phase A and Phase B Regulatory Agreements and the Phase A
and Phase B Deeds of Trust (collectively, the "Agreements ") as more particularly set
forth in proposed Subordination Agreements, and has indicated that it is unwilling to
provide construction and permanent financing for the Project without such subordination;
WHEREAS, the Developer has indicated that it has been unable to find alternate
sources that would enable it to finance the Project without such subordination;
WHEREAS, Health and Safety Code Section 33334.14 permits subordination of
redevelopment agency affordability restrictions provided that: (i) the agency makes a
finding that alternative financing is not reasonably available on economically feasible
terms without subordination, and (ii) the agency obtains written commitments to protect
its investment in the event of a default;
WHEREAS, the proposed Subordination Agreement will provide the Agency
with rights to receive notice and to cure defaults arising under the senior loan documents,
and will provide the Agency with certain other protections in connection with the senior
loan documents; and
WHEREAS, the Project will be of benefit to the Project Area because it will
increase the supply of housing that is affordable to low- and moderate - income residents
of the Project Area and the City.
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency
of the City of South San Francisco that it hereby:
1. Approves the Agency's purchase of the Property pursuant to the Option
Agreement.
1584105.2 4
2. Finds that the development of the Property in accordance with the Phase A and
Phase B Ground Leases and the provision of the Phase A and Phase B Loans for the
Project will facilitate the development of housing for low, very low- and moderate -
income households, will be of benefit to the Project Area, will further the goals of the
Redevelopment Plan, and will be consistent with the implementation plan adopted in
connection therewith.
3. Finds that the consideration to be paid by the Developers pursuant to the Phase A
and Phase B Ground Leases is not less than the fair reuse value as documented in the
Reuse Report.
4. Approves the Reuse Report.
5. Approves the lease of the Property pursuant to the Phase A Ground Lease and the
Phase B Ground Lease.
6. Approves the provision of the Phase A Loan and the Phase B Loan pursuant to the
terms and conditions set forth in the Phase A Loan Agreement and the Phase B Loan
Agreement.
7. Approves the Phase A Ground Lease, the Master Lease, the Phase A Loan
Agreement, the Phase A Note, the Phase A Deed of Trust, the Phase A Regulatory
Agreement, and authorizes the Agency Executive Director or his designee to execute
each such document to which the Agency is a party substantially in the forms presented
to the Agency governing board and on file with the Agency Secretary, with such
modifications as may be approved by the Executive Director in consultation with Agency
Counsel, provided such modifications do not materially or substantially increase the
Agency's obligations thereunder.
8. Approves the Phase B Ground Lease, the Phase B Loan Agreement, the Phase B
Note, the Phase B Deed of Trust, and the Phase B Regulatory Agreement, and authorizes
the Agency Executive Director or his designee to execute each such document to which
the Agency is a party substantially in the forms presented to the Agency governing board
and on file with the Agency Secretary, with such modifications as may be approved by
the Executive Director in consultation with Agency Counsel, provided such
modifications do not materially or substantially increase the Agency's obligations
thereunder.
9. Finds that without subordination of the Agreements an economically feasible
alternative for financing the Project is not reasonably available and that the proposed
terms of the Subordination Agreements provide the Agency with reasonable means of
protecting the Agency's investment in the Project in the event of default.
10. Authorizes the Agency Executive Director or his designee to execute Assignment
Agreements and Subordination Agreements in such forms as are consistent with this
1584105.2 5
5
Resolution and the documents hereby approved, and which are approved by the
Executive Director in consultation with Agency Counsel.
11. Authorizes the Agency Executive Director or his del nts hereby execute an R Aan
such form as is consistent with this Resolution and the Counsel.
which is approved by the Executive Director in consultation with Agency
12. Authorizes the Executive Director to execute such hereby approved as
such other actions consistent with this Resolution and the
to carry out the intent of this Resolution, i
for the Property. t limitation, the
execution and recordation of a Certificate of Acceptance
I hereby certify that the foregoing Resolution as a l y sn arcila y s and
adopt by the Redevelopment Agency of �011 by the following vote:
held on the _day o
AYES:
NOES:
ABSTAIN:
ABSENT:
1584105.2
*
*
*
ATTEST:
6
Agency Secretary
*
SUMMARY REPORT PURSUANT TO
SECTION 33433
OF THE
CALIFORNIA COMMUNITY REDEVELOPMENT LAW
ON
THE GROUND LEASE AGREEMENT BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
AND
MP SOUTH CITY, L.P. AND THE GROUND LEASE AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN
FRANCISCO
AND
MP SOUTH CITY II, L.P.
I. INTRODUCTION
The California Health and Safety Code, Section 33433, requires that a redevelopment agency, prior
to selling or leasing property for development that was acquired in whole or in part with property
tax increment funds, secure approval of the proposed sale or lease agreement from its local
legislative body after a public hearing. A copy of the proposed sale or lease agreement and a
summary report must be available for public inspection prior to the public hearing. The summary
report must include the following information:
1. The cost of the agreement to the redevelopment agency, including land
acquisition costs, the costs of any improvements to be provided by the agency,
plus the expected interest on any loans or bonds to finance the agreement;
2. The estimated value of the interest to be conveyed or leased, determined at the
highest and best use permitted under the redevelopment plan;
3. The estimated value of the interest to be conveyed in accordance with the uses,
covenants, and development costs required under the proposed agreement with the
Agency, i.e., the reuse value of the site;
4. An explanation of why the sale or lease of the property will assist in the elimination
of blight; and
5. The purchase price or sum of the lease payments which the lessee will be required
to make during the term of the lease. If the sale price or total rental amount is less
Page 1
than the fair market value of the interest to be conveyed or leased, determined at the
highest and best use consistent with the redevelopment plan, then the agency shall
provide as part of the summary an explanation of the reasons for the difference.
This report outlines the salient parts of the Ground Lease ( "Agreement I ") to be entered into by
and between the Redevelopment Agency ( "Agency ") of the City of South San Francisco ( "City ")
and MP South City, L.P, a California limited partnership ( "MP ") and the Ground Lease
( "Agreement II ") to be entered into between the Agency and MP South City II, L.P., a California
limited partnership ( "MP II "). This report is based upon information in the proposed Agreement
and is organized into the following six sections:
1. Summary of the Proposed Agreements - This section includes a description of
the site, the proposed development and the major responsibilities of the Agency and
the developers.
2. Cost of the Agreements to the Agency - This section outlines the cost of the
agreements to the Agency and the estimated revenues that the Agency will receive
during the term of the agreements.
3. Estimated Value of the Interest to be Conveyed - This section summarizes the
value of the property to be ground leased to the developers.
4. Consideration Received and Reasons Therefor - This section describes the
value of the payments to be paid by the developers to the Agency. It also contains a
comparison of the payments and the fair market value at the highest and best use
consistent with the redevelopment plan for the interests conveyed.
5. Elimination of Blight - This section explains why the ground lease of the property
will assist in the elimination of blight and includes supporting facts and materials.
6. Conformance with Five -Year Implementation Plan - This section describes
how the agreements are in conformance with the Agency's Five -Year
Implementation Plan.
II. SUMMARY OF THE PROPOSED AGREEMENTS
A. Description of the Site and the Project
Page 2
Property
The property is located as 636 El Camino Real, and is known as San Mateo County Assessor's
Parcel No. 014 - 160 -040 ( "Property "). The Property is currently operated as a mobile home park.
The Property is located adjacent to the El Camino Corridor Redevelopment Project Area ( "Project
Area "). The Agency will purchase the Property from M.P. South City, L.P. in exchange for
forgiveness of the Agency's existing loan in the amount of $4,470,00.
Developer
The developers are MP South City, L.P., a California limited partnership and MP South City II,
L.P., a California limited partnership.
Project Description
The project is divided into two phases - Phase I and Phase II. MP will carry out the Phase I
project under Agreement I and MP II will carry out the Phase II project under Agreement II.
Phase I
Pursuant to Agreement I, the Agency will ground lease a portion of the Property ( "Phase I Parcel ")
to MP for a term of 75 years, and MP will construct a mixed -use multi- family development
consisting of sixty -two (62) units of multi - family housing, common areas, 104 parking spaces in
a subterranean garage, approximately 5,700 square feet of commercial /retail space together with
surface parking spaces dedicated for use by the tenants and invitees of the commercial /retail
space, and related improvements ( "Phase I Project "). Sixty -one of the residential units will be
subject to affordability restrictions pursuant to a regulatory agreement, and one of the residential
units will be a resident manager's unit that is not subject to affordability restrictions.
To assist in financing the construction of the Phase I Project, the Agency will provide a residual
receipts loan to MP in the amount of $4,290,373. In connection with the financing and
development of the Phase I Project, the Agency and MP will execute and record an Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants. In addition, the
Agency and MP will execute a Lease Agreement ( "Option Agreement ") pursuant to which the
Agency will master lease the commercial /retail component of the Phase I Project for $1 per
year.
Phase II
Pursuant to Agreement II, the Agency will ground lease a portion of the Property ( "Phase II
Parcel ") to MP II for a term of 75 years, and MP II will construct a multi - family development
consisting of forty -seven (47) units of multi - family housing, common areas, 86 parking spaces in
a subterranean garage, and related improvements ( "Phase II Project "). All forty -seven (47)
residential units will be subject to affordability restrictions pursuant to a regulatory agreement.
Page 3
To assist in financing the construction of the Phase II Project, the Agency will provide a residual
receipts loan to MP in the amount of $5,698,627. In connection with the financing and
development of the Phase II Project, the Agency and MP II will execute and record an
Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants.
B. Agency Responsibilities
Agreement I
Subject to MP's satisfaction of the terms and conditions thereof, the Agency's responsibilities
under Agreement I are as follows:
• Lease the Phase I Parcel to MP "as is" for a term of 75 years for One Dollar ($1) per
year.
• Provide a residual receipts loan to MP in the principal amount of $4,290,373 at a rate of
3% interest.
• At MP's request, join in the grant of easements to public or private utility companies for
utility service to and for the benefit of the Phase I Project.
• Execute a reciprocal easement agreement or joint use and access agreement pursuant to
which MP and MP II will grant reciprocal easements, including pedestrian and vehicular
access rights to the parking and common areas of their respective projects.
• Master lease the retail /commercial component of the Phase I Project for a term equal to
the term of the Phase I ground lease at a rate of $1 per year.
Agreement II
Subject to MP II's satisfaction of the terms and conditions thereof, the Agency's responsibilities
under Agreement II are as follows:
• Lease the Phase II Parcel to MP II "as is" for a term of 75 years for One Dollar ($1) per
year.
Provide a residual receipts loan to MP II in the principal amount of $5,698,627 at a rate
of 3% interest.
At MP's request, join in the grant of easements to public or private utility companies for
utility service to and for the benefit of the Phase II Project.
Execute a reciprocal easement agreement or joint use and access agreement pursuant to
which MP and MP II will grant reciprocal easements, including pedestrian and vehicular
access rights to the parking and common areas of their respective projects.
Page 4
C. Developer Responsibilities
Agreement I
MP's responsibilities under Agreement I are as follows:
• Lease the Phase I Parcel from the Agency "as is" for a term of 75 years for One Dollar
($1) per year.
•
•
•
•
Obtain the City's approval of construction plans and all necessary entitlements and
permits for the Phase I Project, including compliance with the California Environmental
Quality Act, and pay when due all customary fees and charges for processing of City
permits and approvals.
Cause its general contractor to deliver to the Agency copies of payment bond(s) and
performance bond(s) issued by a reputable insurance company licensed to do business in
California, each in a penal sum of not less than one hundred percent (100 %) of the
scheduled cost of construction of the Phase I Project.
Commence construction of the Phase I Project within thirty (30) days following the
effective date, and complete construction of the Phase I Project within twenty -four (24)
months following commencement of construction, with construction targeted to be
completed by not later than June 30, 2013. Pay prior to delinquency, all real property
taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes,
and assessments.
Rent, or make available for occupancy, no fewer than sixty -one (61) of the dwelling units
in the Phase I Project to low -, very low- and extremely low- income households at
affordable rents in accordance with the terms and conditions set forth in the Regulatory
Agreement.
Provide persons and households of low- or moderate - income who are displaced by the
Phase I Project a priority in renting the affordable units.
Provide relocation notices, benefits and assistance to households who are displaced as a
result of the Phase I Project in accordance with all state and federal relocation laws and
regulations.
Obtain from each household prior to initial occupancy of each dwelling unit in the Phase
I Project and on every anniversary thereafter, a written certificate containing the identity
of each member of the household and the total household income.
Submit an annual report to the Agency which includes the following information for
each dwelling unit in the Phase I Project: (i) initial occupancy date; (ii) the number of
persons residing in the unit; (iii) the identity of each member of the household; (iv) total
household income and (v) the monthly rent charged.
Page 5
• Properly maintain the Phase I Parcel and the Phase I Project.
•
•
•
•
•
Indemnify, defend and hold harmless Agency and City from all claims, including claims
with respect to environmental matters, concerning the Phase I Project or Agreement I,
and maintain required insurance.
Refrain from converting the Phase I Project to condominium or cooperative ownership
or sell condominium or cooperative conversion rights to the Phase I Project during the
term of Agreement I.
• Refrain from transferring or assigning the Phase I Parcel or the Phase I Project without
Agency's prior written approval.
• Comply with all applicable laws relating to the Phase I Parcel and the Phase I Project,
including environmental laws and prevailing wage laws.
• Master lease the retail /commercial component of the Phase I Project to Agency for a
term equal to the term of the Phase I ground lease at a rate of $1 per year.
Agreement II
MP II's responsibilities under Agreement II are as follows:
• Lease the Phase II Parcel from the Agency "as is" for a term of 75 years for One Dollar
($1) per year.
Obtain the City's approval of construction plans and all necessary entitlements and
permits for the Phase II Project, including compliance with the California Environmental
Quality Act, and pay when due all customary fees and charges for processing of City
permits and approvals.
Cause its general contractor to deliver to the Agency copies of payment bond(s) and
performance bond(s) issued by a reputable insurance company licensed to do business in
California, each in a penal sum of not less than one hundred percent (100 %) of the
scheduled cost of construction of the Phase II Project.
Commence construction of the Phase II Project within thirty (30) days following the
effective date, and complete construction of the Phase II Project within twenty -four (24)
months following commencement of construction, with construction targeted to be
completed by not later than June 30, 2013. Pay prior to delinquency, all real property
taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes,
and assessments.
Rent, or make available for occupancy, no fewer than forty -seven (47) of the dwelling
units in the Phase II Project to low, very low- and extremely low- income households at
affordable rents in accordance with the terms and conditions set forth in the Regulatory
Agreement.
Page 6
•
•
•
Provide persons and households of low- or moderate- income who are displaced by the
Phase II Project a priority in renting the affordable units.
Provide relocation notices, benefits and assistance to households who are displaced as a
result of the Phase II Project in accordance with all state and federal relocation laws and
regulations.
Obtain from each household prior to initial occupancy of each dwelling unit in the Phase
II Project and on every anniversary thereafter, a written certificate containing the identity
of each member of the household and the total household income.
Submit an annual report to the Agency which includes the following information for
each dwelling unit in the Phase II Project: (i) initial occupancy date; (ii) the number of
persons residing in the unit; (iii) the identity of each member of the household; (iv) total
household income and (v) the monthly rent charged.
• Properly maintain the Phase II Parcel and the Phase II Project.
•
Indemnify, defend and hold harmless Agency and City from all claims, including claims
with respect to environmental matters, concerning the Phase II Project or Agreement II,
and maintain required insurance.
Refrain from converting the Phase II Project to condominium or cooperative ownership
or sell condominium or cooperative conversion rights to the Phase II Project during the
term of Agreement II.
• Refrain from transferring or assigning the Phase II Parcel or the Phase II Project without
Agency's prior written approval.
• Comply with all applicable laws relating to the Phase II Parcel and the Phase II Project,
including environmental laws and prevailing wage laws.
III. COST OF THE AGREEMENTS TO THE AGENCY
This section presents the total potential cost of Agreement I and Agreement II to the Agency and
the total estimated revenues that the Agency will receive under the agreements.
A. Estimated Cost to the Agency
The costs to the Agency resulting from Agreement I and Agreement II relate to the following:
• The Agency will purchase the Property for $4,470,000.
• The Agency will provide a residual receipts loan to MP in the amount of $4,290,373 to
assist in financing the construction of the Phase I Project.
Page 7
• The Agency will provide a residual receipts loan to MP II in the amount of $5,698,627 to
assist in financing the construction of the Phase II Project.
The total cost to the Agency generated by this transaction is estimated to be $14,459,000.
B. Revenues to the Agency
Agreement I
The Agency will receive rental payments from MP of $1 per year during the lease term. The
Agency will also receive residual receipts payments of principal and 3% interest equal to 28% of
50% of the surplus cash generated by the Phase I project each year for at least 55 years. In
addition, as the master lessee for the commercial /retail component of the Phase I Project, the
Agency will receive revenue in the form of lease payments for the commercial /retail
component.
Agreement II
The Agency will receive rental payments from MP II of $1 per year during the lease term. The
Agency will also receive residual receipts payments of principal and 3% interest equal to 38% of
50% of the surplus cash generated by the Phase II project each year for at least 55 years.
IV. VALUE OF THE INTEREST TO BE CONVEYED
Estimated Value at Highest and Best Use
The highest and best use must satisfy zoning (El Camino Real Mixed Use), building codes,
market conditions, and the Agency requirement that development occur shortly after
commencement of the lease term. A recent appraisal has not been completed for the Property;
however, the highest and best use of the Property is likely to be a mixed -use project similar to
the Project. The estimated value of a leasehold interest in the Property at its highest and best
use is minimal given current market conditions.
Fair Reuse Value
The fair reuse value of the Property is directly a function of a specific development program as
specified in the terms and conditions of the Agreement and the development economics specific to
the proposed Project. The Agency is requiring MP and MP II to: (1) develop the Phase I and
Phase II Projects, (2) pay prevailing wages for construction of the projects, (3) restrict rental of the
residential units to eligible affordable households for a period of 55 years, and (4) master lease the
Page 8
retail /commercial component of the Project to Agency at a rate of $1 per year throughout the term
of the Agreements. The projects would not be economically feasible without Agency assistance in
the form of deeply discounted ground rent. Given these circumstances, Agreement I and
Agreement II represent the fair reuse value of the Property.
V. CONSIDERATION RECEIVED AND REASONS THEREFOR
The Agency has determined that the specific projects as provided for in Agreement I and
Agreement II offer the best complementary use with respect to surrounding uses in the Project
Area. The consideration being paid to the Agency is not less than the value of the Property at
its highest and best use or the Property's fair reuse value. Under the terms of Agreement I, the
Agency will lease the Phase I Parcel to MP for $1 per year. In addition, the Agency will provide
MP with a residual receipts loan in the amount of $4,290,373 to assist in financing the
construction of the Phase I Project. In return, MP will invest approximately $28 million to
construct 62 residential units, 61 of which will be restricted under the Regulatory Agreement,
104 parking spaces in a subterranean garage, common facilities including laundry facilities,
recreational space, and approximately 5,700 square feet of commercial /retail space together with
surface parking spaces dedicated for use by the tenants and invitees of the commercial /retail
space. The Agency will also master lease the retail space at a rate of $1 per year for the term of
Agreement I.
Under the terms of Agreement II, the Agency will lease the Phase II Parcel to MP II for $1 per
year. In addition, the Agency will provide MP II with a residual receipts loan in the amount of
$5,698,627 to assist in financing the construction of the Phase II Project. In return, MP II will
invest approximately $19 million to construct 47 residential units, all of which will be restricted
under the Regulatory Agreement, 86 parking spaces in a subterranean garage, and common
areas.
The Phase I and Phase II Projects will further the Agency's goals by creating an attractive
environment for South San Francisco residents, stimulating private sector investment in the
area, providing affordable housing and providing retail space along the El Camino Real.
VI. ELIMINATION OF BLIGHT
The Property is currently operated as a mobile home park.. Construction of the Phase I and Phase
II Projects on the Property will assist in the elimination of blight by beautifying the Property,
increasing affordable housing, facilitating development along El Camino Real, promoting private
sector investment in the Project Area, and creating jobs not only during the construction phase, but
also thereafter by providing long -term retail employment opportunities. In addition, the City's
Page 9
general fund will benefit from increased sales taxes, business taxes, and an increase in property tax
payments.
VII. CONFORMANCE WITH FIVE -YEAR IMPLEMENTATION PLAN
Agreement I and Agreement II meet the following goals for the Project Area as set forth in the
Agency's Five -Year Implementation Plan FY 2009/10 — FY 2013/14 and are therefore consistent
with the Implementation Plan:
• Eliminate and prevent the spread of blight, non - conforming uses and deterioration and
conserve, rehabilitate and redevelop the Project Area in accordance with the general
plan, future specific plans, the redevelopment plan and local codes and ordinances.
• Achieve an environment reflecting a higher level of concern for architectural, landscape,
urban design and land use principles appropriate for attainment of the objectives of the
redevelopment plan and the general plan.
Control unplanned growth by guiding revitalization, rehabilitation and new development
in such fashion as to meet the needs of the Project Area, the City and its citizens.
• Create and develop local job opportunities and preserve the area's existing employment
base.
•
A copy of the Agreement I and Agreement II are attached.
1569782.2
Develop a spectrum of housing types affordable to various segments of the community in a
manner consistent with the housing element and the general plan and the provisions of the
Redevelopment Law.
Page 10
1564573.4
GROUND LEASE
(636 El Camino — Phase A)
by and between
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
as Landlord
and
MP SOUTH CITY, L.P.,
a California limited partnership
as Tenant
Dated as of , 2011
THIS GROUND LEASE (636 El Camino — Phase A) (this "Lease" or this
"Agreement "), dated as of , 2011 (the "Effective Date "), is entered into
by and between the Redevelopment Agency of the City of South San Francisco, a public body,
corporate and politic (hereafter "Agency" or "Landlord ") and MP South City, L.P., a California
limited partnership (hereafter "Tenant "). Agency and Tenant are hereafter collectively referred
to as the "Parties."
RECITALS
A. Pursuant to authority granted under Community Redevelopment Law (California
Health and Safety Code Section 33000 et seq.) ( "CRL "), the Agency has responsibility to
implement the redevelopment plan adopted in 1993 by the City Council of the City of South San
Francisco by Ordinance No. 1132 -93 (as subsequently amended, the "Redevelopment Plan ")
for the El Camino Corridor Redevelopment Project (the "Project Area ").
B. Pursuant to Agency's exercise of its option granted under that certain Option and
Purchase and Sale Agreement dated as of June 23, 2010 and executed by and between Agency
and Tenant, Agency is the owner of fee title to the property located adjacent to the Project Area
known as 636 El Camino Real, identified as San Mateo County Assessor's Parcel No. 014 -160-
040, and more particularly described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
C. Tenant proposes to construct a mixed -use multi- family development consisting of
sixty -two (62) units of multi - family housing, common areas, subterranean parking, retail uses
and related improvements (the "Project" as more particularly described below) on that portion
of the Parcel described in Exhibit A -2 attached hereto (the "Property "). Pursuant to that
certain Loan Agreement dated as of the Effective Date and executed by and between Agency and
Tenant (the "Loan Agreement "), Agency has agreed to provide a loan to Tenant in the amount
of Four Million, Two Hundred Ninety Thousand, Three Hundred and Seventy -Three Dollars
($4,290,373) (the "Loan ") to assist in financing the construction of the Project. Pursuant to
separate agreements, the Agency will provide additional financing and will lease the remainder
of the Parcel to an affiliate of Tenant for development of a second phase of affordable housing
adjacent to the Property (the "Phase B Project ").
D. Agency desires to lease to Tenant, and Tenant desires to lease from Agency the
Property, upon the terms and conditions set forth in this Lease, for the undertaking of the Project
as more particularly described herein.
E. The Agency has determined that development of the Project pursuant to this
Lease is consistent with the Redevelopment Plan and the Implementation Plan for the Project
Area, will be of benefit to the Project Area, and will be consistent with and further the goals of
California Community Redevelopment Law and the Redevelopment Plan by assisting in the
elimination of blight and increasing the availability of housing affordable to low- and very low -
income households in close proximity to the Project Area.
F. The City Council and the Agency have each approved the lease of the Property as
set forth in this Agreement, have followed all requisite procedures, and have adopted all requisite
1564573.4 1
findings in connection with the foregoing, including without limitation the requirements of
Sections 33431 and 33433 of the CRL.
G. Pursuant to the California Environmental Quality Act ( "CEQA "), on June 23,
2010, the City Council adopted a Negative Declaration for the Project.
H. In connection with the financing and development of the Project, Landlord and
Tenant will execute and cause to be recorded in the Official Records of San Mateo County the
following documents, substantially in the forms attached as exhibits to the Loan Agreement: an
Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (the
"Regulatory Agreement "), a Notice of Affordability Restrictions on Transfer of Property, and a
memorandum of a Master Lease Agreement ( "Master Lease ") pursuant to which Agency shall
lease the Retail /Commercial Component. As more particularly described in the Loan
Agreement, Tenant will execute a promissory note evidencing Tenant's obligation to repay the
Loan, an assignment agreement pursuant to which Agency will be provided a security interest in
the Project construction plans, and a leasehold deed of trust that will be recorded against
Tenant's interest in the Property and the Improvements to secure Tenant's obligation to repay the
Loan.
NOW, THEREFORE, for and in consideration of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows.
ARTICLE I
DEFINITIONS
1. Definitions. The following terms shall have the meanings set forth in the Sections
referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional
terms are defined in the Recitals and text of this Agreement.
"Affordable Rent" is defined in the Regulatory Agreement.
"Applicable Laws" is defined in Section 6.3.
"Area Median Income" is defined in the Regulatory Agreement.
"City" means the City of South San Francisco, a municipal corporation.
"City Council" means the City Council of the City of South San
Francisco.
"Claims" is defined in Article X.
"Conditions of Approval" is defined in Section 6.12.
"Construction Plans" is defined in Section 6.14.
1564573.4 2
"Environmental Laws" is defined in Section 7.11.4.
"Financing Plan is defined in Section 2.3.2 of the Loan Agreement.
"Hazardous Material" is defined in Section 7.11.4.
"Improvements" means all buildings, structures, fixtures, fences, walls,
paving, parking improvements, driveways, walkways, plazas, landscaping,
permanently affixed utility systems and equipment, and other improvements
located on the Property, including, without limitation, the Project and all
replacements of the foregoing.
"Indemnitees" is defined in Article X.
"Lease Termination" is defined in Section 8.2.1.
"Leasehold Mortgage" means a mortgage on the leasehold estate created
by this Lease and held by a Leasehold Mortgagee.
"Leasehold Mortgagee" means the mortgagee or beneficiary of any
Leasehold Mortgage and in the event of a transfer of such Leasehold Mortgage,
the successor Leasehold Mortgagee, upon delivery of written notice of the transfer
to Landlord.
"Loan" is defined in Recital C.
"Master Lease" is defined in Recital H.
"MidPen" is defined in Section 16.1.
"Official Records" means the Official Records of San Mateo County.
"Parcel" is defined in Recital B.
"Phase B Project" is defined in Recital C.
"Prevailing Wage Laws" is defined in Section 6.3.
"Project" means the residential rental project and related improvements
as described in Recital C and Section 6.1, and any replacement thereof pursuant to
this Lease.
"Property" is defined in Recital C.
"Regulatory Agreement" is defined in Recital H.
"Retail/Commercial Component" is defined in Section 6.1.
"Term" is defined in Section 3.1.
1564573.4 3
"Transfer" is defined in Section 16.1.
ARTICLE II
DEMISE OF PREMISES
2.1 Demise. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Property for the Term and on the terms and conditions set forth in this Lease.
2.2 Condition of Title. Landlord leases the Property to Tenant subject to all
easements, covenants, conditions, restrictions and other title matters of record existing as of the
Effective Date, and all matters that would be apparent from an inspection of the Property on the
Effective Date.
2.3 Condition of Property. Tenant specifically acknowledges that the Agency is
leasing the Property to Tenant on an "AS IS ", "WHERE IS" and "WITH ALL FAULTS" basis
and that Tenant is not relying on any representations or warranties of any kind whatsoever,
express or implied, from Agency, its employees, board members, agents, or brokers as to any
matters concerning the Property. The Agency makes no representations or warranties as to any
matters concerning the Property, including without limitation: (i) matters relating to soils,
subsoils, geology, the presence or absence of fill, groundwater, drainage, and flood zone
designation, (ii) the existence, quality, nature, adequacy and physical condition of utilities
serving the Property, (iii) the development potential of the Property, and the Property's use,
habitability, merchantability, or fitness, suitability, value or adequacy of the Property for any
particular purpose, (iv) the zoning or other legal status of the Property or any other public or
private restrictions on use of the Property, (v) the compliance of the Property with
Environmental Laws, covenants, conditions and restrictions of any governmental or quasi -
governmental entity or of any other person or entity, (vi) the presence or removal of Hazardous
Material, substances or wastes on, under or about the Property or the adjoining or neighboring
property; and (vii) the condition of title to the Property.
2.4 Tenant to Rely on Own Experts. Tenant acknowledges that notwithstanding the
delivery by Agency to Tenant of any materials, including, without limitation, third party reports,
Tenant will rely entirely on Tenant's own experts and consultants and its own independent
investigation and judgment as to all matters relating to the Property. Tenant acknowledges that
Tenant has heretofore occupied the Property, is familiar with the condition of the Property, has
made such investigations of the Property as Tenant has deemed desirable, and by execution
hereof, accepts the Property in its current "AS -IS" condition and state.
2.5 Environmental Disclosure. To the extent the Agency has copies of reports
regarding the environmental condition of the Property, it will provide copies to Tenant upon
request; but the Parties acknowledge that Agency will not be conducting a public records search
of any regulatory agency files — although the Agency urges Tenant to do so to satisfy itself
regarding the environmental condition of the Property. By execution of this Agreement, Tenant:
(i) acknowledges its receipt of the foregoing notice respecting the environmental condition of the
1564573.4 4
Property; (ii) acknowledges that it has had an opportunity to conduct its own independent review
and investigation of the Property; (iii) agrees to rely solely on its own experts in assessing the
environmental condition of the Property and its sufficiency for its intended use; and (iv) waives
any and all rights Tenant may have to assert that the Agency failed to disclose information about
the environmental condition of the Property.
2.6 Release by Tenant. Effective upon the Effective Date, Tenant WAIVES,
RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the Indemnitees and any
person acting on behalf of the Agency or the City, from any and all Claims, direct or indirect,
known or unknown, foreseen or unforeseen, which Tenant now has or which may arise in the
future on account of or in any way arising out of or in connection with the physical condition of
the Property, the presence of Hazardous Material in, on, under or about the Property, or any law
or regulation applicable thereto including, without limiting the generality of the foregoing, all
Environmental Laws. The provisions of this Section 2.6 shall survive the expiration or earlier
termination of this Agreement.
TENANT ACKNOWLEDGES THAT TENANT IS FAMILIAR WITH SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
BY INITIALING BELOW, TENANT EXPRESSLY WAIVES THE BENEFITS OF SECTION
1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING
RELEASE:
Tenant's initials:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
ARTICLE III
TERM OF LEASE
3.1 Term. The term of this Lease (the "Term ") shall commence on the Effective
Date ( "Commencement Date "). The Parties shall execute a memorandum of this Lease
substantially in the form set forth in Exhibit B attached hereto ( "Memorandum ") which shall be
recorded in the Official Records of San Mateo County. Unless sooner terminated under the
provisions hereof, the Term of this Lease shall expire on the day preceding the seventy -fifth
(75` anniversary of the Commencement Date (the "Expiration Date "). The expiration or
sooner termination of the Term shall be referred to as "Lease Termination." The Memorandum
shall specify the Commencement Date and the Expiration Date.
1564573.4 5
3.2 Lease Year. For purposes of this Lease, "Lease Year" shall mean each calendar
year, or partial calendar year during the Term. If the Commencement Date does not occur on
January 1, then any amounts required to be paid under this Lease on a Lease Year basis shall be
prorated on a per diem basis for the partial Lease Years that commence with the Commencement
Date and end on the Expiration Date.
ARTICLE IV
RENT
4.1 Rent. For the period commencing upon the Effective Date and ending on the
Expiration Date, for each Lease Year during the Term, Tenant shall pay to Landlord, annual rent
( "Base Rent ") in an amount equal to One Dollar ($1.00) per year.
4.2 Additional Rent. Tenant also agrees to pay as rent all sums, Impositions (as
defined in Section 5.1 below), costs, expenses, and other payments which Tenant in any of the
provisions of this Lease assumes or agrees to pay (collectively, "Additional Rent "). If Tenant
fails to pay timely any Additional Rent, Landlord shall have (in addition to all other rights and
remedies) all the rights and remedies provided for herein or by law in the case of non - payment of
rent, subject to the terms and conditions of this Lease.
4.3 Payment of Rent. The Base Rent and Additional Rent shall be collectively
referred to as "Rent" under this Lease. All Rent shall be paid to Landlord in lawful money of
the United States at the place to which notices are to be delivered to Landlord, unless Landlord
designates a different address for the payment of Rent in writing to Tenant. Rent shall be
payable on each anniversary of the Effective Date during the term hereof. In its discretion,
Tenant may elect to prepay one or more installments of Base Rent.
ARTICLE V
TAXES, ASSESSMENTS AND OTHER CHARGES
5.1 Impositions. Tenant covenants and agrees to pay prior to delinquency, all real
property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes,
assessments whether general or special, ordinary or extraordinary, unforeseen, as well as
foreseen, of any kind or nature whatsoever, pertaining to the Property or the Improvements or
part thereof, including, but not limited to (i) any assessment, levy, imposition or charge, in lieu
of or substitution for real estate taxes, and (ii) any assessment for public improvements or
benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien
upon (a) the Property or the Improvements or any part thereof or any personal property,
equipment or other facility used in the operation thereof, (b) the rent or income received by
Tenant from subtenants or licensees, (c) any use or occupancy of the Property or Improvements
or part thereof, or (d) this transaction or, subject to the exclusions specified below, any document
to which Tenant is a party creating or transferring an estate or interest in the Property or part
thereof. All of the foregoing are hereinafter referred to as "Impositions."
1564573.4 6
5.1.1 Exclusions. Impositions specifically shall exclude (i) any income,
franchise, gross receipts, estate, inheritance, transfer or gift tax imposed on Landlord, and (ii)
any transfer tax imposed on any document to which Landlord is a party creating or transferring
an estate or interest in the Property.
5.1.2 Installments. If, by law, any Imposition is payable, or may at the option of
the taxpayer be paid, in installments (whether or not interest shall accrue on the unpaid balance
of such Imposition), Tenant may pay the same together with any accrued interest on the unpaid
balance of such Imposition in installments as the same respectively become due and before any
fine or penalty may be added thereto for the nonpayment of any such installment and interest.
Any Impositions relating to tax years that are only partially included in the Term shall be
prorated between Tenant and Landlord.
5.1.3 Evidence of Payment. Upon request by Landlord, Tenant shall furnish, in
form satisfactory to Landlord, evidence of payment prior to delinquency of all Impositions
payable by Tenant.
5.2 Tenant Right to Contest. Tenant shall have the right before any delinquency
occurs to contest or object to the amount or validity of any Imposition by appropriate legal
proceedings, but such right shall not be deemed or construed in any way as relieving, modifying
or extending Tenant's covenant to pay any such Imposition at the time and in the manner
required by law. Any such contest shall be conducted in accordance with and subject to the
requirements of Applicable Laws and otherwise in a manner that does not subject Landlord's
title to the Property to foreclosure or forfeiture. Tenant shall indemnify, defend, protect and hold
Landlord harmless from and against all claims, damages, losses, liabilities, costs and expenses
(including without limitation attorneys' fees) incurred by Landlord as a result of any such contest
brought by Tenant. During any contest of an Imposition, Tenant shall (by payment of disputed
sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of
Landlord's title, reversion or other interest in the Property or the Improvements.
5.3 Tenant Duty to File. Tenant shall have the duty of making or filing any
exemption application, declaration, statement or report which may be necessary or advisable in
connection with property tax exemption or the determination, equalization, reduction or payment
of any Imposition which is or which may become payable by Tenant under the provisions of this
Article V, and Landlord shall not be responsible for the contents of any such declaration,
statement or report; provided, however Landlord shall cooperate with Tenant in connection with
the foregoing, including joinder in any application pertaining thereto to the extent required under
Applicable Law, all at no cost to Landlord.
5.4 Utilities. Tenant agrees to pay, or cause to be paid, all charges which are incurred
by Tenant or which are otherwise a charge or lien against the Property or part thereof during the
Term, for gas, water, electricity, light, heat or power, telephone or other communication service
use, or other utility use, rendered or supplied upon or in connection with the Property. Tenant
shall also obtain, or cause to be obtained, without cost to Landlord, any and all necessary
permits, licenses or other authorizations required for the lawful and proper installation and
maintenance upon the Property of wires, pipes, conduits and other equipment for the supply of
utilities to the Project. In no event shall Landlord have any liability to Tenant, and Tenant
1564573.4 7
hereby releases Landlord, from any and all claims, including but not limited to consequential
damages, lost profits and similar damages that Tenant may incur as a result of any interruption,
curtailment or diminishment of such utilities, other than for the active negligence or willful
misconduct of Landlord. Notwithstanding the foregoing, Tenant shall have the right to challenge
the amount or validity of the foregoing charges, provided that doing so does not result in the
Property being subjected to any lien or other encumbrance that is not itself adequately released,
insured over or otherwise satisfied by Tenant after Tenant has exhausted its efforts to contest the
same in accordance with all Applicable Laws. Landlord shall cooperate, within reasonable
limits, to assist Tenant in securing utility services for the Project.
ARTICLE VI
DEVELOPMENT OF THE PROPERTY
6.1 Construction of Improvements. Tenant agrees to construct on the Property a 62-
unit multi - family residential rental project, together with related improvements in accordance
with plans and specifications approved by the City. The Project shall include eleven (11) one-
bedroom units, thirty -one (31) two - bedroom units, and twenty (20) three- bedroom units; (ii) 88
parking spaces in a subterranean garage; (iii) common facilities including laundry facilities, (iv)
recreational space, and (v) approximately 5,700 square feet of retail space together with 18
surface parking spaces dedicated for use by the tenants and invitees of the retail space
(collectively, the "Retail/Commercial Component "); (all of the foregoing are collectively
hereinafter referred to as the "Project "). Ten (10) of the residential units (consisting of seven
(7) 1- bedroom apartments and three (3) 2- bedroom apartments) will be restricted for occupancy
by families and transitional age youth who are homeless or at risk of homelessness and who also
qualify pursuant to the California Housing Finance Agency Mental Health Services Act (MHSA)
Housing Program. One of the residential units will be a resident manager's unit that is not
subject to affordability restrictions. Sixty -one (61) of the residential units will be subject to
affordability restrictions pursuant to the Regulatory Agreement and Article VII hereof. The
third sentence of this Section 6.1 shall terminate and be of no further force and effect if MHSA
program requirements cease to apply to the Project following foreclosure of a Leasehold
Mortgage or assignment in lieu thereof.
6.2 Construction Schedule. Tenant shall commence construction of the Project within
thirty (30) days following the Effective Date, and shall diligently prosecute to completion the
construction of the Project sufficient to allow City to issue a final certificate of occupancy within
twenty -four (24) months following commencement of construction but in no event later than
June 30, 2013. Subject to force majeure and the City's issuance of permits and approvals,
Tenant's failure to commence or complete the Project in accordance with the time periods
specified in this Section 6.2 shall be an Event of Default hereunder.
6.3 Construction Standards. Tenant shall carry out and shall cause its contractors to
carry out the construction of the Project and all subsequent improvements, alterations and
replacements, in a first class and workmanlike fashion in accordance with the Conditions of
Approval and Construction Plans approved by Landlord and City, in compliance with all
applicable state, federal, and local laws, rules, ordinances, codes, and regulations, including
without limitation California Labor Code Section 1720 et seq. and the regulations adopted
1564573.4 8
pursuant thereto ( "Prevailing Wage Laws "), and all other applicable federal and state labor
laws and standards, applicable provisions of the California Public Contracts Code (if any), the
City zoning and development standards, building, plumbing, mechanical and electrical codes, all
other provisions of the City's Municipal Code, and all applicable disabled and handicapped
access requirements, including without limitation, the Americans with Disabilities Act, 42
U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. (all of the
foregoing, collectively "Applicable Laws ").
6.4 Easements; Reciprocal Easement/Joint Use Agreement. From time to time at
Tenant's request, Landlord shall, in its capacity as fee title owner to the Property, join in the
grant of easements to public or private utility companies for utility service to and for the benefit
of the Project. Landlord agrees to join in granting or dedicating such public or private utility or
other easements as may be reasonably required for the development, maintenance, use, operation
or enjoyment of the Property in accordance with this Lease. Concurrently with the Effective
Date, Landlord, Tenant and the owner of the Phase B Project shall execute and cause to be
recorded in the Official Records, a reciprocal easement agreement or joint use and access
agreement ( "REA ") in form approved by Landlord, pursuant to which Tenant and the owner of
the Phase B Project (and the successors in interest of each) shall grant specified reciprocal
easements, including without limitation, reciprocal pedestrian and vehicular access rights to the
parking and common areas of their respective projects.
6.5 Protection of Landlord. Nothing in this Lease shall be construed as constituting
the consent of the Landlord, express or implied, to the performance of any labor or services, or
the furnishing of any materials or any specific improvements, alterations of or repairs to the
Property or any part thereof, by any contractor, subcontractor, laborer or materialman such as to
give rise to any right of any such contractor, subcontractor, laborer or materialman to file a
mechanic's lien or other claim against the fee title to the Property. Landlord shall have the right
at all reasonable times to post, and keep posted, on the Property any notices which Landlord may
deem necessary for the protection of Landlord and the Property from mechanic's liens or other
claims. Tenant shall give Landlord ten (10) days' prior written notice of the commencement of
any work to be done on the Property to enable Landlord to post such notices. In addition, Tenant
shall make, or cause to be made, timely payment of all monies due and legally owing to all
persons doing any work or furnishing any materials or supplies to Tenant or any of its
contractors or subcontractors in connection with the Property (subject to Tenant's right to contest
the same in accordance with all Applicable Laws).
6.6 Mechanic's Liens and Stop Notices. Tenant shall not allow to be placed on the
Property or any part thereof any lien or stop notice on account of materials supplied to or labor
performed on behalf of Tenant. If a claim of a lien or stop notice is given or recorded affecting
the Project or the Property, Tenant shall within twenty (20) days of such recording or service:
(a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release
thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled
thereto a surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to
Agency that the claim of lien or stop notice will be paid or discharged. Tenant shall indemnify,
defend and hold Landlord harmless from and against liability, loss, damages, costs and expenses
(including reasonable attorneys' fees) incurred by or brought against Landlord for claims of lien
1564573.4 9
of laborers or materialmen or others for work performed or materials or supplies furnished to
Tenant or persons claiming under it.
6.7 Right of Agency to Satisfy Liens on the Property. If Tenant fails to satisfy or
discharge any lien or stop notice on the Property pursuant to and within the time period set forth
in Section 6.6 above, upon not less than ten (10) days' prior written notice to Tenant, the
Agency shall have the right, but not the obligation, to satisfy any such liens or stop notices at
Tenant's expense and without further notice to Tenant, and all sums advanced by Agency for
such purpose shall be payable to Landlord as Additional Rent. In such event Tenant shall be
liable for and shall immediately reimburse Agency for such paid lien or stop notice.
Alternatively, the Agency may require Tenant to immediately deposit with Agency the amount
necessary to satisfy such lien or claim pending resolution thereof. The Agency may use such
deposit to satisfy any claim or lien that is adversely determined against Tenant. Tenant shall file
a valid notice of cessation or notice of completion upon cessation of construction work on the
Property for a continuous period of thirty (30) days or more, and shall take all other reasonable
steps to forestall the assertion of claims or liens against the Property. The Agency may (but has
no obligation to) record any notices of completion or cessation of labor, or any other notice that
the Agency deems necessary or desirable to protect its interest in the Property.
6.8 Notice of Completion. Upon completion of construction of any Improvement,
Tenant shall file or cause to be filed in the Official Records of San Mateo County a Notice of
Completion with respect to the subject work. Upon request of Landlord, Tenant shall make
available to Landlord following the completion of the Improvements a full set of as -built plans
for the Improvements.
6.9 Use of Plans. The contracts relating to design and construction of the
Improvements executed by and between Tenant (or MidPen or other affiliate of Tenant) and any
architect, other design professional or any general contractor shall provide, in form and
substance reasonably satisfactory to Landlord, for the assignment thereof to Landlord as security
to Landlord for Tenant's performance hereunder, and Landlord shall be furnished with any such
contract, together with the further agreement of the parties thereto, that if this Lease is terminated
due to Tenant's default, Landlord may, at its election, use any plans and specifications to which
Tenant is then entitled pursuant to any such contract upon the payment of any sums due to any
party thereto, subject to any prior rights of the Project construction lender.
6.10 Cost of Construction. Tenant shall be solely responsible for all direct and indirect
costs and expenses incurred in connection with the development of the Property and the
construction of the Improvements. Except as expressly set forth herein, all costs of designing,
developing and constructing the Improvements and the Project and compliance with the Project
approvals, including without limitation all off -site and on -site improvements required by City in
connection therewith, shall be borne solely by Tenant and shall not be an obligation of the
Agency. If any Applicable Laws are hereafter changed so as to require during the Term any
alteration of the Improvements, or the reinforcement or any other physical modification of the
Improvements, Tenant shall be solely responsible for such cost and expense.
6.11 Project Approvals. Tenant acknowledges and agrees that execution of this
Agreement by Agency does not constitute approval for the purpose of the issuance of building
1564573.4 10
permits for the Project, does not limit in any manner the discretion of City in such approval
process, and does not relieve Tenant from the obligation to apply for and obtain all necessary
entitlements, approvals, and permits for the development of the Property, including without
limitation, the approval of architectural plans, the issuance of any certificates regarding historic
resources required in connection with the Project (if any), and the completion of any required
environmental review. Tenant covenants that it shall obtain all necessary permits and approvals
which may be required by Agency, City, or any other governmental agency having jurisdiction
over the Property, and shall not commence construction work on the Project prior to issuance of
building permits required for such work. Agency staff shall work cooperatively with Tenant to
assist in coordinating the expeditious processing and consideration of all permits, entitlements
and approvals necessary for development of the Project on the Property.
6.12 Conditions of Approval. Tenant shall develop the Property in accordance with
the terms and conditions of this Agreement and in compliance with the terms and conditions of
all approvals, entitlements and permits that the City or any other governmental body or agency
with jurisdiction over the Project or the Property has granted or issued as of the date hereof or
may hereafter grant or issue in connection with development of the Project, including without
limitation, all mitigation measures imposed in connection with environmental review of the
Project and all conditions of approval imposed in connection with any entitlements, approvals or
permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions
of approval are hereafter collectively referred to as the "Conditions of Approval ").
6.13 Fees and Permits. Tenant shall have the sole responsibility for obtaining all
necessary governmental permits and approvals for the construction of the Improvements, at
Tenant's sole cost and expense. Landlord shall cooperate with Tenant in connection with
obtaining any such governmental permits and approvals. Tenant shall be solely responsible for,
and shall promptly pay when due, all customary and usual fees and charges of City and all other
agencies with jurisdiction over development of the Property in connection with obtaining
building permits and other approvals for the Project, including without limitation, those related
to the processing and consideration of amendments, if any, to the current entitlements, any
related approvals and permits, environmental review, architectural review, historic review, and
any subsequent approvals for the Project.
6.14 Construction Plans. Tenant has submitted, and as of the Effective Date, City's
Building Department has approved, detailed construction plans for the Project (the
"Construction Plans "). As used herein "Construction Plans" means all construction
documents upon which Tenant and Tenant's contractors shall rely in developing the Project
(including the landscaping, parking, and common areas) and shall include, without limitation, the
site development plan, final architectural drawings, landscaping, exterior lighting and signage
plans and specifications, materials specifications, final elevations, and building plans and
specifications. The Construction Plans and any modifications thereto shall be based upon the
scope of development set forth herein, the site plan and the elevations approved by the Agency,
and upon the approvals issued by the Agency and the City for the Project, and shall not
materially deviate therefrom without the express written consent of Agency and City.
6.15 Construction Pursuant to Plans. Tenant shall develop the Project in accordance
with the approved Construction Plans, the Conditions of Approval, and all other permits and
1564573.4 11
approvals granted by the City and /or the Agency pertaining to the Project. Tenant shall comply
with all directions, rules and regulations of any fire marshal, health officer, building inspector or
other officer of every governmental agency having jurisdiction over the Property or the Project.
Each element of the work shall proceed only after procurement of each permit, license or other
authorization that may be required for such element by any governmental agency having
jurisdiction. All design and construction work on the Project shall be performed by licensed
contractors, engineers or architects, as applicable.
6.16 Change in Construction Plans. If Tenant desires to make any material change in
the approved Construction Plans, Tenant shall submit the proposed change in writing to the
Agency and City for their written approval, which approval shall not be unreasonably withheld
or delayed if the Construction Plans, as modified by any proposed change, conform to the
requirements of this Agreement and any approvals issued by Agency or City after the Effective
Date. Unless Agency notifies Tenant in writing that a proposed change is rejected or that
Agency requests a modification to such proposed change within twenty (20) days, it shall be
deemed approved. If rejected, the previously approved Construction Plans shall continue to
remain in full force and effect. Any change in the Construction Plans required in order to
comply with applicable codes shall be deemed approved, so long as such change does not
substantially nor materially change the architecture, design, function, use, or amenities of the
Project as shown on the latest approved Construction Plans. Nothing in this Section is intended
to or shall be deemed to modify the City's standard plan review procedures.
6.17 Rights of Access. For the purpose of ensuring that the construction of the Project
is completed in compliance with this Agreement, Tenant shall permit representatives of the
Agency and the City to enter upon the Property following 24 hours written notice (except in the
case of emergency in which case such notice as may be practical under the circumstances shall
be provided).
6.18 Agency Disclaimer. Tenant acknowledges that the Agency and City are under no
obligation, and neither Agency nor City undertakes or assumes any responsibility or duty to
Tenant or to any third party, to in any manner review, supervise, or inspect the progress of
construction or the operation of the Project. Tenant and all third parties shall rely entirely upon
its or their own supervision and inspection in determining the quality and suitability of the
materials and work, the performance of architects, subcontractors, and material suppliers, and all
other matters relating to the construction and operation of the Project. Any review or inspection
undertaken by the Agency or the City is solely for the purpose of determining whether Tenant is
properly discharging its obligations under this Agreement, and shall not be relied upon by Tenant
or any third party as a warranty or representation by the Agency or the City as to the quality of
the design or construction of the improvements or otherwise.
6.19 Defects in Plans. Neither Agency nor City shall be responsible to Tenant or to
any third party for any defect in the Construction Plans or for any structural or other defect in
any work done pursuant to the Construction Plans. Tenant shall indemnify, defend (with counsel
approved by Agency) and hold harmless the Indemnitees from and against all Claims arising out
of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects
in any work done pursuant to the Construction Plans whether or not any insurance policies shall
have been determined to be applicable to any such Claims. Tenant's indemnification obligations
1564573.4 12
set forth in this Section shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency and City do not, and shall not, waive any rights against Tenant which
they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or Tenant's deposit with Agency of any of the insurance policies
described in this Agreement. Tenant's indemnification obligations pursuant to this Section shall
not extend to Claims arising due to the gross negligence or willful misconduct of the
Indemnitees.
6.20 Equal Opportunity. There shall be no discrimination on the basis of race, color,
religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring,
firing, promoting or demoting of any person engaged in construction work on the Property, and
Tenant shall direct its contractors and subcontractors to refrain from discrimination on such
basis.
6.21 Prevailing Wage Requirements. To the full extent required by applicable federal
and state law, Tenant and its contractors and agents shall comply with Prevailing Wage Law and
federal Davis Bacon requirements, and shall be responsible for carrying out the requirements of
such provisions. If applicable, Tenant shall submit to Agency a plan for monitoring payment of
prevailing wages and shall implement such plan at Tenant's expense.
6.22 Performance and Payment Bonds. Prior to commencement of construction
work on the Project, Tenant shall cause its general contractor to deliver to the Agency copies of
payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to
do business in California, each in a penal sum of not less than one hundred percent (100 %) of the
scheduled cost of construction of the Project. The bonds shall name the Agency and the City as
co- obligees. In lieu of such performance and payment bonds, subject to Agency's approval of
the form and substance thereof, Tenant may submit evidence satisfactory to the Agency of the
contractor's ability to commence and complete construction of the Project in the form of an
irrevocable letter of credit, pledge of cash deposit, certificate of deposit, or other marketable
securities held by a broker or other financial institution, with signature authority of the Agency
required for any withdrawal, or a completion guaranty in a form and from a guarantor acceptable
to Agency. Such evidence must be submitted to Agency in approvable form in sufficient time to
allow for Agency's review and approval prior to the scheduled construction start date.
6.23 Insurance Requirements. Tenant shall maintain and shall cause its contractors to
maintain all applicable insurance coverage specified in Article IX.
ARTICLE VII
USE OF THE PROPERTY
7.1 Permitted Uses. Tenant may use the Property for the construction and operation
of the Project and for no other purpose without the prior written consent of Landlord. Tenant
shall not do or permit any activity on or about the Property that constitutes a public or private
nuisance. At Tenant's sole expense, Tenant shall procure and maintain all governmental
licenses or permits required for the proper and lawful conduct of Tenant's activities conducted
on the Property.
1 564573.4 13
7.2 Affordability Requirements. For a term of seventy -five (75) years commencing
upon the City's issuance of a final certificate of occupancy or equivalent for the Project, no
fewer than sixty -one (61) of the dwelling units in the Project shall be both rent - restricted and
occupied (or if vacant, available for occupancy) by eligible households of very low -, extremely
low -, and moderate - income pursuant to and in accordance with the terms and conditions set forth
in the Regulatory Agreement. As more particularly set forth in the Regulatory Agreement, no
fewer than fourteen (14) of the residential units in the Project shall be available at Affordable
Rents to households whose income is no greater than thirty percent (30 %) of Area Median
Income, no fewer than sixteen (16) additional units in the Project shall be available at Affordable
Rents to households whose income is no greater than forty percent (40 %) of Area Median
Income, and no fewer than thirty -one (31) additional units in the Project shall be available at
Affordable Rents to households whose income is no greater than eighty -five percent (85 %) of
Area Median Income. Tenant shall comply with the terms and conditions set forth in the
Regulatory Agreement, which is by this reference incorporated herein. This Section 7.2 shall
terminate and be of no further force and effect if the Regulatory Agreement is terminated
following the foreclosure of a Leasehold Mortgage or assignment or deed in lieu thereof.
7.3 Preference for Displacees, South San Francisco Residents and Employees.
Consistent with the requirements of California Health and Safety Code Section 33411.3, Tenant
shall provide persons and households of low- or moderate - income who have been displaced by
the Project a priority in renting or purchasing housing constructed on the Property. In addition,
in order to ensure that there is an adequate supply of affordable housing within the City of South
San Francisco for residents and employees of businesses within the City, to the extent permitted
by law and consistent with the program regulations for funding sources used for development of
the Project, at initial lease up, Tenant shall give a preference in the rental of the residential units
in the Project to eligible households that include at least one member who lives or works in the
City of South San Francisco. In the event there are fewer eligible persons available than there
are units, units shall be made available to members of the general public. Notwithstanding the
foregoing, in the event of a conflict between this provision and the provisions of Section 42 of
the Internal Revenue Code of 1986, as amended, the provisions of such Section 42 shall control.
7.4 Relocation. Households residing on the Property as of the Effective Date shall not
be displaced before suitable replacement housing is available in comparable replacement
housing. Tenant shall ensure that all occupants of the Property receive all notices, benefits and
assistance to which they are entitled in accordance with California Relocation Assistance Law
(Government Code Section 7260 et seq.), all state and local regulations implementing such law,
and all other applicable local, state and federal laws and regulations (collectively "Relocation
Laws ") relating to the displacement and relocation of eligible persons as defined in such
Relocation Laws. Any and all costs incurred in connection with the temporary and /or permanent
displacement and/or relocation of occupants of the Property, including without limitation
payments to a relocation consultant, moving expenses, and payments for temporary and
permanent relocation benefits pursuant to Relocation Laws shall be paid by Tenant. Tenant shall
indemnify, defend (with counsel approved by Agency) and hold harmless the Indemnitees from
and against any and all Claims arising in connection with the breach of Tenant's obligations set
forth in this Section whether or not any insurance policies shall have been determined to be
applicable to any such Claims. It is further agreed that Agency and City do not and shall not
1564573.4 14
waive any rights against Tenant which they may have by reason of this indemnity and hold
harmless agreement because of the acceptance by Agency, or Tenant's deposit with Agency of
any of the insurance policies described in this Agreement. Tenant's indemnification obligations
set forth in this Section shall not apply to Claims arising from the gross negligence or willful
misconduct of the Indemnitees. Tenant's obligations set forth in this Section 7.4 shall survive
the expiration or earlier termination of this Agreement.
7.5 Reporting Requirements.
7.5.1 Tenant Certification. For so long as the Regulatory Agreement is in
effect, Tenant shall obtain from each household prior to initial occupancy of each dwelling unit
in the Project and on every anniversary thereafter, a written certificate containing all of the
following in such format and with such supporting documentation as reasonably required by
Landlord: (a) the identity of each member of the household; and (b) total household income.
Tenant shall retain such certificates for not less than three (3) years, upon request shall make the
originals available for inspection by Landlord and shall provide copies of such certificates to
Landlord.
7.5.2 Annual Report. For so long as the Regulatory Agreement is in effect,
Tenant shall submit an annual report ( "Annual Report ") to Landlord, which shall, at a
minimum, include the following information for each dwelling unit in the Project: (i) initial
occupancy date; (ii) the number of persons residing in the unit; (iii) the information specified in
Section 7.5.1, and (iv) the monthly rent charged. Upon Landlord's request, Tenant shall include
with the Annual Report, an annual income recertification and documentation verifying tenant
eligibility, and such additional information as Landlord may reasonably request from time to
time in order to show compliance with this Agreement.
7.5.3 Termination of Restrictions. The provisions of Section 7.5 shall terminate
and be of no further force and effect if the Regulatory Agreement is terminated following the
foreclosure of a Leasehold Mortgage or assignment or deed in lieu thereof.
7.6 Manager's Unit. One dwelling unit in the Project shall be used as a resident
manager's unit, and shall be exempt from the occupancy and rent restrictions set forth in Section
7.2 of this Lease.
7.7 No Condominium Conversion. Tenant shall not convert the Project to
condominium or cooperative ownership or sell condominium or cooperative conversion rights to
the Project during the Term of this Lease.
7.8 Obligation to Refrain from Discrimination. Tenant shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any
portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability,
marital status, ancestry, or national origin of any person. Tenant covenants for itself and all
persons claiming under or through it, and this Agreement is made and accepted upon and subject
to the condition that there shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
1564573.4 15
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part
thereof, nor shall Tenant or any person claiming under or through Tenant 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, of,
or for the Property or part thereof. Tenant shall include such provision in all deeds, leases,
contracts and other instruments executed by Tenant, and shall enforce the same diligently and in
good faith.
All deeds, leases or contracts made or entered into by Tenant, its successors or assigns, as
to any portion of the Property or the improvements located thereon shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such
1564573.4 16
practice or practices of discrimination of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts, the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
7.9 Management and Operation of the Project; Compliance with Laws. Tenant agrees
to operate, maintain and manage the Property in first -class manner, subject to incidental wear
and tear. Tenant, at its sole cost and expense, shall comply with all Applicable Laws pertaining
to the use, operation, occupancy and management of the Property. Tenant shall not itself, and
shall not permit any subtenant to use the Property or the Improvements for any unlawful purpose
and shall not itself, and shall not permit any subtenant to, perform, permit or suffer any act of
omission or commission upon or about the Property or the Improvements which would result in a
nuisance or a violation of Applicable Law. Landlord shall have the right to review and approve
the qualifications of any management entity proposed by Tenant for the Project. Landlord
hereby approves MidPen Property Management Corporation, a California nonprofit public
benefit corporation, as the initial management entity for the Project. Any contracting of
management services by Tenant shall not relieve Tenant of its primary responsibility for proper
performance of management duties.
7.10 Tenant Right to Contest. Tenant shall have the right to contest by appropriate
proceedings, in the name of Tenant, and without cost or expense to Landlord, the validity or
application of any Applicable Law. If compliance with any Applicable Law may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any lien,
charge or liability against the Property or Tenant's interest therein, and without subjecting
Tenant or Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant
may delay compliance therewith until the final determination of such proceeding. Tenant shall
indemnify, defend, protect and hold Landlord harmless from and against all claims, damages,
1564573.4 17
losses, liabilities, costs and expenses (including without limitation reasonable attorneys' fees)
incurred by Landlord as a result of any such contest brought by Tenant.
7.11 Hazardous Materials.
7.11.1 Obligations of Tenant. Tenant hereby covenants and agrees that:
(1) Tenant shall not cause or permit the Property or any portion thereof to be a
site for the use, generation, treatment, manufacture, storage, disposal or transportation of
Hazardous Material or otherwise knowingly permit the presence or release of Hazardous
Material in, on, under, about or from the Property or the Project with the exception of
limited amounts of cleaning supplies and other materials customarily used in
construction, use or maintenance of residential /mixed -use properties similar in nature to
the Project and used, stored and disposed of in compliance with Environmental Laws.
(2) Tenant shall keep and maintain the Property and each portion thereof in
compliance with, and shall not cause or permit the Project or the Property or any portion
of either to be in violation of, any Environmental Laws.
(3) Upon receiving actual knowledge of the same, Tenant shall immediately
advise Agency in writing of: (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against the Tenant,
or the Property pursuant to any applicable Environmental Laws; (ii) any and all claims
made or threatened by any third party against the Tenant or the Property relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Material; (iii) the presence or release of any Hazardous Material in, on, under,
about or from the Property; or (iv) Tenant's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "Border Zone
Property" under the provisions of California Health and Safety Code, Sections 25220 et
seq., or any regulation adopted in connection therewith, that may in any way affect the
Property pursuant to any Environmental Laws or cause it or any part thereof to be
designated as Border Zone Property. The matters set forth in the foregoing clauses (i)
through (iv) are hereinafter referred to as "Hazardous Materials Claims "). The Agency
shall have the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Hazardous Materials Claim.
(4) Tenant shall promptly take all actions at its sole expense as are necessary to
remediate the Property as required by law; provided that Landlord's approval of such
actions shall first be obtained, which approval shall not be unreasonably withheld.
Without the Agency's prior written consent, Tenant shall not enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Materials
Claim.
7.11.2 Environmental Indemnity. To the greatest extent allowed by law, Tenant
shall indemnify, defend (with counsel approved by Agency) and hold Indemnitees harmless from
and against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon
(i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous
1564573.4 18
Material on, under, in or about the Property, or the transportation of any such Hazardous
Material to or from, the Property, or (ii) the failure of Tenant, Tenant's employees, agents,
contractors, subcontractors, or any person acting on behalf of or as the invitee of any of the
foregoing to comply with Environmental Laws. The foregoing indemnity shall further apply to
any residual contamination in, on, under or about the Property or affecting any natural resources,
and to any contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such Hazardous
Material, and irrespective of whether any of such activities were or will be undertaken in
accordance with Environmental Laws. Tenant's indemnification obligation pursuant to this
Section includes, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision.
7.11.3 No Limitation. Tenant hereby acknowledges and agrees that Tenant's duties,
obligations and liabilities under this Agreement are in no way limited or otherwise affected by
any information the Agency or the City may have concerning the Property and /or the presence
in, on, under or about the Property of any Hazardous Material, whether the Agency or the City
obtained such information from the Tenant or from its own investigations, unless such
information was known to the Agency or the City at the time of execution of this Agreement but
not disclosed to Tenant.
7.11.4 Definitions.
7.11.4.1 "Hazardous Material" means any chemical, compound, material,
mixture, or substance that is now or may in the future be defined or listed in, or otherwise
classified pursuant to any Environmental Laws (defined below) as a "hazardous substance ",
"hazardous material ", "hazardous waste ", "extremely hazardous waste ", infectious waste ", toxic
substance ", toxic pollutant ", or any other formulation intended to define, list or classify
substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity. The term "hazardous material" shall also include asbestos or
asbestos - containing materials, radon, chrome and/or chromium, polychlorinated biphenyls,
petroleum, petroleum products or by- products, petroleum components, oil, mineral spirits,
natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate,
methyl tert butyl ether, whether or not defined as a hazardous waste or hazardous substance
in the Environmental Laws.
7.11.4.2 "Environmental Laws" means any and all federal, state and local
statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental
authorizations or directives, or any other requirements of governmental authorities, as may
presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the
presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Material, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et
1564573.4 19
seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33
U.S.C. § 2701 et seq.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C.
§ 11001 et seq.), the Porter - Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter- Presley - Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
ARTICLE VIII
SURRENDER AND RIGHT TO REMOVE
8.1 Ownership During Term.
8.1.1 Improvements. During the Term of this Lease the Improvements shall,
subject to the terms of this Lease, be and remain the property of Tenant.
8.1.2 Personal Property. All personal property, furnishings, fixtures and
equipment installed by Tenant in, on or around the Property which (i) are not attached to the
Property so as to cause substantial damage upon removal, and (ii) are not necessary for the
normal operation and occupancy of the Project, shall be the personal property of Tenant (the
"Personal Property "). At any time during the Term, Tenant shall have the right to remove the
Personal Property provided Tenant shall repair any damage caused by the removal of such
Personal Property. Personal Property shall not include any portion or part of major building
components or fixtures necessary for the operation of the basic building systems (such as
elevators, escalators, chillers, boilers, plumbing, electrical systems, lighting, sanitary fixtures and
HVAC systems) which shall be deemed a part of the Improvements.
8.2 Ownership at Lease Termination.
8.2.1 Improvements. Upon the expiration or earlier termination of the Lease
( "Lease Termination ") the Improvements and all stoves, refrigerators and dishwashers installed
in the residential units (the "Appliances ") shall unconditionally be and become the property
solely of Landlord, and no compensation therefor shall be due or paid by Landlord to Tenant for
any part thereof, and this Lease shall operate as a conveyance and assignment thereof. Upon
Lease Termination, Tenant shall surrender to Landlord the Property, the Improvements and the
Appliances in good order, condition and repair, reasonable wear and tear excepted, free and clear
of all liens, claims and encumbrances other than those matters existing prior to the Effective Date
or matters subsequently created or consented to by Landlord. Upon Lease Termination, at
Landlord's request Tenant agrees to execute, acknowledge and deliver to Landlord such
recordable instruments as are necessary or desirable to confirm the termination of the Lease and
all Tenant's rights hereunder and to perfect Landlord's right, title and interest in and to the
Property, the Improvements and the Appliances.
1564573.4 20
8.2.2 Personal Property. With the exception of the Appliances, any Personal
Property may be removed prior to Lease Termination by Tenant; provided, however, the removal
shall be with due diligence, and without expense to Landlord, and any part of the Property
damaged by such removal shall be promptly repaired. Any Personal Property which remains on
the Property for thirty (30) days after the Lease Termination may, at the option of Landlord, be
deemed to have been abandoned and either may be retained by Landlord as its property or may
be disposed of in accordance with Applicable Law. If requested by Landlord within a reasonable
time but not less than six months prior to the termination of this Lease, upon Lease Termination
Tenant shall, at Tenant's sole cost and expense, remove all Personal Property, or portions thereof
designated by Landlord.
8.3 Condition of Improvements at Lease Termination. Landlord has entered this
Lease in reliance on the fact that, at Lease Termination, Landlord will receive from Tenant the
Improvements in good condition and repair, reasonable wear and tear excepted and reflecting the
age of the Improvements at such time and Landlord's willingness during the Term of this Lease
to consent to the encumbrance of Tenant's interest in the Property for construction financing. At
any time during the Term, upon reasonable advance notice and during normal business hours,
Landlord may inspect the Property and Improvements to confirm that they are being properly
maintained as required herein. Following its inspection, Landlord may deliver to Tenant written
notification of any portions of the Property or Improvements which Landlord has determined are
not being properly maintained and Tenant shall promptly comply with the provisions of this
Lease regarding such items; provided, the failure of Landlord to inspect or to notify Tenant of
any default hereunder shall not be a waiver of Landlord's right to enforce Tenant's maintenance
and repair obligations hereunder.
8.4 Survival. The provisions of this Article VIII shall survive Lease Termination.
ARTICLE IX
INSURANCE
9.1 Insurance. Tenant, at its sole cost and expense, commencing upon the Effective
Date and continuing throughout the Term (except as otherwise specified below) shall keep and
maintain in full force and effect policies of insurance pursuant to and in accordance with the
requirements set forth in this Article IX.
(a) Tenant and all contractors working on behalf of Tenant on the Project
shall maintain a commercial general liability policy in the amount of One Million Dollars
($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate, together with
Three Million Dollars ($3,000,000) excess liability coverage, or such other policy limits as
Agency may require in its reasonable discretion, including coverage for bodily injury, property
damage, products, completed operations and contractual liability coverage. Such policy or
policies shall be written on an occurrence basis and shall name the Indemnitees as additional
insureds.
(b) Tenant and all contractors working on behalf of Tenant shall maintain a
comprehensive automobile liability coverage in the amount of One Million Dollars ($1,000,000),
1564573.4 21
combined single limit including coverage for owned and non -owned vehicles and shall furnish or
cause to be furnished to Agency evidence satisfactory to Agency that Tenant and any contractor
with whom Tenant has contracted for the performance of work on the Property or otherwise
pursuant to this Agreement carries workers' compensation insurance as required by law.
Automobile liability policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction work and continuing until issuance
of the final certificate of occupancy or equivalent for the Project, Tenant and all contractors
working on behalf of Tenant shall maintain a policy of builder's all -risk insurance in an amount
not less than the full insurable cost of the Project on a replacement cost basis naming Agency as
loss payee.
(d) Tenant shall maintain property insurance covering all risks of loss (other
than earthquake), including flood (if required) for 100% of the replacement value of the Project
with deductible, if any, in an amount acceptable to Agency, naming Agency as loss payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a current
A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive
automobile policies required hereunder shall name the Indemnitees as additional insureds.
Builder's Risk and property insurance shall name Agency and City as loss payees as their
interests may appear pursuant to this Lease and the Loan Agreement.
(f) Prior to commencement of construction work, Tenant shall furnish
Agency with certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional insured status.
The certificates shall contain a statement of obligation on the part of the carrier to notify City and
Agency of any material adverse change, cancellation, termination or non - renewal of the coverage
at least thirty (30) days in advance of the effective date of any such material adverse change,
cancellation, termination or non - renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Tenant shall, within fifteen (15) days after receipt of notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or reduction,
file with Agency and City a certificate showing that the required insurance has been reinstated or
provided through another insurance company or companies. Upon failure to so file such
certificate, Agency or City may, without further notice and at its option, procure such insurance
coverage at Tenant's expense, and Tenant shall promptly reimburse Agency or City for such
expense upon receipt of billing from Agency or City.
(h) Coverage provided by Tenant shall be primary insurance and shall not be
contributing with any insurance, or self - insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation for the
benefit of the City and Agency. Tenant shall furnish the required certificates and endorsements
to Agency prior to the commencement of construction of the Project, and shall provide Agency
with certified copies of the required insurance policies upon request of Agency.
1564573.4 22
ARTICLE X
INDEMNIFICATION BY TENANT
Tenant shall indemnify, defend (with counsel approved by Landlord), protect and save
Landlord and City and their respective elected and appointed officials, officers, employees, and
agents (all of the foregoing, collectively the "Indemnitees ") harmless from and against any and
all claims, liabilities, losses, damages, fines, penalties, claims, demands, suits, actions, causes of
action, judgments, judicial or administrative proceeding, deficiency, order, costs and expenses
(including without limitation reasonable attorneys' fees and court costs) (all of the foregoing,
collectively "Claims ") which directly or indirectly, in whole or in part, are caused by, arise in
connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or
relate to: the construction, renovation, use, operation, or management of, the Property or the
Improvements; any breach or default on the part of Tenant in the performance of any covenant or
agreement to be performed by Tenant pursuant to this Lease; any negligence of Tenant or any of
its agents, contractors, employees, sublessees or licensees; any accident, injury or damage caused
to any person in or on the Property or Improvements; the furnishing of labor or materials by
Tenant; or the failure to comply with Applicable Laws (including without limitation, all claims
that may be made by contractors, subcontractors or other third party claimants pursuant to Labor
Code Sections 1726 and 1781); whether or not any insurance policies shall have been determined
to be applicable to any such Claims. It is further agreed that Agency and City do not and shall
not waive any rights against Tenant which they may have by reason of this indemnity and hold
harmless agreement because of the acceptance by Agency, or Tenant's deposit with Agency of
any of the insurance policies described in this Agreement. Tenant's indemnification obligations
set forth in this Section shall not apply to Claims arising solely from the gross negligence or
willful misconduct of the Indemnitees. Tenant's obligations under this Article shall survive the
expiration or earlier termination of this Agreement.
ARTICLE XI
DAMAGE AND DESTRUCTION
11.1 Damage or Destruction. In the event of any damage to or destruction of the
Improvements during the Term for which insurance coverage is required under this Lease or the
Loan Agreement, Tenant shall restore and rebuild the Improvements as nearly as possible to their
condition immediately prior to such damage or destruction, subject to any restrictions imposed
by changes in Applicable Law and the availability of insurance proceeds for such purpose.
Tenant shall commence diligently and continuously to carry out such rebuilding to full
completion as soon as possible. Unless Landlord agrees otherwise in writing, Tenant shall
commence reconstruction of the Improvements within one hundred and eighty (180) days
following the date upon which insurance proceeds are made available for such work. Tenant
shall be deemed to have commenced reconstruction when Tenant engages an architect for such
work. Upon the occurrence of damage or destruction, all insurance proceeds paid in respect of
such damage or destruction shall be applied to the payment of the costs of the restoration and
rebuilding required to be performed by Tenant pursuant to this Lease. The insurance proceeds
shall be held in trust by a financial institution agreed upon by Landlord and Tenant (the
1564573.4 23
"Insurance Trustee "), with the costs of such trust to be a first charge against the insurance
proceeds. After the completion of the restoration and rebuilding of the Improvements, any
remaining insurance proceeds shall be paid to Tenant and Tenant shall be entitled to retain the
same.
11.1.1 Mortgagee Protection. Notwithstanding the foregoing or any other
provision to the contrary in this Article XI, if a Leasehold Mortgagee requires insurance
proceeds payable with respect to a casualty to be paid to it or its successors or assigns pursuant to
the terms of its Leasehold Mortgage, the insurance proceeds shall be delivered to such Leasehold
Mortgagee to be applied by such Leasehold Mortgagee in accordance with such Leasehold
Mortgage.
11.2 Rebuilding by Tenant. The funds held by the Insurance Trustee shall be held in
trust and shall be applied to the cost of rebuilding. Any funds held by the Insurance Trustee
following final completion of rebuilding and payment of all costs and expenses thereof and
removal of any liens related thereto, shall be paid to Tenant.
11.3 Disbursement of Funds. The Insurance Trustee shall disburse funds only on a
periodic basis approved by Landlord and Tenant and only upon receipt of invoices and other
documentation, certified as correct by Tenant's architect, if an architect is required for the repair,
evidencing satisfactory completion of the work for which payment is requested (a "Payment
Request "). Further, the Insurance Trustee shall not disburse any funds unless the payment
request is accompanied by (a) an executed conditional lien release in form complying with
California law relating to all labor and materials described in the Payment Request and (b) an
executed final lien release in form complying with California law releasing all claims for labor
and materials described in the immediately preceding Payment Request.
11.4 Notice Required. In the event of material damage to or destruction of the
Improvements, or any part thereof, Tenant shall promptly give Landlord and Leasehold
Mortgagee notice of such occurrence and take all actions reasonably required to protect against
hazards caused by such damage or destruction. For purposes of this Article XI damage or
destruction shall be deemed to be material if the estimated cost to repair equals or exceeds One
Hundred Thousand Dollars ($100,000).
11.5 Removal of Debris. If this Lease shall terminate following the occurrence of
damage to or destruction of the Improvements and at a time when Tenant shall not have restored
and rebuilt the Improvements, then Tenant shall, at its cost and expense after the use of any
insurance proceeds released for such purpose, remove the debris and damaged portion of
Improvements (including without limitation all foundations) and restore the Property and
Improvements or the applicable portion thereof to a neat, clean and safe condition.
11.6 Tenant's Right to Terminate. Notwithstanding any contrary provision of this
Article XI, Tenant shall have the option to terminate this Lease and be relieved of the obligation
to restore the Improvements where all or substantially all of the Improvements are substantially
damaged or destroyed and such damage or destruction resulted from a cause not insured against
by Tenant nor required to be insured against by Tenant under this Lease (an "Uninsured Loss "),
and where all of the following occur:
1564573.4 24
(i) No more than one hundred twenty (120) days following the Uninsured
Loss, Tenant shall notify Landlord of its election to terminate this Lease. To be effective, such
notice must include the written consent of all Leasehold Mortgagees and partners of Tenant to
Tenant's exercise of the option to terminate set forth in this Section 11.6. Landlord shall be
entitled to rely upon the foregoing notice and certification as conclusive evidence that Tenant has
obtained the consent of all Leasehold Mortgagees to Tenant's exercise of its option to terminate
this Lease.
(ii) No more than sixty (60) days following the giving of the notice required
by the preceding paragraph (i) or such longer time as may be reasonable under the
circumstances, Tenant shall, at Tenant's expense after the use of any insurance proceeds released
for such purpose, remove all debris and other rubble from the Property, secure the Property
against trespassers, and at Landlord's election, remove all remaining Improvements on the
Property.
(iii) No more than thirty (30) days following Tenant's termination notice,
Tenant shall deliver to Landlord a quitclaim deed to the Property and Improvements in
recordable form, in form and content satisfactory to Landlord and/or with such other
documentation as may be reasonably requested by Landlord or any title company on behalf of
Landlord, terminating Tenant's interest in the Property and Improvements.
ARTICLE XII
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
If Tenant shall at any time fail to pay any Imposition or other charge payable by Tenant
to a third party as required by this Lease within the time permitted (which shall be deemed to
include any time to contest the same that is permitted by Applicable Laws), or to pay for or
maintain any of the insurance policies required pursuant to Article IX within the time therein
permitted, or to make any other payment or perform any other act on its part to be made or
performed hereunder within the time permitted by this Lease, then after thirty (30) days' written
notice to Tenant and after satisfying all other notice requirements set forth in this Lease
respecting Leasehold Mortgagees and partners of Tenant and such parties' failure to timely cure
(or as applicable, commence to cure) the same, and without waiving or releasing Tenant from
any obligation of Tenant hereunder, Landlord may (but shall not be required to): (i) pay such
Imposition or other charge payable by Tenant; (ii) pay for and maintain such insurance policies
required pursuant to Article IX; or (iii) make such other payment or perform such other act on
Tenant's part to be made or performed under this Lease; and Landlord may enter upon the
Property and Improvements for such purpose and take all such action thereon as may be
reasonably necessary therefor.
All sums paid by Landlord and all costs and expense incurred by Landlord in connection
with the performance of any such act (together with interest thereon at the Default Rate from the
respective dates of Landlord's making of each such payment) shall constitute additional Rent
payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. The
"Default Rate" shall mean interest calculated at an annual rate equal to the rate of interest most
recently announced by Bank of America N.A. (or its successor bank) at its San Francisco office
1564573.4 25
as its "reference rate" but in no event more than the maximum rate of interest permitted by law.
If Bank of America or its successor no longer issues a "reference rate," the most comparable rate
of the largest bank with its corporate headquarters
bank or comparable rate, then the Default shall be the highest legal rate of interest that may
be charged at that time.
ARTICLE XIII
REPAIRS, CHANGES, ALTERATIONS AND NEW CONSTRUCTION
13.1 Repairs and Maintenance. Tenant covenants and agrees, throughout the Term,
without cost to Landlord, to take good care of
Tenant's own cost and expense, make all necessary der
an condition. Tenant shall promptly,
repairs, interior and exterior, structural and nonstructural, ordinary as well as extraordinary,
whether contemplated or not contemplated at the time of execution of this Lease, and shall keep
the Property in a well maintained, safe, clean and sanitary condition. The term "repairs" shall
include replacements or renewals when necessary, and all such repairs made by Tenant shall be
at least equal in quality and class to the original work. Tenant waives any rights created under
any law now or hereafter in force to make repairs to the Improvements at Landlord's expense.
Tenant shall keep and maintain all portions of the Property and the sidewalks adjoining the same
in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti. From time to
time during the Term, upon not less than 48 hours prior notice from Landlord, Landlord may
enter the Property, or portions thereof, to determine if Tenant is properly maintaining the
Property. If, following any such inspection by Landlord, Landlord delivers notice of any
deficiency to Tenant, Tenant shall promptly prepare and deliver to Landlord Tenant's proposed
plan for remedying the indicated deficiencies. Tenant's failure to deliver a remedial plan and to
complete, within a reasonable time, remedial work shall be a default under this Lease (subject to
all applicable notice and cure rights of Tenant, Leasehold Mortgagees, and partners of Tenant).
Landlord's failure to deliver, following any Landlord's inspection, any notice of deficiency to
Tenant, shall not be a waiver of any default by Tenant under this Article XIII. Tenant shall
defend, indemnify and hold Landlord harmless from and against any claim, loss, expense, cost,
or liability incurred by Landlord arising out of Tenant's failure to fully and timely fulfill its
obligations to maintain and repair the Property as required hereunder.
13.2 Changes and Alterations. Tenant shall not during the Term make any changes or
alterations in, to or of the Improvements without the prior written consent of Landlord, which
Landlord shall not unreasonably withhold, so long as Tenant complies with all of the following
at Tenant's sole cost and expense:
(a) The change or alteration shall be in harmony with neighboring buildings
and shall not materially impair the value or structural integrity of the Improvements.
(b) The change or alteration shall be for a use which is permitted hereunder.
(c) No change, alteration or addition shall be undertaken until Tenant shall
have obtained and paid for, so far as the same may be required from time to time, all permits and
authorizations of any federal, state or municipal government or departments or subdivisions of
1564573.4
26
any of them, having jurisdiction. Landlord shall join in the application for such permits or
authorizations whenever such action is necessary; provided, however, that Landlord shall incur
no liability or expense in connection therewith.
(d) Any change, alteration or addition shall be made in a good and workmanlike
manner and in accordance with all applicable permits and all Applicable Laws.
(e) During the period of initial renovation of, or of construction of any change,
alteration or addition in, to or of, the Improvements or of any permitted demolition or new
construction or of any restoration, Tenant shall maintain or cause to be maintained property and
other applicable insurance described in Article IX, which policy or policies by endorsement
thereto, if not then covered, shall also insure any change, alteration or addition or new
construction, including all materials and equipment incorporated in, on or about the
Improvements (including excavations, foundations and footings) under a broad form all risks
builders' risk form or equivalent thereof.
(f)
Tenant shall comply with the provisions of Article VI hereof.
(g) At Landlord's request, Tenant shall provide Landlord with a copy of as-
built drawings for the Improvements within sixty (60) days following the completion of the
Improvements.
13.3 Exceptions to Requirement for Consent. The foregoing notwithstanding,
following City's issuance of a final certificate of occupancy or equivalent after completion of
construction of the Project, Tenant shall not be required to obtain Landlord's prior written
consent to any changes, alterations or improvements so long as all the following requirements
are met:
(a) The change, alteration or improvement is nonstructural;
(b) The change, alteration or improvement is not visible from the exterior of
any building on the Land;
(c) The change, alteration or improvement has a cost of less than One
Hundred Thousand Dollars ($100,000); and
(d) The provisions of Article VI are satisfied.
Notwithstanding the foregoing, except in response to emergency situations for which it would
not be reasonably practicable or possible to provide such advance notice, Tenant shall deliver to
Landlord not later than ten (10) days prior to commencement of any construction, change,
alteration or repair, written notice of the proposed work, a general description of the proposed
work and sufficient information to permit Landlord to post a notice of nonresponsibility on the
Land.
13.4 No Right to Demolish. Notwithstanding any other provisions of this Article XIII,
Tenant shall have no right to demolish any Improvement, once built, unless Tenant shall have
received the prior written consent of Landlord which shall not be unreasonably withheld if the
1564573.4 27
age and condition of the Improvements makes repair or reconstruction impractical or financially
infeasible.
ARTICLE XIV
EMINENT DOMAIN
14.1 Eminent Domain.
14.1.1 Definitions. The following definitions shall apply in construing the
provisions of this Article XIV:
(a) "Award" means all compensation, damages or interest, or any
combination thereof, paid or awarded for the taking, whether pursuant to judgment, by
agreement, or otherwise.
(b) "Notice of intended taking" means any notice or notification on
which a reasonably prudent person would rely and would interpret as expressing an existing
intention of taking as distinguished from a mere preliminary inquiry or proposal. It includes, but
is not limited to, the service of a condemnation summons and complaint on a party to this Lease.
The notice is considered to have been received when a party to this Lease receives from the
condemning agency or entity a written notice of intent to take.
(c) "Partial taking" means any taking that is not a total taking, a
substantial taking, or a temporary taking.
(d) "Substantial taking" means the taking of so much of the Property
that the remaining portion thereof would not be economically and feasibly usable by Tenant for
the then existing uses and purposes of the Property, in Tenant's reasonable judgment, but shall
exclude a temporary taking.
(e) "Taking" means any taking of or damage, including severance
damage, to all or any part of the Property or any interest therein by the exercise of the power of
eminent domain, or by inverse condemnation, or a voluntary sale, transfer or conveyance under
threat of condemnation in avoidance of the exercise of the power of eminent domain or while
condemnation proceedings are pending.
(f) "Temporary taking" means the taking of any interest in the
Property for a period of less than one (1) year.
(g) "Total taking" means the taking of all or substantially all of the
Property, but shall exclude a temporary taking.
14.1.2 Notice. The party receiving any notice of the kind specified below shall
promptly give the other party and all Leasehold Mortgagees written notice of the receipt,
contents and date of the notice received:
(a) notice of intended taking;
1564573.4 28
(b) service of any legal process relating to condemnation of all or any
portion of the Property;
(c) notice in connection with any proceedings or negotiations with
respect to such a condemnation; or
(d) notice of intent or willingness to make or negotiate a private
purchase, sale or transfer in lieu of condemnation.
Landlord and Tenant, and any Leasehold Mortgagee, each shall have the right to represent its
respective interest in each proceeding or negotiation with respect to a taking or intended taking
and to make full proof of their respective claims. No agreement, settlement, sale or transfer to or
with the condemning authority shall be made without the mutual agreement of Landlord and
Tenant and any Leasehold Mortgagee. Landlord and Tenant each agree to execute, acknowledge
and deliver to the other any instruments that may be reasonably required to effectuate or
facilitate the provisions of this Lease relating to condemnation.
14.1.3 Total or Substantial Taking. In the event of a total or substantial taking of
fee title to the Property, Tenant's interest in this Lease and all obligations of Tenant subsequently
accruing hereunder shall cease as of the date of the vesting of title in the condemning authority;
provided, however, that if actual physical possession of all or part of the Property is taken by the
condemning authority prior to such date of vesting of title, Tenant's obligations to pay Rent and
other sums under this Lease shall terminate as of such earlier date. In the event of a total or
substantial taking of an interest in the Property other than fee title, at Tenant's option
(exercisable by written notice to Landlord), Tenant's interest in this Lease and all obligations of
Tenant subsequently accruing hereunder shall cease as aforesaid.
14.1.4 Award. In the event of a total or substantial taking, the Award shall be
apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount owing
on the Leasehold Mortgage.
(b) To Landlord that portion of the Award equal to the fair market
value of the Property. Any "bonus value" attributable to this Lease shall be paid to Landlord.
(c) To Tenant, that portion of the Award equal to the fair market value
of the Improvements (subject to Landlord's reversionary interest), less the amount paid to the
Leasehold Mortgagee pursuant to (a) above.
(d) The balance, if any, shall be allocated between Landlord and
Tenant respectively in that proportion in which (i) the fair market value of the Property bears to
(ii) the fair market value of the Improvements, exclusive of Landlord's reversionary interest.
14.1.5 Temporary Taking. In the event of a temporary taking, Tenant shall be
entitled to the whole Award, and this Lease shall remain in full force and effect.
1564573.4 29
14.1.6 Partial Taking. In the event of a partial taking, this Lease shall remain in
full force and effect, covering the remainder of the Property, and Tenant shall repair and restore
any damage to the Improvements caused by such partial taking consistent with and subject to the
provisions applicable to a restoration in the event of an insured casualty under Article IX, so that
after completion of the restoration the Improvements shall be, as nearly as possible, in a
condition as good as the condition immediately preceding the partial taking. The Award for any
partial taking shall be deposited and disbursed in the same manner as insurance proceeds are
disbursed for restoration pursuant to Article IX, and upon completion of the restoration, any
remaining portion of the Award shall be allocated as set forth in Section 14.1.6.1.
14.1.6.1 Award on Partial Taking. In the event of a partial taking, after
application of the Award for restoration pursuant to Section 14.1.6, any remaining portion of
such Award shall be apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount
owing on the Leasehold Mortgage.
(b) To Landlord, that portion of the Award attributable to the
fair market value of the portion of the Property taken.
(c) To Tenant, that portion of the Award equal to the fair
market value of the portion of the Improvements taken (subject to Landlord's reversionary
interest), less the amount paid to the Leasehold Mortgagee pursuant to (a) above, but only to the
extent that the proceeds of the Award are not used for restoration of the Improvements.
(d) The balance, if any, shall be allocated between Landlord
and Tenant respectively in that proportion in which (i) the fair market value of the Property
bears to (ii) the fair market value of the Improvements exclusive of the reversionary interest of
Landlord. Any "bonus value" attributable to this Lease shall be paid to Landlord.
(e) Any severance damages awarded or payable because only a
portion of the Property is taken by eminent domain shall be (a) paid to Tenant during the first
37.5 years of this Lease and (b) equally divided between Tenant and Landlord during the next
37.5 years of this Lease (except to the extent needed to replace any Improvements taken by
eminent domain with equivalent Improvements on the remainder of the Property).
No payments shall be made to Tenant pursuant to this Section if any default by Tenant hereunder
has occurred and is continuing unless and until such default is cured.
14.1.6.2 Partial Taking in Last Five Years. If a partial taking occurs
during the last five (5) years of Term and the reasonably estimated cost of reconstruction work
exceeds ten percent (10 %) of the replacement value of the Improvements, Tenant shall have the
right and option to treat the same as a substantial taking by giving written notice thereof to
Landlord no later than the earlier of: (a) the date of vesting of title in the condemning authority
of the portion of the Property taken, or (b) the date upon which the condemning authority takes
physical possession of such portion of the Property. If Tenant does give such notice the partial
1564573.4 30
taking shall be considered as a substantial taking and the taking shall be subject to the provisions
of Section 14.1.3.
ARTICLE XV
MORTGAGES
15.1 Leasehold Mortgages. Tenant shall have the right, at any time and from time to
time during the Term, to encumber its leasehold interest hereunder with a Leasehold Mortgage or
Mortgages subject to Landlord's prior written consent (which consent will not be unreasonably
withheld) provided that (a) no Leasehold Mortgage shall in any way impair (except as otherwise
stated herein or as provided by law) the enforcement of Landlord's right and remedies herein and
by law provided, (b) any such Leasehold Mortgage shall at all times be subject and subordinate
to, and shall not affect or become a lien upon Landlord's right, title or estate in the Property or in
this Lease, and (c) Tenant shall give Landlord prior written notice of any such Leasehold
Mortgage, accompanied by a true and correct copy of any such Leasehold Mortgage. Any
Leasehold Mortgage shall be subject to the terms and conditions set forth in this Article XV.
Landlord acknowledges approval of the Leasehold Mortgages described in the Financing Plan
attached as Exhibit G to the Loan Agreement.
15.2 Rights of Leasehold Mortgagee.
15.2.1 Notices. If Landlord shall have been provided with written notice of the
address of any Leasehold Mortgagee, Landlord shall mail to such Leasehold Mortgagee a copy
of any notice under this Lease at the time of giving such notice to Tenant, and no such notice
shall be effective against such Leasehold Mortgagee, and no termination of this Lease or
termination of Tenant's right of possession of the Property or reletting of the Property by
Landlord predicated on the giving by Landlord of any notice shall be effective, unless Landlord
gives to such Leasehold Mortgagee written notice or a copy of its notice to Tenant of such
default or termination, as the case may be.
15.2.2 Right to Cure.
(a) In the event of any default by Tenant under the provisions of this
Lease, the Leasehold Mortgagee shall have the right, but not the obligation, to remedy or cause
to be remedied such default (including the right to enter the Property and to take possession of
the Property if necessary to cure the default) within the same cure period as afforded Tenant
hereunder, extended by an additional sixty (60) days, which cure period shall commence as
against the Leasehold Mortgagee upon the receipt by the Leasehold Mortgagee of the notice of
default. Landlord shall accept such performance by the Leasehold Mortgagee as if the same had
been done by Tenant.
(b) The term "incurable default" as used herein means any default
which cannot be reasonably cured by a Leasehold Mortgagee. The term "curable default"
means any default under this Lease which is not an incurable default. Any failure to pay
monetary sums shall at all times be deemed a curable default. Any failure to comply with the
1564573.4 31
requirements of Section 7.2 hereof (for so long as such Section 7.2 remains in effect) shall at all
times be deemed a curable default, and as to Leasehold Mortgagees or any entity acquiring the
interest of Tenant in the Property and in this Lease as a result of the foreclosure of a Leasehold
Mortgage (or an assignment or deed in lieu thereof), Landlord shall not terminate this Lease
provided such party is diligently and in good faith proceeding to cure any such default. In the
event of any curable default under this Lease, and if prior to the expiration of the applicable
grace period specified in Section 15.2.2 (a) the Leasehold Mortgagee shall give Landlord written
notice that it intends to undertake the curing of such default, or to cause the same to be cured, or
to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or otherwise, and
shall promptly commence and then proceed with diligence to do so, whether by performance on
behalf of Tenant of its obligations under this Lease, by foreclosure or otherwise, then Landlord
will not terminate or take any action to effect a termination of this Lease or re- enter, take
possession of or relet the Property, appoint a receiver, exercise any other remedy under this
Lease, or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is
diligently and in good faith engaged in the curing of such default or effecting such foreclosure.
The foregoing sentence shall not be deemed to extend the time period within which a default in
the payment of money must be cured under Section 15.2.2 (a). The Leasehold Mortgagee shall
not be required to continue such possession or continue such foreclosure proceedings. Nothing
herein shall preclude Landlord from terminating this Lease with respect to any additional default
which shall occur during any period of forbearance and not be remedied within the cure period,
if any, applicable to any such additional default, except that Leasehold Mortgagee shall have the
same rights specified in this Article XV with respect to any additional defaults.
In the event of any incurable default under this Lease, and if prior to the expiration of the
applicable grace period specified in Section 15.2.2 (a) of this Lease, the Leasehold Mortgagee
shall give Landlord written notice that it intends to exercise its rights to acquire the leasehold
interest of Tenant by foreclosure or otherwise, and shall promptly commence and then proceed
with diligence to do so, whether by foreclosure or otherwise, then Landlord will not terminate or
take any action to effect a termination of this Lease or re- enter, take possession of or relet the
Property or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is
diligently and in good faith engaged in effecting such foreclosure and such incurable default
shall be deemed cured upon the foreclosure of the Leasehold Mortgage (or assignment or deed in
lieu thereof).
(c) If the default by Tenant pertains to the failure of Tenant to
complete construction of the Project within the time period required under Section 6.2 of this
Lease, and if prior to the expiration of the applicable grace period specified in Section 15.2.2 (a)
of this Lease, the Leasehold Mortgagee shall give Landlord written notice that it intends to
undertake to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or
otherwise, and shall promptly commence and then proceed with diligence to do so, whether by
foreclosure or otherwise, then Landlord will not terminate or take any action to effect a
termination of this Lease or re- enter, take possession of or relet the Property or similarly enforce
performance of this Lease so long as the Leasehold Mortgagee is diligently and in good faith
engaged in the completion of the construction of the Project or effecting such foreclosure;
provided, however, Landlord shall not be obligated to forbear from a termination or other
enforcement of its rights under the Lease in response to such default beyond the date which is
three (3) years following the date of foreclosure of the Leasehold Mortgage (or deed or
assignment in lieu of foreclosure); provided, further, that additional extensions will be granted by
1564573.4 32
the Agency, in its reasonable discretion, if the Agency determines that there has been good faith
progress in pursuing completion of the Project, which may include, among other things, securing
a substitute developer, obtaining additional or substitute financing, or securing a substitute
construction contractor.
(d) If a Leasehold Mortgagee is prohibited, stayed or enjoined by any
bankruptcy, insolvency or other judicial proceedings involving Tenant from commencing or
prosecuting foreclosure or other appropriate proceedings, the times specified for commencing or
prosecuting such foreclosure or other proceedings for Leasehold Mortgagee shall be extended for
the period of such prohibition.
15.2.3 Execution of New Lease. If this Lease is terminated for any reason,
including by Tenant's trustee in bankruptcy, receiver, liquidator or other similar person on
account of a default or if Tenant's interest under this Lease shall be sold, assigned or transferred
pursuant to the exercise of any remedy of the Leasehold Mortgagee, or pursuant to judicial
proceedings, and if (i) all monetary defaults of Tenant have been cured, and (ii) the Leasehold
Mortgagee shall have arranged to the reasonable satisfaction of Landlord to cure any other
curable default of Tenant under this Lease, then Landlord, within thirty (30) days (or such period
as may reasonably be necessary to enable Landlord to comply with statutory requirements
applicable to Landlord's lease of real property) after receiving a written request therefor, which
shall be given within sixty (60) days after such termination or transfer and upon payment to it of
all reasonable out -of- pocket expenses, including attorneys' fees, incident thereto, will execute
and deliver a new lease of the Property to the Leasehold Mortgagee or its affiliate or other
nominee or to the purchaser, assignee or transferee, as the case may be, for the remainder of the
Term, containing the same covenants, agreements, terms, provisions, priority, and limitations, as
are contained herein. The tenant under such new lease shall be personally obligated only for the
performance of obligations under the Lease commencing as of the date of such foreclosure or
assumption, and ending as of the date of any assignment of the Lease to a successor tenant.
(a) Upon the execution and delivery of a new lease, the new tenant, in
its own name or in the name of Landlord may take all appropriate steps as shall be necessary to
remove Tenant from the Property, but Landlord shall not be subject to any liability for the
payment of fees, including attorneys' fees, costs or expenses in connection therewith, and the
new tenant shall pay all such fees, including attorneys' fees, costs and expenses, on demand, and
shall make reimbursement to Landlord of all such fees, including attorneys' fees, costs and
expenses, incurred by Landlord. Tenant acknowledges and agrees that Landlord shall have no
liability whatsoever to Tenant in connection with any such action, and hereby releases Landlord
from any claim Tenant may have with respect thereto.
(b) Upon execution of any new lease, the new tenant named therein
shall cure all uncured curable defaults hereunder. Any nonmonetary cure required of the new
tenant shall be commenced within thirty (30) days following the date the new tenant executes the
new lease and has a right to possession, and thereafter shall be diligently prosecuted to
completion. Any failure to comply with any of the foregoing requirements shall constitute a
default under the new lease.
1564573.4 33
(c) Following foreclosure or enforcement of a Leasehold Mortgage, or
assignment in lieu thereof, Landlord will recognize the purchaser or assignee of the leasehold
estate as the Tenant under the Lease.
(d) After such termination and cancellation of the Lease and prior to
the expiration of the period within which the Leasehold Mortgagee may elect to obtain a new
lease from Agency, Agency shall refrain from terminating any existing sublease or otherwise
encumbering the Property or the Improvements without the prior written consent of the
Leasehold Mortgagee. Any new lease shall enjoy the same priority in time and in right as the
Lease over any lien, encumbrance or other interest created by Landlord before or after the date of
such new lease, and shall vest in the new lessee all right, title, interest, power and privileges of
Tenant hereunder in and to the Property and the Improvements, including, without limitation, the
assignment of Tenant's interest in and to all then existing subleases and sublease rentals and the
automatic vesting of title to all Improvements, fixtures and personal property of Tenant. Such
new lease shall provide, with respect to each and every permitted sublease which immediately
prior to the termination of the Lease was superior to the lien of the Leasehold Mortgage that the
new lessee shall be deemed to have recognized the sublessee under the sublease, pursuant to the
terms of the sublease as though the sublease had never terminated but had continued in full force
and effect after the termination of the Lease, and to have assumed all the obligations of the
sublessor under the sublease accruing from and after the termination of the Lease, except that the
obligation of the new lessee, as sublessor, under any covenant of quiet enjoyment, expressed or
implied, contained in any such sublease shall be limited to the acts of such new lessee and those
claiming by, under or through such new lessee. If more than one entity claims to be the
Leasehold Mortgagee that is entitled to a new lease pursuant to this subsection, Agency shall
enter into such new lease with the lender whose mortgage or deed of trust is prior in lien.
Agency, without liability to Tenant or any lender with an adverse claim, may rely upon a lender
title insurance policy issued by a responsible title insurance company doing business in the state
where the Property is located as the basis for determining the appropriate Leasehold Mortgagee
who is entitled to such new lease.
15.2.4 Tenant Default Under Leasehold Mortgage. If Tenant defaults under a
Leasehold Mortgage, the Leasehold Mortgagee may exercise with respect to Tenant's interest in
the Property and the Improvements any right, power or remedy under the Leasehold Mortgage
which is not in conflict with the provisions of this Lease, including without limitation, judicial or
nonjudicial foreclosure of the Leasehold Mortgage (or deed or assignment in lieu thereof),
appointment of a receiver, and /or revocation of Tenant's license to collect rents.
15.2.5 No Merger. There shall be no merger of this Lease or any interest in this
Lease, nor of the leasehold estate created hereby, with the fee estate in the Property, by reason of
the fact that this Lease or such interest therein, or such leasehold estate may be directly or
indirectly held by or for the account of any person who shall hold the fee estate in the Property,
or any interest in such fee estate, nor shall there be such a merger by reason of the fact that all or
any part of the leasehold estate created hereby may be conveyed or mortgaged in a Leasehold
Mortgage to a Leasehold Mortgagee who shall hold the fee estate in the Property or any interest
of the Landlord under this Lease.
1564573.4 34
15.2.6 Assumption of Obligations. For the purpose of this Article XV, the
making of a Leasehold Mortgage shall not be deemed to constitute an assignment or Transfer of
this Lease or of the leasehold estate hereby created, nor shall any Leasehold Mortgagee, as such,
be deemed an assignee or transferee of this Lease or of the leasehold estate hereby created so as
to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms,
covenants or conditions on the part of Tenant to be performed hereunder. The purchaser at any
sale of this Lease and of the leasehold estate hereby created in any proceedings for the
foreclosure of any Leasehold Mortgage, or the assignee or transferee of this Lease and of the
leasehold estate hereby created under any instrument or assignment or transfer in lieu of the
foreclosure of any Leasehold Mortgage, in order to be deemed to be an assignee or transferee
and before the same shall be binding on Landlord, must assume in writing the performance of all
of the terms, covenants, and conditions on the part of Tenant to be performed hereunder during
the period such party holds a leasehold interest in the Property by an instrument, in recordable
form, reasonably satisfactory to Landlord; provided however, that nothing contained herein shall
be construed to require the purchaser, assignee or transferee as described above to be obligated to
cure any default by Tenant. Although a purchaser, assignee or transferee shall not be obligated
to cure any default, if any curable default is not cured, Landlord may exercise any remedy
available under this Lease, including the termination of this Lease, if the curable default is not
cured after the expiration of any applicable cure period.
15.2.7 Limitation of Leasehold Mortgagee Liability for Tenant Defaults.
Notwithstanding any contrary provision hereof: (i) no Leasehold Mortgagee shall be required to
pay any liens or charges that are extinguished by the foreclosure of its Leasehold Mortgage; (ii)
any incurable default shall be, and shall be deemed to have been waived by Landlord upon
completion of foreclosure proceedings or acquisition of Tenant's interest in this Lease by any
purchaser at a foreclosure sale, or any entity who otherwise acquires Tenant's interest from the
Leasehold Mortgagee by deed in lieu of foreclosure. Any entity acquiring the interest of Tenant
in the Property and in this Lease as a result of the foreclosure of a Leasehold Mortgage (or an
assignment or deed in lieu thereof) acquires an interest in the leasehold only, and shall be liable
to perform the obligations of Tenant under this Lease only during the period such entity retains
ownership of the interest of Tenant in the Property and in this Lease.
15.3 Non - Subordination of Fee. Nothing in this Lease shall be construed as an
agreement by Landlord to subordinate its fee interest in the Property or its right to rent payments
hereunder or any other right of Landlord herein. Except as expressly set forth in this Article XV,
no Leasehold Mortgage shall impair Landlord's ability to enforce its rights and remedies under
this Lease or provided by law. Landlord shall have no obligation to encumber or otherwise
subordinate its fee interest in the Property or in this Lease to the interest of any Leasehold
Mortgagee in this Lease or in Tenant's leasehold estate.
15.4 Subsequent Transfers. In the event any person or entity becomes the lessee under
the Lease by means of foreclosure or deed in lieu of foreclosure or pursuant to any new lease
obtained under Section 15.2.7, such person or entity may assign or Transfer the Lease or such
new lease in compliance with the terms of Article XVI.
15.5 Landlord's Rights Under Leasehold Mortgages.
1564573.4 35
15.5.1 Notice of Tenant's Default. Tenant shall use best efforts to ensure that
every Leasehold Mortgage secured by a deed of trust on Tenant's leasehold estate in the Property
shall expressly provide that:
(a) the lender shall give Landlord contemporaneous notice of any
default by Tenant thereunder, if the failure to cure such default could reasonably be expected to
result in acceleration of the maturity of the debt secured by the Leasehold Mortgage; provided
however, that the lender's giving or failure to give notice shall not affect the lender's rights or
ability to timely pursue all applicable remedies, including, but not limited to, filing a notice of
default or notice of sale, instituting judicial foreclosure proceedings, or seeking the appointment
of a receiver. In addition, within three (3) business days following Tenant's receipt of any notice
of default under any financing document affecting the Property, Tenant shall provide Landlord
with a copy of such notice.
(b) Landlord shall have the right to cure any curable default by Tenant
(but without obligation to do so) upon the same terms and conditions and within ninety (90) days
measured from the date that Landlord receives notice thereof; and
(c) If Landlord shall tender payment in full of all sums required to be
paid under the Leasehold Mortgage or the note secured thereby (disregarding any acceleration of
maturity thereunder, but including any costs or expenses arising as a result of such default) on or
before ninety (90) calendar days from the date of such notice of default from the lender to
Landlord, then the lender shall accept such payment and rescind the acceleration, if any. Any
sums paid by Landlord pursuant to this Section 15.5.1 shall become immediately due and
payable from Tenant to Landlord as Rent due under this Lease; provided however, that no
Leasehold Mortgagee shall be obligated to cure a failure by Tenant to pay such amount pursuant
to the rights granted to Leasehold Mortgagees under this Lease and Landlord shall have no right
to terminate this Lease as a result of Tenant's failure to pay such amounts.
(d) Landlord shall have the right and option (but not the obligation),
during the period described in the last sentence of this paragraph, by notice in writing to the
lender, to purchase any Leasehold Mortgage, the note secured thereby, and any other instruments
securing or guaranteeing such note or otherwise evidencing any obligation secured by the
Leasehold Mortgage. The purchase price therefor shall be the full amount due and owing to the
lender thereunder, including any costs, expenses, swap termination fees, and penalties payable in
accordance with the terms thereof. The sale and assignment by the lender shall be without
recourse or warranty by the lender except that such lender has good title to the note (or is
authorized to obtain payment or acceptance on behalf of one who has good title) and has the
authority to transfer the loan to the Agency. The right granted by this paragraph may be
exercised by Landlord at any time after the lender has declared the entire sum secured by any
Leasehold Mortgage to be due and payable or has commenced proceedings to foreclose any
Leasehold Mortgage, and such right shall terminate ninety (90) days following receipt by
Landlord of the notice described above.
15.6 Reserved.
1564573.4 36
15.7 No Voluntary Surrender /Modification. Notwithstanding anything to the contrary
set forth herein, Landlord will not voluntarily surrender the Lease or accept a voluntary surrender
of the Tenant's leasehold estate, and Landlord will not amend or modify the Lease without the
prior written consent of (i) all holders of any Leasehold Mortgage then in effect (which such
party may withhold in such party's sole discretion), and (ii) the limited partners of Tenant.
Landlord will not enforce against any Leasehold Mortgagee any waiver or election made by
Tenant under the Lease which has a material adverse effect on the value of Tenant's leasehold
estate or the rights of Tenant under the Lease without the prior written consent of such Leasehold
Mortgagee (which may be withheld in its sole discretion).
15.8 Leasehold Mortgagee Right to Pay Landlord Obligations. Leasehold Mortgagees
shall have the right, but not the obligation, upon not less than five (5) business days' prior
written notice to Landlord, to pay any taxes payable by Landlord with respect to the Property,
and to cure any monetary or nonmonetary default by Landlord under any encumbrance on the
Property which has priority over this Lease; and if any Leasehold Mortgagee does so pay or cure,
Landlord agrees that it will reimburse such Leasehold Mortgagee for the amount thereof
promptly following Landlord's receipt of Leasehold Mortgagee's written request therefor.
15.9 Amendments for the Benefit of Leasehold Mortgagees. Landlord and Tenant
shall cooperate to include in this Lease by suitable amendment from time to time, provisions
which may reasonably be requested by any proposed Leasehold Mortgagee for the purpose of
implementing the mortgagee protection provisions contained in this Lease and allowing such
Leasehold Mortgagee reasonable means to protect or preserve the lien of the Leasehold
Mortgage upon the occurrence of a default under the Lease. Landlord and Tenant each agree to
execute and deliver (and acknowledge, if necessary for recording purposes) any agreement
reasonably necessary to effect any such amendment; provided however, that any such
amendment shall not in any way affect the Term, the Rent payable hereunder, nor otherwise in
any material respect adversely affect any rights of Landlord under this Lease.
ARTICLE XVI
ASSIGNMENT, TRANSFER, SUBLETTING
16.1 Restrictions on Transfer or Assignment by Tenant. Except as permitted pursuant
to Article XV and this Article XVI, Tenant shall not sell, transfer, encumber, pledge, assign,
sublet or otherwise convey ( "Transfer ") all or any portion of its interest in the Property, the
Improvements or this Lease voluntarily, involuntarily, by operation of law, or otherwise, without
Landlord's prior written consent. Each Transfer shall comply with all requirements therefor set
forth elsewhere in this Lease and Tenant shall have no right to hypothecate or encumber its
interest in this Lease or sublet or assign all or any portion of the Property and /or the
Improvements except as expressly provided under the terms of this Lease. No voluntary or
involuntary assignee, sublessee, or successor in interest of Tenant shall acquire any rights or
powers under this Lease except as expressly set forth herein.
16.1.1 Exceptions. Notwithstanding any contrary provision of this Lease,
Landlord's consent shall not be required, and the provisions of Section 16.2 below shall not be
applicable, with respect to the following Transfers: (A) the renting or leasing of residential units
1564573.4 37
to tenants in the ordinary course of business; (B) the renting or leasing of retail or commercial
space to tenants in the ordinary course of business, provided that use of the retail and commercial
space will conform to applicable City regulations, including without limitation, the City's zoning
ordinance, and any applicable use restrictions imposed by the Conditions of Approval or
otherwise agreed upon by Landlord and Tenant; (C) the granting of a Leasehold Mortgage in
accordance with Section 15.1 or the foreclosure of a Leasehold Mortgage or the acquisition of
Tenant's interest in this Lease by an assignment or deed in lieu of foreclosure; and (D) the first
Transfer following any event described in clause (C) of this sentence. In addition, Landlord
shall not unreasonably withhold consent to any Transfer of Tenant's interest in the Property or
any portion thereof, or any sublease of the Property, or portion thereof, to MidPen Housing
Corporation, a California nonprofit public benefit corporation ( "MidPen ") or an entity
controlled by MidPen. Neither the transfer of limited partner interests in Tenant, nor the
admission of an investor limited partner to Tenant's partnership shall be considered a Transfer
for purposes of this Article XVI.
16.2 Procedure for Obtaining Landlord's Consent.
(a) Transfer Request. With respect to each Transfer requiring the Landlord's
consent under Section 16.1, Tenant shall send to Landlord written request for Landlord's
approval of the Transfer (a "Transfer Consent Request ") specifying the name and address of
the proposed transferee and its legal composition (if applicable). Each Transfer Request shall be
accompanied by all of the following:
(i) An audited or certified financial statement of the proposed
transferee for the three most recent calendar or fiscal years prepared in accordance with generally
accepted accounting procedures by a certified public accounting firm sufficiently current and
detailed to evaluate the proposed transferee's assets, liabilities and net worth and certified as true
and correct by the proposed transferee;
(ii) a description of the nature of the interest proposed to be
transferred, the portion or portions of the Property affected by the Transfer, and the proposed
effective date of such Transfer;
(iii) a true and complete copy of the proposed assumption agreement
described in Section 16.6;
(iv) a complete history of the proposed transferee describing its
background, its current real estate projects and location thereof, and the background of the
principals or personnel to be involved in the development or operation of the portion of the
Property subject to the Transfer and stating whether the proposed transferee ever filed for
bankruptcy or had projects that were foreclosed;
(v) a description of all projects of the proposed transferee which
during the past five (5) years have been the subject of substantial litigation; and
(vi) any such other information as reasonably requested by Landlord
within fifteen (15) days following the receipt of the above information, in order to make an
informed decision whether or not to approve or disapprove the Transfer.
1564573.4 38
(b) Approval of Landlord. Within thirty (30) days following receipt of all the
information referred to in Section 16.3 (a), Landlord shall approve or disapprove a proposed
transferee with respect to the information supplied which approval shall not be unreasonably
withheld. If Landlord fails to give Tenant written notice of its disapproval of the transferee or
request additional information in writing within such thirty (30) day period, it shall be deemed to
have approved the transferee.
16.3 Subleases; Nondisturbance and Attornment. Tenant agrees for the benefit of
Landlord that each sublease, rental agreement, and any other agreement for occupancy of any
part of the Improvements (each an "Occupancy Agreement "): (a) shall state that it is subject
to the terms and provisions of this Lease, and (b) shall require that the subtenant under the
Occupancy Agreement shall attorn to and accept Landlord as the sublessor or other party under
the Occupancy Agreement in the event this Lease is terminated. Landlord agrees that as long as
each Occupancy Agreement complies with the requirements of the preceding clauses (a) and (b),
then upon the expiration or termination of this Lease, Landlord shall recognize the subtenant or
occupant under the Occupancy Agreement as the direct tenant of Landlord under the terms and
conditions contained in the Occupancy Agreement and for a term equal to the then unexpired
term of the Occupancy Agreement; provided however, that: (i) at the time of the expiration or
termination of this Lease no uncured default shall exist under the Occupancy Agreement which
at such time would permit the termination of the Occupancy Agreement or the exercise of any
dispossession remedy provided for therein; and (ii) Landlord shall not be (x) liable for any prior
act or omission of Tenant under the Occupancy Agreement; (y) liable for the return of any
security deposit under the Occupancy Agreement not actually received by Landlord; or (z)
subject to any offsets or defenses that the subtenant or occupant may have against Tenant. The
provisions of this Section 16.3 shall survive the expiration or termination of this Lease.
16.4 Limitations.
(a) Non - Transfer Period. In no event shall Tenant request Landlord to
approve any Transfer prior to the date that all of the following shall have occurred:
(i) the construction of the Improvements shall be complete and a
certificate(s) of occupancy shall be issued with respect to the Project; and
(ii) all costs and expenses with regard to the construction of the
Project and related Improvements shall be paid in full, all lien periods shall have expired and
there shall be no liens on the Property, the Improvements, the Landlord's fee title or any portion
thereof.
The provisions of this Section 16.4 (a) shall not be applicable to the
granting of a Leasehold Mortgage in accordance with Section 15.1, and shall not be applicable
to, or after, the foreclosure of a Leasehold Mortgage or the acquisition of Tenant's interest in this
Lease by assignment or deed in lieu of foreclosure.
(b) No Relief from Liability. No Transfer will limit, diminish or otherwise
relieve Tenant of any liability described herein. The provisions of this Section 16.4 (b) shall not
1564573.4 39
be applicable to any Transfer following the foreclosure of a Leasehold Mortgage or following the
acquisition of Tenant's interest in this Lease by assignment or deed in lieu of foreclosure.
(c) No Consent If Bankruptcy. In no event shall Landlord be required to
consent or be deemed to consent to a Transfer to a party then subject to any proceedings under
any insolvency, bankruptcy or similar laws.
(d) Criteria for Transfer. Landlord shall be deemed to be reasonable in
withholding its consent to a proposed Transfer if, among other requirements, either of the
following conditions is unsatisfied:
(i) Tenant delivers to Landlord an audited financial statement of the
proposed transferee for the three most recent calendar or fiscal years prepared in accordance with
generally accepted accounting principles by a recognized certified accounting firm
demonstrating that the proposed transferee (or its principals) is a viable, going concern with
sufficient financial ability to own, operate and manage the Property; and
(ii) the proposed transferee shall have demonstrated experience
operating and managing affordable residential /mixed -use properties similar to the Project.
16.5 Involuntary and Other Transfers. Without limiting any other restrictions on
transfer contained in this Lease, no interest of Tenant in this Lease, the Property or part thereof
shall be assignable in the following manner:
(a) under an order of relief filed, or a plan of reorganization confirmed, for or
concerning Tenant by a bankruptcy court of competent jurisdiction under the federal bankruptcy
act or the laws of the State of California, whereby any interest in this Lease, the Property or part
thereof is assigned to any party which does not qualify as an approved transferee pursuant to this
Lease unless such order is filed or such plan is confirmed in connection with an involuntary
proceeding brought against Tenant and Tenant reacquires such transferred interest within ninety
(90) days after the date such order is filed or such plan is confirmed;
creditors; or
(b) if Tenant assigns substantially all of its assets for the benefit of its
(c) if an order of attachment is issued by a court of competent jurisdiction,
whereby any interest in this Lease, the Property or part thereof or substantially all of Tenant's
assets are attached by its creditors and such order of attachment is not stayed within ninety (90)
days after the date it is issued.
The transfers described in this Section 16.5 shall constitute a breach under this Lease by
Tenant and Landlord shall have the right to terminate this Lease as a result of any such transfer
taking place, in which case this Lease shall not be treated as an asset of Tenant. In such event, a
Leasehold Mortgagee may request a new lease in accordance with Section 15.2.3.
16.6 Assumption Agreement and Release. No permitted Transfer shall be effective
until any curable default hereunder shall have been cured and there shall have been delivered to
Landlord an assumption agreement, executed by the transferor and the proposed transferee,
1564573.4 40
whereby such transferee expressly assumes such obligations as arise and /or accrue at any time
after such Transfer takes place; and whereby such transferee assumes liability for the Lease
obligations. The parties agree that as a condition to any Transfer taking place the transferee shall
deliver to Landlord representations and warranties confirming the accuracy of the information
delivered to Landlord concerning its current financial condition and its outstanding or pending
liabilities.
16.7 Change in General Partner of Tenant. In addition to the restrictions on Transfers
as set forth in this Article XVI, Landlord shall have the right to approve any change in the
identity of the general partner of Tenant, including without limitation, any admission of any new
general partner or withdrawal of any existing general partner. Such approval right of Landlord
shall also apply to the transfer of a majority of the ownership interest in a general partner of
Tenant. Landlord shall not unreasonably withhold, delay or condition its approval under this
Section 16.7. Notwithstanding any contrary provision of this Section 16.7, Landlord's approval
shall not be required with respect to any change in the identity or ownership of the general
partner of Tenant as long as following such change (x) the general partner of Tenant continues to
be an entity which controls, is controlled by, or is under common control with MidPen, or (y) the
general partner of Tenant is an entity which is controlled by or under common control with
Union Bank, N.A. For purposes of this Article XVI, "control" shall mean the right to direct the
management and affairs of an entity, whether by virtue of the ownership of ownership interests,
by contract, by appointment of directors or by common or overlapping boards.
16.8 Sale by Landlord. Nothing contained in this Lease shall be deemed in any way to
limit, restrict or otherwise affect the right of Landlord to sell, transfer, assign or convey all or any
portion of the right, title and estate of Landlord in the Property and in this Lease; provided,
however, that in each such instance any such sale, transfer, assignment or conveyance shall be
subject to this Lease, and Tenant's other rights arising out of this Lease shall not be affected or
disturbed in any way by any such sale, transfer, assignment or conveyance. Any other provision
of this Lease to the contrary notwithstanding, each covenant, agreement or obligation of
Landlord under this Lease relating to the ownership or use of the Property is intended to and
shall constitute a covenant running with the title to the Property and shall be binding upon the
owner from time to time of the Property. At such time as Landlord shall sell, transfer, assign or
convey the entire right, title and estate of Landlord in the Property and in this Lease, all
obligations and liability on the part of Landlord arising under this Lease after the effective date
of such sale, transfer, assignment or conveyance shall terminate as to Landlord, and thereupon all
such liabilities and obligations shall be binding upon the transferee.
ARTICLE XVII
BREACHES, REMEDIES AND TERMINATION
17.1 Event of Default. Tenant shall be in default under this Lease upon the occurrence
of any of the following ( "Events of Default "):
(a) Monetary Obligation. Tenant at any time is in default hereunder as to any
monetary obligation (including without limitation, Tenant's obligation to pay taxes and
assessments due on the Property or part thereof, subject to Tenant's rights to contest such
1564573.4 41
charges pursuant to Section 5.2), and such default continues for ten (10) days after Tenant
receives Notice of Breach (as defined in Section 17.2.1);
(b) Insurance. Tenant fails to obtain and maintain any policy of insurance
required pursuant to this Lease, and Tenant fails to cure such default within ten (10) days;
(c) Abandonment. Tenant abandons the Property;
(d) Bankruptcy. Tenant or any general partner of Tenant files a voluntary
petition in bankruptcy or files any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
for itself under any present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the
appointment of any trustee, receiver or liquidator of Tenant (or any general partner of Tenant) or
of all or any substantial part of its property, or of any or all of the royalties, revenues, rents,
issues or profits thereof, or makes any general assignment for the benefit of creditors, or admits
in writing its inability to pay its debts generally as they become due;
(e) Reorganization. A court of competent jurisdiction enters an order,
judgment or decree approving a petition filed against Tenant seeking any reorganization,
dissolution or similar relief under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment
or decree remains unvacated and unstayed for an aggregate of ninety (90) days from the first date
of entry thereof, or any trustee receiver or liquidator of Tenant or of all or any substantial part of
its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed
without the consent or acquiescence of Tenant and such appointment remains unvacated and
unstayed for an aggregate of ninety (90) days, such ninety (90) day period to be extended in all
cases during any period of a bona fide appeal diligently pursued by Tenant;
(f) Attachment. Subject to Tenant's right to contest the following charges
pursuant to Sections 5.2 and 6.6, Tenant fails to pay prior to delinquency taxes or assessments
due on the Property or the Improvements or fails to pay when due any other charge that may
result in a lien on the Property or the Improvements, and Tenant fails to cure such default within
ninety (90) days of the date of delinquency, but in all events prior to the date upon which the
holder of any lien has the right to pursue foreclosure thereof;
(g) Transfer. Tenant Transfers all or any portion of Tenant's interest in this
Lease, the Property, the Improvements or part thereof in violation of the provisions of Article
XVI and fails to rescind such Transfer within ten (10) days after written notice from Landlord;
(h) Other Obligations. Tenant defaults in the performance of any term,
provision, covenant or agreement contained in this Agreement other than an obligation
enumerated in this Section 17.1 and unless a shorter cure period is specified for such default, the
default continues for ten (10) days in the event of a monetary default or thirty (30) days in the
event of a nonmonetary default after the date upon which Agency shall have given written notice
of the default to Tenant; provided however, if the default is of a nature that it cannot be cured
within thirty (30) days, an Event of Default shall not arise hereunder if Tenant commences to
1564573.4 42
cure the default within thirty (30) days and thereafter prosecutes the curing of such default with
due diligence and in good faith to completion.
17.2 Notice and Opportunity to Cure.
17.2.1 Notice of Breach. Unless expressly provided otherwise in this Lease, no
breach by a party shall be deemed to have occurred under this Lease unless another party first
delivers to the nonperforming party a written request to perform or remedy (the "Notice of
Breach "), stating clearly the nature of the obligation which such nonperforming party has failed
to perform, and stating the applicable period of time, if any, permitted to cure the default.
17.2.2 Failure to Give Notice of Breach. Failure to give, or delay in giving,
Notice of Breach shall not constitute a waiver of any obligation, requirement or covenant
required to be performed hereunder. Except as otherwise expressly provided in this Lease, any
failure or delay by either party in asserting any rights and remedies as to any breach shall not
operate as a waiver of any breach or of any such rights or remedies. Delay by either party in
asserting any of its rights and remedies shall not deprive such party of the right to institute and
maintain any action or proceeding which it may deem appropriate to protect, assert or enforce
any such rights or remedies.
17.2.3 Limited Partners' Right to Cure. The limited partners of Tenant
( "Limited Partners ") shall have the right to cure any curable default of Tenant hereunder upon
the same terms and conditions afforded to Tenant within the same cure period as afforded Tenant
hereunder extended by an additional sixty (60) days; provided however, if the default is of such a
nature that the Limited Partners reasonably determine that it is necessary to replace the general
partner of Tenant in order to cure such default, then the cure period shall be extended by an
additional sixty (60) days after the removal and replacement of such general partner, provided
that the Limited Partners have promptly commenced and diligently proceeded with all requisite
actions to effect such removal and replacement. Landlord agrees that it shall deliver notice of
default to the Limited Partners in accordance with Section 17.2.1 concurrently with delivery of
such notice to Tenant provided that Landlord has been given the address for delivery of such
notices. Any such cure by a Limited Partner shall be accepted by Landlord as if performed by
Tenant or by any Leasehold Mortgagee. If this Lease has been terminated, upon any such cure
by a Limited Partner, Landlord shall, upon request by such Limited Partner enter into a new lease
with such Limited Partner (or any of its affiliated designees) pursuant to substantially similar
terms and conditions as those set forth in this Lease, subject to the rights of Leasehold
Mortgagees pursuant to Article XV. No rights and remedies of Landlord shall be effective as
against any Limited Partner unless Landlord has delivered to such Limited Partner all notices
required to be so delivered hereunder and such Limited Partner has been afforded the opportunity
to cure as provided herein. Landlord agrees not to amend any material provision of this Lease
without the prior written consent of the Limited Partners.
17.3 Remedies Upon Default.
17.3.1 Landlord's Remedies. Upon the occurrence of any Event of Default and
in addition to any and all other rights or remedies of Landlord hereunder and /or provided by law,
but subject in all events to the rights and remedies of Leasehold Mortgagees under Article XV
1564573.4 43
hereof and of any Limited Partner under this Article XVII, Landlord shall have the right to
terminate this Lease and/or Tenant's possessory rights hereunder, in accordance with applicable
law to re -enter the Property and take possession thereof and of the Improvements, and except as
otherwise provided herein, to remove all persons and property therefrom, and to store such
property at Tenant's risk and for Tenant's account, and Tenant shall have no further claim
thereon or hereunder. In no event shall this Lease be treated as an asset of Tenant after any final
adjudication in bankruptcy except at Landlord's option so to treat the same but no trustee,
receiver, or liquidator of Tenant shall have any right to disaffirm this Lease.
17.3.2 Remedies Upon Abandonment. If Tenant should breach this Lease and
abandon the Property, Landlord may, at its option, but subject in all events to the rights and
remedies of Leasehold Mortgagees under Article XV hereof and of any Limited Partner under
this Article XVII, enforce all of its rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder. Additionally, Landlord shall be entitled to recover
from Tenant all costs of maintenance and preservation of the Property, and all costs, including
attorneys' and receiver's fees incurred in connection with the appointment of and performance
by a receiver to protect the Property and Landlord's interest under this Lease.
17.3.3 Landlord Right to Continue Lease. In the event of any default under this
Lease by Tenant (and regardless of whether or not Tenant has abandoned the Property), this
Lease shall not terminate (except by an exercise of Landlord's right to terminate under Section
17.3.1) unless Landlord, at Landlord's option, elects to terminate Tenant's right to possession or,
at Landlord's further option, by the giving of any notice (including, without limitation, any
notice preliminary or prerequisite to the bringing of legal proceedings in unlawful detainer) to
terminate Tenant's right to possession. For so long as this Lease continues in effect, Landlord
may enforce all of Landlord's rights and remedies under this Lease, including, without
limitation, the right to recover all rent and other monetary payments as they become due
hereunder. For the purposes of this Lease, the following shall not constitute termination of
Tenant's right to possession: (a) acts of maintenance or preservation or efforts to relet the
Property; or (b) the appointment of a receiver upon initiative of Landlord to protect Landlord's
interest under this Lease.
17.3.4 Right to Injunction; Specific Performance. In the event of a default by
Tenant under this Lease that remains uncured beyond any applicable grace periods permitted
hereunder, Landlord shall have the right to commence an action against Tenant for damages,
injunction and/or specific performance. Tenant's failure, for any reason, to comply with a court-
ordered injunction or order for specific performance shall constitute a breach under this Lease.
17.3.5 Damages Upon Termination. Should Landlord elect to re -enter the
Property, or should Landlord take possession pursuant to legal proceedings or to any notice
provided by law, this Lease shall thereupon terminate, and Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid rent which is due,
owing and unpaid by Tenant to Landlord at the time of termination; and
1564573.4 44
(b) the worth at the time of award of the amount by which the unpaid
rent which would have come due after termination until the time of award exceeds the amount of
rental loss that Tenant proves could have been reasonably avoided; and
(c) the worth at the time of award of the amount by which the unpaid
rent for the balance of the Term after the time of award exceeds the amount of rental loss which
Tenant proves could be reasonably avoided; and
(d) all other amounts necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations under this Lease or
which in the ordinary course of things are likely to result therefrom, including all costs
(including attorneys' fees) of repossession, removing persons or property from the Property,
repairs, reletting and reasonable alterations of the Improvements in connection with reletting, if
any.
All computations of the worth at the time of award of amounts recoverable by Landlord under
subparagraphs (a), (b), and (d) above shall be computed by allowing interest at a rate equal to the
rate of interest most recently announced by Bank of America, N.A., (or any successor bank) at its
principal office in San Francisco as its "reference rate" serving as the basis upon which effective
rates of interest are calculated for those transactions making reference thereto, but in no event in
excess of the maximum rate of interest permitted under applicable law. The worth at the time of
the award recoverable by Landlord under (c) above shall be computed by discounting the amount
otherwise recoverable by Landlord at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award plus 1 %, or at such lower discount rate as may hereafter be
specified by applicable California statute.
17.4 Right to Receiver. Following the occurrence of an Event of Default, if Tenant
(and all Leasehold Mortgagees and Limited Partners) fails after receipt of a Notice of Breach to
cure the default within the time period set forth in this Lease, Landlord, at its option, may have a
receiver appointed to take possession of Tenant's interest in the Property with power in the
receiver (a) to administer Tenant's interest in the Property, (b) to collect all funds available in
connection with the operation of the Property, and (c) to perform all other acts consistent with
Tenant's obligations under this Lease, as the court deems proper. Landlord's rights under this
Section 17.4 shall be subject and subordinate to the rights of all Leasehold Mortgagees and
Limited Partners.
17.5 Remedies Cumulative. No remedy in this Article XVII shall be considered
exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or by statute, and
every power and remedy given by this Lease may be exercised from time to time and as often as
occasion may arise or as may be deemed expedient, subject to any limitations referred to
hereinabove.
17.6 No Election of Remedies. The rights given in this Article XVII to receive, collect
or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and
conditions of this Lease, or to prevent the breach or nonobservance thereof, or the exercise of
any such right or of any other right or remedy hereunder or otherwise granted or arising, shall not
1564573.4 45
in any way affect or impair or toll the right or power of Landlord upon the conditions and subject
to the provisions in this Lease to terminate Tenant's right of possession because of any default in
or breach of any of the covenants, provisions or conditions of this Lease beyond the applicable
cure period.
17.7 Survival of Obligations. Nothing herein shall be deemed to affect the right of
Landlord to indemnification for liability arising prior to the termination of the Lease for personal
injuries or property damage or in connection with any other Claim, nor shall anything herein be
deemed to affect the right of Landlord to equitable relief where such relief is appropriate. No
expiration or termination of the Lease by operation of law, or otherwise, and no repossession of
the Property or any part thereof shall relieve Tenant of its previously accrued liabilities and
obligations hereunder, all of which shall survive such expiration, termination or repossession.
17.8 No Waiver. Except to the extent that Landlord may have agreed in writing, no
waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants
hereunder shall be deemed to be a waiver of any subsequent breach of the same or any other
covenant, agreement or obligation, nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be deemed a waiver by Landlord of its rights or remedies with respect to
such breach.
ARTICLE XVIII
GENERAL PROVISIONS
18.1 Estoppel Certificates. At any time and from time to time, Landlord and Tenant,
shall for the benefit of any Limited Partner or Leasehold Mortgagee, on at least twenty (20)
days' prior written request by the requesting party, deliver to the party requesting same a
statement in writing certifying that this Lease is unmodified and in full force and effect (or if
there shall have been modifications that the same is in full force and effect as modified and
stating the modifications) and the dates to which the Rent has been paid and stating whether or
not, to the best knowledge of the certifying party, the other party is in default in the performance
of any covenant, agreement or condition contained in this Lease and, if so, specifying each such
default of which the certifying party may have knowledge and such other statements or
certifications reasonably requested. A prospective purchaser, mortgagee, or Limited Partner
shall be entitled to request such a statement and rely on a statement delivered hereunder.
18.2 Quiet Enjoyment. Landlord covenants and agrees that Tenant (and pursuant to
the provision of Articles XV and XVII, respectively, any Leasehold Mortgagee and Limited
Partner, as applicable), upon paying the Rent and all other charges herein provided for and
observing and keeping all covenants, agreements and conditions of this Lease on its part to be
observed and kept, shall quietly have and enjoy the Property during the Term of this Lease
without hindrance or molestation by anyone claiming by or through Landlord, subject, however,
to the exceptions, reservations and conditions of this Lease.
18.3 Landlord's Right to Enter the Property. Landlord and its agents may enter the
Property or the Improvements from time to time with reasonable notice (and, upon Tenant's
1564573.4 46
request, when accompanied by representative(s) of Tenant), except for emergencies in which
case no notice shall be required, to inspect the same, to post notices of nonresponsibility and
similar notices, and to discharge Tenant's obligations hereunder when Tenant has failed to do so
within a reasonable time after written notice from Landlord.
18.4 Representations of Landlord and Tenant.
18.4.1 Tenant hereby represents and warrants that all of the following are true
and correct as of the Effective Date:
(a) Tenant is a limited partnership, duly organized, validly existing
and in good standing under the laws of the State of California;
(b) Tenant has taken all requisite action in connection with the
execution of this Lease and the undertaking of the obligations set forth herein. This Lease
constitutes the legally valid and binding obligation of Tenant, enforceable against Tenant in
accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws
or by legal or equitable principles relating to or limiting the rights of contracting parties
generally; and
(c) The execution of this Lease and the acceptance of the obligations
set forth herein do not violate any court order or ruling binding upon Tenant or any provision of
any indenture, agreement or other instrument to which Tenant is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or
constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage,
deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest
applicable to Tenant.
18.4.2 Landlord hereby represents and warrants that all of the following are true
and correct as of the Effective Date:
(a) Landlord has taken all requisite action in connection with the
execution of this Lease and the undertaking of the obligations set forth herein. This Lease
constitutes the legally valid and binding obligation of Landlord, enforceable against Landlord in
accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws
or by legal or equitable principles relating to or limiting the rights of contracting parties
generally.
(b) The execution of this Lease and the acceptance of the obligations
set forth herein do not violate any court order or ruling binding upon Landlord or any provision
of any indenture, agreement or other instrument to which Landlord is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or
constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage,
deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest
applicable to Landlord.
(c) As of the Effective Date, Landlord has not executed or consented
to the recordation of any monetary lien on Landlord's fee interest in the Property, and Landlord
1564573.4 47
agrees that it will not execute or consent to the recordation of any monetary lien on Landlord's
fee interest in the Property unless the holder of such lien agrees irrevocably to recognize this
Lease in the event of any realization upon the Property by such holder or its successors or
assigns.
18.5 Miscellaneous.
18.5.1 Severability. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
18.5.2 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Lease 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:
(a) personal delivery, in which case notice is effective upon delivery;
(b) 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;
(c) 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;
(d) 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.
Landlord: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Tenant: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
Facsimile: (650) 357 -9766
Limited Partner:
1564573.4 48
Leasehold Mortgagees:
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
18.5.3 Captions; Construction. The captions used for the sections and articles of
this Lease are inserted for convenience only and shall not be used to construe this Lease. The
language in all parts of this Lease shall be construed as a whole, according to its fair meaning
and not strictly for or against Landlord or Tenant.
18.5.4 Binding on Successors; City as Successor to Agency. Subject to the
restrictions on Transfers set forth in Article XVI, this Agreement shall bind and inure to the
benefit of the Parties and their respective permitted successors and assigns. Any reference in this
Agreement to a specifically named Party shall be deemed to apply to any permitted successor
and assign of such Party who has acquired an interest in compliance with this Agreement or
under law. If the Agency ceases to exist, the City shall automatically succeed to the interests of
Agency under this Agreement.
18.5.5 Short Form of Lease. A memorandum of lease substantially in the form
attached hereto as Exhibit B shall be executed by Landlord and Tenant and recorded in the
Office of the San Mateo County Recorder.
18.5.6 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard to principles of
conflicts of laws. Any action to enforce or interpret this Agreement shall be filed and heard in
the Superior Court of San Mateo County, California or in the Federal District Court for the
Northern District of California.
18.5.7 Attorneys' Fees. If either Party fails to perform any of its obligations
under this Agreement, or if any dispute arises between the Parties concerning the meaning or
interpretation of any provision hereof, then the prevailing Party in any proceeding in connection
with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in
1564573.4 49
enforcing or establishing its rights hereunder, including, without limitation, court costs and
reasonable attorneys' fees and disbursements.
18.5.8 Indemnity Includes Defense Costs. In any case where either party is
obligated under an express provision of this Lease, to indemnify and to save the other party
harmless from any damage or liability, the same shall be deemed to include defense of the
indemnitee by the indemnitor, such defense to be through legal counsel reasonably acceptable to
the indemnitee.
18.5.9 No Brokers; No Third -Party Beneficiaries. Landlord represents that it has
not engaged any broker or agent to represent Landlord in this transaction. Tenant represents that
it has not engaged any broker or agent to represent Tenant in this transaction. Each party agrees
to indemnify and hold the other harmless from and against any and all liabilities or expenses,
including attorneys' fees and costs, arising out of, or in connection with claims made by any
broker or individual for commissions or fees as a result of the acts of the indemnifying party.
There shall be no third -party beneficiaries to this Lease other than the Leasehold Mortgagees and
Limited Partners.
18.5.10 Disclaimer of Partnership, Lender /Borrower Relationship. The
relationship of the parties under this Lease is solely that of landlord and tenant, and it is
expressly understood and agreed that Landlord does not as a result of this Lease in any way nor
for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of
Tenant's business or otherwise. This Lease is not intended to, and shall not be construed to,
create the relationship of principal and agent, partnership, joint venture, association, or seller and
buyer as between Landlord and Tenant. It is further expressly understood and agreed that this
Lease is not intended to, and shall not be construed to create the relationship of lender and
borrower, and Landlord does not, solely as a result of this Lease, become a lender to Tenant.
18.5.11 Entire Agreement; Amendments. This Lease together with the Master
Lease, the REA, the Loan Agreement, the Regulatory Agreement and the other documents
executed in connection with the Loan Agreement contains the entire agreement between the
parties relative to the subject matter hereof. All previous correspondence, communications,
discussions, agreements, understandings or proposals and acceptances thereof between the
parties or their representatives, whether oral or written, are deemed to have been integrated into
and superseded by this Lease and are of no further force and effect except as expressly provided
in this Lease. No amendment or modification hereof shall be effective for any purpose unless in
writing signed by Landlord and Tenant.
18.5.12 Time is of the Essence; Calculation of Time Periods. Time is of the
essence for each condition, term, obligation and provision of this Agreement. Unless otherwise
specified, in computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be included and the last
day of the period so computed is to be included, unless such last day is not a business day, in
which event the period shall run until the next business day. The final day of any such period
shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement,
a "business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of California.
1564573.4 50
18.5.13 Survival. The following provisions shall survive the expiration or
termination of this Lease: all representations made by Tenant hereunder, Tenant's release of
Landlord pursuant to Section 2.6, Tenant's indemnification obligations pursuant to Sections 5.2,
6.6, 6.19, 7.4, 7.10, 7.11.2, 13.1, and 18.5.9 and Article X, and all other provisions of this Lease
which state that they shall survive the expiration or termination of this Lease.
18.5.14 Headings; Interpretation. The section headings and captions used herein
are solely for convenience and shall not be used to interpret this Agreement. The Parties
acknowledge that this Agreement is the product of negotiation and compromise on the part of
both Parties, and the Parties agree, that since both Parties have participated in the negotiation and
drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the
Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
18.5.15 Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be an original and all of which together shall constitute one and the same
instrument.
18.5.16 Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency its capacity
as Landlord hereunder is required or permitted under this Lease, such action shall be in writing,
and such action may be given, made or taken by the Agency Executive Director or by the City
Manager or by any person who shall have been designated by the Agency Executive Director or
the City Manager, without further approval by the governing board of the Agency. In any
approval, consent, or other determination by Landlord required hereunder, Landlord shall act
reasonably and in good faith.
18.5.17 Inspection of Books and Records. Upon request, Tenant shall permit the
Agency to inspect at reasonable times and on a confidential basis those books, records and all
other documents of Tenant necessary to determine Tenant's compliance with the terms of this
Agreement.
SIGNATURES ON FOLLOWING PAGE
1564573.4 51
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the
Effective Date.
LANDLORD:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
TENANT:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1564573.4 52
Exhibit A -1
LEGAL DESCRIPTION OF LAND
(Attach legal description.)
Exhibit A -2
LEGAL DESCRIPTION OF PROPERTY
(Attach legal description of Phase A leased premises.)
Exhibit B
MEMORANDUM OF LEASE
(Attach form of Memorandum.)
1564573.4 5 3
Recording Requested by
and when Recorded, return to:
Redevelopment Agency
of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
Space above this line for Recorder's use.
MEMORANDUM OF GROUND LEASE
(636 El Camino — Phase A)
This Memorandum of Ground Lease (this "Memorandum "), dated for reference
purposes as of , 20_, is executed by and between the Redevelopment Agency
of the City of South San Francisco, a public body, corporate and politic (the "Agency ") and MP
South City, L.P., a California limited partnership (hereafter "Tenant ") in reference to and
consideration of that certain Ground Lease dated as of , 20 ( "Effective
Date "), by and between Tenant and Agency (the "Lease ").
1. The purpose of this Memorandum is to provide notice of the existence of the
Lease which is incorporated herein by this reference. This Memorandum incorporates all of the
terms and provisions of the Lease as though fully set forth herein.
2. The Agency is the owner of fee title to the Property known as 636 El Camino
Real, identified as San Mateo County Assessor's Parcel No. 014 -160 -040, and more particularly
described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
3. Pursuant to the Ground Lease Tenant shall construct a mixed -use multi - family
development (the "Project ") that will include, among other improvements, sixty -two (62)
residential units and approximately 5,700 square feet of retail space on that portion of the Parcel
described in Exhibit A -2 attached hereto (the "Property ").
4. Pursuant to the Lease, the Agency leases to Tenant, and Tenant leases from the
Agency, the Property subject to all of the terms and conditions set forth in the Lease.
5. The term of the Lease is seventy -five (75) years commencing on the Effective
Date.
6. In the event of any conflict between this Memorandum and the terms and
conditions of the Lease, the terms and conditions of the Lease shall control.
7. This Memorandum may be executed in counterparts, each of which shall be an
original, and all of which together shall constitute one fully- executed agreement.
1585567.2 1
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
first set forth above.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
TENANT:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1585567.2
SIGNATURES MUST BE NOTARIZED.
2
STATE OF CALIFORNIA
COUNTY OF SAN MATEO )
On , 20, before me, , (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )
On , 20_, before me, , (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1585567.2 3
1585567.2
Exhibit A -1
PARCEL
(Attach legal description.)
Exhibit A -2
PROPERTY
(Attach legal description of Phase A property.)
4
1565166.4
LOAN AGREEMENT
(636 El Camino - Phase A)
by and between
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
and
MP SOUTH CITY, L.P.,
a California limited partnership
, 2011
Exhibits
A -1 Legal Description of the Parcel
A -2 Legal Description of the Property (Phase A Leased Premises)
B Form of Promissory Note
C Form of Leasehold Deed of Trust
D Form of Regulatory Agreement
E Form of Assignment Agreement
F Form of Master Lease Agreement
G Financing Plan
1565166.4 2
THIS LOAN AGREEMENT (636 El Camino — Phase A) (this "Agreement ") is entered
into effective as of , 2011 ( "Effective Date ") by and between the
Redevelopment Agency of the City of South San Francisco, a public body corporate and politic
( "Agency ") and MP South City, L.P., a California limited partnership ( "Developer "). Agency
and Developer are hereinafter collectively referred to as the "Parties."
RECITALS
A. Pursuant to authority granted under Community Redevelopment Law (California
Health and Safety Code Section 33000 et seq.) ( "CRL "), the Agency has responsibility to
implement the redevelopment plan adopted in 1993 by the City Council of the City of South San
Francisco by Ordinance No. 1132 -93 (as subsequently amended, the "Redevelopment Plan ")
for the El Camino Corridor Redevelopment Project (the "Project Area ").
B. Agency and Developer entered into an Owner Participation and Loan Agreement
dated as of November 19, 2008 (the "OPA ") pursuant to which Agency provided a loan to
Developer in the amount of $4,950,000 (the "Original Loan ") to assist Developer in financing
the acquisition of the property located adjacent to the Project Area known as 636 El Camino
Real, identified as San Mateo County Assessor's Parcel No. 014- 160 -040, and more particularly
described in Exhibit A -1 attached hereto (the "Parcel ") and certain predevelopment expenses
related to the development of the Project.
C. Pursuant to Agency's exercise of its option granted under that certain Option and
Purchase and Sale Agreement dated as of June 23, 2010 and executed by and between Agency
and Developer, as of the Effective Date Agency has acquired fee title to the Parcel.
D. Pursuant to that certain Ground Lease dated as of the Effective Date and executed
by and between Agency and Developer (the "Ground Lease "), Developer intends to construct a
mixed -use development consisting of sixty -two (62) units of multi- family housing, common
areas, subterranean parking, retail uses and related improvements (collectively, the "Project ") on
that portion of the Parcel described in Exhibit A -2 attached hereto (the "Property ").
E. In connection with the OPA: (i) Developer executed and delivered to Agency a
promissory note in the amount of the Original Loan (the "Original Note "); (ii) Developer
executed a deed of trust to secure repayment of the Original Note, which deed of trust was
recorded against the Parcel on November 19, 2008 as Instrument No. 2008 - 126319 (the
"Original Deed of Trust "); and (iii) Developer and Agency executed (a) an affordable housing
regulatory agreement which was recorded against the Parcel on November 19, 2008 as
Instrument No. 2008 - 126317 (the "Original Regulatory Agreement; (b) a Notice of
Affordability Restrictions which was recorded against the Parcel on November 19, 2008 as
Instrument No. 2008 - 126318 (the "Original Affordability Notice "); (c) a memorandum of the
OPA which was recorded against the Parcel on November 19, 2008 as Instrument No. 2008-
126315 (the "Original Memorandum of OPA "); and (d) a Memorandum of Option which was
recorded against the Parcel on November 19, 2008 as Instrument No. 2008 - 126316 (the
"Original Memorandum of Option "). The OPA, the Original Note, the Original Deed of
Trust, the Original Regulatory Agreement, the Original Affordability Notice, the Original
1565166.4 3
Memorandum of OPA and the Original Memorandum of Option are collectively referred to
herein as the "Original Documents."
F. The Parties intend that the terms of this Agreement and the Agency Documents
(defined below) shall prevail over any inconsistent provision in the Original Documents, and
have agreed to execute and record such instruments as may be necessary to terminate and as
applicable, reconvey, the Original Documents.
G. Upon satisfaction of the conditions precedent set forth in this Agreement and
subject to the terms and conditions set forth herein and in the Ground Lease, the Agency will
lease the Property to Developer, and will provide a construction/permanent loan to assist in
financing the development of the Project. Pursuant to separate agreements, the Agency will
provide additional financing and will lease the remainder of the Parcel to an affiliate of
Developer for development of a second phase of affordable housing (the "Phase B Project ").
H. Concurrently with the execution of this Agreement, among other documents,
Developer shall execute: (a) the Ground Lease and recordable memorandum thereof
( "Memorandum "), (b) a secured promissory note in the amount of the new Agency
construction/permanent loan, (c) a leasehold deed of trust which shall provide Agency with a
security interest in the Project and Developer's interest in the Property, (d) an Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants which shall require
Project rents to be affordable to low -, and very low - income households for a term of not less
than seventy -five (75) years, (e) a Notice of Affordability Restrictions, and (f) a Master Lease
Agreement which will provide Agency certain rights to sublease the retail /commercial portion of
the Project together with associated parking.
I. The purpose of this Agreement is to effectuate the Redevelopment Plan by
providing for the redevelopment of the Property as more particularly set forth herein. The
Agency has determined that (i) the lease and development of the Property pursuant to this
Agreement and the Ground Lease (a) is consistent with the Redevelopment Plan and the
Implementation Plan for the Project Area, (b) will be of benefit to the Project Area, and (c) will
further the goals of the Redevelopment Plan by providing affordable housing in proximity to the
Project Area, and (ii) the Agency financing is necessary to make the Project economically
feasible and affordable to low- and very low - income households.
J. The City Council and the Agency have each approved the lease of the Property
pursuant to the Ground Lease and have followed all requisite procedures and adopted all
requisite findings in connection with the foregoing, including without limitation the requirements
of Sections 33431 and 33433 of the CRL.
K. A material inducement to Agency to enter into this Agreement is the agreement
by Developer to develop the Project within the time periods specified herein and in accordance
with the provisions hereof, and the Agency would be unwilling to enter into this Agreement in
the absence of an enforceable commitment by Developer to take such actions and complete such
work in accordance with such provisions and within such time periods.
1565166.4 4
L. Pursuant to the California Environmental Quality Act ( "CEQA "), on June 23,
2010, the City Council adopted a Negative Declaration for the Project.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows.
ARTICLE I
DEFINITIONS
1. Definitions. The following terms shall have the meanings set forth in the Sections
referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional
terms are defined in the Recitals and text of this Agreement.
"Affordable Rent" is defined in the Regulatory Agreement.
"Agency Documents" means collectively, this Agreement, the Ground
Lease, the Note, the Deed of Trust, the Regulatory Agreement, the Assignment
Agreement, and the Master Lease.
"Agency's Permitted Exceptions" is defined in Section 2.7.
"Area Median Income" is defined in the Regulatory Agreement.
"Assignment Agreement" is defined in Section 2.3.9.
"City" means the City of South San Francisco, a municipal corporation.
"City Council" means the City Council of the City of South San
Francisco.
"Claims" is defined in Article X of the Ground Lease.
"Closing Date" or "Close of Escrow" shall be the date that escrow closes
for the Loan.
"Conditions of Approval" is defined in Section 2.3.5 and further
described in Section 5.4.
"Construction Plans" is defined in Section 6.14 of the Ground Lease.
"Deed of Trust" is defined in Section 2.3.9.
"Environmental Laws" is defined in Section 7.11.4 of the Ground Lease.
"Ground Lease" is defined in Recital D.
1565166.4 5
"Financing Plan is defined in Section 2.3.2.
"Hazardous Material" is defined in Section 7.11.4 of the Ground Lease.
"Improvements" is defined in Section 2.3.4.
"Indemnitees" is defined in Article X of the Ground Lease.
"Lender's Title Policy" is defined in Section 2.7.
"Loan" is defined in Section 3.1.2.
"Master Lease" is defined in Section 2.3.9.
"Note" is defined in Section 2.3.9.
"Official Records" means the Official Records of San Mateo County.
"Original Documents" is defined in Recital E.
"Original Loan" is defined in Recital B.
"Original Note" is defined in Recital E.
"Parcel" is defined in Recital B.
"Partnership Agreement" is defined in Section 5.3.
"Phase B Project" is defined in Recital G.
"Project" is defined in Recital D and further described in Section 2.3.4.
"Property" is defined in Recital D.
"REA" is defined in Section 2.3.9.
"Regulatory Agreement" is defined in Section 2.3.9.
"Retail/Commercial Component" is defined in Section 2.3.4.
"Transfer" is defined in Section 5.2.
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE; CONDITIONS
PRECEDENT TO LOAN CLOSING
1565166.4 6
2.1 Developer's Representations. Developer represents and warrants to Agency as
follows, and Developer covenants that until the expiration or earlier termination of this
Agreement, upon learning of any fact or condition which would cause any of the warranties and
representations in this Section 2.1 not to be true, Developer shall immediately give written notice
of such fact or condition to Agency. Developer acknowledges that Agency shall rely upon
Developer's representations made herein notwithstanding any investigation made by or on behalf
of Agency.
(i) Authority; General Partner. Developer is a limited partnership, duly
organized and in good standing under the laws of the State of California. Developer's general
partner is Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation that
is duly organized and in good standing under the laws of the State of California and tax - exempt
under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Developer has the
full right, power and authority to undertake all obligations of Developer as provided herein, and
the execution, performance and delivery of this Agreement by Developer has been duly
authorized by all requisite actions. The persons executing this Agreement on behalf of
Developer have been duly authorized to do so. This Agreement and the other Agency
Documents constitute valid and binding obligations of Developer, enforceable in accordance
with their respective terms.
(ii) No Conflict. Developer's execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any contract,
agreement or order to which Developer is a party or by which it is bound.
(iii) No Litigation or Other Proceeding. No litigation or other proceeding
(whether administrative or otherwise) is outstanding or has been threatened which would
prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement.
(iv) No Developer Bankruptcy. Developer is not the subject of a bankruptcy
or insolvency proceeding.
2.2 Effective Date. The obligations of Developer and Agency hereunder shall be
effective as of the Effective Date which date is set forth in the preamble to this Agreement.
2.3 Conditions Precedent. Agency's obligation to make the Loan to Developer is
conditioned upon the satisfaction of all of the requirements set forth in each subsection of this
Section 2.3 and all of the requirements set forth in Section 2.7 unless any such condition is waived
by Agency acting in the discretion of its Executive Director. The closing of the Loan shall be
deemed to indicate Agency's agreement that all of the conditions set forth in this Section 2.3 and
the subsections thereof have been satisfied. Prior to the Closing Date, Developer shall satisfy all
of the following conditions:
2.3.1 Due Authorization and Good Standing Developer shall have delivered to
Agency of each of the following: (i) certificate of good standing, certified by the Secretary of
State indicating that Developer is properly organized and authorized to do business in the State
of California, (ii) a certified resolution indicating that Developer's general partner has
authorized the transactions contemplated by this Agreement and that the persons executing the
1565166.4 7
Agency Documents on behalf of Developer have been duly authorized to do so, (iii) certified
copy of Developer's LP -1, (iv) a copy of Developer's executed partnership agreement, certified
as accurate and complete by an authorized officer of Developer's general partner; (v) certified
copies of Developer's general partner's bylaws and articles of incorporation; and (vi) verification
of the tax - exempt status of Developer's general partner.
2.3.2 Financing Plan. Developer has previously submitted to Agency, and the
Agency has approved, Developer's plan for financing the construction and permanent financing
of the Project (hereinafter the "Financing Plan "). Proposed modifications to the approved
Financing Plan (if any) shall be submitted to the Agency for review and approval. Agency staff
shall promptly review such proposed modifications, and acting through the Agency's Executive
Director, the Agency shall approve such plan in writing within fifteen (15) business days
following receipt provided that the plan conforms to the requirements of this Agreement and the
Ground Lease. If the Agency does not approve proposed modifications to the Financing Plan,
the Agency shall set forth its objections in writing and notify Developer of the reasons for its
disapproval. Developer shall thereafter submit a revised Financing Plan that addresses the
reasons for disapproval. The approved Financing Plan is attached hereto as Exhibit G.
2.3.3 Evidence of Availability of Funds. Prior to the Closing Date, Developer
shall submit to the Agency copies of all loan documents for the financing sources identified in
the approved Financing Plan, together with evidence reasonably satisfactory to Agency that (i)
all conditions to the release and expenditure of the initial draw of funds from each source
described in the approved Financing Plan as a source of construction financing for the Project
have been met (or will be met upon the lease of the Property to Developer and close of the Loan
and the satisfaction of such additional conditions as Agency shall reasonably approve) and that
such funds will be available upon the lease of the Property to Developer, (ii) all approvals,
permits, and authorizations which are conditioned upon the lease of the Property to Developer
will be received promptly after the execution of the Ground Lease, and (iii) all construction
financing (including draws subsequent to the initial draw of funds) will be available upon the
lease of the Property to Developer and satisfaction of the conditions set forth in the construction
loan documents.
2.3.4 Scope of Development and Site Plan. Agency and City have previously
approved Developer's proposed Scope of Development ( "Scope of Development ") and site plan
for the Project. The Scope of Development includes the construction of: (i) 62 units of multi-
family housing consisting of eleven (11) one - bedroom units, thirty -one (31) two - bedroom units,
and twenty (20) three- bedroom units; (ii) 88 parking spaces in a subterranean garage; (iii)
common facilities including laundry facilities, (iv) recreational space, and (v) approximately
5,700 square feet of retail /commercial space together with 18 surface parking spaces dedicated
for use by the tenants and invitees of the retail space (collectively the "Retail/Commercial
Component "); (all of the foregoing are collectively hereinafter referred to as the
"Improvements "). Ten (10) of the residential units (consisting of seven (7) 1- bedroom
apartments and three (3) 2- bedroom apartments) will be restricted for occupancy by families and
transitional age youth who are homeless or at risk of homelessness and who also qualify pursuant
to the California Housing Finance Agency Mental Health Services Act (MHSA) Housing
Program. One of the residential units will be a resident manager's unit that is not subject to
affordability restrictions.
1565166.4 8
2.3.5 Design Review; Conditions of Approval. The Agency and City have
approved Developer's preliminary design documents including elevations and schematic
drawings for the Project (collectively, "Preliminary Design Documents "). The City and
Agency staff have determined that the Preliminary Design Documents are consistent with the
approved Project Site Plan, the Redevelopment Plan, and the City's Municipal Code. On June
23, 2010, the City approved the Preliminary Design Documents and adopted Conditions of
Approval for the Project (the "Conditions of Approval ").
2.3.6 Permits and Approvals; Cooperation. Developer acknowledges that the
execution of this Agreement by Agency does not relieve Developer from the obligation to apply
for and to obtain from City and all other agencies with jurisdiction over the Property, all
necessary approvals, entitlements, and permits for the development of the Project (including
without limitation approval of the Project in compliance with CEQA and if applicable, NEPA),
nor does it limit in any manner the discretion of the City or any other agency in the approval
process. Prior to the Closing, Developer shall have obtained all entitlements, permits, licenses
and approvals required for the development and operation of the Project, including without
limitation, building permits and use permits or shall provide evidence satisfactory to Agency that
receipt of such permits and approvals is subject only to such conditions as Agency may
reasonably approve. Agency staff shall work cooperatively with Developer to assist in
coordinating the expeditious processing and consideration of all permits, entitlements and
approvals necessary for the development and operation of the Project as contemplated by this
Agreement.
2.3.7 Payment of Fees. Developer shall have paid when due all customary and
reasonable fees and charges in connection with the processing of City and all other applicable
agency permits and approvals.
2.3.8 Construction Plans, Budget and Schedule. Agency shall have approved
the construction budget and schedule for the Project, and City shall have approved the
Construction Plans and specifications for the Project.
2.3.9 Execution, Delivery and Recordation of Documents. Developer shall have
executed, acknowledged as applicable, and delivered to Agency this Agreement, and all other
documents required in connection with the transactions contemplated hereby, including without
limitation the Ground Lease, a promissory note substantially in the form attached hereto as
Exhibit B (the "Note "), a leasehold deed of trust substantially in the form attached hereto as
Exhibit C (the "Deed of Trust "), an Affordable Housing Regulatory Agreement and Declaration
of Restrictive Covenants substantially in the form attached hereto as Exhibit D (the "Regulatory
Agreement "), a Notice of Affordability Restrictions on Transfer of Property substantially in the
form attached as Exhibit D to the Regulatory Agreement (the "Notice "), an Assignment
Agreement substantially in the form attached hereto as Exhibit E ( "Assignment Agreement "),
and a Master Lease Agreement substantially in the form attached hereto as Exhibit F ( "Master
Lease "). Concurrently with the Closing, the Memorandum, the Deed of Trust, the Regulatory
Agreement, the Notice and a memorandum of the Master Lease shall be recorded in the Official
Records. In addition to the foregoing, Agency, Developer and the Developer of the Phase B
1565166.4 9
Project shall have executed a reciprocal easement agreement ( "REA ") which shall be recorded in
the Official Records in form approved by Agency.
2.3.10 Insurance; Payment and Performance Bonds. Developer shall have
provided evidence reasonably satisfactory to Agency that Developer has obtained insurance
coverage meeting the requirements set forth in Article VIII and shall have provided to Agency
copies of payment bonds and performance bonds or other assurance of completion reasonably
satisfactory to Agency pursuant to the requirements set forth in the Ground Lease.
2.4 Escrow. Agency and Developer shall open escrow at the office of Old Republic
Title Company located at 555 12 Street, Oakland, California, or such other title company as the
Parties may agree upon ( "Title Company" or "Escrow Agent ") in order to consummate the
closing of escrow for the transactions contemplated hereby.
2.5 Costs of Closing and Escrow. Developer shall pay all recording fees, transfer
taxes, escrow fees and closing costs incurred in connection with the lease of the Property and the
Close of Escrow. Developer shall pay for the cost of any lender's policy of title insurance that
Agency elects to acquire in connection with the transactions contemplated hereby.
2.6 Closing. The Closing Date shall be a date that is mutually acceptable to the
Parties, and which shall occur within thirty (30) days following the Developer's satisfaction or
Agency's waiver of all conditions precedent to Close of Escrow as set forth in Section 2.3 (and
all subsections thereof) and Section 2.7. Prior to the Close of Escrow, Developer shall deposit
into escrow the Agency Documents, executed and acknowledged as applicable and Developer's
share of closing costs. Provided that all conditions precedent to Close of Escrow have been
satisfied or waived, Agency shall deposit into escrow executed copies of the Agency Documents
to which Agency is a party. On the Closing Date the Escrow Agent shall cause the REA, the
Deed of Trust, the Memorandum, the Regulatory Agreement, the Notice, and a memorandum of
the Master Lease to be recorded in the Official Records.
2.7 Conditions to Closing. Agency's obligation to fund the Loan is conditioned upon
the satisfaction of the terms and conditions set forth in this Section 2.7.
a. No Default. There shall exist no condition, event or act which would
constitute a material breach or default under this Agreement or any other Agency Document, or
which, upon the giving of notice or the passage of time, or both, would constitute such a material
breach or default.
b. Representations. All representations and warranties of Developer
contained herein or in any other Agency Document or certificate delivered in connection with the
transactions contemplated by this Agreement shall be true and correct in all material respects as
of the Close of Escrow.
c. Satisfaction of Conditions Precedent. All conditions set forth in Section
2.3 and each subsection thereof shall have been satisfied.
1565166.4 10
d. Lender's Title Policy. The Title Company shall, upon payment of the
premium therefor, be ready to issue an ALTA Lender's Policy of Title Insurance for the benefit
and protection of Agency ( "Lender's Title Policy ") in the amount of the Loan, insuring that the
lien of the Deed of Trust is subject only to title exceptions and such other defects, liens,
conditions, encumbrances, restrictions, easements and exceptions as Agency may reasonably
approve in writing (collectively, "Agency's Permitted Exceptions ") and containing such
endorsements as Agency may reasonably require, with the cost of such Lender's Title Policy to
be paid by Developer.
ARTICLE III
AGENCY FINANCIAL ASSISTANCE
3.1 Loan and Note.
3.1.1 Original Loan. The Parties acknowledge that (A) in connection with the
conveyance of the Parcel by Developer to Agency, Agency forgave that portion of the
outstanding principal balance of the Original Loan equal to the purchase price of the Parcel
originally paid by Developer, together with interest accrued thereon, and (B) the remaining
balance of the Original Loan has been expended for predevelopment costs associated with the
Project and the Phase B Project.
3.1.2 Construction/Permanent Loan. In order to increase the affordability of the
Project, Agency agrees to provide a construction/permanent loan to Developer in the principal
amount of Four Million, Two Hundred Ninety Thousand, Three Hundred and Seventy -Three
Dollars ($4,290,373) (equal to the sum of Three Million, Nine Hundred Ninety -Three Thousand,
Eight Hundred and 64/100 Dollars ($3,993,800.64) in new money plus Two Hundred Eighty -
Three Thousand, Three Hundred Seventy -Three Dollars ($283,373) previously disbursed for
Project predevelopment costs pursuant to the Original Note and Thirteen Thousand, One
Hundred Ninety -Nine and 36/100 Dollars ($13,199.36) in interest accrued on such
predevelopment disbursements) (the "Loan ") upon the terms and conditions and for the purposes
set forth in this Agreement. The Loan shall be evidenced by a secured promissory note in the
amount of the Loan (the "Note ") dated as of the Closing Date and executed by Developer
substantially in the form attached hereto as Exhibit B.
Upon the closing for the Loan, Agency shall return the cancelled Original Note to
Developer, and Developer shall execute the Note evidencing Developer's obligation to repay the
previously disbursed predevelopment funds, the interest accrued thereon, and the new funds to
be advanced by the Agency pursuant to this Agreement.
Provided that Developer has complied with all conditions precedent to disbursement of
the Loan set forth in Section 3.6, the proceeds of the Loan ( "Loan Proceeds ") shall be disbursed
pursuant to approved draw requests as described in Section 3.6. The Parties agree that Agency
shall disburse the Loan Proceeds only for the purpose of funding development of the Property
and the Project.
1565166.4 11
3.2 Interest Rate; Payment Dates; Cost Savings; Maturity Date. The outstanding
principal balance of the Note will bear interest at a rate equal to three percent (3 %) simple annual
interest commencing upon the date of disbursement. Annual payments shall be due and payable
on a residual receipts basis in accordance with the formula set forth in the Note. The entire
outstanding principal balance of the Loan together with accrued interest and all other sums due
under the Agency Documents shall be payable in full on the date (the "Maturity Date ") which
is the earlier of (i) the fifty -fifth (55 anniversary of the date of issuance of the final certificate
of occupancy for the Project, or (ii) the fifty- seventh (57 anniversary of the Loan origination
date.
Notwithstanding the foregoing, the Agency shall have the right to accelerate the Maturity
Date and declare all sums payable under the Note immediately due and payable upon the and the
expiration of all applicable cure periods following the occurrence of an Event of Default
including without limitation, termination of the Ground Lease due to an event of default on the
part of Developer under the Ground Lease.
Within ten (10) business days after Developer's receipt of its limited partner(s)' capital
contribution following the issuance of the IRS Form 8609 for the Project, Developer shall pay to
the Agency as a reduction of the outstanding principal balance of the Note, a one -time payment
in the amount of Excess Proceeds as defined in and pursuant to the Note.
3.3 Security. As security for repayment of the Note, Developer shall execute the Deed
of Trust in favor of Agency as beneficiary pursuant to which Agency shall be provided a lien
against Developer's interest in the Property and the Improvements. The Deed of Trust shall be
dated as of the Closing Date, shall be substantially in the form attached hereto as Exhibit C, and
shall be recorded in the Official Records on the Closing Date. The Deed of Trust may be
subordinated only to such liens and encumbrances consistent with the approved Financing Plan
as Agency shall approve in writing. As additional security, Developer shall execute and deliver
to Agency the Assignment Agreement substantially in the form attached hereto as Exhibit E.
3.4 Prepayment; Acceleration.
(a) Prepayment. Developer shall have the right to prepay the Loan at any
time and from time to time, without penalty or premium, provided that any prepayment of
principal must be accompanied by interest accrued but unpaid to the date of prepayment.
Prepayments shall be applied first to accrued but unpaid interest and then to principal. Any such
prepayment shall have no effect upon Developer's obligations under the Regulatory Agreement
which shall survive for the full term of the Regulatory Agreement.
(b) Due On Transfer or Encumbrance. Unless Agency agrees otherwise in
writing, the entire unpaid principal balance and all interest and other sums accrued under the
Note shall be due and payable upon the Transfer absent the prior written consent of Agency of
all or any part of or interest in the Property or the Project except as otherwise permitted pursuant
to this Agreement.
3.5 Nonrecourse. Except as expressly provided in Section 3.9 of the Note, the Note
shall be non - recourse to Developer.
1565166.4 12
3.6 Conditions to Disbursement of Loan Proceeds. Agency's obligation to fund the
Loan and disburse the Loan Proceeds is conditioned upon the satisfaction of all of the conditions
set forth in Sections 2.3 and 2.7 and all of the following conditions:
(i)
The execution and delivery of the Ground Lease.
(ii) Developer's execution and delivery to Agency of this Agreement, the
Note, the Deed of Trust, the Memorandum, the Regulatory Agreement, the Notice, the Master
Lease, a memorandum of the Master Lease and the Assignment Agreement.
(iii) Recordation of the Memorandum, the REA, the Deed of Trust, a
memorandum of the Master Lease, the Notice and the Regulatory Agreement in the Official
Records.
(iv) Developer's delivery to Agency of evidence reasonably satisfactory to
Agency that there are no mechanics' liens or stop notices related to the Property or the Project,
and Developer's provision to Agency of full waivers or releases of lien clams if required by
Agency.
(v) The issuance by an insurer satisfactory to Agency of an A.L.T.A. lender's
policy of title insurance ( "Title Policy ") for the benefit of Agency in the amount of the Loan,
insuring that the Deed of Trust, the Regulatory Agreement, and the memorandum of the Master
Lease are subject only to Agency's Permitted Exceptions and containing such endorsements as
Agency may reasonably require.
(vi) Developer's delivery to the Agency of evidence of property and liability
insurance coverage in accordance with the requirements set forth herein.
(vii) Developer's delivery to Agency of certified copies of updated versions of
any documents listed in Section 2.3.1 which have been amended since the date of delivery to the
Agency, together with all of the following if not previously provided: a certified copy of
Developer's LP -1 and partnership agreement, and certified copies of the formation documents
for Developer's general partner, documentation of the general partner's tax - exempt status, and
resolutions authorizing the execution of and performance under the Agency Documents.
(viii) Intentionally omitted.
(ix) For Loan Proceeds to be used for construction: (a) Developer's delivery
to Agency of evidence reasonably satisfactory to Agency that Developer has obtained all
necessary entitlements, permits (including without limitation building permits), licenses, and
approvals required to develop the Project, or that the receipt of such permits is subject only to
such conditions as Agency shall reasonably approve; (b) City shall have approved the final plans
and specifications for the Project; (c) Developer's construction financing for the Project shall
have closed or shall close concurrently with Agency's disbursement of funds for construction,
and Developer shall have delivered to Agency evidence reasonably satisfactory to Agency that
Developer has secured binding commitments, subject only to commercially reasonable
conditions, for all Project construction and permanent financing, (d) Developer's delivery to
Agency and Agency approval of all of the following: (1) Project construction and operating
1565166.4 13
budgets; (2) payment bonds and performance bonds or other assurance of completion reasonably
acceptable to Agency pursuant to the requirements set forth in the Ground Lease; (3)
construction schedule; (4) evidence of insurance coverage required pursuant to Article VIII; (5)
an executed copy of the construction contract for the Project, (6) such other documents related to
the development and financing of the Project as Agency may reasonably request; (7) Agency's
receipt of a written requisition from Developer specifying the amount and use of the requested
funds, accompanied by copies of third -party invoices, evidence of Developer's payment for
services rendered in connection with the work (if applicable), and such other documentation as
Agency may reasonably require; and (8) Agency's inspection and approval of the work that is
the subject of the requisition.
3.8 No Obligation to Disburse Proceeds Upon Default. Notwithstanding any other
provision of this Agreement, the Agency shall have no obligation to disburse or authorize the
disbursement of any portion of the Loan Proceeds following:
(i) the failure of any of Developer's representations and warranties made in
this Agreement or in connection with the Loan to be true and correct in all material respects;
(ii) the termination of this Agreement by mutual agreement of the Parties;
(iii) the occurrence of an Event of Default under any Agency Document
(including without limitation, the Ground Lease) which remains uncured beyond any applicable
cure period, or the existence of any condition, event or act which upon the giving of notice or the
passage of time or both would constitute an Event of Default under any Agency Document.
ARTICLE IV
USE OF THE PROPERTY
4.1 Development of the Project; Compliance with Laws. Developer shall carry out
and shall cause its contractors to carry out construction of the Project in accordance with the
Conditions of Approval and the Construction Plans approved by City and in compliance with all
applicable state, federal, and local laws, rules, ordinances, codes, and regulations ( "Applicable
Laws "), including without limitation California Labor Code Section 1720 et seq. and the
regulations adopted pursuant thereto ( "Prevailing Wage Laws "), and all other applicable federal
and state labor laws and standards, applicable provisions of the California Public Contracts Code
(if any), the City zoning and development standards, building, plumbing, mechanical and
electrical codes, all other provisions of the City's Municipal Code, and all applicable disabled
and handicapped access requirements, including without limitation, the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq.,
Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section
51, et seq.. Developer shall indemnify, defend (with counsel approved by Agency) and hold the
Indemnitees harmless from and against any and all Claims arising in connection with a violation
or alleged violation of Applicable Laws in connection with the development of the Property or
the construction or operation of the Project, whether or not any insurance policies shall have
been determined to be applicable to any such Claims. It is further agreed that Agency and City
do not and shall not waive any rights against Developer which they may have by reason of this
1565166.4 14
indemnity and hold harmless agreement because of the acceptance by Agency, or Developer's
deposit with Agency of any of the insurance policies described in this Agreement. Developer's
indemnification obligations set forth in this Section shall not apply to Claims arising from the
gross negligence or willful misconduct of the Indemnitees. Developer's defense and
indemnification obligations set forth in this Section 4.1 shall survive the expiration or earlier
termination of this Agreement.
4.2 Affordable Housing. Developer covenants and agrees for itself, its successors
and assigns that the Property and the Improvements will be subject to recorded covenants that
will restrict use of the Property to development of a mixed -use project that includes affordable
housing, parking and retail /commercial uses, and that for a term of not less than seventy -five
(75) years commencing upon the issuance of a final certificate of occupancy for the Project, one
(1) of the residential units in the Project shall be a manager's unit for which the rent will not be
restricted, no fewer than fourteen (14) of the residential units in the Project shall be available at
Affordable Rents to households whose income is no greater than thirty percent (30 %) of Area
Median Income, no fewer than sixteen (16) additional units in the Project shall be available at
Affordable Rents to households whose income is no greater than forty percent (40 %) of Area
Median Income, and no fewer than thirty -one (31) additional units in the Project shall be
available at Affordable Rents to households whose income is no greater than eighty -five percent
(85 %) of Area Median Income, in accordance with the terms hereof and the Regulatory
Agreement.
4.3 Preference for Displacees, South San Francisco Residents and Employees.
Consistent with the requirements of California Health and Safety Code Section 33411.3,
Developer shall provide persons and households of low- or moderate - income who have been
displaced by the Project a priority in renting or purchasing housing constructed on the Property.
In addition, in order to ensure that there is an adequate supply of affordable housing within the
City of South San Francisco for residents and employees of businesses within the City, to the
extent permitted by law and consistent with the program regulations for funding sources used for
development of the Project, at initial lease up, Developer shall give a preference in the rental of
the residential units in the Project to eligible households that include at least one member who
lives or works in the City of South San Francisco. In the event there are fewer eligible persons
available than there are units, units shall be made available to members of the general public.
Notwithstanding the foregoing, in the event of a conflict between this provision and the
provisions of Section 42 of the Internal Revenue Code of 1986, as amended, the provisions of
such Section 42 shall control.
4.4 Relocation. Households residing on the Property shall not be displaced before
suitable replacement housing is available in comparable replacement housing. Developer shall
ensure that all occupants of the Property receive all notices, benefits and assistance to which they
are entitled in accordance with California Relocation Assistance Law (Government Code Section
7260 et seq.), all state and local regulations implementing such law, and all other applicable
local, state and federal laws and regulations (collectively "Relocation Laws ") relating to the
displacement and relocation of eligible persons as defined in such Relocation Laws. Any and all
costs incurred in connection with the temporary and /or permanent displacement and/or relocation
of occupants of the Property, including without limitation payments to a relocation consultant,
moving expenses, and payments for temporary and permanent relocation benefits pursuant to
1565166.4 15
Relocation Laws shall be paid by Developer. Developer shall indemnify, defend (with counsel
approved by Agency) and hold harmless the Indemnitees from and against any and all Claims
arising in connection with the breach of Developer's obligations set forth in this Section whether
or not any insurance policies shall have been determined to be applicable to any such Claims. It
is further agreed that Agency and City do not and shall not waive any rights against Developer
which they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or Developer's deposit with Agency of any of the insurance policies
described in this Agreement. Developer's indemnification obligations set forth in this Section
shall not apply to Claims arising from the gross negligence or willful misconduct of the
Indemnitees. Developer's obligations set forth in this Section 4.4 shall survive the expiration or
earlier termination of this Agreement.
4.5 Maintenance. Developer shall at its own expense, maintain the Property and the
Improvements, including the landscaping and common areas in good physical condition, in good
repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with
all Applicable Laws. Without limiting the foregoing, Developer agrees to maintain the Property
and the Improvements (including without limitation, landscaping, driveways, parking areas, and
walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti,
disrepair, abandoned vehicles /appliances, and illegal activity, and shall take all reasonable steps
to prevent the same from occurring on the Property. Developer shall prevent and /or rectify any
physical deterioration of the Improvements and shall make all repairs, renewals and
replacements necessary to keep the Property and the Improvements in good condition and
repair.
4.6 Taxes and Assessments. Developer shall pay all real and personal property taxes,
assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes
assessed against the Property or the Improvements, at such times and in such manner as to
prevent any penalty from accruing, or any lien or charge from attaching to the Property or
Improvements; provided, however, Developer shall have the right to contest in good faith, any
such taxes, assessments, or charges. In the event the Developer exercises its right to contest any
tax, assessment, or charge, the Developer, on final determination of the proceeding or contest,
shall immediately pay or discharge any decision or judgment rendered against it, together with
all costs, charges and interest.
4.7 Obligation to Refrain from Discrimination. Developer shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the
Improvements, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual
orientation, disability, marital status, ancestry, or national origin of any person. Developer
covenants for itself and all persons claiming under or through it, and this Agreement is made and
accepted upon and subject to the condition that there shall be no discrimination against or
segregation of any person or group of persons on account of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Property or the Improvements, or part thereof, nor shall Developer or any
person claiming under or through Developer establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
1565166.4 16
of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or Improvements,
or part thereof. Developer shall include such provision in all deeds, leases, contracts and other
instruments executed by Developer, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Developer, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property 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 of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
1565166.4 17
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts, the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
ARTICLE V
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
5.1 Identity of Developer, Changes Only Pursuant to this Agreement. Developer and
its principals have represented that they possess the necessary expertise, skill and ability to carry
out the development of the Project pursuant to this Agreement and the Ground Lease. The
qualifications, experience, financial capacity and expertise of Developer and its principals are of
particular concern to the Agency. It is because of these qualifications, experience, financial
capacity and expertise that the Agency has entered into this Agreement with Developer. No
voluntary or involuntary successor, assignee or transferee of Developer shall acquire any rights
or powers under this Agreement, except as expressly provided herein.
5.2 Prohibition on Transfer. Prior to the expiration of the term of the Ground Lease,
Developer shall not, except as expressly permitted by this Agreement, directly or indirectly,
voluntarily, involuntarily or by operation of law make or attempt any total or partial sale,
transfer, conveyance, assignment or lease (collectively, "Transfer ") of the whole or any part of
the Property, the Project, the Improvements, or this Agreement, without the prior written
approval of Agency which approval shall not be unreasonably withheld. Any such attempt to
assign this Agreement without the Agency's consent shall be null and void and shall confer no
rights or privileges upon the purported assignee. In addition to the foregoing, prior to the
expiration of the term of the Ground Lease, except as expressly permitted by this Agreement,
Developer shall not undergo any significant change of ownership without the prior written
approval of Agency. For purposes of this Agreement, a "significant change of ownership" shall
mean a transfer of the beneficial interest of more than twenty -five percent (25 %) in aggregate of
1565166.4 18
the present ownership and /or control of Developer, taking all transfers into account on a
cumulative basis; provided however, neither the admission of an investor limited partner, nor the
transfer by the investor limited partner to subsequent limited partners shall be restricted by this
provision.
5.3 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions set forth in this Article shall not be deemed to prevent: (i) the granting of temporary
easements or permits to facilitate development of the Property; (ii) the dedication of any property
required pursuant to this Agreement or the Ground Lease; (iii) the lease of individual residences
to tenants for occupancy as their principal residence in accordance with the Regulatory
Agreement or the lease of any commercial space to individual tenants; (iv) assignments creating
security interests for the purpose of financing the acquisition, construction or permanent
financing of the Project in accordance with the approved Financing Plan as it may be updated
with Agency approval, and subject to the requirements of Article VI, or Transfers directly
resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security
interest; (v) a Transfer to a tax - exempt entity under the direct control of or under common
control with MidPen Housing Corporation, a California nonprofit public benefit corporation
( "MidPen "); (vi) the admission of limited partners and any transfer of limited partnership
interests in accordance with Developer's agreement of limited partnership (the "Partnership
Agreement "); (vii) the removal of the general partner by the investor limited partner for a
default under the Partnership Agreement, provided that the replacement general partner is an
entity which is controlled by, or is under common control with Union Bank N.A., or is an entity
reasonably satisfactory to Agency; or (viii) the transfer of the general partner's interest to a
nonprofit entity that is tax - exempt under Section 501(c)(3) of the Internal Revenue Code of 1986
as amended, provided such replacement general partner is reasonably satisfactory to Agency.
5.4 Requirements for Proposed Transfers. The Agency may, in the exercise of its
sole discretion, consent to a proposed Transfer of this Agreement, the Property, the
Improvements or part thereof if all of the following requirements are met (provided however, the
requirements of this Section 5.4 shall not apply to Transfers described in clauses (i), (ii), (iii),
(iv) and (vi) of Section 5.3):
(i) The proposed transferee demonstrates to the Agency's satisfaction that it
has the qualifications, experience and financial resources necessary and adequate as may be
reasonably determined by the Agency to competently complete and manage the Project and to
otherwise fulfill the obligations undertaken by the Developer under this Agreement.
(ii) The Developer and the proposed transferee shall submit for Agency
review and approval all instruments and other legal documents proposed to effect any Transfer of
all or any part of or interest in the Property, the Improvements or this Agreement together with
such documentation of the proposed transferee's qualifications and development capacity as the
Agency may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Developer under this Agreement and the other Agency Documents arising
after the effective date of the Transfer and all obligations of Developer arising prior to the
effective date of the Transfer (unless Developer expressly remains responsible for such
1565166.4 19
obligations) and shall agree to be subject to and assume all of Developer's obligations pursuant
to the Conditions of Approval and all other conditions, and restrictions set forth in this
Agreement.
(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the Agency in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the Agency's Executive
Director unless the Executive Director, in his or her discretion, refers the matter of approval to
the Agency's governing board. If the Agency has not rejected a proposed Transfer or requested
additional information regarding a proposed Transfer in writing within thirty (30) days following
Agency's receipt of written request by Developer, the proposed Transfer shall be deemed
approved.
5.5 Effect of Transfer without Agency Consent.
5.5.1 In the absence of specific written agreement by the Agency, no Transfer
by Developer shall be deemed to relieve the Developer or any other party from any obligation
under this Agreement.
5.5.2 It shall be an Event of Developer Default hereunder entitling Agency to
pursue remedies including without limitation, termination of this Agreement and /or foreclosure
under the Deed of Trust if without the prior written approval of the Agency, Developer assigns
or Transfers this Agreement, the Improvements, or Developer's interest in the Property in
violation of Article V. This Section 5.5.2 shall not apply to Transfers described in clauses (i),
(ii), (iii), (iv) and (vi) of Section 5.3).
5.6 Recovery of Agency Costs. Developer shall reimburse Agency for all Agency
costs, including but not limited to reasonable attorneys' fees, incurred in reviewing instruments
and other legal documents proposed to effect a Transfer under this Agreement and in reviewing
the qualifications and financial resources of a proposed successor, assignee, or transferee within
ten (10) days following Agency's delivery to Developer of an invoice detailing such costs.
ARTICLE VI
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
6.1 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or
any other reasonable security instrument are permitted to be placed upon Developer's interest in
the Property or the Improvements only for the purpose of securing loans for the purpose of
financing the design and construction of the Improvements, and other expenditures reasonably
necessary for development of the Property pursuant to this Agreement. Developer shall not enter
into any conveyance for such financing that is not contemplated in the Financing Plan as it may
be updated with Agency approval, without the prior written approval of Agency's Executive
Director or his or her designee. As used herein, the terms "mortgage" and "deed of trust" shall
mean any security instrument used in financing real estate acquisition, construction and land
development. Except with respect to the REA, nothing in this Agreement is intended to or shall
1565166.4 20
be interpreted to operate as consent to the encumbrance of the Agency's fee interest in the
Property.
6.1.1 Subordination. The Agency agrees that pursuant to Health and Safety
Code Section 33334.14(a)(4), Agency will not withhold consent to reasonable requests for
subordination of the Deed of Trust and Regulatory Agreement to deeds of trust provided for the
benefit of lenders identified in the Financing Plan as it may be updated with Agency approval,
provided that the instruments effecting such subordination include reasonable protections to the
Agency in the event of default consistent with the requirements of Health and Safety Code
Section 33334.14(a)(4), including without limitation, extended notice and cure rights and the
rights set forth in Section 6.5 below.
6.2 Holder Not Obligated to Construct. The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated to complete construction of the
Improvements or to guarantee such completion. Nothing in this Agreement shall be deemed to
permit or authorize any such holder to devote the Property or any portion thereof to any uses, or
to construct any improvements thereon, other than those uses or improvements provided for or
authorized by this Agreement and the Ground Lease.
6.3 Notice of Default and Right to Cure. Whenever Agency delivers any notice of
default hereunder, Agency shall concurrently deliver a copy of such notice to each holder of
record of any mortgage or deed of trust secured by Developer's interest in the Property or the
Improvements, provided that Agency has been provided with the address for delivery of such
notice. Agency shall have no liability to any such holder for any failure by the Agency to
provide such notice to such holder. Each such holder shall have the right, but not the obligation,
at its option, to cure or remedy any such default or breach within the cure period provided to
Developer extended by an additional sixty (60) days. In the event that possession of Developer's
interest in the Property or the Improvements (or any portion thereof) is required to effectuate
such cure or remedy, the holder shall be deemed to have timely cured or remedied the default if
it commences the proceedings necessary to obtain possession of Developer's interest in the
Property or Improvements, as applicable, within the applicable cure period, diligently pursues
such proceedings to completion, and after obtaining possession, diligently completes such cure
or remedy. A holder who chooses to exercise its right to cure or remedy a default or breach shall
first notify Agency of its intent to exercise such right prior to commencing to cure or remedy
such default or breach. Nothing contained in this Agreement shall be deemed to permit or
authorize such holder to undertake or continue the construction of the Project (beyond the extent
necessary to conserve or protect the same) without first having expressly assumed in writing
Developer's obligations to Agency under this Agreement and the Ground Lease. The holder in
that event must agree to complete, in the manner provided in this Agreement, the Project and the
Improvements and submit evidence reasonably satisfactory to Agency that it has the
development capability on staff or retainer and the financial capacity necessary to perform such
obligations. Any such holder properly completing the Project pursuant to this Section shall
assume all rights and obligations of Developer under this Agreement and the Ground Lease.
6.4 Failure of Holder to Complete Improvements. In any case where, six (6) months
after default by Developer in completion of construction of the Improvements, the holder of
record of any mortgage or deed of trust has not exercised its option to construct the
1565166.4 21
Improvements, or having first exercised its option to construct, has not proceeded diligently with
construction, Agency shall be afforded those rights against such holder that it would otherwise
have against Developer under this Agreement.
6.5 Agency Right to Cure Defaults. In the event of a breach or default by Developer
under a mortgage or deed of trust secured by Developer's interest in the Property or the
Improvements, Agency may cure the default, without acceleration of the subject loan, following
prior notice thereof to the holder of such instrument and Developer. In such event, Developer
shall be liable for, and Agency shall be entitled to reimbursement from Developer for all costs
and expenses incurred by Agency associated with and attributable to the curing of the default or
breach and such sum shall constitute a part of the indebtedness secured by the Agency Deed of
Trust.
6.6 Holder to be Notified. Developer agrees to use best efforts to ensure that each
term contained herein dealing with security financing and rights of holders shall be either
inserted into the relevant deed of trust or mortgage or acknowledged and accepted in writing by
the holder prior to its creating any security right or interest in Developer's interest in the Property
or the Improvements.
6.7 Modifications to Agreement. Agency shall not unreasonably withhold its consent
to modifications of this Agreement requested by Project lenders or investors provided such
modifications do not alter Agency's substantive rights and obligations under this Agreement.
6.8 Estoppel Certificates. Either Party shall, at any time, and from time to time,
within fifteen (15) days after receipt of written request from the other Party, execute and deliver
to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this
Agreement is in full force and effect and a binding obligation of the Parties (if such be the case),
(ii) this Agreement has not been amended or modified, or if so amended, identifying the
amendments, and (iii) the requesting Party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature of any such defaults.
ARTICLE VII
DEFAULTS, REMEDIES AND TERMINATION
7.1 Event of Developer Default. The following events shall constitute an event of
default on the part of Developer hereunder ( "Event of Developer Default "):
(a) Developer fails to commence or complete construction of the Project
within the time period set forth in the Ground Lease, or subject to force majeure, abandons or
suspends construction of the Project prior to completion for a period of sixty (60) days or more;
(b) Developer fails to pay when due the principal and interest (if any) payable
under the Note and such failure continues for ten (10) days after Agency notifies Developer
thereof in writing;
Article V;
(c) A Transfer occurs, either voluntarily or involuntarily, in violation of
1565166.4 22
(d) Developer fails to maintain insurance as required pursuant to this
Agreement, and Developer fails to cure such default within ten (10) days;
(e) Subject to Developer's right to contest the following charges pursuant to
Section 4.6, Developer fails to pay prior to delinquency taxes or assessments due on the Property
or the Improvements or fails to pay when due any other charge that may result in a lien on the
Property or the Improvements, and Developer fails to cure such default within ninety (90) days
of the date of delinquency, but in all events prior to the date upon which the holder of any lien
has the right to pursue foreclosure thereof;
(f) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Improvements or Developer's interest in the
Property and remains uncured beyond any applicable cure period such that the holder of such
security instrument has the right to accelerate repayment of such loan;
(g) Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate or report submitted to the Agency or the City in
connection with this Agreement or Developer's request for the Loan proves to have been
incorrect in any material and adverse respect when made and continues to be materially adverse
to the Agency or the City;
(h) 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 "), Developer or any general partner thereof (i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against Developer or any general partner thereof in
an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator
or similar official for Developer or any general partner thereof; (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;
(i) A court of competent jurisdiction shall have made or entered any decree or
order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a
petition seeking reorganization of the Developer or seeking any arrangement for Developer
under bankruptcy law or any other applicable debtor's relief law or statute of the United States
or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the
Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding
up or liquidation of the Developer, in each case if such decree, order, petition, or appointment is
not removed or rescinded within ninety (90) days;
(j) Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution
on any substantial part of its property, unless the property so assigned, sequestered, attached or
executed upon shall have been returned or released within ninety (90) days after such event
(unless a lesser time period is permitted for cure pursuant to paragraphs (h) or (i) above or
pursuant to any other mortgage on the Improvements or Developer's interest in the Property, in
which event such lesser time period shall apply under this subsection as well) or prior to any
sooner sale pursuant to such sequestration, attachment, or execution;
1565166.4 23
(k) The Developer shall have voluntarily suspended its business or Developer
shall have been dissolved or terminated;
(1) An event of default arises under the Ground Lease or any other Agency
Document and remains uncured beyond any applicable cure period; or
(m) Developer defaults in the performance of any term, provision, covenant or
agreement contained in this Agreement other than an obligation enumerated in this Section 7.1
and unless a shorter cure period is specified for such default, the default continues for ten (10)
days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default
after the date upon which Agency shall have given written notice of the default to Developer;
provided however, if the default is of a nature that it cannot be cured within thirty (30) days, a
Developer Event of Default shall not arise hereunder if Developer commences to cure the default
within thirty (30) days and thereafter prosecutes the curing of such default with due diligence
and in good faith to completion.
7.2 Agency Default. An event of default on the part of Agency ( "Event of Agency
Default ") shall arise hereunder if Agency fails to keep, observe, or perform any of its covenants,
duties, or obligations under this Agreement, and the default continues for a period of sixty (60)
days after written notice thereof from Developer to Agency, or in the case of a default which
cannot with due diligence be cured within sixty (60) days, Agency fails to commence to cure the
default within sixty (60) days of such notice and thereafter fails to prosecute the curing of such
default with due diligence and in good faith to completion.
7.3 Agency's Remedies and Rights Upon an Event of Developer Default. Upon the
occurrence of an Event of Developer Default and the expiration of any applicable cure period,
Agency shall have all remedies available to it under this Agreement or under law or equity,
including, but not limited to the following, and Agency may, at its election, without notice to or
demand upon Developer, except for notices or demands required by law or expressly required
pursuant to the Agency Documents, exercise one or more of the following remedies:
(a) Accelerate and declare the balance of the Note and interest accrued
thereon immediately due and payable;
(b) Seek specific performance to enforce the terms of the Agency Documents;
(c) Foreclose on Developer's interest in the Property pursuant to the Deed of
Trust;
(d) Pursue any and all other remedies available under this Agreement or under
law or equity to enforce the terms of the Agency Documents and Agency's rights thereunder.
7.4 Developer's Remedies Upon an Event of Agency Default. Upon the occurrence
of an Agency Event of Default, in addition to pursuing any other remedy allowed at law or in
equity or otherwise provided in this Agreement, Developer may bring an action for equitable
relief seeking the specific performance of the terms and conditions of this Agreement, and /or
enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking to
obtain any other remedy consistent with the purpose of this Agreement, and may pursue any and
1565166.4 24
all other remedies available under this Agreement or under law or equity to enforce the terms of
the Agency Documents and Developer's rights thereunder.
7.5 Remedies Cumulative; No Consequential Damages. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the
exercise by either Party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different time, of any other rights or remedies for the same or any other
default by the other Party. Notwithstanding anything to the contrary set forth herein, a Party's
right to recover damages in the event of a default shall be limited to actual damages and shall
exclude consequential damages.
7.6 Inaction Not a Waiver of Default. No failure or delay by either Party in asserting
any of its rights and remedies as to any default shall operate as a waiver of such default or of any
such rights or remedies, nor deprive either Party of its rights to institute and maintain any action
or proceeding which it may deem necessary to protect, assert or enforce any such rights or
remedies in the same or any subsequent default.
7.7 Construction Plans. If this Agreement is terminated by mutual agreement of the
Parties or by Agency as a result of a Developer Event of Default, the Developer, at no cost to the
Agency, shall deliver to the Agency copies of all construction plans and studies in the
Developer's possession or in the possession of the Developer' s consultants related to
development of the Project on the Property, including without limitation, the Construction Plans,
subject only to the rights of senior construction lenders identified in the Financing Plan as it may
be updated with Agency approval. If the Agency utilizes the Construction Plans or studies, the
Agency shall indemnify the Developer for any claims arising from such use.
7.8 Rights of Limited Partners. Whenever Agency delivers any notice of default
hereunder, Agency shall concurrently deliver a copy of such notice to Developer's limited
partner(s) in accordance with Section 9.3. The limited partner(s) shall have the same right as
Developer to cure or remedy any default hereunder within the cure period provided to Developer
extended by an additional sixty (60) days; provided however, if the default is of such nature that
the Limited Partners reasonably determine that it is necessary to replace the general partner of
Tenant in order to cure such default, then the cure period shall be extended by an additional sixty
(60) days after the removal and replacement of such general partner, provided that the Limited
Partners have promptly commenced and diligently proceeded with all requisite actions to effect
such removal and replacement.
ARTICLE VIII
INDEMNITY AND INSURANCE.
8.1 Indemnity. Developer shall indemnify, defend (with counsel approved by
Agency) and hold the Indemnitees harmless from and against any and all Claims arising directly
or indirectly, in whole or in part, as a result of or in connection with the development,
construction, improvement, operation, ownership or maintenance of the Project or the Property,
or any part thereof by Developer or Developer's contractors, subcontractors, agents, employees
or any other party acting for or on behalf of Developer, or otherwise arising out of or in
1565166.4 25
connection with Developer's performance or failure to perform under this Agreement, including
without limitation, Claims arising or alleged to have arisen in connection with any violation of
Applicable Laws in connection with the development, operation or management of the Project.
Developer's indemnification obligations under this Section 8.1 shall not extend to Claims
resulting solely from the gross negligence or willful misconduct of Indemnitees. The provisions
of this Section 8.1 shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency and City do not and shall not waive any rights against Developer that
they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or the deposit with Agency by Developer, of any of the insurance
policies described in this Agreement.
8.2 Liability and Workers Compensation Insurance.
(a) Prior to initiating work on the Project and continuing through the issuance
of final certificates of occupancy or equivalent for the Project, Developer and all contractors
working on behalf of Developer on the Project shall maintain a commercial general liability
policy in the amount of One Million Dollars ($1,000,000) each occurrence, Two Million Dollars
($2,000,000) annual aggregate, together with Three Million Dollars ($3,000,000) excess liability
coverage, or such other policy limits as Agency may require in its reasonable discretion,
including coverage for bodily injury, property damage, products, completed operations and
contractual liability coverage. Such policy or policies shall be written on an occurrence basis
and shall name the Indemnitees as additional insureds.
(b) Until issuance of the final certificate of occupancy or equivalent for the
Project, Developer and all contractors working on behalf of Developer shall maintain a
comprehensive automobile liability coverage in the amount of One Million Dollars ($1,000,000),
combined single limit including coverage for owned and non -owned vehicles and shall furnish or
cause to be furnished to Agency evidence satisfactory to Agency that Developer and any
contractor with whom Developer has contracted for the performance of work on the Property or
otherwise pursuant to this Agreement carries workers' compensation insurance as required by
law. Automobile liability policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction work and continuing until issuance
of the final certificate of occupancy or equivalent for the Project, Developer and all contractors
working on behalf of Developer shall maintain a policy of builder's all -risk insurance in an
amount not less than the full insurable cost of the Project on a replacement cost basis naming
Agency as loss payee.
(d) Developer shall maintain property insurance covering all risks of loss
(other than earthquake), including flood (if required) for 100% of the replacement value of the
Project with deductible, if any, in an amount acceptable to Agency, naming Agency as loss
payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a current
A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive
automobile policies required hereunder shall name the Indemnitees as additional insureds.
1565166.4 26
Builder's Risk and property insurance shall name Agency and City as loss payees as their
interests may appear.
(f) Prior to commencement of construction work, Developer shall furnish
Agency with certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional insured status.
The certificates shall contain a statement of obligation on the part of the carrier to notify City and
Agency of any material adverse change, cancellation, termination or non - renewal of the coverage
at least thirty (30) days in advance of the effective date of any such material adverse change,
cancellation, termination or non - renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Developer shall, within fifteen (15) days after receipt of notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or reduction,
file with Agency and City a certificate showing that the required insurance has been reinstated or
provided through another insurance company or companies. Upon failure to so file such
certificate, Agency or City may, without further notice and at its option, procure such insurance
coverage at Developer's expense, and Developer shall promptly reimburse Agency or City for
such expense upon receipt of billing from Agency or City.
(h) Coverage provided by Developer shall be primary insurance and shall not
be contributing with any insurance, or self - insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation for the
benefit of the City and Agency. Developer shall furnish the required certificates and
endorsements to Agency prior to the commencement of construction of the Project, and shall
provide Agency with certified copies of the required insurance policies upon request of Agency.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 No Brokers. Each Party warrants and represents to the other that no person or
entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transactions contemplated by this Agreement. Each Party
agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs
or liabilities arising in connection with a breach of this warranty and representation. The terms
of this Section shall survive the close of escrow and the expiration or earlier termination of this
Agreement.
9.2 Enforced Delay; Extension of Times of Performance. Subject to the limitations
set forth below, performance by either Party shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended where delays are due
to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God,
acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental
restrictions or priority, litigation, including court delays, unusually severe weather, acts or
omissions of the other Party, acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of Agency which shall not
1565166.4 27
excuse performance by Agency), or any other cause beyond the affected Party's reasonable
control. An extension of time for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of the cause, if notice by the
Party claiming such extension is sent to the other Party within thirty (30) days of the
commencement of the cause and such extension is not rejected in writing by the other Party
within ten (10) days of receipt of the notice. Neither Party shall unreasonably withhold consent
to an extension of time pursuant to this Section.
Times of performance under this Agreement may also be extended in writing by the
mutual agreement of Developer and Agency (acting in the discretion of its Executive Director
unless he or she determines in his or her discretion to refer such matter to the governing board of
the Agency). Agency and Developer acknowledge that, notwithstanding any contrary provision
of this Agreement, adverse changes in economic conditions, either of the affected Party
specifically or the economy generally, changes in market conditions or demand, and/or inability
to obtain financing to complete the Project shall not constitute grounds of enforced delay
pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or
market changes and /or financial inability, whether or not foreseeable as of the Effective Date.
9.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement or any other Agency Document shall be made in writing, and sent to
the Parties at their respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other Parties in accordance with this Section. All
such notices shall be sent by:
(i)
personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged
to the sender's account, in which case notice is effective on delivery if delivery is confirmed by
the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first -
class or certified mail or by overnight delivery, or (b) a transmission report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered
to have been received on the next business day if it is received after 5:00 p.m. recipient's time or
on a nonbusiness day.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
1565166.4 28
Developer: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copy to:
And:
And:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
9.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this
Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation
of any provision hereof, then the prevailing Party in any proceeding in connection with such
dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or
establishing its rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements.
9.5 Waivers Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving Party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the Party granting the extension. This Agreement may be amended or modified only
by a written instrument executed by the Parties.
9.6 Binding on Successors City as Successor to Agency. Subject to the restrictions
on Transfers set forth in Article V, this Agreement shall bind and inure to the benefit of the
Parties and their respective permitted successors and assigns. Any reference in this Agreement
to a specifically named Party shall be deemed to apply to any permitted successor and assign of
1565166.4 29
such Party who has acquired an interest in compliance with this Agreement or under law. If the
Agency ceases to exist, the City shall automatically succeed to the interests of Agency under this
Agreement and the other Agency Documents.
9.7 Survival. All representations made by Developer hereunder and Developer's
obligations pursuant to Sections 4.1, 4.4, 8.1, and 9.1 shall survive the expiration or termination
of this Agreement. None of the provisions, terms, representations, warranties and covenants of
this Agreement are intended to or shall be merged by any grant deed or ground lease conveying
any interest in the Property to Developer or any successor in interest, and neither such grant
deed, ground lease, nor any other document shall affect or impair the provisions, terms,
representations, warranties and covenants contained herein.
9.8 Headings; Interpretation. The section headings and captions used herein are
solely for convenience and shall not be used to interpret this Agreement. The Parties
acknowledge that this Agreement is the product of negotiation and compromise on the part of
both Parties, and the Parties agree, that since both Parties have participated in the negotiation and
drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the
Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
9.9 Action or Approval. Whenever action and /or approval by Agency is required
under this Agreement, Agency's Executive Director or his or her designee may act on and/or
approve such matter unless specifically provided otherwise, or unless the Agency Executive
Director determines in his or her discretion that such action or approval requires referral to
Agency's Board for consideration.
9.10 Entire Agreement. This Agreement, including Exhibits A through G attached
hereto and incorporated herein by this reference, together with the other Agency Documents
contains the entire agreement between the Parties with respect to the subject matter hereof, and
supersedes all prior written or oral agreements, understandings, representations or statements
between the Parties with respect to the subject matter hereof.
9.11 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be an original and all of which taken together shall constitute one instrument. The
signature page of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto having additional signature pages executed by the other Party. Any executed
counterpart of this Agreement may be delivered to the other Party by facsimile and shall be
deemed as binding as if an originally signed counterpart was delivered.
9.12 Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless an essential purpose of this Agreement is defeated
by such invalidity or unenforceability.
9.13 No Third Party Beneficiaries. Except as expressly set forth herein, nothing
contained in this Agreement is intended to or shall be deemed to confer upon any person, other
than the Parties and their respective successors and assigns, any rights or remedies hereunder.
1565166.4 30
9.14 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.
9.15 Time of the Essence; Calculation of Time Periods. Time is of the essence for
each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is not a business day, in which event
the period shall run until the next business day. The final day of any such period shall be
deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a
"business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of California.
9.16 Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of San Mateo County, California or in the Federal District Court for the Northern District
of California.
9.17 Inspection of Books and Records. Upon request, Developer shall permit the
Agency to inspect at reasonable times and on a confidential basis those books, records and all
other documents of Developer necessary to determine Developer's compliance with the terms of
this Agreement.
1565166.4 31
IN WITNESS WHEREOF, the Parties have entered into this Loan Agreement (636 El
Camino — Phase A) effective as of the date first written above.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
DEVELOPER:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1565166.4 32
Exhibit A -1
LEGAL DESCRIPTION OF PARCEL
(Attach legal description.)
Exhibit A -2
LEGAL DESCRIPTION OF PROPERTY
(Attach legal description of Phase A leased premises.)
Exhibit B
FORM OF PROMISSORY NOTE
(Attach form of Note.)
Exhibit C
FORM OF DEED OF TRUST
(Attach form of Deed of Trust.)
Exhibit D
FORM OF AFFORDABLE HOUSING REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS
(Attach form of Regulatory Agreement.)
Exhibit E
ASSIGNMENT AGREEMENT
(Attach form of Assignment Agreement.)
Exhibit F
MASTER LEASE
(Attach form of Master Lease Agreement.)
Exhibit G
FINANCING PLAN
(Attach approved Financing Plan.)
1565166.4 33
1583222.1
Exhibit A
PROPERTY
(Attach legal description.)
EXHIBIT B
SECURED PROMISSORY NOTE
(636 El Camino - Phase A)
$4,290,373 South San Francisco, California
, 2011
FOR VALUE RECEIVED, MP South City, L.P., a California limited partnership
( "Borrower "), promises to pay to the Redevelopment Agency of the City of South San
Francisco, a public body corporate and politic ( "Agency "), in lawful money of the United States
of America, the principal sum of Four Million, Two Hundred Ninety Thousand, Three Hundred
and Seventy -Three Dollars ($4,290,373) or so much thereof as may be advanced by Agency
pursuant to the Loan Agreement referred to below, together with interest on the outstanding
principal balance in accordance with the terms and conditions described herein. The face amount
of this Note includes the sum of Two Hundred Eighty -Three Thousand, Three Hundred and
Seventy -Three Dollars ($283,373) previously disbursed by Agency to Borrower for
predevelopment expenses associated with the Project and Thirteen Thousand, One Hundred
Ninety -Nine and 36/100 Dollars ($13,199.36) in interest accrued on such prior disbursements.
Interest shall accrue on the outstanding principal balance of this Note at a rate equal to three percent
(3 %) simple interest per annum, commencing upon the date of disbursement thereof. Interest shall
be calculated on the basis of a year of 365 days, and charged for the actual number of days elapsed.
This Secured Promissory Note (this "Note ") has been executed and delivered pursuant to
and in accordance with that certain Loan Agreement executed by and between Borrower and
Agency, dated as of the date hereof (the "Loan Agreement "), and is subject to the terms and
conditions of the Loan Agreement, which is 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 a Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing ( "Deed of Trust ") dated as of the date hereof, executed by
Borrower for the benefit of Agency and encumbering the property described therein. Agency
shall be entitled to the benefits of the security provided by the Deed of Trust and shall have the
right to enforce the covenants and agreements contained herein, in the Deed of Trust, the Loan
Agreement, the Regulatory Agreement and the other Agency Documents. The Regulatory
Agreement shall remain effective for the full term thereof and shall survive the repayment of this
Note.
1. PAYMENTS
1.1 PAYMENT DATES; MATURITY DATE. Subject to adjustment as set forth in
this Section, annual payments on this Note shall be payable on a residual receipts basis with Fifty
Percent (50 %) of all Surplus Cash (defined below) payable to Agency toward principal and
accrued interest; provided however, during such time that Borrower is obligated to make loan
repayments on a residual receipts basis to additional public agency lenders, then Agency's share
of Surplus Cash shall be reduced to equal a proportionate share of Fifty Percent (50 %) of Surplus
1565677.5 1
Cash equal to a fraction the numerator of which is equal to the original principal amount of this
Note and the denominator of which is equal to the sum of the original principal amount of this
Note plus the original principal amounts of all such other public agency residual receipts loans
that remain outstanding on each payment date hereunder. Based on the foregoing and the
Financing Plan (defined in the Loan Agreement), Agency's share of Surplus Cash as of the
origination date of this Note is equal to Twenty -Eight percent (28 %). Payments shall be credited
first to any unpaid late charges and other costs and fees then due, then to accrued interest, and
then to principal. In no event shall any amount due under this Note become subject to any rights,
offset, deduction or counterclaim on the part of Borrower. The entire outstanding principal
balance of this Note, together with interest accrued thereon and any other sums accrued
hereunder shall be payable in full on the date (the "Maturity Date ") which is the earlier of (i)
the fifty -fifth (55 anniversary of the date upon which the City of South San Francisco issues a
final certificate of occupancy for the Project, or (ii) the fifty- seventh (57 anniversary of the
date hereof.
1.2 ANNUAL PAYMENTS FROM SURPLUS CASH. By no later than June 1 of
each year following the issuance of a final certificate of occupancy for the Project, Borrower
shall pay to Agency the percentage share of Surplus Cash determined pursuant to Section 1.1
above generated by the Project during the previous calendar year. No later than May 1 of each
year following the issuance of a final certificate of occupancy for the Project, Borrower shall
provide to Agency Borrower's calculation of Surplus Cash for the previous calendar year,
accompanied by such supporting documentation as Agency may reasonably request, including
without limitation, an independent audit prepared for the Project by a certified public accountant
in accordance with generally accepted accounting principles including a statement showing the
balance of all outstanding residual receipts loans together with their respective maturity dates.
No later than November 1 of each year following issuance of the final certificate of occupancy
for the Project, Borrower shall provide to Agency a projected budget for the following calendar
year which shall include an estimate of Surplus Cash.
1.2.1 "Surplus Cash" shall mean for each calendar year during the term hereof,
the amount by which Gross Revenue (defined below) exceeds Annual Operating Expenses
(defined below) for the Project. Surplus Cash shall also include net cash proceeds realized from
any refinancing of the Project, less fees and closing costs reasonably incurred in connection with
such refinancing, and any Agency- approved uses of the net cash proceeds of the refinancing.
1.2.2 "Gross Revenue" shall mean for each calendar year during the term
hereof, all revenue, income, receipts and other consideration actually received by Borrower from
the operation and leasing of the Project. Gross Revenue shall include, but not be limited to: all
rents, fees and charges paid by tenants; Section 8 payments or other rental subsidy payments
received for the dwelling units; deposits forfeited by tenants; all cancellation fees, price index
adjustments and any other rental adjustments to leases or rental agreements; proceeds from
vending and laundry room machines; the proceeds of business interruption or similar insurance;
the proceeds of casualty insurance not required to be paid to the holders of Approved Senior
Loans (defined below) (provided however, expenditure of such proceeds (or projected
expenditures approved by Agency) for repair or restoration of the Project shall be included
within Annual Operating Expenses in the year of the expenditure); condemnation awards for a
taking of part or all of Borrower's interest in the Property or the Improvements for a temporary
1565677.5 2
period; and the fair market value of any goods or services provided to Borrower in consideration
for the leasing or other use of any part of the Project. Gross Revenue shall include any release of
funds from replacement or other reserve accounts to Borrower other than for costs associated
with the Project. Gross Revenue shall not include tenant security deposits, loan proceeds, capital
contributions or similar advances.
1.2.3 "Annual Operating Expenses" shall mean for each calendar year during
term hereof, the following costs reasonably and actually incurred for the operation and
maintenance of the Project to the extent that they are consistent with an annual independent audit
performed by a certified public accountant using generally accepted accounting principles:
ground lease payments; property taxes and assessments; debt service currently due and payable
on a non - optional basis (excluding debt service due from residual receipts or surplus cash of the
Project) on loans which have been approved by the Agency and which are secured by deeds of
trust senior in priority to the Deed of Trust ( "Approved Senior Loans "); property management
fees and reimbursements in amounts in accordance with industry standards for similar residential
projects; premiums for property damage and liability insurance related to the Project; utility
service costs not paid for directly or indirectly by tenants; maintenance and repair costs; fees for
licenses and permits required for the operation of the Project; organizational costs (e.g., annual
franchise tax payments) and costs associated with accounting, tax preparation and legal fees of
Borrower incurred in the ordinary course of business; expenses for security services; advertising
and marketing costs; payment of deductibles in connection with casualty insurance claims not
paid from reserves; tenant services; the amount of uninsured losses actually replaced, repaired or
restored and not paid from reserves; cash deposits into reserves for capital replacements in an
amount no more than $500 per unit per year, increasing by 3.5% per year, or such greater amount
as reasonably required by the holder of an Approved Senior Loan or as required by a physical
needs assessment prepared by a third -party selected or approved by Agency and prepared at
Borrower's expense; partnership management fees payable to the general partner of Borrower in
the maximum aggregate sum of $15,000 per year, increasing by 3% per year, payable only
during the first fifteen (15) years following issuance of a final certificate of occupancy for the
Project; an asset management fee not to exceed $10,000 per year, increasing by 3% per year,
payable to the investor limited partner of Borrower only during the first fifteen (15) years
following issuance of a final certificate of occupancy for the Project; any previously unpaid
portion of the developer fee (without interest) due in accordance with the Financing Plan
approved by Agency as set forth in the Loan Agreement (provided that the cumulative amount of
such fee does not exceed the maximum allowable by the California Tax Credit Allocation
Committee; cash deposits into operating reserves in an amount reasonably approved by Agency
or required by the holder of an Approved Senior Loan, but only if the accumulated operating
reserve does not exceed four (4) months' projected Project operating expenses; and other
ordinary and reasonable operating expenses. Payments to Borrower, its partners or affiliates in
excess of the limitations set forth in this Section shall not be counted toward Annual Operating
Expenses for the purpose of calculating Surplus Cash.
1.2.4 EXCLUSIONS FROM ANNUAL OPERATING EXPENSES. Annual
Operating Expenses shall exclude the following: developer fees and interest on any deferred
developer fees (except as permitted pursuant to Section 1.2.3); contributions to Project operating
reserves (except as permitted pursuant to Section 1.2.3); debt service payments on any loan
which is not an Approved Senior Loan, including without limitation, unsecured loans or loans
1565677.5 3
secured by deeds of trust which are subordinate to the Deed of Trust; depreciation, amortization,
depletion and other non -cash expenses; expenses paid for with disbursements from any reserve
account; distributions to partners (except as permitted pursuant to Section 1.2.3); any amount
paid to Borrower, any general partner of Borrower, or any entity controlled by the persons or
entities in control of Borrower or any general partner of Borrower (except as permitted pursuant
to Section 1.2.3). Notwithstanding the foregoing limitation regarding payments to Borrower and
related parties, the following fees shall be included in Annual Operating Expenses in accordance
with and subject to the limitations set forth in Section 1.2.3 above even if paid to an affiliate of
Borrower or a partner of Borrower: fees paid to a property management agent, resident services
agent or social services agent, partnership management fees, developer fees, asset management
fees, and subject to Section 1.2.5, repayment of cash advances by Borrower's general or limited
partners to cover operating expense deficits.
1.2.5 ADJUSTMENT TO OPERATING EXPENSES. Notwithstanding
anything to the contrary set forth herein, for the purpose of calculating Surplus Cash, Annual
Operating Expenses shall include: (a) the repayment of operating deficit loans provided by
Borrower's limited partner(s) provided however, interest payable on such loans may be included
in Annual Operating Expenses only in an amount equivalent to the lesser of (i) interest accrued at
the actual interest rate charged for the loan, or (ii) interest accrued at a rate equal to three percent
(3 %) in excess of the rate of interest most recently announced by Bank of America, NT & SA (or
its successor bank) at its San Francisco office as its "prime rate ", and (b) the amount of any tax
credit adjustor that is required to be paid from Project cash flow.
1.3 COST SAVINGS. Within ten (10) business days after Borrower's receipt of its
limited partner(s)' capital contribution following the issuance of the IRS Form 8609 for the
Project, Borrower shall pay to the Agency as a reduction of the outstanding principal balance of
this Note, a one -time payment in the amount of Excess Proceeds. "Excess Proceeds" shall mean
the sum of all sources of financing received by Borrower for permanent financing of the Project
(including equity, residual receipts mortgages and conventional mortgage debt to the extent such
debt is supportable by Project cash flow and rent or operating subsidies), less the sum of actual
uses as shown on the final cost certificate for the Project. For purposes of calculating Excess
Proceeds: (i) no portion of the deferred developer fee identified on the Financing Plan approved
pursuant to the Loan Agreement shall be paid, (ii) Borrower shall fund a tenant social services
reserve (the "Social Services Reserve ") in an amount equal to One Hundred Seventy -Five
Thousand Dollars ($175,000), and (iii) Borrower shall fund a tenant improvement allowance
reserve (the "Tenant Improvement Reserve ") for the Commercial /Retail Component (as
defined in the Ground Lease) in the amount of Five Hundred and Ten Thousand Dollars
($510,000). Interest earned on the foregoing reserves shall become a part of such reserves and
used only for the purpose for which each such reserve is established. Any unspent portion of the
Tenant Improvement Reserve shall be paid to Agency toward a reduction of the outstanding
principal balance of this Note. To the extent there are cost savings, such cost savings shall first
be used to capitalize the Social Services Reserve until such reserve is fully funded, and then to
capitalize the Tenant Improvement Reserve.
1.4 DUE ON TRANSFER. The entire unpaid principal balance and all interest and
other sums accrued hereunder shall be due and payable upon the Transfer (as defined in Section
5.2 of the Loan Agreement) absent Agency consent, of all or any part of the Project or
1565677.5 4
Borrower's interest in the Property or any interest therein other than a Transfer permitted without
Agency consent pursuant to the Loan Agreement. Without limiting the generality of the
foregoing, this Note shall not be assumable without Agency's prior written consent, which
consent may be granted or denied in Agency's sole discretion.
1.5 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. The Regulatory Agreement shall remain in full force for the entire term
thereof regardless of any prepayment of this Note.
1.6 MANNER OF PAYMENT. All payments of principal and interest on this Note
shall be made to Agency at 400 Grand Ave, South San Francisco, CA 94080 or such other place
as Agency shall designate to Borrower in writing, or by wire transfer of immediately available
funds to an account designated by Agency in writing.
2. DEFAULTS AND REMEDIES.
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) Borrower fails to pay when due the principal and interest payable hereunder and
such failure continues for ten (10) days after Agency notifies Borrower thereof in writing.
(B) Pursuant to or within the meaning of the United States Bankruptcy Code or any
other federal or state law relating to insolvency or relief of debtors ("Bankruptcy Law "),
Borrower or any general partner thereof (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against Borrower or any general partner thereof in an
involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or
similar official for Borrower or any general partner thereof; (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.
(C) A court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against Borrower or any general partner thereof in an involuntary case,
(ii) appoints a trustee, receiver, assignee, liquidator or similar official for Borrower or any
general partner thereof or substantially all of such entity's assets, (iii) orders the liquidation of
Borrower or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of
attachment or similar process against Borrower's interest in the Property or the Project, and in
each case the order or decree is not released, vacated, dismissed or fully bonded within ninety
(90) days after its issuance.
(D) The occurrence of a Transfer in violation of Article V of the Loan Agreement.
(E) A default arises under any debt instrument secured by a mortgage or deed of trust
on the Project or Borrower's interest in the Property and remains uncured beyond any applicable
1565677.5 5
cure period such that the holder of such instrument has the right to accelerate payment
thereunder.
(F) Borrower fails to maintain insurance on the Property and the Project as required
pursuant to the Agency Documents and Borrower fails to cure such default within ten (10) days.
(G) Subject to Borrower's right to contest the following charges pursuant to the
Agency Documents, if Borrower fails to pay taxes or assessments due on the Property or the
Project or fails to pay any other charge that may result in a lien on the Property or the Project,
and Borrower fails to cure such default within ninety (90) days of delinquency but in all events
prior to the date that the holder of any such lien has the right to pursue foreclosure thereof;
(H) If any representation or warranty contained in any Agency Document, or any
certificate furnished in connection therewith, or in connection with any request for disbursement
of the proceeds of the Loan proves to have been false or misleading in any material adverse
respect when made and continues to be materially adverse to the Agency.
(I) A default arises under the Ground Lease, the Loan Agreement, the Regulatory
Agreement or any other Agency Document and remains uncured beyond the expiration of the
applicable cure period.
2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder, Agency
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 and all sums due hereunder, 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
Agency under this Note and the other Agency Documents, including without limitation the right
to pursue foreclosure under the Deed of Trust. Borrower shall pay all reasonable costs and
expenses incurred by or on behalf of Agency including, without limitation, reasonable attorneys'
fees, incurred in connection with Agency's enforcement of this Note and the exercise of any or
all of its rights and remedies hereunder and all such sums shall be a part of the indebtedness
secured by the Deed of Trust. The rights and remedies of Agency under this Note shall be
cumulative and not alternative.
2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest shall
automatically be increased without notice to the lesser of ten percent (10 %) per annum or the
maximum rate permitted by law (the "Default Rate "); provided however, if any payment due
hereunder is not paid when due, the Default Rate shall apply commencing upon the due date for
such payment. 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 Agency from exercising any of its other rights or remedies.
2.4 LIMITED PARTNERS RIGHT TO CURE. Borrower's limited partners shall
have the right to cure any default of Borrower hereunder pursuant to the terms of the Loan
1565677.5 6
Agreement. Any cure tendered by a limited partner of Borrower shall be deemed to be a cure by
Borrower and shall be accepted or rejected on the same basis as if tendered by Borrower.
3. MISCELLANEOUS
3.1 WAIVERS; BORROWER'S WAIVERS. No waiver by Agency of any right or
remedy under this Note shall be effective unless in a writing signed by Agency. 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 Agency will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. No waiver that may be given by
Agency will be applicable except in the specific instance for which it is given. No notice to or
demand on Borrower will be deemed to be a waiver of any obligation of Borrower or of the right
of Agency to take further action without notice or demand as provided in this Note.
To the maximum extent permitted by applicable law 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 9.3 of the Loan Agreement.
3.3 SEVERABILITY. If any provision in this Note is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Note will remain in full force
and effect. Any provision of this Note held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of the
State of California without regard to principles of conflicts of laws. Any legal action filed in
connection with this Note shall be filed in the Superior Court of San Mateo County, California,
or in the Federal District Court for the Northern District of California.
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its successors and
assigns and shall accrue to the benefit of Agency and its successors and assigns.
3.6 SECTION HEADINGS, CONSTRUCTION; AMENDMENTS. The headings of
Sections in this Note are provided for convenience only and will not affect its construction or
interpretation. There shall be no amendment to or modification of this Note except by written
instrument executed by Borrower and Agency.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and Agency
under this Note is solely that of borrower and lender, and the loan evidenced by this Note and
secured by the Deed of Trust will in no manner make Agency 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.
1565677.5 7
3.9 NONRECOURSE. Except as expressly provided in this Section 3.9, neither
Borrower nor its partners shall have personal liability for payment of the principal of, or interest
on, this Note, and the sole recourse of Agency with respect to the payment of the principal of,
and interest on, this Note shall be to the Project, Borrower's interest in the Property and any
other collateral held by Agency as security for this Note; provided however, nothing contained in
the foregoing limitation of liability shall:
(A) impair the enforcement against all such security for the Loan of all the rights and
remedies of the Agency under the Deed of Trust and any financing statements Agency files in
connection with the Loan as each of the foregoing may be amended, modified, or restated from
time to time;
(B) impair the right of Agency to bring a foreclosure action, action for specific
performance or other appropriate action or proceeding to enable Agency to enforce and realize
upon the Deed of Trust, the interest in the Project and the Property created thereby and any other
collateral given to Agency in connection with the indebtedness evidenced hereby and to name
the Borrower as party defendant in any such action;
(C) be deemed in any way to impair the right of the Agency to assert the unpaid principal
amount of the Loan as a demand for money within the meaning of Section 431.70 of the
California Code of Civil Procedure or any successor provision thereto;
(D) constitute a waiver of any right which Agency may have under any bankruptcy law to
file a claim for the full amount of the indebtedness owed to Agency hereunder or to require that
the Project and Borrower's interest in the Property shall continue to secure all of the
indebtedness owed to Agency hereunder in accordance with this Note and the Deed of Trust; or
(E) limit or restrict the ability of Agency to seek or obtain a judgment against Borrower
to enforce against Borrower and its general partners to:
(1) recover under Sections 4.1, 4.4, 8.1 and 9.1 of the Loan Agreement or
Sections 5.2, 6.6, 6.19, 7.4, 7.10, 7.11.2, 13.1, and 18.5.9 and Article X of the Ground
Lease (pertaining to Borrower's indemnification obligations), or
(2) recover from Borrower and its general partners compensatory damages as well
as other costs and expenses incurred by Agency (including without limitation attorney's
fees and expenses) arising as a result of the occurrence of any of the following:
(a) any fraud or material misrepresentation on the part of the Borrower,
any general partner thereof, or any officer, director or authorized representative of
Borrower or any general partner thereof in connection with the request for or
creation of the Loan, or in any Agency Document, or in connection with any
request for any action or consent by Agency in connection with the Loan;
(b) any failure to maintain insurance on the Property and the Project as
required pursuant to the Agency Documents;
1565677.5 8
(c) failure to pay taxes, assessments or other charges which may become
liens on the Property or the Project;
(d) the presence of Hazardous Materials (defined in Section 7.11.4 of the
Ground Lease) on the Property or other violation of the Borrower's obligations
under Section 7.11 of the Ground Lease or Section 7.9 of the Deed of Trust
(pertaining to environmental matters);
(e) the occurrence of any act or omission of Borrower that results in waste
to or of the Project or the Property and which has a material adverse effect on the
value of the Project or the Property;
(f) the material misapplication of the Loan proceeds;
(g) the removal or disposal of any personal property or fixtures or the
retention of rents, insurance proceeds, or condemnation awards in violation of the
Deed of Trust, the Loan Agreement or the Ground Lease;
(h) the material misapplication of the proceeds of any insurance policy or
award resulting from condemnation or the exercise of the power of eminent
domain or by reason of damage, loss or destruction to any portion of the Project
or the Property; and
(i) the failure of Borrower to pay all amounts payable under this Note in
full if Borrower Transfers Borrower's interest in the Property or the Project in
violation of the Loan Agreement.
1565677.5 9
SIGNATURE(S) ON FOLLOWING PAGE.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date
first written above.
BORROWER
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1565677.5 10
Recording Requested by
and when Recorded, return to:
Redevelopment Agency
of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
EXHIBIT C
Space above this line for Recorder's use.
LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(636 El Camino - Phase A)
THIS LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING ( "Deed of Trust ") is made as of
, 2011, by MP South City, L.P., a California limited partnership
( "Trustor ") to Title Company as trustee ( "Trustee "), for the benefit
of the Redevelopment Agency of the City of South San Francisco, a public body,
corporate, and politic ( "Beneficiary ").
RECITALS
A. Beneficiary owns fee simple title to the land described in Exhibit A
attached hereto and incorporated herein by this reference (the "Land "). The Land is
located adjacent to the El Camino Redevelopment Project Area ( "Project Area ").
Beneficiary and Trustor have entered into a ground lease (the "Ground Lease ") dated
as of the date hereof, pursuant to which Trustor shall lease the Land for the purposes of
developing and operating an affordable multifamily residential /mixed -use development
on the Land (the "Project "). A Memorandum of the Ground Lease will be recorded in
the Official Records of San Mateo County concurrently herewith.
B. Beneficiary and Trustor have entered into a Loan Agreement dated as of
the date hereof (the "Loan Agreement ") pursuant to which Beneficiary is providing a
loan to Trustor in the amount of Four Million, Two Hundred Ninety Thousand, Three
Hundred and Seventy -Three Dollars ($4,290,373) (the "Loan ") for the purpose of
partially financing the Project. Trustor has issued to Beneficiary a secured promissory
note dated as of the date hereof (the "Note ") to evidence Trustor's obligation to repay
the Loan.
C. As a condition precedent to the making of the Loan, Beneficiary has
required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of
Beneficiary, a lien and security interest in the Project and in Trustor's leasehold interest
1579132.2 1
in the Land and the Property (defined below) to secure repayment of the Note and
performance of Trustor's obligations under the Loan Agreement and under the Agency
Documents (defined below).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing
payment and performance of the Secured Obligations defined and described in Section
2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns
to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry
and possession, all estate, right, title and interest which Trustor now has or may later
acquire in and to the Land, and all of the following, whether presently owned or
hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or
constructed on the Land ( "Improvements ");
b. All appurtenances, easements, rights of way, pipes, transmission lines or
wires and other rights used in connection with the Land or the Improvements or as a
means of access thereto, whether now or hereafter owned or constructed or placed
upon or in the Land or Improvements and all existing and future privileges, rights,
franchises and tenements of the Land, including all minerals, oils, gas and other
commercially valuable substances which may be in, under or produced from any part of
the Land, and all water rights, rights of way, gores or strips of land, and any land lying in
the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and
Improvements (collectively, "Appurtenances ");
c. All machinery, equipment, fixtures, goods and other personal property of
the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor
and now or hereafter located at or used in connection with the Land, the Improvements
or Appurtenances, and all improvements, restorations, replacements, repairs, additions
or substitutions thereto (collectively, "Equipment ");
d. All existing and future leases, subleases, licenses, and other agreements
relating to the use or occupancy of all or any portion of the Land or Improvements
(collectively, "Leases "), all amendments, extensions, renewals or modifications thereof,
and all rent, royalties, or other payments which may now or hereafter accrue or
otherwise become payable thereunder to or for the benefit of Trustor, including but not
limited to security deposits (collectively, "Rents ");
e. All insurance proceeds and any other proceeds from the Land,
Improvements, Appurtenances, Equipment, Leases, and Rents, including without
limitation, all deposits made with or other security deposits given to utility companies, all
claims or demands relating to insurance awards which the Trustor now has or may
hereafter acquire, including all advance payments of insurance premiums made by
Trustor, and all condemnation awards or payments now or later made in connection
1579132.2 2
with any condemnation or eminent domain proceeding ( "Proceeds ");
f. All revenues, income, rents, royalties, payments and profits produced by
the Land, Improvements, Appurtenances and Equipment, whether now owned or
hereafter acquired by Trustor ( "Gross Revenues ");
g. All architectural, structural and mechanical plans, specifications, design
documents and studies produced in connection with development of the Land and
construction of the Improvements (collectively, "Plans "); and
h. All interests and rights in any private or governmental grants, subsidies,
loans or other financing provided in connection with development of the Land and
construction of the Improvements (collectively, "Financing ").
All of the above - referenced interests of Trustor in the Land, Improvements,
Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and
Financing as hereby conveyed to Trustee or made subject to the security interest herein
described are collectively referred to herein as the "Property."
2. Obligations Secured. This Deed of Trust is given for the purpose of securing
payment and performance of the following (collectively, the "Secured Obligations "): (i)
all present and future indebtedness evidenced by the Note and any amendment thereof,
including principal, interest and all other amounts payable under the terms of the Note;
(ii) all present and future obligations of Trustor to Beneficiary under the Agency
Documents (defined below); (iii) all additional present and future obligations of Trustor
to Beneficiary under any other agreement or instrument acknowledged by Trustor
(whether existing now or in the future) which states that it is or such obligations are,
secured by this Deed of Trust; (iv) all obligations of Trustor to Beneficiary under all
modifications, supplements, amendments, renewals, or extensions of any of the
foregoing, whether evidenced by new or additional documents; and (v) reimbursement
of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary's interests
under this Deed of Trust or any other Agency Document as such may be modified,
supplemented, amended, renewed or extended. The Ground Lease, the Note, the Loan
Agreement, this Deed of Trust, and the Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants ( "Regulatory Agreement ") dated as of the date
hereof, executed by and between Trustor and Beneficiary and recorded substantially
concurrently herewith are hereafter collectively referred to as the "Agency
Documents."
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits,
revenue, income and proceeds of the Property. This is an absolute assignment and not
an assignment for security only. Beneficiary hereby confers upon Trustor a license to
collect and retain such Rents, royalties, issues, profits, revenue, income and proceeds
as they become due and payable prior to any Event of Developer Default hereunder.
Upon the occurrence of any such Event of Developer Default, Beneficiary may
terminate such license without notice to or demand upon Trustor and without regard to
1579132.2 3
the adequacy of any security for the indebtedness hereby secured, and may either in
person, by agent, or by a receiver to be appointed by a court, enter upon and take
possession of the Property or any part thereof, and sue for or otherwise collect such
rents, issues, and profits, including those past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable attorneys'
fees, to any indebtedness secured hereby, and in such order as Beneficiary may
determine. Beneficiary's right to the rents, royalties, issues, profits, revenue, income
and proceeds of the Property does not depend upon whether or not Beneficiary takes
possession of the Property. The entering upon and taking possession of the Property,
the collection of such rents, issues, and profits, and the application thereof as aforesaid,
shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice. If an Event of Developer Default occurs while Beneficiary
is in possession of all or part of the Property and /or is collecting and applying Rents as
permitted under this Deed of Trust, Beneficiary, Trustee and any receiver shall
nevertheless be entitled to exercise and invoke every right and remedy afforded any of
them under this Deed of Trust and at law or in equity, including the right to exercise the
power of sale granted hereunder. Regardless of whether or not Beneficiary, in person
or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall
not be deemed to be a "mortgagee in possession," shall not be responsible for
performing any obligation of Trustor under any Lease, shall not be liable in any manner
for the Property, or the use, occupancy, enjoyment or operation of any part of it, and
shall not be responsible for any waste committed by Trustor, lessees or any third
parties, or for dangerous or defective condition of the Property or any negligence in the
management, repair or control of the Property. Absent Beneficiary's written consent,
Trustor shall not accept prepayment of Rents for any rental period exceeding one
month.
4. Security Agreement. The parties intend for this Deed of Trust to create a lien on
the Property, and an absolute assignment of the Rents and Leases, all in favor of
Beneficiary. The parties acknowledge that some of the Property may be determined
under applicable law to be personal property or fixtures. To the extent that any Property
may be or be determined to be personal property, Trustor as debtor hereby grants to
Beneficiary as secured party a security interest in all such Property to secure payment
and performance of the Secured Obligations. This Deed of Trust constitutes a security
agreement under the California Uniform Commercial Code, as amended or recodified
from time to time (the "UCC "), covering all such Property. To the extent such Property
is not real property encumbered by the lien granted above, and is not absolutely
assigned by the assignment set forth above, it is the intention of the parties that such
Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in
and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such
section may be modified or supplemented) of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby
authorizes Beneficiary, as secured party, to file such financing statements and
amendments thereof and such continuation statements with respect thereto as
Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest
in the Property and Rents, without requiring any signature or further authorization by
1579132.2 4
Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary
may incur in filing such documents in public offices and in obtaining such record
searches as Beneficiary may reasonably require. If any financing statement or other
document is filed in the records normally pertaining to personal property, that filing shall
not be construed as in any way derogating from or impairing this Deed of Trust or the
rights or obligations of the parties under it.
Everything used in connection with the Property and /or adapted for use therein and /or
which is described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be regarded as part of the
estate encumbered by this Deed of Trust irrespective of whether (i) any such item is
physically attached to the Improvements, (ii) serial numbers are used for the better
identification of certain equipment items capable of being thus identified in a recital
contained herein or in any list filed with Beneficiary, or (iii) any such item is referred to or
reflected in any such financing statement so filed at any time. Similarly, the mention in
any such financing statement of (1) rights in or to the proceeds of any fire and /or hazard
insurance policy, or (2) any award in eminent domain proceedings for a taking or for
lessening of value, or (3) Trustor's interest as lessor in any present or future lease or
rights to income growing out of the use and /or occupancy of the property conveyed
hereby, whether pursuant to lease or otherwise, shall not be construed as in any way
altering any of the rights of Beneficiary as determined by this instrument or impugning
the priority of Beneficiary's lien granted hereby or by any other recorded document.
Such mention in any financing statement is declared to be solely for the protection of
Beneficiary in the event any court or judge shall at any time hold, with respect to the
matters set forth in the foregoing clauses (1), (2), and (3), that notice of Beneficiary's
priority of interest is required in order to be effective against a particular class of
persons, including but not limited to the federal government and any subdivisions or
entity of the federal government.
6. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing
pursuant to the provisions of the UCC with respect to all of the Property constituting
fixtures, is being recorded as a fixture financing statement and filing under the UCC,
and covers property, goods and equipment which are or are to become fixtures related
to the Land and the Improvements. Trustor covenants and agrees that this Deed of
Trust is to be filed in the real estate records of San Mateo County and shall also operate
from the date of such filing as a fixture filing in accordance with Section 9502 and other
applicable provisions of the UCC. This Deed of Trust shall also be effective as a
financing statement covering minerals or the like (including oil and gas) and accounts
subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and
Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor's Representations, Warranties and Covenants; Rights and Duties of the
Parties.
7.1 Representations and Warranties. Trustor represents and warrants that:
(i) Trustor lawfully possesses and holds a leasehold interest in the Land, (ii) Trustor will
hold a fee interest in the Improvements that Trustor will cause to be constructed on the
1579132.2 5
Land pursuant to the Ground Lease, (iii) Trustor has good and marketable title to or a
leasehold interest in all of the Property; (iv) other than as limited by the Agency
Documents, Trustor has the full and unlimited power, right and authority to encumber
Trustor's interests in the Property with this Deed of Trust and assign the Rents as
contemplated herein; (iv) subject only to encumbrances of record and senior liens
permitted pursuant to the Agency Documents or otherwise approved in writing by
Beneficiary ( "Permitted Encumbrances "), this Deed of Trust creates a valid lien on
Trustor's entire interest in the Property; (v) except with respect to Permitted
Encumbrances, Trustor holds a leasehold in the Land and will hold a fee interest in the
Improvements Trustor will cause to be constructed on the Land pursuant to the Ground
Lease free and clear of all deeds of trust, mortgages, security agreements, reservations
of title or conditional sales contracts, (vi) there is no financing statement affecting the
Property on file in any public office other than as set forth in the Loan Agreement or
otherwise disclosed in writing to Beneficiary; and (vii) the correct address of Trustor's
chief executive office is specified in Section 10.2.
Beneficiary agrees that pursuant to Health and Safety Code Section
33334.14(a)(4), it will not withhold consent to reasonable requests for subordination of
this Deed of Trust to deeds of trust provided for the benefit of lenders identified in the
Financing Plan approved in connection with the Loan Agreement provided that the
subordination agreement includes reasonable protections to the Beneficiary in the event
of default.
7.2 Condition of Property. Trustor represents and warrants that except as
disclosed to Beneficiary in writing or as set forth in the Loan Agreement, as of the date
hereof: (i) Trustor has not received any notice from any governmental authority of any
threatened or pending zoning, building, fire, or health code violation or violation of other
governmental regulations concerning the Property that has not previously been
corrected, (ii) no condition on the Land violates any health, safety, fire, environmental,
sewage, building, or other federal, state or local law, ordinance or regulation; (iii) no
contracts, licenses, leases or commitments regarding the maintenance or use of the
Property or allowing any third party rights to use the Property are in force; (iv) there are
no threatened or pending actions, suits, or administrative proceedings against or
affecting the Property or any portion thereof or the interest of Trustor in the Property; (v)
there are no threatened or pending condemnation, eminent domain, or similar
proceedings affecting the Property or any portion thereof; (vi) Trustor has not received
any notice from any insurer of defects of the Property which have not been corrected;
(vii) there are no natural or artificial conditions upon the Land or any part thereof that
could result in a material and adverse change in the condition of the Land; (viii) all
information that Trustor has delivered to Beneficiary, either directly or through Trustor's
agents, is accurate and complete; and (ix) Trustor or Trustor's agents have disclosed to
Beneficiary all material facts concerning the Property.
7.3 Authority. Trustor represents and warrants that this Deed of Trust and all
other documents delivered or to be delivered by Trustor in connection herewith: (a)
have been duly authorized, executed, and delivered by Trustor; (b) are binding
obligations of Trustor; and (c) do not violate the provisions of any agreement to which
1579132.2 6
Trustor is a party or which affects the Property. Trustor further represents and warrants
that there are no pending, or to Trustor's knowledge, threatened actions or proceedings
before any court or administrative agency which may adversely affect Trustor's
ownership of the Property.
7.4 Payment and Performance of Secured Obligations. Trustor shall promptly
pay when due the principal and any interest due on the indebtedness evidenced by the
Note, and shall promptly pay and perform all other obligations of Trustor arising in
connection with the Secured Obligations or the Agency Documents in accordance with
the respective terms thereof.
7.5 Use of Loan Proceeds; Preservation and Maintenance of Property;
Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan
(the "Loan Proceeds ") solely for purposes authorized by the Agency Documents.
Trustor covenants that it shall keep the Land and Improvements in good repair and
condition, and from time to time shall make necessary repairs, renewals and
replacements thereto so that the Property shall be preserved and maintained. Trustor
covenants that it shall comply with all federal, state and local laws, regulations,
ordinances and rules applicable to the Property and the Project, including without
limitation all applicable requirements of state and local building codes and regulations,
Prevailing Wage Laws, and all applicable statutes and regulations relating to
accessibility for the disabled. Trustor shall not remove, demolish or materially alter any
Improvement without Beneficiary's consent, shall complete or restore promptly and in
good and workmanlike manner any building, fixture or other improvement which may be
constructed, damaged, or destroyed thereon, and shall pay when due all claims for
labor performed and materials furnished therefor. Trustor shall use the Land and the
Improvements solely for purposes authorized by the Agency Documents, shall not
commit or allow waste of the Property, and shall not commit or allow any act upon or
use of the Property which would violate any applicable law or order of any governmental
authority, nor shall Trustor bring on or keep any article on the Property or cause or allow
any condition to exist thereon which could invalidate or which would be prohibited by
any insurance coverage required to be maintained on the Property pursuant to the
Agency Documents.
7.6 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be
an Event of Developer Default hereunder if the Property or the Improvements, or any
part thereof or interest therein is sold, assigned, conveyed, transferred, hypothecated,
leased, licensed, or encumbered in violation of the Agency Documents or if any other
Transfer (as defined in the Loan Agreement) occurs in violation of the Agency
Documents. If any such Transfer shall occur in violation of such requirements, without
limiting the provisions of Section 8 hereof, all obligations secured by this Deed of Trust,
irrespective of the maturity dates of such obligations, shall at the option of Beneficiary,
and without demand, immediately become due and payable, subject to any applicable
cure period.
7.7 Inspections; Books and Records. Beneficiary and its agents and
representatives shall have the right at any reasonable time upon reasonable notice to
1579132.2 7
enter upon the Land and inspect the Property to ensure compliance with the Agency
Documents. Trustor shall maintain complete and accurate books of account and other
records (including copies of supporting bills and invoices) adequate to document the
use of the Loan Proceeds and the operation of the Property, together with copies of all
written contracts, Leases and other instruments which affect the Property. The books,
records, contracts, Leases and other instruments shall be subject to examination and
inspection by Beneficiary at any reasonable time following two business days prior
notice.
7.8 Charges, Liens, Taxes and Assessments. Trustor shall pay before
delinquency all taxes, levies, assessments and other charges affecting the Property that
are (or if not paid may become) a lien on all or part of the Property. Trustor may, at
Trustor's expense, contest the validity or application of any tax, levy, assessment or
charge affecting the Property by appropriate legal proceedings promptly initiated and
conducted in good faith and with due diligence, provided that (i) Beneficiary is
reasonably satisfied that neither the Property nor any part thereof or interest therein will
be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor
shall have posted a bond or furnished other security as may reasonably be required
from time to time by Beneficiary; and provided further that Trustor shall timely make any
payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.9 Subrogation. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole or in
part by Beneficiary in accordance with this Deed of Trust.
7.10 Hazard, Liability and Workers' Compensation Insurance. At all times
during the term hereof, at Trustor's expense, Trustor shall keep the Improvements and
personal property now existing or hereafter located on the Property insured against loss
by fire, vandalism and malicious mischief by a policy of standard fire and extended all -
risk insurance. The policy shall be written on a full replacement value basis and shall
name Beneficiary as loss payee as its interest may appear. The full replacement value
of the improvements to be insured shall be determined by the company issuing the
policy at the time the policy is initially obtained. Not more frequently than once every
two (2) years, either the Trustor or the Beneficiary shall have the right to notify the other
party that it elects to have the replacement value redetermined by the insurance
company. Subject to the rights of any senior lienholder, the proceeds collected under
any insurance policy may be applied by Beneficiary to any indebtedness secured
hereby and in such order as Beneficiary may determine, or at the option of Beneficiary,
the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice. Notwithstanding the foregoing, if
any senior lienholder permits such proceeds to be utilized for rebuilding or restoration of
the Improvements, Beneficiary shall approve the use of the proceeds for such purpose.
7.10.1 Trustor shall at all times during the term hereof, maintain a
comprehensive general liability insurance policy in an amount not less than One Million
Dollars ($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual
1579132.2 8
aggregate, together with Three Million Dollars ($3,000,000) excess liability coverage or
such other policy limits as Agency may require in its reasonable discretion, including
coverage for bodily injury, property damage, products, completed operations and
contractual liability coverage. Such policy or policies shall be written on an occurrence
basis and shall name the Beneficiary as an additional insured. Trustor shall maintain
workers' compensation insurance as required by law.
7.10.2 Trustor shall file with Beneficiary prior to the commencement of the
term hereof, certificates (or such other proof as Beneficiary may require, including
without limitation, copies of the required insurance policies) evidencing each of the
insurance policies and endorsements thereto as required by this Section, and such
certificates (or policies) shall provide that at least thirty (30) days' prior written notice
shall be provided to Beneficiary prior to the expiration, cancellation or change in
coverage under each such policy.
7.10.3 If any insurance policy required hereunder is canceled or the
coverage provided thereunder is reduced, Trustor shall, within fifteen (15) days after
receipt of written notice of such cancellation or reduction in coverage, but in no event
later than the effective date of cancellation or reduction, file with Beneficiary a
certificate showing that the required insurance has been reinstated or provided through
another insurance company or companies. Upon failure to so file such certificate,
Beneficiary may, with notice and at its option, procure such insurance coverage at
Trustor's expense, and Trustor shall promptly reimburse Beneficiary for such expense
upon receipt of billing from Beneficiary.
7.10.4 The insurance policies required hereunder shall be issued by
insurance companies authorized to do business in the State of California with a financial
rating of at least A VII status as rated in the most recent edition of Best's Key Rating
Guide. Each policy of insurance shall contain an endorsement requiring the insurer to
provide at least thirty (30) days written notice to Beneficiary prior to change in coverage,
cancellation or expiration thereof. If any insurance policy required pursuant to the
Agency Documents is canceled or the coverage provided thereunder is reduced,
Trustor shall, within ten (10) days after receipt of written notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or
reduction, file with Beneficiary a certificate showing that the required insurance has
been reinstated or provided through another insurance company or companies. Upon
failure to so file such certificate, Beneficiary may, without further notice and at its option,
procure such insurance coverage at Trustor's expense, and Trustor shall promptly
reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.
7.11 Hazardous Materials. Trustor represents and warrants that except as
disclosed to Beneficiary in writing, as of the date hereof to the best knowledge of
Trustor: (i) the Land is free and has always been free of Hazardous Materials (as
defined below) and is not and has never been in violation of any Environmental Law (as
defined below); (ii) there are no buried or partially buried storage tanks located on the
Land; (iii) Trustor has received no notice, warning, notice of violation, administrative
complaint, judicial complaint, or other formal or informal notice alleging that conditions
1579132.2 9
on the Land are or have ever been in violation of any Environmental Law or informing
Trustor that the Land is subject to investigation or inquiry regarding Hazardous
Materials on the Land or the potential violation of any Environmental Law; (iv) there is
no monitoring program required by the Environmental Protection Agency or any other
governmental agency concerning the Land; (v) no toxic or hazardous chemicals, waste,
or substances of any kind have ever been spilled, disposed of, or stored on, under or at
the Land, whether by accident, burying, drainage, or storage in containers, tanks,
holding areas, or any other means; (vi) the Land has never been used as a dump or
landfill; and (vii) Trustor has disclosed to Beneficiary all information, records, and
studies in Trustor's possession or reasonably available to Trustor relating to the Land
concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Material (as defined below) to
be brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its
agents, employees, contractors or invitees except for incidental supplies ordinarily used
in connection with the construction, rehabilitation, repair, and operation of
residential /mixed -use developments and in compliance with all applicable laws, and
shall not cause any release of Hazardous Materials into, onto, under or through the
Land. If any Hazardous Material is discharged, released, dumped, or spilled in, on,
under, or about the Land and results in any contamination of the Land or adjacent
property, or otherwise results in the release or discharge of Hazardous Materials in, on,
under or from the Land, Trustor shall promptly take all actions at its sole expense as are
necessary to comply with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to
Beneficiary), and hold Beneficiary and its elected and appointed officials, officers, agents
and employees (collectively, "Indemnitees ") harmless from and against any and all loss,
claim, liability, damage, demand, judgment, order, penalty, fine, injunctive or other relief,
cost, expense (including reasonable fees and expenses of attorneys, expert witnesses,
and other professionals advising or assisting Beneficiary), action, or cause of action (all
of the foregoing, hereafter individually "Claim" and collectively "Claims ") arising in
connection with the breach of Trustor's covenants and obligations set forth in this
Section 7.11 or otherwise arising in connection with the presence or release of
Hazardous Materials in, on, under, or from the Property, provided that no lndemnitee
shall be entitled to indemnification under this Section for matters caused by such
Indemnitee's gross negligence or willful misconduct. The foregoing indemnity includes,
without limitation, all costs of investigation, assessment, containment, removal,
remediation of any kind, and disposal of Hazardous Materials, all costs of determining
whether the Land is in compliance with Environmental Laws, all costs associated with
bringing the Land into compliance with all applicable Environmental Laws, and all costs
associated with claims for damages or injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor's own cost
and expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any
Indemnitee or Indemnitees in any legal or administrative proceeding incident to any
1579132.2 10
matters against which Indemnitees are entitled to be indemnified under this Deed of
Trust;
b. reimburse Indemnitees for any expenses paid or incurred in connection
with any matters against which lndemnitees are entitled to be indemnified under this
Deed of Trust; and
c. reimburse Indemnitees for any and all expenses, including without
limitation out -of- pocket expenses and fees of attorneys and expert witnesses, paid or
incurred in connection with the enforcement by lndemnitees of their rights under this
Deed of Trust, or in monitoring and participating in any legal or administrative
proceeding.
Trustor's obligation to indemnify the Indemnitees shall not be limited or impaired
by any of the following or by any failure of Trustor to receive notice of or consideration
for any of the following: (i) any amendment or modification of any Agency Document;
(ii) any extensions of time for performance required by any Agency Document; (iii) any
provision in any of the Agency Documents limiting Beneficiary's recourse to property
securing the Secured Obligations, or limiting the personal liability of Trustor, or any
other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or
inaccuracy of any representation and warranty made by Trustor under this Deed of
Trust or by Trustor or any other party under any Agency Document, (v) the release of
Trustor or any other person, by Beneficiary or by operation of law, from performance of
any obligation under any Agency Document; (vi) the release or substitution in whole or
in part of any security for the Secured Obligations; and (vii) Beneficiary's failure to
properly perfect any lien or security interest given as security for the Secured
Obligations.
The provisions of this Section 7.11 shall be in addition to any and all other
obligations and liabilities that Trustor may have under applicable law, and each
lndemnitee shall be entitled to indemnification under this Section without regard to
whether Beneficiary or that Indemnitee has exercised any rights against the Property or
any other security, pursued any rights against any guarantor or other party, or pursued
any other rights available under the Agency Documents or applicable law. The
obligations of Trustor to indemnify the lndemnitees under this Section shall survive any
repayment or discharge of the Secured Obligations, any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of
record of the lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor
acknowledges and agrees that each of the provisions in this Section 7.11 is an
environmental provision (as defined in Section 736(0(2) of the California Code of Civil
Procedure) made by Trustor relating to real property security (the "Environmental
Provisions "), and that Trustor's failure to comply with any of the Environmental
Provisions will be a breach of contract that will entitle Beneficiary to pursue the
remedies provided by Section 736 of the California Code of Civil Procedure ( "Section
736 ") for the recovery of damages and for the enforcement of the Environmental
1579132.2 11
Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or
enforcement of the Environmental Provisions shall not constitute an action within the
meaning of Section 726(a) of the California Code of Civil Procedure or constitute a
money judgment for a deficiency or a deficiency judgment within the meaning of
Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure.
"Hazardous Materials" means any substance, material or waste which is or
becomes regulated by any federal, state or local governmental authority, and includes
without limitation (i) petroleum or oil or gas or any direct or indirect product or by-
product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance,
material or waste regulated by or listed (directly or by reference) as a "hazardous
substance ", "hazardous material ", "hazardous waste ", "toxic waste ", "toxic pollutant ",
"toxic substance ", "solid waste" or "pollutant or contaminant" in or pursuant to, or
similarly identified as hazardous to human health or the environment in or pursuant to,
the Toxic Substances Control Act [15 U.S.C. Section 2601, et seq.]; the Comprehensive
Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et
seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section
5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. Section 6901,
et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air
Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous
Substances Act [California Health and Safety Code Section 25280, et seq.], the
California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seq.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the
Porter - Cologne Water Quality Control Act [California Water Code Section 13000, et
seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder; (iv) any substance, material or waste which is defined as such
or regulated by any "Superfund" or "Superlien" law, or any Environmental Law; or (v)
any other substance, material, chemical, waste or pollutant identified as hazardous or
toxic and regulated under any other federal, state or local environmental law, including
without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and
synthetic fuel products and by- products.
"Environmental Law" means all federal, state or local statutes, ordinances,
rules, regulations, orders, decrees, judgments or common law doctrines, and provisions
and conditions of permits, licenses and other operating authorizations regulating, or
relating to, or imposing liability or standards of conduct concerning (i) pollution or
protection of the environment, including natural resources; (ii) exposure of persons,
including employees and agents, to any Hazardous Material (as defined above) or other
products, raw materials, chemicals or other substances; (iii) protection of the public
health or welfare from the effects of by- products, wastes, emissions, discharges or
releases of chemical substances from industrial or commercial activities; (iv) the
manufacture, use or introduction into commerce of chemical substances, including
without limitation, their manufacture, formulation, labeling, distribution, transportation,
handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous
substances or Hazardous Materials or the remediation of air, surface waters,
1579132.2 12
groundwaters or soil, as now or may at any later time be in effect, including but not
limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the
Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C.
Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49
U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C.
6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the
Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of
Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.],
the California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seq.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the
Porter - Cologne Water Quality Control Act [California Water Code Section 13000, et
seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder.
7.12 Notice of Claims; Defense of Security; Reimbursement of Costs.
a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any
uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or
property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within
five business days of the occurrence of such loss. Trustor shall ensure that Beneficiary
shall receive timely notice of, and shall have a right to cure, any default under any other
financing document or other lien affecting the Property and shall use best efforts to
ensure that provisions mandating such notice and allowing such right to cure shall be
included in all such documents. Within three business days of Trustor's receipt thereof,
Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in
connection with any financing document secured by the Property or any part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect,
preserve and defend the Property and Trustor's interest in and right of possession of the
Property, the security of this Deed of Trust and the rights and powers of Beneficiary and
Trustee created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all
reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service
that Beneficiary or Trustee may render in connection with this Deed of Trust, including
without limitation, fees and expenses related to provision of a statement of obligations
or related to a reconveyance. Trustor further agrees to pay or reimburse Beneficiary for
all costs, expenses and other advances which may be incurred or made by Beneficiary
or Trustee in any efforts to enforce any terms of this Deed of Trust, including without
limitation any rights or remedies afforded to Beneficiary or Trustee or both of them
under Sections 7.18 and 8.2, whether or not any lawsuit is filed, or in defending any
action or proceeding arising under or relating to this Deed of Trust, including reasonable
attorneys' fees and other legal costs, costs of any disposition of the Property under the
power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of
title.
1579132.2 13
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of
any change in the address of Trustor and the location of any property, including books
and records pertaining to the Property.
7.13 Indemnification. Trustor shall indemnify, defend (with counsel reasonably
acceptable to Beneficiary), and hold harmless the Trustee and the lndemnitees (as
defined in Section 7.11) from and against all Claims arising directly or indirectly in any
manner in connection with or as a result of (a) any breach of Trustor's covenants under
any Agency Document, (b) any representation by Trustor in any Agency Document
which proves to be false or misleading in any material respect when made, (c) injury or
death to persons or damage to property or other loss occurring on the Land or in any
improvement located thereon, whether caused by the negligence or any other act or
omission of Trustor 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, or any Agency Document or any transaction contemplated thereby,
or any failure of Trustor to comply with all applicable state, federal and local laws and
regulations applicable to the Property, provided that no lndemnitee shall be entitled to
indemnification under this Section for matters caused by such Indemnitee's gross
negligence or willful misconduct. The obligations of Trustor under this Section shall
survive the repayment of the Loan and shall be secured by this Deed of Trust.
Notwithstanding any contrary provision contained herein, the obligations of Trustor
under this Section shall survive any foreclosure proceeding, any foreclosure sale, any
delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed
of Trust.
7.14. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to
Trustor or any other person as a consequence of any of the following: (i) Beneficiary's
exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary
in this Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any
obligation or liability of Trustor under any agreement related to the Property or under
this Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or
any third parties, or any dangerous or defective condition of the Property (excepting
conditions caused by one or more Indemnitees); or (iv) any loss sustained by Trustor or
any third party resulting from any act or omission of Beneficiary in managing the
Property after an Event of Developer Default, unless the loss is caused by the willful
misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly
waives and releases all liability of the types described in this Section 7.14 and agrees
that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.15 Condemnation Proceeds. Subject to the rights of any senior lienholders,
any award of damages in connection with any condemnation for public use of, or injury
to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary
who may apply such moneys to any indebtedness secured hereby in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so
collected or any part thereof may be released to Trustor. Such application or release
1579132.2 14
shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
7.16 Release, Extension, Modification. At any time and from time to time,
without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and the Note for endorsement, Trustee may release
or reconvey all or any part of the Property, consent to the making of any map or plat of
the Land or part thereof, join in granting any easement or creating any restriction
affecting the Property, or join in any extension agreement or other agreement affecting
the lien or charge hereof. At any time and from time to time, without liability therefor
and without notice, Beneficiary may (i) release any person liable for payment of any
Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of
payment of any Secured Obligation; (iii) accept additional real or personal property of
any kind as security for any Secured Obligation, or (iv) substitute or release any
property securing the Secured Obligations.
7.17 Reconveyance. Upon written request of Beneficiary stating that all of the
Secured Obligations have been paid in full, and upon surrender of this Deed of Trust,
and the Note, Trustee shall reconvey, without warranty, the Property or so much of it as
is then held under this Deed of Trust. The recitals in any reconveyance executed under
this Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness
thereof. Trustor shall pay all fees of Trustee and all recordation fees related to such
reconveyance.
7.18 Cure; Protection of Security. Upon the occurrence of an Event of
Developer Default, either Beneficiary or Trustee may cure any breach or default of
Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or
Trustee may also enter the Property and /or do any and all other things which it may in
its sole discretion consider necessary and appropriate to protect the security of this
Deed of Trust. Such other things may include: appearing in and /or defending any action
or proceeding which purports to affect the security of, or the rights or powers of
Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or
compromising any encumbrance, charge, lien or claim of lien which in Beneficiary's or
Trustee's sole judgment is or may be senior in priority to this Deed of Trust, such
judgment of Beneficiary or Trustee to be conclusive as among Beneficiary, Trustee and
Trustor; obtaining insurance and /or paying any premiums or charges for insurance
required to be carried hereunder; otherwise caring for and protecting any and all of the
Property; and /or employing counsel, accountants, contractors and other appropriate
persons to assist Beneficiary or Trustee. Beneficiary and Trustee may take any of the
actions permitted under this Section 7.18 either with or without giving notice, except for
notices required under applicable law. Any amounts disbursed by Beneficiary pursuant
to this paragraph shall become additional indebtedness secured by this Deed of Trust.
7.19 Limited Partners Right to Cure. Trustor's limited partners and the Project
lenders shall have the right to cure any default of Trustor hereunder pursuant to the
terms set forth in the Loan Agreement. Beneficiary shall provide any notice of default
hereunder to such parties concurrently with the provision of such notice to Trustor, and
1579132.2 15
as to the limited partners, and Project lenders, the cure periods specified herein and in
the Loan Agreement shall commence upon the date of delivery of such notice in
accordance with Section 10.2.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of
Developer Default shall occur under this Deed of Trust upon the occurrence of any one
or more of the following events:
a. Beneficiary's declaration of an Event of Developer Default under
any Agency Document, subject to the expiration of any applicable cure period set forth
in such document;
b. Trustor fails to perform any monetary obligation which arises under
this Deed of Trust, and does not cure that failure within ten (10) days following written
notice from Beneficiary or Trustee;
c. If Trustor's interest in the Property or any part thereof is voluntarily
or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in
violation of Section 7.6 hereof or if any other Transfer occurs in violation of the Agency
Documents;
d. Trustor fails to maintain the insurance coverage required hereunder
and fails to cure such default within ten (10) days, or Developer otherwise fails to
comply with the requirements of Section 7.10 hereof and Trustor fails to cure such
default within the applicable time specified in Section 7.10;
e. Subject to Trustor's right to contest such charges as provided
herein, Trustor fails to pay taxes or assessments due on the Land or the Improvements
or fails to pay any other charge that may result in a lien on the Land or the
Improvements, and Trustor fails to cure such default within and Tenant fails to cure
such default within ninety (90) days of the date of delinquency, but in all events prior to
the date upon which the holder of any such lien has the right to pursue foreclosure
thereof;
f. Any representation or warranty of Trustor contained in or made in
connection with the execution and delivery of this Deed of Trust or in any certificate or
statement furnished pursuant hereto or in any other Agency Document proves to have
been false or misleading in any material adverse respect when made;
g. 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 "), Trustor or any general partner thereof (i) commences a
voluntary case or proceeding; (ii) consents to the entry of an order for relief against
Trustor or any general partner thereof in an involuntary case; (iii) consents to the
appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or
1579132.2 16
any general partner thereof; (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;
h. If a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in
an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar
official for Trustor or any general partner thereof or substantially all of such entity's
assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues
or levies a judgment, writ, warrant of attachment or similar process against the Property
or the Project, and in each case the order or decree is not released, vacated, dismissed
or fully bonded within 90 days after its issuance;
The holder of any other debt instrument secured by a mortgage or
deed of trust on the Property or part thereof declares an event of default thereunder and
exercises a right to declare all amounts due under that debt instrument immediately due
and payable, subject to the expiration of any applicable cure period set forth in such
holder's documents;
j. Trustor fails to perform any obligation arising under this Deed of
Trust other than one enumerated in this Section 8.1, and does not cure that failure
either within ten (10) days after written notice from Beneficiary or Trustee in the event of
a monetary default, or within thirty (30) days after such written notice in the event of a
nonmonetary default, provided that in the case of a nonmonetary default that in
Beneficiary's reasonable judgment cannot reasonably be cured within thirty (30) days,
an Event of Developer Default shall not arise hereunder if Trustor commences to cure
such default within thirty (30) days and thereafter prosecutes such cure to completion
with due diligence and in good faith and in no event later than ninety (90) days following
receipt of notice of default; or
k. A default on the part of Trustor arises under the Ground Lease and
remains uncured beyond any applicable cure period such that the fee owner of the Land
has the right to terminate the Ground Lease.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth
herein, at any time after an Event of Developer Default, Beneficiary and Trustee shall be
entitled to invoke any and all of the rights and remedies described below, and may
exercise any one or more or all, of the remedies set forth in any Agency Document, and
any other remedy existing at law or in equity or by statute. All of Beneficiary's rights and
remedies shall be cumulative, and the exercise of any one or more of them shall not
constitute an election of remedies. Beneficiary shall be entitled to collect all expenses
incurred in pursuing the remedies provided hereunder, including without limitation
reasonable attorneys' fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured
Obligations, including without limitation all sums payable under the Note and this Deed
of Trust, to be due and payable immediately.
1579132.2 17
b. Receiver. Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property.
c. Entry. Beneficiary, in person, by agent or by court- appointed
receiver, may enter, take possession of, manage and operate all or any part of the
Property, and may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: taking and possessing
copies of all of Trustor's or the then owner's books and records concerning the Property;
entering into, enforcing, modifying, or canceling Leases on such terms and conditions
as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying
Rents; collecting and receiving any payment of money owing to Trustor; completing any
unfinished construction; and /or contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the Property that has been
removed from the Land and make all of it available to Beneficiary at the site of the Land.
Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney -in-
fact to perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with taking these measures,
including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the
remedies granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for
foreclosure of mortgages on real property and /or to obtain specific enforcement of any
of the covenants or agreements of this Deed of Trust.
f. Power of Sale. Under the power of sale hereby granted,
Beneficiary shall have the discretionary right to cause some or all of the Property,
including any Property which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable law.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby
granted, Beneficiary shall execute or cause the Trustee to execute a written notice of
such default and of its election to cause the Property to be sold to satisfy the obligations
hereof, and shall cause such notice to be recorded in the office of the Recorder of each
County wherein the Property or some part thereof is situated as required by law and this
Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this
Deed of Trust and the Note or other evidence of indebtedness which is secured hereby,
together with a written request for the Trustee to proceed with a sale of the Property,
pursuant to the provisions of law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the
time then required by law having elapsed after recordation of such notice of default,
1579132.2 18
Trustee, without demand on Trustor, shall sell the Property at the time and place fixed
by it in the notice of sale, either as a whole or in separate parcels and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the
United States, payable at time of sale. Trustee may, and at Beneficiary's request shall,
postpone sale of all or any portion of the Property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time and place fixed by the preceding postponement. Trustee
shall deliver to the purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any matters or
facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby
created, including reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary
or Trustee under the terms hereof and all outstanding sums then secured hereby, and
the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees
that regardless of whether or not a default has occurred hereunder, if an Event of
Developer Default has occurred under the Agency Documents, and if in connection with
such Event of Developer Default Beneficiary exercises its right to foreclose on the
Property, then: (i) Beneficiary shall be entitled to declare all amounts due under the
Note immediately due and payable, and (ii) the proceeds of any sale of the Property in
connection with such foreclosure shall be used to pay all Secured Obligations, including
without limitation, the outstanding principal balance and all other amounts due under the
Note.
At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary,
may bid for and acquire the Property or any part of it to the extent permitted by then
applicable law. Instead of paying cash for such property, Beneficiary may settle for the
purchase price by crediting the sales price of the property against the following
obligations:
a. First, the portion of the Secured Obligations attributable to the
expenses of sale, costs of any action and any other sums for which Trustor is obligated
to pay or reimburse Beneficiary or Trustee under Section 7.12(c); and
b. Second, the remaining balance of all other Secured Obligations in
any order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor's Right to Reinstate. Notwithstanding Beneficiary's acceleration of
the sums secured by this Deed of Trust, Trustor shall have the right to have any
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any
time prior to five days before sale of the Property pursuant to the power of sale
contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this
Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under
1579132.2 19
the Agency Documents if the Secured Obligations had no acceleration provision; (b)
Trustor cures all breaches of any other covenants or agreements of Trustor contained in
this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and
Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of
Trust, and in enforcing Beneficiary's and Trustee's remedies as provided herein,
including, but not limited to, reasonable attorney's fees; and (d) Trustor takes such
action as Beneficiary may reasonably require to assure that the lien of this Deed of
Trust, Beneficiary's interest in the Property and Trustor's obligation to pay the sums
secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure
by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full
force and effect as if no acceleration had occurred.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all
statutes of limitations as a defense to any action or proceeding brought against Trustor
by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be
enacted providing for any appraisement, valuation, stay, extension, redemption or
moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all
presentments, demands for performance, notices of nonperformance, protests, notices
of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the
existence, creation, or incurring of new or additional indebtedness, and demands and
notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The Agency Documents grant further rights to
Beneficiary and contain further agreements and affirmative and negative covenants by
Trustor which apply to this Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of
sale be mailed to Trustor at the address set forth below. That address is also the
mailing address of Trustor as debtor under the UCC. Beneficiary's address set forth
below is the address for Beneficiary as secured party under the UCC. Except for any
notice required under applicable law to be given in another manner, all notices to be
sent pursuant to this Deed of Trust 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:
upon receipt;
a. personal delivery, in which case notice shall be deemed delivered
b. certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered two (2) business days after deposit, postage prepaid
in the United States mail;
c. nationally recognized overnight courier, in which case notice shall
be deemed delivered one (1) day after deposit with such courier; or
1579132.2 20
d. facsimile transmission, in which case notice shall be deemed
delivered on transmittal, provided that a transmission report is generated reflecting the
accurate transmission thereof.
Beneficiary: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Trustor: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
Facsimile: (650) 357 -9766
Limited Partner:
Leasehold Mortgagees:
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
10.3 Binding on Successors. The terms, covenants and conditions of this
Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators,
executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary
and Trustee; provided however this Section 10.3 does not waive the provisions of
Section 7.6.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time
1579132.2 21
substitute a trustee or trustees to execute the trust hereby created, and when any such
substitution has been filed for record in the office of the Recorder of San Mateo County,
it shall be conclusive evidence of the appointment of such trustee or trustees, and such
new trustee or trustees shall succeed to all of the powers and duties of the Trustee
named herein.
10.5 Attorneys' Fees and Costs. In any action or proceeding to foreclose this
Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to
Beneficiary and Trustee all costs of such action or proceeding, including reasonable
attorneys' fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be
governed by the laws of the State of California without regard to principles of conflicts of
laws. Trustor agrees that any controversy arising under or in relation to this Deed of
Trust shall be litigated exclusively in the jurisdiction where the Land is located (the
"Property Jurisdiction "). The state and federal courts and authorities with jurisdiction in
the Property Jurisdiction shall have exclusive jurisdiction over all controversies which
shall arise under or in relation to the Agency Documents. Trustor irrevocably consents
to service, jurisdiction, and venue of such courts for any such litigation, and waives any
other venue to which it might be entitled by virtue of domicile, habitual residence or
otherwise. If any provision of this Deed of Trust is held unenforceable or void, that
provision shall be deemed severable from the remaining provisions, and shall in no way
affect the validity of this Deed of Trust. The captions used in this Deed of Trust are for
convenience only and are not intended to affect the interpretation or construction of the
provisions herein contained. In this Deed of Trust, whenever the context so requires,
the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any
obligation of Trustor hereunder must be in writing, and no waiver shall be construed as
a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary
or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or
Trustee to any act or omission by Trustor shall not be construed as a consent to any
other or subsequent act or omission or to waive the requirement for Beneficiary's or
Trustee's consent to be obtained in any future or other instance. No amendment to or
modification of this Deed of Trust shall be effective unless and until such amendment or
modification is in writing, executed by Trustor and Beneficiary. Without limiting the
generality of the foregoing, Beneficiary's acceptance of payment of any sum secured
hereby after its due date shall not constitute a waiver by Beneficiary of its right either to
require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
10.8 Action by Beneficiary. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, or consent by the Beneficiary is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by Beneficiary's Executive Director or by any
person who shall have been designated by Beneficiary's Executive Director, without
further approval by the governing board of Beneficiary.
1579132.2 22
10.9 Joint and Several Liability. If Trustor consists of more than one person or
entity, each shall be jointly and severally liable for the faithful performance of all of
Trustor's obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this
Deed of Trust.
10.11 Partial Subordination to Extended Use Agreement. Trustor and the
California Tax Credit Allocation Committee may enter into a Regulatory Agreement (the
"TCAC Regulatory Agreement "), which constitutes the extended low- income housing
commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as
amended (the "Code "). In the event of a foreclosure of Beneficiary's interest under this
Deed of Trust or delivery by the Trustor of a deed in lieu thereof (collectively, a
"Foreclosure "), the following rule shall apply:
In the event of a Foreclosure, throughout the extended use period
specified in the TCAC Regulatory Agreement, with respect to any unit
that had been regulated by the TCAC Regulatory Agreement, (i) none
of the eligible tenants occupying those units at the time of Foreclosure
may be evicted or their tenancy terminated (other than for good
cause, including but not limited to, the tenants' ineligibility pursuant to
regulations of the HOME Program or Section 42 of the Code), (ii) nor
may any rent be increased except as otherwise permitted under
Section 42 of the Code.
11. Leasehold Mortgagee Provisions. The provisions of this Section 11 shall apply
for so long any portion of the Property consists of Trustor's interest as tenant under the
Ground Lease defined and described in Recital A. As used in this Section 11, the term
"Ground Lease" means the Ground Lease and any extension, renewal or replacement
thereof. The lien of this Deed of Trust shall encumber all of Trustor's rights and
interests under and in connection with the Ground Lease, including without limitation
renewal and extension rights and purchase options (all of which rights shall be
collectively referred to herein as the "Leasehold ").
11.1 Trustor shall timely perform its obligations in connection with the Ground
Lease. Trustor specifically acknowledges Beneficiary's right, while any default by
Trustor under the Ground Lease remains uncured, to perform the defaulted obligations
and take all other actions which Beneficiary reasonably deems necessary to protect its
interests with respect thereto, and Trustor hereby irrevocably appoints Beneficiary its
true and lawful attorney- in- fact in its name or otherwise to execute all documents, and
perform all other acts, which Beneficiary reasonably deems necessary to preserve its or
Trustor's rights with respect to the Leasehold.
11.2 Trustor shall not, without Beneficiary's prior written consent, modify, or
cause or permit the termination of, the Ground Lease, or waive or in any way release
the landlord under the Ground Lease of any obligation or condition.
1579132.2 23
11.3 Trustor shall notify Beneficiary promptly in writing of (i) the occurrence of
any material default by the landlord under the Ground Lease and (ii) the receipt by
Trustor of any notice claiming the occurrence of any default by Trustor under the
Ground Lease or the occurrence of any event which, with the passage of time or the
giving of notice or both, would constitute a default by Trustor under the Ground Lease
(and Trustor shall also promptly deliver a copy of any such notice to Beneficiary).
11.4 Unless Beneficiary otherwise consents in writing, so long as any Secured
Obligation remains outstanding, neither the fee title to, nor any other estate or interest
in, the Property subject to the Ground Lease shall merge with any Leasehold,
notwithstanding the union of such estates in the landlord or the tenant or in a third party.
Any acquisition of the landlord's interest in the Ground Lease by Trustor or any affiliate
of Trustor shall be accomplished in such a manner as to avoid a merger of the interests
of landlord and tenant unless Beneficiary consents to such merger in writing.
11.5 If Trustor acquires fee title to any portion of the real property subject to the
Ground Lease, this Deed of Trust shall automatically be a lien on such fee title.
11.6 Except as permitted by the Agency Documents, Trustor shall not
subordinate the Ground Lease or Leasehold to any deed of trust or other encumbrance
of, or lien on, any interest in the real property subject to such Leasehold without the
prior written consent of Beneficiary. Any such subordination without such consent
shall, at Beneficiary's option, be void.
11.7 Intentionally omitted.
11.8 Trustor shall notify Beneficiary promptly in writing of the institution of any
legal proceeding involving obligations under the Ground Lease, and Beneficiary may
intervene in any such legal proceeding and be made a party. Trustor shall promptly
provide Beneficiary with a copy of any decision rendered in connection with any such
proceeding.
11.9 To the extent permitted by law, the price payable by Trustor or any other
party in the exercise of the right of redemption, if any, from any sale under, or decree of
foreclosure of, this Deed of Trust shall include all rents and other amounts paid and
other sums advanced by Beneficiary on behalf of Trustor as the tenant under the
Ground Lease.
11.10 Trustor shall promptly notify the landlord in writing, in accordance with
Section 25359.7 of the California Health and Safety Code and any successor and /or
similar statutes (and shall simultaneously notify Beneficiary in writing), in the event that
Trustor knows or has cause to believe that any Hazardous Substance has come to be
located on or beneath the property leased under the Ground Lease.
11.11 The generality of the provisions of this Deed of Trust shall not be limited by
any provision of this Section 11 that sets forth particular obligations of Trustor as the
1579132.2 24
tenant under the Ground Lease.
SIGNATURES ON FOLLOWING PAGE.
1579132.2 25
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED.
1579132.2 26
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1579132.2 27
Exhibit A
LAND
(Attach legal description.)
1579132.2 28
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of South San
Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE 06103, 27383
1579133.3
EXHIBIT D
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
(636 El Camino — Phase A)
Space above this line for Recorder's use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
and
This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement ") is entered into effective as of , 2011
( "Effective Date ") by and between the Redevelopment Agency of the City of South San
Francisco, a public body, corporate, and politic ( "Agency ") and MP South City, L.P., a
California limited partnership ( "Owner "). Agency and Owner are hereinafter collectively
referred to as the "Parties."
RECITALS
A. Owner possesses a leasehold interest in that certain real property located
in the City of South San Francisco ( "City ") at 636 El Camino Real, known as a portion
of San Mateo County Assessor's Parcel No. 014 - 160 -040, and more particularly
described in Exhibit A attached hereto (the "Property ").
B. Owner intends to construct, own and operate a multi - family residential
project (the "Project ") on the Property in accordance with that certain Loan Agreement
executed by and between the Parties and dated as of the date hereof (the "Loan
Agreement ") and that certain Ground Lease executed by and between the Parties and
dated as of the date hereof (the "Ground Lease "), a memorandum of which shall be
recorded substantially concurrently herewith in the Official Records of San Mateo
County ( "Official Records ").
C. The Loan Agreement and Ground Lease provide that for a period of not
Tess than seventy -five (75) years sixty -one of the residential units in the Project shall be
rented at Affordable Rents to Eligible Households.
D. Subject to the conditions set forth in the Loan Agreement and Ground
Lease, Agency has agreed to provide to Owner a loan in the amount of Four Million
Two Hundred Ninety Thousand, Three Hundred Seventy -Three Dollars ($4,290,373)
(the "Loan ") in order to provide partial financing for the development of the Project.
The Loan is evidenced by a Secured Promissory Note (the "Note ") executed by Owner
and dated as of the date hereof, and is secured by a Leasehold Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing ( "Deed of Trust ") dated as
of the date hereof and executed by Owner for the benefit of Agency. The Deed of Trust
will be recorded in the Official Records substantially concurrently herewith.
E. As a condition to its agreement to provide the Loan to Owner, Agency
requires the Property to be subject to the terms, conditions and restrictions set forth
herein. Community Redevelopment Law (California Health and Safety Code Section
33000, et seq. (the "CRL")), requires the Agency to require residential rental units
assisted with funds from the Agency's low- and moderate - income housing fund to
remain affordable for the longest feasible time. In addition, to the extent permitted by
the CRL, this Agreement is intended to enable the Agency to count the residential units in
the Project toward satisfaction of the Agency's housing production obligation under CRL
1579133.3 2
Section 33413(b)(2).
F. In connection with its application for planning approvals for the Project,
Developer requested, and the City Planning Commission /City Council approved: (i) a
Childcare Fee Waiver pursuant to Section 20.115.040 of the Municipal Code of the City
of South San Francisco; (ii) a reduction in the amount of the rear setback from the
required 15 feet to a setback of between one (1) and five (5) feet; and (iii) a reduction in
required parking spaces from 270 to 211 spaces.
G. The Parties have agreed to enter into and record this Agreement in order to
satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is
to regulate and restrict the occupancy and rents of the Project's Restricted Units for the
benefit of the Project occupants. The Parties intend the covenants set forth in this
Agreement to run with the land and to be binding upon Owner and Owner's successors and
assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate for the Unit" shall be determined
consistent with Section 50052.5(h) of the California Health and Safety Code and
applicable federal rules (if any).
"Affordable Rent" means the following amounts, less a utility allowance and
such other adjustments as required pursuant to the CRL: (i) for units that are restricted
for rental to households with incomes of not more than thirty percent (30 %) of AMI
( "30% Units "), a monthly rent that does not exceed one - twelfth of thirty percent (30 %)
of thirty percent (30 %) of Area Median Income, Adjusted for Family Size Appropriate for
the Unit, (ii) for units that are restricted for rental to households with incomes of not
more than forty percent (40 %) of AMI ( "40% Units "), a monthly rent that does not
exceed one - twelfth of thirty percent (30 %) of forty percent (40 %) of Area Median
Income, Adjusted for Family Size Appropriate for the Unit, and (iii) for units that are
restricted for rental to households with incomes of not more than eighty -five percent
(85 %) of AMI ( "85% Units "), a monthly rent that does not exceed one - twelfth of thirty
percent (30 %) of sixty percent (60 %) of Area Median Income, Adjusted for Family Size
Appropriate for the Unit.
1579133.3 3
"Area Median Income" or "AMI" means the median income for San Mateo
County, California, adjusted for Actual Household Size, as determined by the U.S.
Department of Housing and Urban Development ( "HUD ") pursuant to Section 8 of the
United States Housing Act of 1937 and as published from time to time by the State of
California Department of Housing and Community Development ( "HCD ") in Section
6932 of Title 25 of the California Code of Regulations or successor provision
published pursuant to California Health and Safety Code Section 50093(c).
"Claims" is defined in Section 10.
"Eligible Household" means a household for which gross household income
upon initial occupancy does not exceed the applicable maximum income level for a
Restricted Unit as specified in Section 2.1 and Exhibit B.
"Indemnitees" is defined in Section 10.
"Low- Income" or "Lower Income" means an annual gross household income
that is less than or equal to the qualifying limits for households of Lower Income
adjusted for actual household size, as determined periodically by HUD on the basis of
gross annual household income and published by HCD in the Regulations for San
Mateo County. If HUD ceases to make such determination, "Lower Income" shall be
defined as not greater than 80% of Area Median Income adjusted for actual household
size, as published by HCD in the Regulations. If both HCD and HUD cease to make
such determinations, Agency in its reasonable discretion may designate another
definition of "Lower Income" used by any other federal or state agency so long as such
definition is no more restrictive than that set forth herein.
"Moderate- Income" means an annual gross household income that is less
than or equal to 120% of AMI, adjusted for actual household size as determined
periodically by HCD on the basis of gross annual household income and published in
the Regulations for San Mateo County.
"Regulations" means Title 25 of the California Code of Regulations.
"Restricted Unit" means a dwelling unit which is reserved for occupancy at an
Affordable Rent by a household of not more than a specified household income in
accordance with and as set forth in Sections 2.1 and 2.2 and Exhibit B.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for
itself and its successors and assigns, that the Property shall be used solely for the
operation of a mixed -use, multifamily rental housing development in compliance with
the Loan Agreement, the Ground Lease, and the requirements set forth herein. Owner
represents and warrants that it has not entered into any agreement that would restrict or
compromise its ability to comply with the occupancy and affordability restrictions set forth
in this Agreement, and Owner covenants that it shall not enter into any agreement that is
1579133.3 4
inconsistent with such restrictions without the express written consent of Agency.
2.1 Affordability Requirements. For a term of seventy -five (75) years
commencing upon the date of issuance of a final certificate of occupancy for the
Project not less than fourteen (14) of the residential units in the Project shall be both
Rent Restricted (as defined below) and occupied (or if vacant, available for occupancy)
available at Affordable Rents to Eligible Households whose income is no greater than
thirty percent (30 %) of Area Median Income, no fewer than sixteen (16) additional units
in the Project shall be both Rent Restricted and occupied (or if vacant, available for
occupancy) available at Affordable Rents to Eligible Households whose income is no
greater than forty percent (40 %) of Area Median Income, and no fewer than thirty -one
(31) additional units in the Project shall be both Rent Restricted and occupied (or if
vacant, available for occupancy) available at Affordable Rents to Eligible Households
whose income is no greater than eighty -five percent (85 %) of Area Median Income.
In the event that recertification of tenant incomes indicates that the number of
Restricted Units actually occupied by Eligible Households falls below the number
reserved for each income group as specified in this Section 2.1 and Exhibit B, Owner
shall rectify the condition by renting the next available dwelling unit(s) in the Project to
Eligible Household(s) until the required income mix is achieved. A dwelling unit shall
qualify as "Rent Restricted" if the gross rent charged for such unit does not exceed the
Affordable Rent for the applicable household income category as set forth in Exhibit B,
subject to Section 2.2.
Notwithstanding anything to the contrary contained in this Agreement, if other
Project lenders, investors or regulatory agencies restrict a greater number of units than
restricted by this Agreement or require stricter household income eligibility or
affordability requirements than those imposed hereby, the requirements of such other
lenders, investors or regulatory agencies shall prevail.
2.2 Rents for Restricted Units. Rents for Restricted Units shall be limited to
Affordable Rents for households of the applicable income limit in accordance with
Section 2.1 and Exhibit B. Notwithstanding the foregoing, no tenant qualifying for a
Restricted Unit shall be denied continued occupancy of a unit in the Project because,
after admission, such tenant's adjusted income increases to exceed the qualifying limit
for such Restricted Unit. A household which at initial occupancy qualifies in a particular
income category shall be treated as continuing to be of such income category so long
as the household's gross income does not exceed 140% of the applicable income limit.
In the event the gross household income of a household that qualified at the applicable
income limit at initial occupancy exceeds the applicable income limit for a unit, that unit
will continue to be considered as satisfying the applicable income limit if the unit
remains Rent - Restricted.
If upon recertification of tenant incomes, Owner determines that a tenant has a
1579133.3 5
household income exceeding the maximum qualifying income for such tenant's unit, the
tenant shall be permitted to continue to occupy the unit, and upon expiration of the
tenant's lease and upon sixty (60) days' written notice, Owner may increase the rent for
such unit to the lesser of one - twelfth of thirty percent (30 %) of the tenant's actual
household income or the fair market rent, and Owner shall rent the next available unit to
a tenant whose household income does not exceed the applicable income limit in order
to achieve the affordability requirements of this Agreement.
In the event of inconsistency between the provisions of this Section 2.2 and the
rules applicable to the Project in connection with the use of low- income housing tax
credits or financing provided by HUD, the rules applicable pursuant to such financing
source shall prevail.
2.3 Notice of Affordability Restrictions on Transfer of Property. Pursuant to the
requirements of California Community Redevelopment Law, Owner and Agency shall
execute a Notice of Affordability Restrictions on Transfer of Property substantially in the
form attached hereto as Exhibit D, and shall cause such notice to be recorded
substantially concurrently with the recordation of this Agreement.
2.4 Unit Sizes, Design and Location. The Restricted Units shall be of
comparable design quality as unrestricted units in the Project, but may have reduced
interior amenities. Tenants of Restricted Units shall have access to all common facilities
of the Project equal to that of tenants of units in the Project that are not Restricted Units.
The Restricted Units shall be allocated among affordability categories as set forth in
Exhibit B.
2.5 Manager's Unit. One dwelling unit in the Project may be used as a
resident manager's unit, and shall be exempt from the occupancy and rent restrictions
set forth in this Agreement.
2.6 No Condominium Conversion. Owner shall not convert the residential units
in the Project to condominium or cooperative ownership or sell condominium or
cooperative rights to the residential portion of the Project or any part thereof during the
term of this Agreement. Agency's prior written consent shall be required with respect
to the sale or condominium conversion of the retail /commercial portion of the Project
or any part thereof.
2.7 Non - Discrimination; Compliance with Fair Housing Laws.
2.7.1 Preferences. Consistent with the requirements of California Health
and Safety Code Section 33411.3, Owner shall give first priority for the rental of
Restricted Units to Eligible Households of Low- or Moderate - Income who have been
displaced by development of the Project. In order to ensure that there is an adequate
supply of affordable housing within the City for City residents and employees of
1579133.3 6
businesses located within the City, to the extent permitted by law and consistent with
the program regulations for funding sources used for development of the Project, at
initial lease up, Owner shall give a preference in the rental of the residential units in the
Project to Eligible Households that include at least one member who lives or works in
the City. If there are fewer Eligible Households than the number of such units, the units
will be made available to the general public. Notwithstanding the foregoing, in the
event of a conflict between this provision and the provisions of Section 42 of the
Internal Revenue Code of 1986, as amended, the provisions of such Section 42 shall
control.
2.7.2 Fair Housing. Owner shall comply with state and federal fair
housing laws in the marketing and rental of the units in the Project. Owner shall accept
as tenants, on the same basis as all other prospective tenants, persons who are
recipients of federal certificates or vouchers for rent subsidies pursuant to the existing
Section 8 program or any successor thereto.
2.7.3 Non - Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion
thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability,
marital status, ancestry, or national origin of any person. Owner covenants for itself
and all persons claiming under or through it, and this Agreement is made and accepted
upon and subject to the condition that there shall be no discrimination against or
segregation of any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof,
nor shall Owner or any person claiming under or through Owner 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, of, or for the Property or part thereof. Owner shall include
such provision in all deeds, leases, contracts and other instruments executed by
Owner, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Owner, its successors
or assigns, as to any portion of the Property or the Improvements shall contain the
following language:
(a) (1) In Deeds, the following language shall appear:
"Grantee herein covenants by and for itself, its successors and assigns,
and all persons claiming under or through it, that there shall be no
discrimination against or segregation of a person or of a group of persons
on account of any basis listed in subdivision (a) or (d) of Section 12955 of
1579133.3 7
the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the property
herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the property herein conveyed. The foregoing covenant shall
run with the land."
2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons,
as defined in Section 12955.9 of the Government Code. With respect to
familial status, nothing in paragraph (1) shall be construed to affect
Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section
12955 of the Government Code shall apply to paragraph (1).
(b) (1) In Leases, the following language shall appear:
"The lessee herein covenants by and for the lessee and lessee's heirs,
personal representatives and assigns, and all persons claiming under the
lessee or through the lessee, that this lease is made subject to the
condition that there shall be no discrimination against or segregation of
any person or of a group of persons on account of race, color, creed,
religion, sex, sexual orientation, marital status, national origin, ancestry or
disability in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the property 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 of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the property herein leased."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons,
as defined in Section 12955.9 of the Government Code. With respect to
familial status, nothing in paragraph (1) shall be construed to affect
Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section
12955 of the Government Code shall apply to paragraph (1).
(c) In Contracts
1579133.3 8
"There shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the property nor shall the transferee or any person claiming
under or through the transferee establish or permit any such practice or
practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants,
sublessees or vendees of the land."
2.8 Relocation. Persons residing on the Property as of the Effective Date
shall not be displaced before suitable replacement housing is available in comparable
replacement housing. Owner shall ensure that all occupants of the Property receive all
notices, benefits and assistance to which they are entitled in accordance with California
Relocation Assistance Law (Government Code Section 7260 et seq.), all state and local
regulations implementing such law, and all other applicable local, state and federal laws
and regulations (collectively "Relocation Laws ") relating to the displacement and
relocation of eligible persons as defined in such Relocation Laws. Any and all costs
incurred in connection with the temporary and /or permanent displacement and /or
relocation of occupants of the Property, including without limitation payments to a
relocation consultant, moving expenses, and payments for temporary and permanent
relocation benefits pursuant to Relocation Laws shall be paid by Owner. Owner shall
indemnify, defend (with counsel approved by Agency) and hold harmless the
Indemnitees (defined in Section 10) from and against any and all Claims (defined in
Section 10) arising in connection with the breach of Owner's obligations set forth in this
Section except to the extent such Claims arise from the gross negligence or willful
misconduct of the Indemnitees. Owner's indemnification obligations set forth in this
Section 2.8 shall survive the expiration or earlier termination of this Agreement.
3. Reporting Requirements.
3.1. Tenant Certification. Owner or Owner's authorized agent shall obtain
from each household prior to initial occupancy of each Restricted Unit, and on every
anniversary thereafter, a written certificate containing all of the following in such format
and with such supporting documentation as Agency may reasonably require:
(a) The identity of each household member; and
(b) The total gross household income,
Owner shall retain such certificates for not less than three (3) years, and upon
1579133.3 9
Agency's request, shall provide copies of such certificates to Agency and make the
originals available for Agency inspection.
3.2 Annual Report; Inspections. By not later than April 30 of each year during
the term of this Agreement, Owner shall submit an annual report ( "Annual Report") to
the Agency in form satisfactory to Agency, together with a certification that the Project is
in compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information for each dwelling unit in the Project: (i) unit
number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any
vacancies during the previous year; (v) number of people residing in the unit; (vi) total
gross household income of residents; (vii) documentation of source of household
income; and (viii) the information required by Section 3.1.
Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying tenant eligibility, and such additional information as
Agency may reasonably request from time to time in order to demonstrate compliance
with this Agreement. The Annual Report shall conform to the format requested by
Agency; provided however, during such time that the Project is subject to a regulatory
agreement restricting occupancy and /or rents pursuant to requirements imposed in
connection with the use of state or federal low- income housing tax credits, Owner may
satisfy the requirements of this Section by providing Agency with a copy of compliance
reports required in connection with such financing.
Owner shall permit representatives of Agency to enter and inspect the Property
and the Project during reasonable business hours in order to monitor compliance with this
Agreement upon 48 -hours advance notice of such visit to Owner or to Owner's
management agent.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect through the
seventy -fifth (75 anniversary of the issuance of the final certificate of occupancy for
the Project, unless the term is extended by mutual agreement of the Parties.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan.
This Agreement shall remain effective and fully binding for the full term hereof, as such
may be extended pursuant to Section 4.1, regardless of (i) any sale, assignment,
transfer, or conveyance of the Property or the Project or any part thereof or interest
therein, (ii) any payment, prepayment or extinguishment of the Loan or Note, or (iii) any
reconveyance of the Deed of Trust.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties
agree to execute and record appropriate instruments to release and discharge this
Agreement; provided, however, the execution and recordation of such instruments shall
not be necessary or a prerequisite to the termination of this Agreement upon the
1579133.3 10
expiration of the term as such may be extended pursuant to Section 4.1.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby
subjects its interest in the Property and the Project to the covenants and restrictions set
forth in this Agreement. The Agency and Owner hereby declare their express intent
that the covenants and restrictions set forth herein shall be deemed covenants running
with the land and shall be binding upon and inure to the benefit of the heirs,
administrators, executors, successors in interest, transferees, and assigns of Owner and
Agency, regardless of any sale, assignment, conveyance or transfer of the Property, the
Project or any part thereof or interest therein. Any successor -in- interest to Owner,
including without limitation any purchaser, transferee or lessee of the Property or the
Project (other than the tenants of the individual dwelling units or retail /commercial
space within the Project) shall be subject to all of the duties and obligations imposed
hereby for the full term of this Agreement. Each and every contract, deed, ground lease
or other instrument affecting or conveying the Property or the Project or any part thereof,
shall conclusively be held to have been executed, delivered and accepted subject to the
covenants, restrictions, duties and obligations set forth herein, regardless of whether such
covenants, restrictions, duties and obligations are set forth in such contract, deed, ground
lease or other instrument. If any such contract, deed, ground lease or other instrument
has been executed prior to the date hereof, Owner hereby covenants to obtain and
deliver to Agency an instrument in recordable form signed by the parties to such
contract, deed, ground lease or other instrument pursuant to which such parties
acknowledge and accept this Agreement and agree to be bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land,
such covenants shall be enforced as equitable servitudes against the Property and the
Project in favor of Agency.
The City shall automatically succeed to the rights of the Agency hereunder if the
Agency ceases to exist.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all
management functions with respect to the Property and the Project, including
without limitation the selection of tenants, certification and recertification of
household income and eligibility, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital
items, and security. Agency shall have no responsibility for management or
maintenance of the Property or the Project.
6.2 Management Entity. Agency shall have the right to review and
approve the qualifications of the management entity proposed by Owner for the
Project. The contracting of management services to a management entity shall not
1579133.3 11
relieve Owner of its primary responsibility for proper performance of management
duties. Agency hereby approves MidPen Property Management Corporation, a
California nonprofit public benefit corporation, as the initial management entity for the
Project.
6.3 Repair, Maintenance and Security. Throughout the term of this
Agreement, Owner shall at its own expense, maintain the Property and the Project in
good physical condition, in good repair, and in decent, safe, sanitary, habitable and
tenantable living conditions in conformity with all applicable state, federal, and local laws,
ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to
maintain the Project and the Property (including without limitation, the residential units,
common areas, meeting rooms, landscaping, driveways, parking areas and walkways)
in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti,
disrepair, abandoned vehicles /appliances, and illegal activity, and shall take all
reasonable steps to prevent the same from occurring on the Property or at the Project.
Owner shall prevent and /or rectify any physical deterioration of the Property and the
Project and shall make all repairs, renewals and replacements necessary to keep
the Property and the improvements located thereon in good condition and repair.
Owner shall provide adequate security services for occupants of the Project.
6.3.1 Agency's Right to Perform Maintenance. In the event that Owner
breaches any of the covenants contained in Section 6.3, and such default continues for
a period of ten (10) days after written notice from Agency (with respect to graffiti, debris,
and waste material) or thirty (30) days after written notice from Agency (with respect to
landscaping, building improvements and general maintenance), then Agency, in
addition to any other remedy it may have under this Agreement or at law or in equity,
shall have the right, but not the obligation, to enter upon the Property and perform all
acts and work necessary to protect, maintain, and preserve the improvements and the
landscaped areas on the Property. All costs expended by Agency in connection with
the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall
be paid by Owner to Agency upon demand. All such sums remaining unpaid thirty (30)
days following delivery of Agency's invoice therefor shall bear interest at the lesser of
10% per annum or the highest rate permitted by applicable law. Notwithstanding
anything to the contrary set forth in this Section, Agency agrees that it will provide
Owner with not less than thirty (30) days' written notice prior to undertaking any work for
which Owner will incur a financial obligation.
6.4 Marketing and Management Plan. Within 180 days following the
Effective Date of this Agreement, Owner shall submit for Agency review and approval,
a plan for marketing and managing the Property ( "Marketing and Management Plan" or
"Plan "). The Marketing and Management Plan shall address in detail how Owner plans
to market the Restricted Units to prospective Eligible Households in accordance with fair
housing laws and this Agreement, Owner's tenant selection criteria, and how Owner
plans to certify the eligibility of Eligible Households. The Plan shall also describe the
1579133.3
12
management team and shall address how the Owner and the management entity plan
to manage and maintain the Property and the Project. The Plan shall include the
proposed management agreement and the form of rental agreement that Owner
proposes to enter into with Project tenants. Owner shall abide by the terms of the
Marketing and Management Plan in marketing, managing, and maintaining the Property
and the Project, and throughout the term of this Agreement, shall submit proposed
modifications to Agency for review and approval.
6.5 Approval of Amendments. If Agency has not responded to any
submission of the Management and Marketing Plan, the proposed management entity,
or a proposed amendment or change to any of the foregoing within thirty (30) days
following Agency's receipt of such plan, proposal or amendment, the plan, proposal or
amendment shall be deemed approved by Agency.
6.6 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of
all fees, assessments, taxes, charges, liens and levies applicable to the Property or the
Project, including without limitation possessory interest taxes, if applicable, imposed by
any public entity, and shall pay such charges prior to delinquency. However, Owner
shall not be required to pay any such charge so long as (a) Owner is contesting such
charge in good faith and by appropriate proceedings, (b) Owner maintains reserves
adequate to pay any contested liabilities, and (c) on final determination of the
proceeding or contest, Owner immediately pays or discharges any decision or judgment
rendered against it, together with all costs, charges and interest. Nothing in this Section
6.6 is intended to prohibit Owner from applying for any exemption from property taxes
and fees that may be available to the owners of low- income housing.
6.7 Insurance Coverage. Throughout the term of this Agreement Owner shall
comply with the insurance requirements set forth in Exhibit C, and shall, at Owner's
expense, maintain in full force and effect insurance coverage as specified in Exhibit C.
6.8 Property Damage or Destruction. If any part of the Project is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and
rent restriction requirements set forth in this Agreement. Such work shall be
commenced as soon as reasonably practicable after the damage or loss occurs and
shall be completed within one year thereafter or as soon as reasonably practicable,
provided that insurance proceeds are available to be applied to such repairs or
restoration within such period and the repair or restoration is financially feasible. During
such time that lenders or low- income housing tax credit investors providing financing for
the Project impose requirements that differ from the requirements of this Section the
requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official
Records of San Mateo County. Owner hereby represents, warrants and covenants that
with the exception of easements of record, absent the written consent of Agency, this
1579133.3 13
Agreement shall not be subordinated in priority to any lien (other than those pertaining to
taxes or assessments), encumbrance, or other interest in the Property or the Project. If at
the time this Agreement is recorded, any interest, lien, or encumbrance has been
recorded against the Project in position superior to this Agreement, upon the request of
Agency, Owner hereby covenants and agrees to promptly undertake all action
necessary to clear such matter from title or to subordinate such interest to this
Agreement consistent with the intent of and in accordance with this Section 7, and to
provide such evidence thereof as Agency may reasonably request. Notwithstanding the
foregoing, the Agency agrees that pursuant to Health and Safety Code Section
33334.14(a)(4), the Agency will not withhold consent to reasonable requests for
subordination of this Agreement to deeds of trust provided for the benefit of lenders
identified in the Financing Plan approved in connection with the Loan Agreement,
provided that the instruments effecting such subordination include reasonable
protections to the Agency in the event of default consistent with the requirements of
Health and Safety Code Section 33334.14(a)(4), including without limitation, extended
notice and cure rights.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this
Agreement, except as permitted pursuant to the Ground Lease, the Loan Agreement or
this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by
operation of law make or attempt any total or partial sale, transfer, conveyance,
assignment or lease (collectively, "Transfer ") of the whole or any part of the Property,
the Project, or the improvements located on the Property, without the prior written
consent of the Agency, which approval shall not be unreasonably withheld. In addition,
prior to the expiration of the term of this Agreement, except as expressly permitted by
this Agreement, the Ground Lease or the Loan Agreement, Owner shall not undergo
any significant change of ownership without the prior written approval of Agency. For
purposes of this Agreement, a "significant change of ownership" shall mean a transfer
of the beneficial interest of more than twenty -five percent (25 %) in aggregate of the
present ownership and /or control of Owner, taking all transfers into account on a
cumulative basis; provided however, neither the admission of an investor limited
partner, nor the transfer by the investor limited partner to subsequent limited partners
shall be restricted by this provision.
8.2 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the
granting of easements or permits to facilitate development of the Property; (ii) the
dedication of any property required pursuant to the Ground Lease or the Loan
Agreement; (iii) the lease of individual dwelling units to tenants for occupancy as their
principal residence in accordance with this Agreement and the lease of commercial
space to retail and commercial tenants, if applicable; (iv) assignments creating security
interests for the purpose of financing the acquisition, construction, or permanent
1579133.3 14
financing of the Project or the Property in accordance with the Ground Lease and the
Loan Agreement, or Transfers directly resulting from the foreclosure of, or granting of a
deed in lieu of foreclosure of, such a security interest; (v) a Transfer to an entity which
is under the direct control of or under common control with MidPen Housing
Corporation, a California nonprofit public benefit corporation ( "Controlled Affiliate ");
(vi) the admission of limited partners and any transfer of limited partnership interests in
accordance with Owner's agreement of limited partnership (the "Partnership
Agreement "); (vii) the removal of the general partner by the investor limited partner for
a default under the Partnership Agreement, provided the replacement general partner is
an entity which is controlled by, or is under common control with Union Bank N.A. or is
an entity that is reasonably satisfactory to Agency; or (viii) the transfer of the General
Partner's interest to a nonprofit entity that is tax - exempt under Section 501(c)(3) of the
Internal Revenue Code of 1986 as amended, provided such replacement general
partner is reasonably satisfactory to Agency.
In addition, Agency shall not withhold its consent to the sale, transfer or other
disposition of the Project, in whole or in part, provided that (1) the Project is and shall
continue to be operated in compliance with this Agreement; (2) the transferee expressly
assumes all obligations of Owner imposed by this Agreement; (3) the transferee
executes all documents reasonably requested by the Agency with respect to the
assumption of the Owner's obligations under this Agreement, and upon Agency's
request, delivers to the Agency an opinion of its counsel to the effect that such
document and this Agreement are valid, binding and enforceable obligations of such
transferee; and (4) either (A) the transferee has at least three years' experience in the
ownership, operation and management of low- income multifamily rental housing
projects of similar size to that of the Project, without any record of material violations of
nondiscrimination provisions or other state or federal laws or regulations applicable to
such projects, or (B) the transferee agrees to retain a property management firm with
the experience and record described in subclause (A).
Consent to any proposed Transfer may be given by the Agency's Executive
Director unless the Executive Director, in his or her discretion, refers the matter of
approval to the Agency's governing board. If a proposed Transfer has not been
approved by Agency in writing within thirty (30) days following Agency's receipt of
written request by Owner, it shall be deemed rejected.
Owner shall reimburse Agency for all Agency costs, including but not limited to
reasonable attorneys' fees, incurred in reviewing instruments and other legal
documents proposed to effect a Transfer under this Agreement and in reviewing the
qualifications and financial resources of a proposed successor, assignee, or transferee
within ten (10) days following Agency's delivery of an invoice detailing such costs.
1579133.3
8.3 Encumbrances. Owner agrees to use best efforts to ensure that all deeds
15
of trust or other security instruments and any applicable subordination agreement
recorded against the Property , the Project or part thereof for the benefit of a lender
other than Agency ( "Third -Party Lender ") shall contain each of the following
provisions: (i) Third -Party Lender shall use its best efforts to provide to Agency a copy
of any notice of default issued to Owner concurrently with provision of such notice to
Owner; (ii) Agency shall have the reasonable right, but not the obligation, to cure any
default by Owner within the same period of time provided to Owner for such cure
extended by an additional 90 days; (iii) provided that Agency has cured any default
under Third -Party Lender's deed of trust and other loan documents, Agency shall have
the right to foreclose Agency's Deed of Trust and take title to the Project without
acceleration of Third -Party Lender's debt; and (iv) Agency shall have the right to
transfer the Project without acceleration of Third -Party Lender's debt to a nonprofit
corporation or other entity which shall own and operate the Project as an affordable
rental housing Project, subject to the prior written consent of the Third -Party Lender.
Owner agrees to provide to Agency a copy of any notice of default Owner receives from
any Third -Party Lender within three (3) business days following Owner's receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon all or any portion of the Project or the Property, and the purchaser at any
trustee's sale or foreclosure sale shall not be liable for any violation of any provision
hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall
be bound by and subject to this Agreement from and after such trustee's sale or
foreclosure sale. Promptly upon determining that a violation of this Agreement has
occurred, Agency shall give written notice to the holders of record of any mortgages or
deeds of trust encumbering the Project or the Property that such violation has occurred.
9. Default and Remedies.
9.1 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) The occurrence of a Transfer in violation of Section 8 hereof;
(b) Owner's failure to maintain insurance on the Property and the
Project as required hereunder, and the failure of Owner to cure such default within 10
days;
(c) Subject to Owner's right to contest the following charges, Owner's
failure to pay taxes or assessments due on the Property or the Project or failure to pay
any other charge that may result in a lien on the Property or the Project, and Owner's
failure to cure such default within ninety (90) days of delinquency, but in all events prior
to the date upon which the holder of any lien has the right to pursue foreclosure thereof;
1579133.3
16
(d) A default arises under any loan secured by a mortgage, deed of
trust or other security instrument recorded against the Property and remains uncured
beyond any applicable cure period such that the holder of such security instrument has
the right to accelerate repayment of such loan;
(e) A default arises under the Ground Lease, the Loan Agreement, the
Note, the Deed of Trust or any other Agency Document (as defined in the Loan
Agreement) and remains uncured beyond the expiration of all applicable cure periods.
(f) Owner's default in the performance of any term, provision or
covenant under this Agreement (other than an obligation enumerated in this Subsection
9.1), and unless such provision specifies a shorter cure period for such default, the
continuation of such default for ten (10) days in the event of a monetary default or thirty
(30) days in the event of a non - monetary default following the date upon which Agency
shall have given written notice of the default to Owner, or if the nature of any such non -
monetary default is such that it cannot be cured within 30 days, Owner's failure to
commence to cure the default within thirty (30) days and thereafter prosecute the curing
of such default with due diligence and in good faith to completion.
The limited partners of Owner shall have the right to cure any default of Owner
hereunder pursuant to the terms of the Loan Agreement. Provided that Agency has
been given written notice of the address for delivery of notices to the limited partners,
Agency shall provide any notice of default hereunder to the limited partners
concurrently with the provision of such notice to Owner, and as to the limited partners,
the cure periods specified herein and in the Loan Agreement shall commence upon the
date of delivery of such notice in accordance with Subsection 11.3.
9.2 Remedies. Upon the occurrence of an Event of Default and its
continuation beyond any applicable cure period, Agency may proceed with any of the
following remedies:
A. Bring an action for equitable relief seeking the specific performance of the
terms and conditions of this Agreement, and /or enjoining, abating, or
preventing any violation of such terms and conditions, and /or seeking
declaratory relief;
B. Accelerate and declare the balance of the Note and interest accrued
thereon immediately due and payable and proceed with foreclosure under
the Deed of Trust;
C. For violations of obligations with respect to rents for Restricted Units,
impose as liquidated damages a charge in an amount equal to the actual
amount collected in excess of the Affordable Rent;
D. Pursue any other remedy allowed at law or in equity.
1579133.3 17
Each of the remedies provided herein is cumulative and not exclusive. The
Agency may exercise from time to time any rights and remedies available to it under
applicable law or in equity, in addition to, and not in lieu of, any rights and remedies
expressly provided in this Agreement.
10. Indemnity. Owner shall indemnify, defend (with counsel approved by Agency)
and hold Agency, the City, and their respective elected and appointed officers, officials,
employees, agents, and representatives (collectively, the "Indemnitees ") harmless
from and against all liability, Toss, cost, expense (including without limitation attorneys'
fees and costs of litigation), claim, demand, action, suit, judicial or administrative
proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively
"Claims ") arising directly or indirectly, in whole or in part, as a result of or in connection
with Owner's construction, management, or operation of the Property and the Project or
any failure to perform any obligation as and when required by this Agreement. Owner's
indemnification obligations under this Section 10 shall not extend to Claims resulting
solely from the gross negligence or willful misconduct of Indemnitees. The provisions of
this Section 10 shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency does not and shall not waive any rights against Owner that it
may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or the deposit with Agency by Owner, of any of the insurance
policies described in this Agreement, the Ground Lease, or the Loan Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
11.2 No Waiver. Any waiver by Agency of any term or provision of this
Agreement must be in writing. No waiver shall be implied from any delay or failure by
Agency to take action on any breach or default hereunder or to pursue any remedy
allowed under this Agreement or applicable law. No failure or delay by Agency at any
time to require strict performance by Owner of any provision of this Agreement or to
exercise any election contained herein or 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 or a relinquishment for the future of such election.
11.3 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:
1579133.3 18
1579133.3
(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 upon 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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Owner: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copies to:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
19
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
11.4 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.
11.5 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.
11.6 Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by the Agency Executive Director or by any person
who shall have been designated by the Agency Executive Director, without further
approval by the governing board of the Agency.
11.7 Non - Liability of Agency and Agency Officials, Employees and Agents. No
member, official, employee or agent of the Agency or the City shall be personally liable
to Owner or any successor in interest, in the event of any default or breach by the
Agency, or for any amount of money which may become due to Owner or its successor
or for any obligation of Agency under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of
this Agreement are for convenience only and shall not be used to interpret 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.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is
brought to interpret or enforce the terms of this Agreement, the prevailing party shall be
1579133.3
20
entitled to recover all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement, together with the Ground
Lease, the Loan Agreement, the Note, the Deed of Trust and the other Agency
Documents contains the entire agreement of 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.
11.14 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.
1579133.3
SIGNATURES ON FOLLOWING PAGE.
21
IN WITNESS WHEREOF, the Parties have executed this Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants as of the date first
written above.
AGENCY
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO,
a Public Body Corporate and Politic
By:
Name:
Title:
ATTEST:
By:
, Agency Secretary
APPROVED AS TO FORM:
By:
, Agency Counsel
OWNER
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED.
1579133.3 22
STATE OF CALIFORNIA
COUNTY OF SAN MATEO )
On , 20_, before me, , (here insert name and title of the
officer), personally appeared , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and
acknowledged to me that he/she /they executed the same in his /her /their authorized capacity(ies), and that
by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )
WITNESS my hand and official seal.
1579133.3
(Seal)
On , 20_, before me, , (here insert name and title of the
officer), personally appeared , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and
acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that
by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Signature (Seal)
23
Exhibit A
PROPERTY
1579133.3 24
(Attach legal description.)
Maximum
Household
Income
30% AMI
40% AMI
85% AMI
Manager's
Unit
Total
1- Bedroom
7
0
4
11
2- Bedroom
3
8
19
1
31
3- Bedroom
4
8
8
20
Total
14
16
31
1
62
Exhibit B
Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels
1579133.3 25
Exhibit C
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing through throughout the term
of this Agreement, Owner shall obtain and maintain the following policies of insurance:
(a) a commercial general liability policy in the amount of One Million Dollars
($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate,
together with Three Million Dollars ($3,000,000) excess liability coverage, or such other
policy limits as Agency may require in its reasonable discretion, including coverage for
bodily injury, property damage, products, completed operations and contractual liability
coverage. Such policy or policies shall be written on an occurrence basis and shall
name the Indemnitees as additional insureds.
(b) a comprehensive automobile liability coverage in the amount of One
Million Dollars ($1,000,000), combined single limit including coverage for owned and
non -owned vehicles and shall furnish or cause to be furnished to Agency evidence
satisfactory to Agency that Owner and any contractor with whom Owner has contracted
for the performance of work on the Property or otherwise pursuant to this Agreement
carries workers' compensation insurance as required by law. Automobile liability
policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction and continuing until issuance of a
Certificate of Completion, Owner and all contractors working on behalf of Owner shall
maintain a policy of builder's all -risk insurance in an amount not less than the full
insurable cost of the Project on a replacement cost basis naming Agency as loss
payee.
(d) Upon completion of Project construction, Owner shall maintain property
insurance covering all risks of Toss (other than earthquake), including flood (if required)
for 100% of the replacement value of the Project with deductible, if any, in an amount
acceptable to Agency, naming Agency as loss payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a
current A.M. Best's rating of no less than A: VII. The Commercial General Liability and
comprehensive automobile policies required hereunder shall name the Indemnitees as
additional insureds. Builder's Risk and property insurance shall name Agency and City
as loss payees as their interests may appear.
(f) Prior to commencement of construction, Owner shall furnish Agency with
certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional
insured status. The certificates shall contain a statement of obligation on the part of the
carrier to notify City and Agency of any material adverse change, cancellation,
termination or non - renewal of the coverage at least thirty (30) days in advance of the
1579133.3 26
effective date of any such material adverse change, cancellation, termination or non -
renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Owner shall, within fifteen (15) days after receipt of notice of such cancellation
or reduction in coverage, but in no event later than the effective date of cancellation or
reduction, file with Agency and City a certificate showing that the required insurance
has been reinstated or provided through another insurance company or companies.
Upon failure to so file such certificate, Agency or City may, without further notice and at
its option, procure such insurance coverage at Owner's expense, and Owner shall
promptly reimburse Agency or City for such expense upon receipt of billing from Agency
or City.
(h) Coverage provided by Owner shall be primary insurance and shall not be
contributing with any insurance, or self- insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation
for the benefit of the City and Agency. Owner shall furnish the required certificates and
endorsements to Agency prior to the commencement of construction of the Project, and
shall provide Agency with certified copies of the required insurance policies upon
request of Agency.
1579133.3 27
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of
South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
Exhibit D
1579133.3 28
Space above this line for Recorder's use.
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
THIS NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF
PROPERTY (this "Notice ") is dated as of , 2011 with reference to
that certain real property located at 636 El Camino Real in South San Francisco,
California, known as a portion of San Mateo County Assessor's Parcel No. 014 -160-
040, and more particularly described in Exhibit A attached hereto and incorporated
herein (the "Property ").
1. The Redevelopment Agency of the City of South San Francisco, a public
body, corporate, and politic ( "Agency ") and MP South City, L.P., a California limited
partnership ( "Owner ") have entered into that certain Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement ")
dated as of the date hereof and recorded in the Official Records of San Mateo County
substantially concurrently herewith.
2. The Regulatory Agreement requires not less than fourteen (14) of the residential
units in the Project shall be rented at affordable rents to households whose income is
no greater than thirty percent (30 %) of Area Median Income, no fewer than sixteen (16)
additional units in the Project shall be rented at affordable rents to households whose
income is no greater than forty percent (40 %) of Area Median Income, and no fewer
than thirty -one (31) additional units in the Project shall be rented at affordable rents to
households whose income is no greater than eighty -five percent (85 %) of Area Median
Income, as more particularly set forth in the Regulatory Agreement.
3. The restrictions set forth in the Regulatory Agreement will be in effect for a
period of seventy -five (75) years, commencing on the date of issuance of a final
certificate of occupancy for the Project developed on the Property.
This Notice is intended to provide notice of documents that affect title to the Property.
Reference should be made to the Regulatory Agreement for a more detailed description
of all matters described in this Notice. In the event of any conflict between the terms of
this Notice and the terms of the Regulatory Agreement, the Regulatory Agreement shall
prevail.
This Notice is being recorded and filed in compliance with California Health and
Safety Code Section 33334.3(f)(3) and (4), and shall be indexed by the Agency and the
current owner of the Property.
IN WITNESS WHEREOF, Agency and Owner have executed this Notice as of
the date first written above.
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO,
A PUBLIC BODY CORPORATE AND POLITIC
By:
Name:
Title:
ATTEST:
By:
, Agency Secretary
APPROVED AS TO FORM:
By:
, Agency Counsel
OWNER:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1579133.3
SIGNATURES MUST BE NOTARIZED.
29
1579133.3
Exhibit A
PROPERTY
(Attach legal description of Phase A property.)
30
EXHIBIT E
ASSIGNMENT OF AGREEMENTS, PLANS AND SPECIFICATIONS
(636 El Camino — Phase A)
This Assignment of Agreements, Plans and Specifications (this "Agreement ") is
entered into effective as of , 2011 ( "Effective Date ") by and among the
Redevelopment Agency of the City of South San Francisco, a public body, corporate
and politic (the "Agency "), and MP South City, L.P., a California limited partnership
( "Assignor "). Assignor and the Agency are hereinafter 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 (defined in Section 2 below).
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows.
1. Assignor hereby assigns to the Agency and grants to Agency a security
interest in all of its right, title and interest in and to the contracts and agreements listed
in Exhibit A attached hereto and incorporated herein by reference, and all of the items
listed in the following paragraphs (A), (B) and (C). All of the foregoing are collectively
hereafter referred to as the "Assigned Documents ").
(A) All architectural, design, engineering, consulting and construction
contracts, and any and all amendments, modifications, supplements,
addenda and general conditions thereto (collectively "Agreements "),
heretofore or hereafter entered into by Assignor (or any affiliate of
Assignor) and any architect, engineer, analyst, contractor or other person
or entity ( "Contractor ") in connection with the preparation of plans,
specifications, studies, analyses, drawings or any other similar service
related to the Property, the Project, or the improvements to be installed or
constructed on the Property pursuant to the Loan Agreement (the
"Improvements ");
(B) All reports, analyses, studies, plans and specifications, shop drawings,
working drawings, amendments, modifications, changes, supplements,
general conditions and addenda thereto (collectively "Reports, Plans and
Specifications ") heretofore or hereafter prepared by or for Assignor or
any affiliate, agent, employee or Contractor of Assignor with respect to the
Property, the Project or the Improvements; and
(C) All Construction Plans (as defined in Section 6.14 of the Loan
Agreement).
2. This Agreement is entered into pursuant to that certain Loan Agreement
executed by and between Assignor and Agency dated as of the date hereof (the "Loan
Agreement').
1585584.1 1
3. This Assignment Agreement is made to secure: (a) payment to the
Agency of all sums now or hereafter owing to Agency pursuant to the promissory note
to be executed by Assignor pursuant to the Loan Agreement, and any and all additional
advances, modifications, extensions, renewals and amendments thereof; and (b)
payment and performance by Assignor of all of its obligations under the Loan
Agreement.
4. Assignor hereby irrevocably appoints Agency as its attorney -in -fact (which
agency is coupled with an interest) upon the occurrence of an Event of Developer
Default under the Loan Agreement, to demand, receive, and enforce any and all of
Assignor's rights with respect to the Assigned Documents applicable to Assignor's
obligations under the Loan Agreement and to perform any and all acts in the name of
Assignor or in the name of the Agency with the same force and effect as if performed by
Assignor in the absence of this Agreement.
5. Assignor agrees to obtain from each Contractor and deliver to Agency a
duly executed Consent substantially in the form attached hereto as Exhibit B.
6. Assignor represents and warrants to Agency that no previous assignment
of its rights or interest in or to any of the Assigned Documents has been made. So long
as the Agency holds or retains any interest under the Loan Agreement or the
promissory note executed by Assignor in connection therewith, Assignor agrees not to
assign, sell, pledge, transfer, mortgage, or hypothecate its rights or interest in any of the
Assigned Documents without prior written approval of the Agency. The Agency
acknowledges that certain assignments have been or will be made to Union Bank, N.A.
in connection with construction and permanent financing for the Improvements, and the
Agency consents to such assignments.
7. This Agreement shall be binding upon and inure to the benefit of the heirs,
legal representatives, assigns, and successors -in- interest of Assignor and the Agency;
provided, however, this shall not be construed and is not intended to waive the
restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation or
encumbrance contained in the Loan Agreement.
8. Unless an Event of Developer Default (as defined in the Loan Agreement)
shall have occurred, Assignor shall be entitled (subject to the provisions of Section 6
above) to enjoy and enforce all of its rights under the Assigned Documents. If such an
Event of Default occurs and Agency gives written notice to any Contractor who is a
party to any Assigned Document referring to this Agreement and stating that such an
Event of Developer Default has occurred under the applicable agreement and that
Agency intends to exercise its rights hereunder (an "Exercise Notice "), then Agency
shall be entitled thereafter to enjoy and enforce all of the rights of the Assignor under
such Assigned Document and shall become bound to perform all future obligations of
the Assignor thereunder, it being understood that in no event shall Agency be liable for
payments or costs relating to any work which any Contractor has performed prior to the
date of Agency's delivery of such Exercise Notice. Unless and until such Exercise
1585584.1 2
Notice is given, Agency shall not be obliged to perform any of the obligations of the
Assignor under the Assigned Documents.
9. Assignor represents and warrants that to the best of its knowledge after
reasonable inquiry, there are no defaults under any Assigned Document by any party
thereto.
10. Assignor further represents and warrants that all sums due and owing to
any Contractor to date under any Assigned Document have been duly paid in full,
except to the extent deferral of such sums is allowed pursuant to such Assigned
Document.
11. Agency may assign its rights under this Agreement, and the Assigned
Documents, and the rights and obligations of any assignee of Agency shall be the same
as provided herein as to Agency and Contractor. Agency may, in its discretion, make
any such assignment to the City of South San Francisco, a municipal corporation, 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.
12. This Agreement shall not be deemed to release or affect in any way the
obligations of Assignor to any Contractor under the Assigned Documents.
13. The Assignor is executing this Agreement to induce Agency to enter into
and disburse funds pursuant to the Loan Agreement, and the Assignor understands that
Agency would not do so but for the execution and delivery of this Agreement by
Assignor.
14. Financing Statements.
14.1 Assignor shall execute any and all further agreements,
assignments (including separate assignments of Assigned Documents), documents,
financing statements, and authorizations of financing statements, and shall take such
other further actions as Agency may reasonably request from time to time, in order to
evidence, protect, perfect, or continue the security interest of Agency in the Assigned
Documents or otherwise carry out the purposes and intent of this Agreement.
14.2 Assignor authorizes Agency to file financing statements (and
continuation statements, and amendments thereto) in all states, counties, and other
jurisdictions as Agency may elect without the signature of Assignor to the extent
permitted by law.
15. 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
1585584.1 3
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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Assignor: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copies to:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
1585584.1 4
16. Amendments. This Agreement may be modified only by a written instrument
signed by the Parties.
17. 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
Agreement.
18. 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.
19. Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by the Agency's Executive Director or by any
person who shall have been designated by the Executive Director, without further
approval by the Agency's governing board unless the Executive Director determines
that such matter requires the consent of such governing board.
20. Non - Liability of Agency and Agency Officials, Employees and Agents. No
member, official, employee or agent of the Agency or the City of South San Francisco
shall be personally liable to Assignor, or any successor in interest, in the event of any
default or breach by the Agency, or for any amount of money which may become due to
Assignor or its successor or for any obligation of Agency under this Agreement.
21. No Third Party Beneficiaries. There shall be no third party beneficiaries to
this Agreement.
22. 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.
23. Governing Law; Venue. This Agreement shall be construed in accordance
with the laws of the State of California without regard to principles of conflicts of law.
The Parties agree that any controversy arising under or in relation to this Agreement,
shall be litigated exclusively in courts having jurisdiction in San Mateo County,
California.
24. Attorneys' Fees. If any claim, at law or otherwise is made 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.
25. 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
1585584.1 5
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.
26. 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.
SIGNATURES ON FOLLOWING PAGE.
1585584.1 6
IN WITNESS WHEREOF, the Parties have each duly executed this Agreement
effective as of the date first above written.
AGENCY
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO,
a Public Body Corporate and Politic
By:
Name:
Title:
ATTEST:
By:
, Agency Secretary
APPROVED AS TO FORM:
By:
, Agency Counsel
ASSIGNOR
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1585584.1 7
Exhibit A
CONTRACTS AND AGREEMENTS
(Attach List.)
1585584.1 8
Exhibit B
CONSENT
This Consent ( "Consent ") is executed effective as of , 20_, pursuant to
that certain Amended and Restated Assignment of Agreements, Plans and Specifications
( "Assignment Agreement ") executed by and among the Redevelopment Agency of the City of
South San Francisco, a public body, corporate and politic (the "Agency ") and MP South City,
L.P., a California limited partnership ( "Assignor ") dated as of , 20_ Unless
otherwise defined herein, capitalized terms used in this Consent 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 Agency or the
enforcement thereof by Agency.
Contractor agrees that if at any time, the Agency 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 Agency may, at its option, use and rely upon the
Assigned Documents 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 Agency 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 Agency, and Contractor
agrees to be bound by such Exercise Notice.
By its execution of this Consent, Contractor agrees to look solely to the 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 Agency.
Contractor agrees that, after the occurrence of an Event of Developer Default under the
Loan Agreement or the Loan and Grant Agreement, as applicable, and the giving of an Exercise
Notice by Agency, Contractor will perform all of its obligations under the Assigned Documents to
which Contractor is a party, Agency being liable to pay the costs thereof relating to any services
performed at the direction of Agency after the giving of the Exercise Notice. However, Agency
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, Agency will not become liable for any such costs, charges or
expenses incurred prior to the giving of such Exercise Notice), and the fact that Assignor may
not have paid and /or may be unable to pay any such costs, charges, expenses or liabilities may
not be asserted by Contractor as a defense to its obligations to perform services for Agency as
set forth herein.
Contractor agrees that, notwithstanding anything hereinabove contained or contained in
the Assigned Documents to the contrary, Agency will have the right to receive and to use
(without cost to Agency) any and all Assigned Documents relating to the Property, the Project or
1585584.1 9
the Improvements, 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 Agency (whether or not any Event of Developer
Default has occurred), it will execute and deliver a certification confirming Agency's rights with
respect to such Assigned Documents as Agency 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 Agency. Unless and until such notice is given to Agency, 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, Agency 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 Agency); and
(iii) there presently exists no unpaid claims presently due to Contractor, except as disclosed in
writing to the Agency, 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 Agency) to any entity
other than a lender whose loan is secured by the Property, the Project or the Improvements with
the prior written approval of the Agency.
IN WITNESS WHEREOF, Contractor has duly executed this Consent as of the date first
written above.
CONTRACTOR
By: Contractor's Address:
Its: Telephone:
Facsimile:
1585584.1 10
EXHIBIT F
MASTER LEASE AGREEMENT
by and between
MP SOUTH CITY, L.P., A CALIFORNIA LIMITED PARTNERSHIP
and
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
1581002.2 1
THIS MASTER LEASE AGREEMENT (this "Lease" or this "Agreement "), dated as of
, 20_ (the "Effective Date "), is entered into by and between MP South City, L.P., a
California limited partnership (hereafter "Ground Lessee ") as sublandlord and the
Redevelopment Agency of the City of South San Francisco, a public body, corporate and politic
(hereafter "Agency ") as sublessee. Agency and Ground Lessee are hereafter each referred to as
a "Party" and collectively referred to as the "Parties."
RECITALS
A. Agency is the owner of fee title to the property known as 636 El Camino Real,
identified as San Mateo County Assessor's Parcel No. 014 -160 -040, and more particularly
described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
B. Pursuant to that certain Ground Lease dated as of the Effective Date and executed
by and between the Agency as landlord and Ground Lessee as tenant (the "Ground Lease "),
Ground Lessee has constructed or shall construct on that portion of the Parcel described in
Exhibit A -2 attached hereto (the "Property "), a mixed -use multi- family development (the
"Project ") that includes, among other improvements, approximately 5,700 square feet of retail
space (the "Retail Space ") located on the first floor of the building fronting along El Camino
Real (the "Building ") together with eighteen (18) surface parking spaces ( "Retail Parking ")
dedicated for use by the tenants and invitees of the retail space. Collectively, the Retail Space
and the Retail Parking are referred to herein as the "Premises." The Premises are more
particularly described in Exhibit B attached hereto.
C. Pursuant to that certain Loan Agreement dated as of the Effective Date and
executed by and between the Parties (the "Loan Agreement "), Agency has provided or will
provide a loan to Ground Lessee in the amount of Four Million, Two Hundred Ninety Thousand,
Three Hundred and Seventy -Three Dollars ($4,290,373) (the "Loan ") to assist in financing the
construction of the Project. Pursuant to separate agreements, the Agency has provided or will
provide additional financing and has leased the remainder of the Parcel to an affiliate of Ground
Lessee for development of a second phase of affordable housing adjacent to the Property.
D. Agency desires to lease the Premises from the Ground Lessee, and Ground Lessee
desires to lease the Premises to Agency on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows.
ARTICLE I
DEFINITIONS; LEASE OF PREMISES
1.1 Definitions. For purposes of this Agreement, the following terms shall have the
meanings set forth in this Section. Additional definitions are set forth in the Recitals and the text
of this Agreement.
(a) "Agency Parties" is defined in Section 6.1(b).
1581002.2 1
(b) "Applicable Laws" is defined in Section 5.3.
(c) "Alteration" is defined in Section 5.2.
(d) "Building" is defined in Recital B.
(e) "City" means the City of South San Francisco, a municipal corporation.
(b) "Claims" is defined in Section 3.2.
(c) "Commencement Date" is defined in Section 2.5.
(d) "Ground Lease" is defined in Recital B.
(e) "Hazardous Materials" is defined in Section 6.2.1.
(f) "Hazardous Materials Laws" is defined in Section 6.2.2.
(g) "Impositions" is defined in Section 3.1.
(h) "Loan" is defined in Recital C.
(i) "Loan Agreement" is defined in Recital C.
(j) "Premises" is defined in Recital B.
(k) "Property" is defined in Recital B.
(1) "Rent" is defined in Section 2.2.
(m) "Retail Parking" is defined in Recital B.
(n) "Tenant Improvement Reserve" is defined in the Note executed by Ground
Lessor to evidence Ground Lessee's obligation to repay the Loan.
(o) "Term" is defined in Section 2.1.
(p)
"Unavoidable Delay" is defined in Section 14.1.
1.2 Incorporation of Recitals. The Parties acknowledge the truth of the Recitals set
forth above, and all such Recitals are hereby incorporated into this Agreement.
1.3 Lease of Premises. Ground Lessee hereby leases to Agency, and Agency hereby
leases from Ground Lessee, the Premises for the Term, subject to the terms and conditions and
for the purposes set forth in this Agreement.
1581002.2 2
ARTICLE II
TERM OF LEASE, RENT, EXPENSES, OCCUPANCY
2.1 Term. The term of this Lease (the "Term ") shall commence on the Effective
Date, and unless terminated earlier pursuant to the provisions hereof, shall expire on the day
preceding the seventy -fifth (75 anniversary of the Effective Date; provided however, if the
term of the Ground Lease is extended, the Term shall automatically extend by the same period of
time by which the Ground Lease is extended.
2.2 Rent. Commencing on the Commencement Date and continuing through the
expiration of the Term (as such may be extended), rent payable for the Premises ( "Rent ") shall
be equal to the sum of One Dollar ($1.00) per year, together with Additional Rent as described in
Section 2.3. Agency shall pay Rent for the entire initial Term to Ground Lessee in one lump
sum on the Commencement Date.
2.3 Additional Rent; Triple Net Lease; Agency Expenses. As additional rent
( "Additional Rent ") Agency shall pay (or shall cause its subtenants to pay) when due all
Impositions described in Article III and all costs and expenses relating to the Premises or any
part thereof. Subject to Section 2.3.1, such costs and expenses shall include, without limitation,
all amounts attributable to, paid or incurred in connection with the operation, maintenance and
management of the Premises; property taxes and payments in lieu thereof; rent taxes; gross
receipt taxes; water and sewer charges; insurance premiums; utilities (including gas, water,
sewer, electricity, light, heat, telephone or other communication service); refuse disposal; interior
lighting; fire detection systems including monitoring, maintenance and repair; security; janitorial
services; air - conditioning and heating; maintenance and repair costs for the Premises (including
the Retail Parking); and costs of licenses, permits and inspections.
2.3.1 Exclusions. Notwithstanding any contrary provision hereof: (i) Agency
shall have no obligation to pay any portion of any cost or expense attributable to any part of the
Property or the Project other than the Premises, (ii) Ground Lessee shall be responsible for
undertaking at Ground Lessee's expense, maintenance and repairs to the exterior of the Building
and the structural and mechanical elements of the Building, including without limitation the
foundation and roof, and (iii) Ground Lessee shall be responsible for undertaking at Ground
Lessee's expense, maintenance and repairs for all improvements located on the Property other
than the Premises, including landscaping, parking areas (with the exception of the Retail
Parking), driveways, sidewalks and structures.
2.4 Delivery of Premises. Ground Lessee agrees to complete construction of the
Building in accordance with the schedule set forth in the Ground Lease and agrees to deliver the
Premises to Agency promptly following the Commencement Date.
2.5 Early Access. Agency shall not occupy the Premises prior to the date upon which
City issues a final certificate of occupancy or equivalent for the Premises (the "Commencement
Date ") except with the express prior written consent of Ground Lessee. Agency shall be
permitted access to the Premises prior to the Commencement Date for the purpose of installing
and constructing tenant improvements and Agency's furniture and equipment. If Agency is
1581002.2 3
provided access to the Premises prior to the Commencement Date, all of the terms and provisions
of this Lease shall apply to Agency's use of the Premises except for the requirement for the
payment of Rent, and Agency shall abide by all of such terms and provisions.
1581002.2 4
ARTICLE III
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, unless exempted therefrom, Agency shall
pay (or shall cause its subtenants to pay) prior to delinquency, all real property taxes, possessory
interest taxes, license and permit fees, sales, use or occupancy taxes, and assessments pertaining
to the Premises or part thereof, including, but not limited to (i) any assessment, levy, imposition
or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public
improvements or benefits which is assessed, levied, or imposed upon or which becomes due and
payable and a lien upon (a) the Premises or any part thereof or any personal property, equipment
or other facility used in the operation thereof, (b) the rent or income received by Agency from
subtenants or licensees, or (c) any use or occupancy of the Premises or part thereof. All of the
foregoing are hereinafter referred to as "Impositions." Notwithstanding the foregoing, or any
contrary provision hereof: (i) Agency shall have no obligation to pay any real estate transfer
taxes or any increase in real estate taxes payable due to the sale, transfer or other conveyance of
the Building, the Project, Ground Lessee's interest in the Property, or any part or interest in any
of the foregoing, or in the ownership or control of Ground Lessee, and (ii) nothing in this
Agreement is intended to prevent Agency from applying for and obtaining any applicable
exemption from taxes and assessments.
3.1.1 Installments. If by law any Imposition is payable, or may at the option of
the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of
such Imposition), Agency may pay the same together with any accrued interest on the unpaid
balance of such Imposition in installments as the same respectively become due and before any
fine or penalty may be added thereto for the nonpayment of any such installment and interest.
Any Impositions relating to tax years that are only partially included in the Term shall be
prorated between Agency and the Ground Lessee.
3.1.2 Evidence of Payment. Upon request by the Ground Lessee, Agency shall
furnish, in form satisfactory to the Ground Lessee, evidence of payment prior to delinquency of
all Impositions payable by Agency.
3.2 Agency Right to Contest. Agency shall have the right before any delinquency
occurs to contest or object to the amount or validity of any Imposition by appropriate legal
proceedings, but such right shall not be deemed or construed in any way as relieving, modifying
or extending Agency's covenant to pay any such Imposition at the time and in the manner
required by law. Any such contest shall be conducted in accordance with and subject to the
requirements of all Applicable Laws and otherwise in a manner that does not subject the Ground
Lessee's title to the Premises to foreclosure or forfeiture. Agency shall indemnify, defend, and
hold the Ground Lessee harmless from and against all claims, damages, losses, liabilities, costs
and expenses (including without limitation reasonable attorneys' fees) (all of the foregoing,
collectively "Claims ") incurred by Ground Lessee as a result of any such contest brought by
Agency. During any contest of an Imposition, Agency shall (by payment of disputed sums, if
necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of the Ground
Lessee's title, reversion or other interest in the Property or the Premises.
ARTICLE IV
MANAGEMENT, USE AND OPERATION OF THE PROPERTY
4.1 Permitted Uses; Management. The Premises shall be used solely for the operation
of retail, commercial or public purpose uses, operated in compliance with the City's zoning
ordinance, the REA (as defined in the Ground Lease) and any applicable use restrictions imposed
by the Conditions of Approval adopted by City in connection with its approval of the Project or
otherwise agreed upon by the Parties. Agency shall be permitted to engage a property
management agent of Agency's choosing to manage the leasing and operation of the Premises.
No consent of Ground Lessee or any other party shall be required in connection with any such
use or management arrangement. Agency shall comply with the terms of the Ground Lease to
the extent applicable to the Premises.
4.2 Signage. Agency and its subtenants shall be permitted to place signage on the
exterior of the Premises provided that all such signage is consistent with applicable City
regulations and any other reasonable requirements agreed upon in writing by Agency and
Ground Lessee.
4.3 Nondiscrimination. Agency hereby covenants by and for Agency, its successors
and assigns, and all persons claiming under or through Agency, and this Lease is made and
accepted upon and subject to the following conditions: that there shall be no discrimination
against or segregation of any person or group of persons, on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code, in the lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Premises nor shall Agency or any person claiming under or through
Agency establish or permit any such practice or practices of discrimination or segregation.
4.4 Access. Upon 72 hours prior written notice, except in the event of an immediate
health and safety emergency, Ground Lessee may enter the Premises at reasonable times to
perform repairs to the structural and mechanical elements of the Building.
4.5 Maintenance. At the expense of Agency or its subtenants, Agency shall operate,
maintain, repair and manage the Premises including the Retail Parking area and all tenant
improvements, fixtures and furnishings in compliance with all local, state and federal laws,
statutes and regulations relating to the use, occupancy or operation of the Premises. Agency
shall cause all portions of the Premises to be maintained in a clean and orderly condition, free of
accumulation of dirt and rubbish.
4.6 Compliance with Laws. At the expense of Agency or its subtenants, Agency (or
Agency's subtenants) shall procure and maintain all governmental approvals, licenses and
1581002.2 5
permits required for the proper and lawful conduct of the permitted uses within the Premises.
Agency shall comply and shall cause its subtenants to comply with all Applicable Laws
pertaining to the use, operation, and management of the Premises. Agency shall not use (and
shall not permit its subtenants to use) the Premises for any unlawful purpose, or perform, permit
or suffer any act of omission or commission upon or about the Property or the Premises which
would result in a nuisance or a violation of law.
4.7 Agency Right to Contest. Agency shall have the right to contest by appropriate
proceedings, in the name of Agency, and without cost or expense to the Ground Lessee, the
validity or application of any Applicable Law. If compliance with any Applicable Law may
legally be delayed pending the prosecution of any such proceeding without the incurrence of any
lien, charge or liability against the Premises or Agency's interest therein, and without subjecting
Agency or the Ground Lessee to any liability, civil or criminal, for failure so to comply
therewith, Agency may delay compliance therewith until the final determination of such
proceeding. Agency shall indemnify, defend and hold Ground Lessee harmless from and against
all Claims arising in connection with any such contest brought by Agency.
ARTICLE V
TENANT IMPROVEMENTS, ALTERATIONS AND ADDITIONS
5.1 Tenant Improvements. Ground Lessee shall make available to Agency all funds
deposited into the Tenant Improvement Reserve (and all interest earned on such reserve) in
accordance with the Note executed by Ground Lessee for the benefit of Agency pursuant to the
Loan Agreement. Except as the Parties may otherwise agree in writing, Agency (or its
subtenants) shall be responsible for the construction and installation of all tenant improvements
for the Premises. Ground Lessee's approval shall not be required in connection with such
construction and installation; provided however, Agency agrees to consult and cooperate with
Ground Lessee in order to ensure that such construction and installation will not interfere with
structural or mechanical components of the Building. Agency (or its subtenants) shall be
responsible for payment of all costs to install or construct tenant improvements in the Premises
exceeding the amount of the Tenant Improvement Reserve and interest earned on such reserve.
5.2 Changes and Alterations. During the Term, Agency shall have the right to make
changes and alterations ( "Alterations ") to the interior of the Premises without the prior written
consent of the Ground Lessee. All Alterations shall be made at the expense of Agency or its
subtenants, and shall comply with all of the following:
(a) Unless Ground Lessee consents in writing, in no event shall any Alteration
(i) affect the exterior of the Building, (ii) affect any of the structural portions of the Building,
including without limitation, the roof, (iii) require any change to the structural or mechanical
components of the Building, (iv) cause an increase in the premiums for hazard or liability
insurance carried by Ground Lessee, or (v) overload the floor load capacity or unduly burden the
plumbing, heating, ventilation, air conditioning, electrical or other basic systems that serve the
Building.
1581002.2 6
(b) No Alteration shall be undertaken until Agency shall have obtained all
required permits and authorizations of all federal, state or local agencies having jurisdiction over
the work.
(c) The Alteration shall be made in a good and workmanlike manner and in
compliance with all applicable permits by a licensed contractor and in compliance with all
Applicable Laws.
(d) During the construction of any Alteration in, to or of, the Premises, or the
permitted demolition or new construction or any restoration, Agency shall comply with the
insurance requirements set forth in Section 7.2, which policy or policies by endorsement thereto,
if not then covered, shall also insure any Alteration or new construction, including all materials
and equipment incorporated in, on or about the Premises.
(e) Prior to commencement of any construction, Alteration or repair, Agency
shall deliver to the Ground Lessee not later than ten (10) business days' prior written notice of
the proposed work, a general description of the proposed work and sufficient information to
permit the Ground Lessee to post a notice of nonresponsibility on the Premises.
(f) Upon completion of construction of any Alteration, Agency shall (i) file or
cause to be filed in the Official Records of San Mateo County a Notice of Completion with
respect to the subject work in compliance with Civil Code Section 3093 or any successor statute,
and (ii) deliver to Ground Lessee evidence of full payment and unconditional final waivers of all
liens for labor, services, or materials. Agency shall file a valid notice of cessation or notice of
completion upon cessation of construction of the Alteration for a continuous period of thirty (30)
days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens
against the Property, the Project or the Building. The Ground Lessee may (but has no obligation
to) record any notices of completion or cessation of labor, or any other notice that the Ground
Lessee deems necessary or desirable to protect its interest in the Property, the Project and the
Building.
5.3 Compliance with Laws. Agency shall carry out all construction activity at the
Premises in conformity with all applicable state and federal laws and regulations, including
without limitation, all applicable state and federal labor laws and standards, all applicable
provisions of the California Labor Code, and all applicable disabled and handicapped access
requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C.
Section 12101, et seq., California Government Code Section 4450, et seq., California
Government Code Section 11135, et seq., and the Unruh Civil Rights Act, California Civil Code
Section 51, et seq. Agency shall comply with all City ordinances and regulations relating to the
conduct of construction, including without limitation, all City ordinances and regulations relating
to noise, construction hours, and maintenance of the construction site. All of the foregoing state,
federal and local laws, regulations and ordinances are hereafter referred to as the "Applicable
Laws.
,,
5.4 Indemnity. Agency shall defend, indemnify and hold harmless the Ground Lessee
from and against any and all Claims arising during the Term from or in connection with
Agency's failure to comply with all Applicable Laws relating to the operation or maintenance of
1581002.2 7
the Premises, or Agency's activities or performance under this Agreement, whether such activity
or performance is by Agency or by anyone directly or indirectly employed by or contracted with
by Agency. Agency's indemnity obligations under this Section 5.4 shall not extend to Claims
arising as a result of Ground Lessee's gross negligence or willful misconduct.
5.5 Mechanic's Liens. Agency shall not permit any mechanics', materialmen's or
other liens, to be filed against the Premises, the Building, the Property or any part thereof, or
against Agency's leasehold interest in the Premises or part thereof as a result of Agency's or
Agency's contractors work in the Premises. Ground Lessee has the right at all times to post and
keep posted on the Premises any notice that it considers necessary for protection from such liens.
If Agency fails to cause the release of record of any lien(s) filed against the Premises or
Agency's leasehold estate therein, by payment or posting of a proper bond within twenty (20)
days from the date of the lien filing(s), then Ground Lessee may, at Agency's expense, cause
such lien(s) to be released by any means Ground Lessee deems proper, including but not limited
to payment of or defense against the claim giving rise to the lien(s). All sums reasonably
disbursed, deposited or incurred by Ground Lessee in connection with the release of the lien(s),
including but not limited to all costs, expenses and reasonable attorney's fees, shall be due and
payable by Agency to Ground Lessee as Additional Rent on demand by Ground Lessee.
6.1
Term:
ARTICLE VI
ENVIRONMENTAL MATTERS
Agency's Covenants. Agency hereby covenants and agrees that throughout the
(a) The Premises, and the use and operation thereof, shall be in compliance
with all Hazardous Materials Laws, and Agency shall not cause or permit the Premises or any
portion thereof to be in violation of any Hazardous Materials Laws.
(b) Agency shall not cause or permit any Hazardous Material to be generated,
brought onto, used, treated, stored, manufactured, transported to or from, or disposed of in, on,
under, about or from the Premises, the Building or the Property by Agency or Agency's agents,
employees, contractors, subtenants or invitees (collectively "Agency Parties "), except for
limited quantities of materials customarily used in the operation of the businesses or other uses
operating in the Premises, or the use or maintenance of the Premises, provided such materials are
used, stored and disposed of in compliance with Hazardous Materials Laws. At the expense of
Agency or its subtenants, Agency shall use, store and dispose of all such Hazardous Materials in
strict compliance with all Hazardous Materials Laws, and shall in all other respects comply with
all Hazardous Materials Laws.
6.2 Definitions.
6.2.1 Hazardous Materials. As used herein, "Hazardous Materials" means any
substance, material, or waste which is or becomes regulated by any local, state or federal
authority, agency or governmental body, including any material or substance which is: (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"
under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
1581002.2 8
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined
as a "hazardous substance" under Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter- Presley- Tanner Hazardous Substance Account Act);
(iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under
Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated
biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous"
pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20;
(ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33
U.S.C. §1317); (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as
"hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and
regulations now exist or may hereafter be amended.
6.2.2 Hazardous Materials Laws. As used herein "Hazardous Materials
Laws" means all federal, state and local laws, ordinances, regulations, orders and directives
pertaining to Hazardous Materials, including without limitation, the laws, statutes and
regulations cited in the preceding Section 6.2.1, as any of the foregoing may be amended from
time to time.
ARTICLE VII
INDEMNITY AND INSURANCE
7.1 Indemnity. Agency shall defend, indemnify and hold Ground Lessee harmless
from and against any and all Claims arising directly or indirectly in whole or in part from or in
connection with: (i) the use or occupancy, or manner of use or occupancy of the Premises by
Agency, (ii) any Alterations, activity, work, or thing done, omitted, permitted, allowed or
suffered by Agency in, at, or about the Premises, the Building or the Property, or (iii) any breach
or default in performance of any obligation on Agency's part in the performance of any covenant
or agreement to be performed under this Lease, except Claims resulting from the gross
negligence or willful misconduct of Ground Lessee. Agency's compliance with the insurance
requirements set forth in this Lease shall not in any way restrict, limit or modify Agency's
indemnification obligations hereunder. The provisions of this Section shall survive the
expiration or earlier termination of this Lease.
7.2 Agency's Insurance. Agency shall, at its sole expense, procure and maintain
throughout the Term insurance coverage equivalent to the following (provided however, Agency
may in its discretion substitute equivalent coverage through self - insurance, through participation
in an insurance pool available to public agency entities, or through an excess coverage liability
policy covering other properties as well as the Premises):
(a) Commercial general liability insurance including contractual liability
coverage, written on an "occurrence" policy form, covering bodily injury, property damage and
1581 002.2 9
personal injury with minimum coverage in the amount of One Million Dollars ($1,000,000) per
occurrence combined single limit for bodily injury and property damage and Two Million
Dollars ($2,000,000) in the aggregate and naming the Ground Lessee and the Leasehold
Mortgagees (as defined in the Ground Lease) as additional insureds;
(b) Property insurance protecting Agency against loss or damage by fire and
such other risks as are insurable under then available standard forms of "all risk" insurance
policies, covering Agency's personal property and trade fixtures in or about the Premises or the
Property, and any improvements and /or Alterations in the Premises, in an amount not less than
one hundred percent (100 %) of their actual replacement cost or highest insurable value; and
(c) Workers' compensation insurance in at least the statutory amounts.
7.3 Insurance of Agency's Contractors and Agents. In addition to any other insurance
requirements, Agency expressly agrees that none of its agents, contractors, workmen, mechanics,
suppliers or invitees performing construction or repair work in the Premises shall commence
such work unless and until each of them shall furnish Agency with satisfactory evidence of
insurance coverage, financial responsibility and appropriate written releases of mechanic's or
materialmen's lien claims, as necessary.
7.4 Waiver of Subrogation. Agency and Ground Lessee shall cause the insurance
companies issuing their respective insurance policies to waive any subrogation rights that those
companies may have against Agency or Ground Lessee, respectively, as long as the insurance is
not invalidated by the waiver. If the waivers of subrogation are contained in their respective
insurance policies, Ground Lessee and Agency waive any right that either may have against the
other on account of any liability or loss or damage to their respective property to the extent that
the liability, loss or damage is insured under their respective insurance policies.
7.5 Ground Lessee's Insurance. Ground Lessee shall maintain throughout the Term
liability insurance and property damage insurance consistent with the requirements of the
Ground Lease and the Loan Agreement.
1581002.2 10
ARTICLE VIII
DAMAGE AND DESTRUCTION; CONDEMNATION
8.1 Damage or Destruction. If during the Term, the Premises are damaged by fire or
other casualty such that access to or use and occupancy of the Premises is materially impaired,
the Ground Lessee and Agency shall negotiate in good faith regarding the demolition or
reconstruction of the Premises, taking into account the extent of casualty, the condition of the
Building, the availability of insurance proceeds, and the remaining duration of the Term. If the
Parties agree that the Premises will be rebuilt or restored, Ground Lessee shall diligently carry
out such rebuilding or restoration to completion as soon as possible following the date of
occurrence of the damage or the date upon which insurance proceeds are made available for such
work, and shall confer with Agency regarding the design and plans for such restoration or
rebuilding of the Premises. Notwithstanding anything to the contrary set forth herein, Ground
Lessee's obligations pursuant to this Agreement to repair, rebuild or restore the Premises as a
result of fire or other casualty shall not exceed such obligations of Ground Lessee pursuant to the
Ground Lease.
8.2 Condemnation.
8.2.1 Total Taking - Termination. If title to the Premises or so much thereof is
taken through the exercise of any government power (by legal proceedings or otherwise) by any
public or quasi - public authority or by any other party having the right of eminent domain, or by a
voluntary sale or transfer either under threat of exercise of eminent domain or while legal
proceedings for eminent domain are pending so that reconstruction of the Premises will not result
in the Premises being reasonably suitable for Agency's continued occupancy for the uses and
purposes permitted by this Lease, this Lease shall terminate as of the date possession of the
Premises or part thereof is so taken.
8.4.2 Partial Taking. If any part of the Premises is taken through the exercise of
eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining part is
reasonably suitable for Agency's continued occupancy for the uses and purposes permitted by
this Lease, this Lease shall as to the part so taken terminate as of the date that possession of such
part of the Premises is taken. Ground Lessee shall, at its own cost and expense, make all
necessary repairs or alterations to the Premises so as to make the portion of the Premises not
taken a complete unit. Notwithstanding anything to the contrary set forth herein, Ground
Lessee's obligations pursuant to this Agreement to repair or alter the Premises as a result of a
partial taking shall not exceed such obligations of Ground Lessee pursuant to the Ground Lease.
8.4.3 Apportionment of Award. All condemnation awards and similar payments
shall be paid pursuant to the provisions of the Ground Lease, except for any amounts awarded or
paid specifically for leasehold improvements to the Premises, removal and reinstallation of
Agency's and its subtenants' trade fixtures and personal property, Agency's and its subtenants'
moving costs, and Agency's and its subtenants' goodwill, which such amounts shall be paid to
Agency and its subtenants, as applicable.
8.4.4 Temporary Taking. No temporary taking of the Premises (which shall
mean a taking of all or any part of the Premises for one hundred eighty (180) days or less) shall
terminate this Lease or give Agency any right to any abatement of Rent. Any award made to
Agency by reason of such temporary taking shall belong entirely to Agency, and Ground Lessee
shall not be entitled to share therein.
ARTICLE IX
GROUND LESSEE'S RIGHT TO PERFORM AGENCY'S COVENANTS
If Agency shall at any time fail to pay any Imposition or other charge payable by Agency
to a third party as required by this Agreement, or to comply with the requirements set forth in
Section 7.2 pertaining to insurance, or to make any other payment or perform any other act on its
part to be made or performed hereunder within the time permitted by this Agreement, then the
Ground Lessee, after thirty (30) days' written notice to Agency and without waiving or releasing
Agency from any obligation of Agency hereunder, may (but shall not be required to): (i) pay
such Imposition or other charge payable by Agency; (ii) pay for and maintain the insurance
1581002.2 11
policies required pursuant to this Agreement, or (iii) make such other payment or perform such
other act on Agency's part to be made or performed under this Agreement. All sums paid by the
Ground Lessee and all costs and expenses incurred by the Ground Lessee in connection with any
such payment or the performance of any such act shall constitute Additional Rent payable by
Agency under this Agreement and shall be paid by Agency to the Ground Lessee on demand.
ARTICLE X
MORTGAGES; SUBORDINATION AND ESTOPPEL
10.1 Estoppel Certificates. From time to time and within fifteen (15) days after request
by Ground Lessee, Agency shall execute and deliver a certificate to any proposed purchaser,
lender to Ground Lessee, or Ground Lessee, certifying, with any applicable exceptions: (a) that
this Lease is in full force and effect without modification except as noted, (b) the amount, if any,
of prepaid rent and deposits paid by Agency to Ground Lessee (and not returned to Agency), (c)
the nature and kind of concessions, rental or otherwise, if any, which Agency has received or is
entitled to receive, (d) that Ground Lessee has performed all of its obligations due to be
performed under this Lease and that there are no defenses, counterclaims, deductions or offsets
outstanding or other excuses for Agency's performance under this Lease as of such date, and (e)
any other fact reasonably requested by Ground Lessee or such lender or proposed purchaser.
10.2 Subordination, Nondisturbance and Attornment. Agency agrees that Ground
Lessee's interest in the Premises may be encumbered by deeds of trust for the benefit of the
construction and permanent lenders for the Project as approved pursuant to the Loan Agreement
and the Ground Lease ( "Lenders "); provided however, such consent is conditioned upon the
recordation in the Official Records of San Mateo County of Subordination, Nondisturbance and
Attornment Agreements, executed by each such Lender, that subordinate this Lease to such
Lender's deed of trust, and that provide that each such Lender (and its successors and assigns)
shall not disturb or interfere with the possession and use of the Premises by Agency (and its
successors and assigns) under this Lease so long as Agency is not in default under this Lease
beyond all applicable cure periods, and shall, in the event that any such Lender (or its successors
or assigns) succeeds to the interest of Ground Lessee under this Lease, recognize Agency (and its
successors and assigns) as the tenant under this Lease.
ARTICLE XI
ASSIGNMENT, TRANSFER, AND SUBLETTING
11.1 Transfer, Assignment and Subletting. Agency shall have the right to assign this
Agreement to City without consent of Ground Lessee or any other party. Agency shall have the
right to assign this Agreement to any other entity with the prior written consent of the Ground
Lessee, which consent shall not be unreasonably withheld, conditioned, or delayed. Agency
shall be permitted to enter into one or more subleases of the Premises and any part thereof for
purposes consistent with Section 4.1. No consent of Ground Lessee or any other party shall be
required in connection with any such sublease. Each such sublease shall include provisions that
require the subtenant to comply with the terms of this Lease and the Ground Lease to the extent
applicable to the subleased portion of the Premises.
1581002.2 12
11.2 Transfer or Encumbrance by Ground Lessee. Subject to Section 10.2 hereof and
all applicable provisions of the Loan Agreement and the Ground Lease, nothing contained in this
Agreement shall be deemed in any way to limit, restrict or otherwise affect the right of the
Ground Lessee to transfer, assign or convey all or any portion of the right, title and estate of the
Ground Lessee in the Property or the Premises provided, however, that in each such instance any
such transfer, assignment or conveyance shall be subject to this Agreement, and Agency's rights
arising out of this Agreement shall not be affected or disturbed in any way by any such sale,
transfer, assignment or conveyance. At such time as the Ground Lessee shall transfer, assign or
convey the entire right, title and estate of the Ground Lessee in the Property or the Premises, all
obligations and liability on the part of the Ground Lessee arising under this Agreement after the
effective date of such sale, transfer, assignment or conveyance shall terminate as to the Ground
Lessee, and thereupon all such liabilities and obligations shall be binding upon the transferee.
ARTICLE XII
SURRENDER OF PREMISES
12.1 Surrender of Premises. Upon the expiration or earlier termination of this Lease,
Agency shall surrender the Premises in the same condition as when the Term commenced, with
the exception of ordinary wear and tear and Alterations constructed pursuant to this Lease.
Except for furniture, equipment and trade fixtures (other than those which are affixed to the
Premises so that they cannot be removed without material damage to the Premises) all
alterations, additions or improvements, whether temporary or permanent in character, made in or
upon the Premises, either by Ground Lessee or Agency, shall remain in the Premises.
ARTICLE XIII
DEFAULT, REMEDIES AND TERMINATION
13.1 Event of Default. Agency shall be in default under this Agreement upon the
occurrence of any of the following ( "Events of Default "):
(a) Monetary Obligation. Agency at any time is in default hereunder as to any
monetary obligation (including without limitation, Agency's obligation to pay taxes and
assessments due on the Premises or part thereof, subject to Agency's rights to contest such
charges pursuant to Section 3.2), and such default continues for ten (10) days after the date upon
which the Ground Lessee shall have given Agency a Notice of Default (as defined in Section
13.2.1);
(b) Insurance. Agency fails to obtain and maintain any policy of insurance
required pursuant to this Lease, and Agency fails to cure such default within ten (10) days;
(c) Abandonment. Agency abandons the Property;
(d) Bankruptcy. Agency files a voluntary petition in bankruptcy or files any
petition or answer seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any present or future
1581002.2 13
federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors; or seeks or consents to or acquiesces in the appointment of any trustee, receiver or
liquidator of Agency or of all or any substantial part of its property, or of any or all of the
royalties, revenues, rents, issues or profits thereof, or makes any general assignment for the
benefit of creditors, or admits in writing its inability to pay its debts generally as they become
due;
(e) Reorganization. A court of competent jurisdiction enters an order,
judgment or decree approving a petition filed against Agency seeking any reorganization,
dissolution or similar relief under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment
or decree remains unvacated and unstayed for an aggregate of ninety (90) days from the first date
of entry thereof, or any trustee receiver or liquidator of Agency or of all or any substantial part of
its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed
without the consent or acquiescence of Agency and such appointment remains unvacated and
unstayed for an aggregate of ninety (90) days, such ninety (90) day period to be extended in all
cases during any period of a bona fide appeal diligently pursued by Agency;
(f) Attachment. Subject to Agency's right to contest the following charges
pursuant to Sections 3.2 and 4.7, Agency fails to pay prior to delinquency taxes or assessments
due on the Property or the Improvements or fails to pay when due any other charge that may
result in a lien on the Property or the Improvements, and Agency fails to cure such default within
thirty (30) days of date of delinquency, but in all events prior to such time that would give the
holder of such lien the right to foreclose thereon;
(g) Other Obligations. Agency defaults in the performance of any term,
provision, covenant or agreement contained in this Agreement other than an obligation
enumerated in this Section 13.1 and unless a shorter cure period is specified for such default, the
default continues for ten (10) days in the event of a monetary default or thirty (30) days in the
event of a nonmonetary default after the date upon which Ground Lessee shall have given
written notice of the default to Agency; provided however, if the default is of a nature that it
cannot be cured within thirty (30) days, an Event of Default shall not arise hereunder if Agency
commences to cure the default within thirty (30) days and thereafter prosecutes the curing of
such default with due diligence and in good faith to completion.
13.2 Notice and Opportunity to Cure.
13.2.1 Notice of Default. Upon the occurrence of a default hereunder, the non -
defaulting Party shall deliver a notice to the nonperforming Party (the "Notice of Default "),
stating the nature of the obligation which such nonperforming Party has failed to perform, and
stating the applicable period of time, if any, permitted to cure the default.
13.2.2 Failure to Give Notice; No Waiver. Failure to give, or delay in giving,
the Notice of Default shall not constitute a waiver of any obligation, requirement or covenant
required to be performed hereunder. No failure or delay by either Party in asserting any rights
and remedies as to any breach shall operate as a waiver of any breach or of any such rights or
remedies. Delay by either Party in asserting any of its rights and remedies shall not deprive such
1581002.2 14
Party of the right to institute and maintain any action or proceeding which it may deem
appropriate to protect, assert or enforce any such rights or remedies.
13.3 Remedies Upon Default.
13.3.1 Ground Lessee's Remedies. Upon the occurrence of any Event of Default
and in addition to any and all other rights or remedies of the Ground Lessee hereunder and /or
provided by law, the Ground Lessee shall have the right to terminate this Agreement and /or
Agency's possessory rights hereunder, in accordance with applicable law to re -enter the
Premises and take possession thereof and except as otherwise provided herein, to remove all
persons and property therefrom, and to store such property at Agency's risk and for Agency's
account, and Agency shall have no further claim thereon or hereunder. The Ground Lessee's re-
entry or taking of possession of the Premises shall not be construed as an election on the Ground
Lessee's part to terminate this Agreement unless the Ground Lessee shall have given written
notice of such intention to Agency. In no event shall this Agreement be treated as an asset of
Agency after any final adjudication in bankruptcy except at the Ground Lessee's option so to
treat the same but no trustee, receiver, or liquidator of Agency shall have any right to disaffirm
this Agreement.
13.3.2 Remedies Upon Abandonment. If Agency should default under this
Agreement and abandon the Premises, the Ground Lessee may, at its option, enforce all of its
rights and remedies under this Agreement, including the right to recover the rent as it becomes
due hereunder.
13.3.3 Ground Lessee Right to Continue Lease. In the event of any default under
this Agreement by Agency (and regardless of whether or not Agency has abandoned the
Premises), this Agreement shall not terminate (except by an exercise of the Ground Lessee's
right to terminate under Section 13.3.1) unless the Ground Lessee makes such election by the
giving of any notice (including, without limitation, any notice preliminary or prerequisite to the
bringing of legal proceedings in unlawful detainer) to terminate Agency's right to possession.
For so long as this Agreement continues in effect, the Ground Lessee may enforce all of the
Ground Lessee's rights and remedies under this Agreement, including, without limitation, the
right to recover all rent and other monetary payments as they become due hereunder. For the
purposes of this Agreement, the following shall not constitute termination of Agency's right to
possession: (a) acts of maintenance or preservation or efforts to relet the Premises; or (b) the
appointment of a receiver upon initiative of the Ground Lessee to protect the Ground Lessee's
interest under this Agreement.
13.3.4 Right to Injunction; Specific Performance. In the event of a default by
Agency under this Agreement that remains uncured beyond all applicable cure periods, the
Ground Lessee shall have the right to commence an action against Agency for damages,
injunction and/or specific performance. Agency's failure, for any reason, to comply with a
court- ordered injunction or order for specific performance shall constitute a breach under this
Agreement.
13.3.5 Right to Receiver. Following the occurrence of an Event of Default, if
Agency fails after receipt of a Notice of Default to cure the default within the time period set
1581002.2 15
forth in this Agreement, the Ground Lessee, at its option, may have a receiver appointed to take
possession of Agency's interest in the Premises with power in the receiver (a) to administer
Agency's interest in the Premises, (b) to collect all funds available in connection with the
operation of the Premises, and (c) to perform all other acts consistent with Agency's obligations
under this Agreement, as the court deems proper.
13.4 Remedies Cumulative. No remedy specified in this Article XIII shall be
considered exclusive of any other remedy, but the same shall be cumulative and shall be in
addition to every other remedy provided hereunder or now or hereafter existing at law or in
equity or by statute, and every power and remedy provided by this Agreement may be exercised
from time to time and as often as occasion may arise or as may be deemed expedient, subject to
any limitations set forth herein.
13.5 No Election of Remedies. The rights given in this Article XIII to receive, collect
or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and
conditions of this Agreement, or to prevent the breach or nonobservance thereof, or the exercise
of any such right or of any other right or remedy hereunder or otherwise granted or arising, shall
not in any way affect or impair or toll the right or power of the Ground Lessee upon the
conditions and subject to the provisions in this Agreement to terminate Agency's right of
possession because of any default in or breach of any of the covenants, provisions or conditions
of this Agreement beyond the applicable cure period.
13.6 Survival of Obligations. Nothing herein shall be deemed to affect the right of the
Ground Lessee under Article VII of this Agreement to indemnification for liability arising prior
to the termination of this Agreement, nor shall anything herein be deemed to affect the right of
the Ground Lessee to equitable relief where such relief is appropriate. No expiration or
termination of the Agreement by operation of law, or otherwise, and no repossession of the
Improvements or any part thereof shall relieve Agency of its previously accrued liabilities and
obligations hereunder, all of which shall survive such expiration, termination or repossession.
13.7 Agencies Remedies Upon Ground Lessee Default. An event of default on the
part of Ground Lessee shall arise hereunder ( "Ground Lessee Event of Default ") if Ground
Lessee defaults in the performance of any term, provision, covenant or agreement to be
performed by Ground Lessee pursuant to this Agreement, and such default continues for
ten (10) days in the event of a monetary default or thirty (30) days in the event of a nonmonetary
default after the date upon which Agency shall have given written notice to Ground Lessee;
provided however, if the default is of a nature that it cannot be cured within thirty (30) days, a
Ground Lessee Event of Default shall not arise hereunder if Ground Lessee commences to cure
the default within thirty (30) days and thereafter prosecutes the curing of such default with due
diligence and in good faith to completion. Upon the occurrence of a Ground Lessee Event of
Default, Agency shall be entitled to pursue all remedies available at law or in equity, including
without limitation, seeking an order for specific performance.
ARTICLE XIV
GENERAL PROVISIONS
1581002.2 16
14.1 Unavoidable Delay. Except as otherwise provided in this Agreement, the time for
performance of an obligation other than the payment of money under this Agreement shall be
extended for the period during which a Party is prevented from performing due to unavoidable
delay. "Unavoidable delay" shall mean any and all delay beyond the applicable Party's
reasonable control, including without limitation, delays caused by the other Party; governmental
restrictions, regulations, controls, preemptions or delays; orders of civil, military or naval
authorities; strikes, labor disputes, lock -outs, shortages of labor or materials or reasonable
substitutes therefore; Acts of God; fire, earthquake, floods, explosions or other casualties;
extreme weather conditions or other actions of the elements; enemy action, civil commotion, riot
or insurrection.
14.2 No Brokers. Agency and Ground Lessee each represent and warrant to the other
that no broker or agent is entitled to a broker's commission or finder's fee in connection with the
execution of this Lease or the consummation of the transaction contemplated hereby, and each
Party agrees to defend and indemnify the other Party against any loss, expense or liability
incurred by the other Party as a result of a breach of such representation and warranty. The
provisions of this Section shall survive the expiration or earlier termination of the Lease.
14.3 Agency's Representations. Agency hereby represents and warrants that all of the
following are true and correct as of the Effective Date:
(a) Agency is duly organized, validly existing and in good standing under the
laws of the State of California. Agency has the legal power, right and authority to enter into this
Agreement and the instruments and documents referenced herein, and to consummate the
transactions contemplated hereby.
(b) To the best of Agency's knowledge, neither the execution of this
Agreement nor the lease of the Premises shall result in a breach of or constitute a default under
any agreement, instrument or other obligation to which Agency is a party or by which Agency
may be bound, or under any law, ordinance, rule, governmental regulation or any injunction,
order or decree of any court or governmental body, applicable to Agency.
14.4 Representations and Warranties of Ground Lessee. Ground Lessee hereby
represents and warrants the following to Agency, all of which shall be true and correct as of the
Effective Date:
(a) Ground Lessee is duly organized, validly existing and in good standing
under the laws of the State of California. Ground Lessee has the legal power, right and authority
to enter into this Agreement and the instruments and documents referenced herein, and to
consummate the transactions contemplated hereby.
(b) To the best of Ground Lessee's knowledge, neither the execution of this
Agreement nor the lease of the Retail /Commercial Component shall result in a breach of or
constitute a default under any agreement, instrument or other obligation to which Ground Lessee
is a party or by which Ground Lessee may be bound, or under any law, ordinance, rule,
governmental regulation or any injunction, order or decree of any court or governmental body,
applicable to Ground Lessee or to the Property.
1581002.2 17
(c) To the best of Ground Lessee's knowledge, there is no litigation,
arbitration or other action pending or threatened against Ground Lessee which relates to the
Property or the lease of the Premises or which could result in the imposition of a lien against the
Premises. If Ground Lessee receives notice of any litigation, arbitration or other action prior to
the Commencement Date, Ground Lessee shall promptly notify Agency of the same in writing
and provide Agency with a copy of such notice.
14.5 Miscellaneous.
14.5.1 Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law.
14.5.2 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; or
(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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Ground Lessee:
MP South City, L.P., a California limited partnership
1581002.2 18
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
Facsimile: (650) 357 -9766
With copy to:
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
14.5.3 Captions; Construction. The section headings and captions used herein are solely
for convenience and shall not be used to interpret this Lease. The Parties acknowledge that this
Agreement is the product of negotiation and compromise on the part of both Parties, and the
Parties agree that since both Parties have participated in the negotiation and drafting of this
Agreement with the advice of counsel, this Agreement shall not be construed as if prepared by
one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had
prepared it.
14.5.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and assigns. Any reference in this Lease
to a specifically named Party shall be deemed to apply to any permitted successor and assign of
such Party who has acquired an interest in compliance with this Agreement as if in every case so
expressed. If the Agency ceases to exist, the City shall automatically succeed to the interests of
Agency under this Agreement.
14.5.5 Memorandum of Lease. A memorandum of lease substantially in the form
attached hereto as Exhibit B shall be executed by the Parties and recorded in the Official Records
of San Mateo County.
14.5.6 Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of San Mateo County, California or in the Federal District Court for the Northern District
of California.
14.5.7 Attorneys' Fees. If either Party commences an action against the other to enforce
any obligation contained herein, or to interpret any provision hereof, the prevailing Party shall be
entitled to recover from the other Party reasonable counsel fees, costs and necessary
disbursements, as determined by the court having jurisdiction over the action.
14.5.8 Indemnity Includes Defense Costs. In any case where either Party is obligated
under an express provision of this Lease, to indemnify and to save the other Party harmless from
1581002.2 19
any damage or liability, the same shall be deemed to include defense of the indemnitee by the
indemnitor, such defense to be through legal counsel approved by the indemnitee.
14.5.9 No Third -Party Beneficiaries; Disclaimer of Partnership, Lender /Borrower
Relationship. Nothing contained in this Agreement is intended to or shall be deemed to confer
upon any person, other than the Parties any rights or remedies hereunder. The relationship of the
parties under this Agreement is solely that of landlord and tenant, and it is expressly understood
and agreed that the Ground Lessee does not as a result of this Agreement in any way nor for any
purpose become a partner of Agency or a joint venturer with Agency in the conduct of Agency's
business or otherwise. This Agreement is not intended to, and shall not be construed to, create
the relationship of principal and agent, partnership, joint venture, or association as between the
Ground Lessee and Agency. It is further expressly understood and agreed that this Agreement is
not intended to, and shall not be construed to create the relationship of lender and borrower, and
the Ground Lessee does not, solely as a result of this Agreement, become a lender to Agency.
14.5.10 Entire Agreement. This Agreement, together with Exhibits A and B which by
this reference are hereby incorporated herein, the REA, the Ground Lease, the Loan Agreement
and the documents executed in connection therewith, contains the entire agreement between the
Parties relative to the transactions covered hereby. All previous correspondence,
communications, discussions, agreements, understandings or proposals and acceptances thereof
between the Parties or their representatives, whether oral or written, are deemed to have been
integrated into and superseded by this Agreement and are of no further force and effect except as
expressly provided in this Agreement.
14.5.11 Waiver; Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any subsequent breach of the same or any other
covenant or provision hereof. No waiver shall be valid unless in writing and executed by the
waiving Party. An extension of time for performance of any obligation or act shall not be
deemed an extension of the time for performance of any other obligation or act, and no extension
shall be valid unless in writing and executed by the waiving Party. This Agreement may be
amended or modified only by a written instrument executed by the Parties.
14.5.12 Time is of the Essence. Time is of the essence of this Agreement and of each
provision hereof.
14.5.13 Survival. The representations and warranties of Ground Lessee and Agency and
the indemnification obligations of Ground Lessee and Agency set forth herein shall survive the
expiration or termination of this Agreement as shall all other provisions hereof which state that
they are intended to survive such expiration or termination.
14.5.14 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be an original and all of which together shall constitute one and the same
instrument.
14.5.15 Action by Agency. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by Agency is required or permitted
under this Agreement, such action shall be in writing, and such action may be given, made or
1581002.2 20
taken by the Agency's Executive Director or by any person who shall have been designated by
the Executive Director, without further approval by the Agency's governing board unless the
Executive Director determines in his or her discretion that such matter requires consideration by
the Agency's governing board.
SIGNATURES ON FOLLOWING PAGES.
1581002.2 21
Date.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the Effective
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
GROUND LESSEE:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1581002.2 22
Exhibit A -1
PARCEL
(Attach legal description.)
Exhibit A -2
PROPERTY
(Attach legal description.)
Exhibit B
PREMISES
(Attach diagram.)
Exhibit C
FORM OF MEMORANDUM OF LEASE
(Attach Memorandum.)
1581002.2 1
Recording Requested by
and when Recorded, return to:
Redevelopment Agency
of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
This Memorandum of Lease (this "Memorandum "), dated for reference purposes as of
, 20 , is executed by and between the Redevelopment Agency of the City of
South San Francisco, a public body, corporate and politic (the "Agency ") and MP South City,
L.P., a California limited partnership (hereafter "Ground Lessee ") in reference to and
consideration of that certain Master Lease Agreement dated as of , 20_
( "Effective Date "), by and between Ground Lessee and Agency (the "Lease ").
1. The purpose of this Memorandum is to provide notice of the existence of the
Lease which is incorporated herein by this reference. This Memorandum incorporates all of the
terms and provisions of the Lease as though fully set forth herein.
2. The Agency is the owner of fee title to the Property known as 636 El Camino
Real, identified as San Mateo County Assessor's Parcel No. 014- 160 -040, and more particularly
described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
3. Pursuant to that certain Ground Lease dated as of , 20 and
executed by and between the Parties (the "Ground Lease "), Ground Lessee has constructed or
shall construct a mixed -use multi - family development (the "Project ") that will include, among
other improvements, approximately 5,700 square feet of retail space together with 18 surface
parking spaces dedicated for use by the tenants and invitees of the retail space (collectively, the
"Premises ") on that portion of the Parcel described in Exhibit A -2 attached hereto (the
"Property ").
4. Pursuant to the Lease, the Ground Lessee leases to Agency, and Agency leases
from the Ground Lessee, the Premises subject to all of the terms and conditions set forth in the
Lease.
Date.
1581002.2
Exhibit C
MEMORANDUM OF LEASE
Space above this line for Recorder's use.
5. The term of the Lease is seventy -five (75) years commencing on the Effective
6. In the event of any conflict between this Memorandum and the terms and
conditions of the Lease, the terms and conditions of the Lease shall control.
7. This Memorandum may be executed in counterparts, each of which shall be an
original, and all of which together shall constitute one fully- executed agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
first set forth above.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
GROUND LESSEE:
MP SOUTH CITY, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1581002.2
SIGNATURES MUST BE NOTARIZED.
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
)
)
)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1581002.2
1581002.2
Exhibit A -1
PARCEL
(Attach legal description.)
Exhibit A -2
PROPERTY
(Attach legal description.)
LAND
Acreage
Density
# of Stories
1 acres
62.00 units/acre
5
BUILDING
Residential
Circulation and Common
Commercial /Childcare
Garage
Total Building Area (w /o garage)
59,053 sf
18,580 sf
5,735 sf
43,016 sf
91,034 sf
PARKING
# of spaces
parking ratio
type
146
2.05
Concrete Podium
ACQUISITION
total
per unit
Land
Other Acquisition Costs
- $
9,039 $
146
Total Acquisition Costs $
HARD COSTS
9,039 $
146
Construction /Rehabilitation
Site Improvement/Landscaping
Demo & Off-site Improvements
Construction Contingency
$ 18,309,752 $
$ - $
$ - $
$ 3,948,825 $
295,319
63,691
SOFT COSTS
Total Hard Costs $ 22, 258, 577 $
359,009
Architectural
Survey & Engineering
Construction Interest + Fees
Financing & Syndication
Local Permits and Fees
Legal Fees
Developer Fee
Relocation
Reserves
Other Soft Costs
$ 773,741
$ 483,431
$ 1,130,142
$ 45,000
$ 879,332
$ 75,500
$ 1,400,000
$ 258,210
$ 247,797
$ 1,080,437
12,480
7,797
18,228
726
14,183
1,218
22,581
4,165
3,997
17,426
Total Soft Costs $ 6,373,590 $
102,800
TOTAL DEVELOPMENT COSTS $ 28,641,206 $ 461,955
EXHIBIT G
El Camino Family Housing, Building A
Prepared by: Mid- Peninsula Housin • Coalition
UNIT TYPES
Studios
1- Bedroom
2- Bedroom
3- Bedroom
4- Bedroom
Rental Range
$0.00 - $0.00
$526.00 - $728.00
$627.00 - $1,111.00
$719.00 - $1,278.00
$0.00 - $0.00
TOTAL UNITS
0
11
30
20
0
61
AFFORDABILITY
Income Range
15% AMI 1 Person $11880 to 5 Person $18315
30% AMI 1 Person $23760 to 5 Person $36630
35% AMI 1 Person $27720 to 5 Person $42735
40% AMI 1 Person $31680 to 5 Person $48840
45% AMI 1 Person $35640 to 5 Person $54945
50% AMI 1 Person $39600 to 5 Person $61050
55% AMI 1 Person $43560 to 5 Person $67155
60% AMI 1 Person $47520 to 5 Person $73260
Manager's Unit
TOTAL UNITS
AVERAGE AFFORDABILITY
0
14
0
24
0
23
0
0
1
62
41%
PREDEVELOPMENT SOURCES
total
per unit
SSF Land Loan
RDA Predevelopment Loan
Genentech /HEART loan
Other Predevelopment Sources
- $
283,373 $
568,807 $
- $
4,571
9,174
CONSTRUCTION SOURCES
total $
852,180 $ 13,745
RDA Gap Loan
RDA Predevelopment Loan
Construction Loan
Tax Credit Investor Proceeds
County of San Mateo
MHSA
Genentech / HEART funds
0 $
4,007,000
283,373
17,492,917
2,291,952
1,489, 502
1,081,600
600,000
$ -
$ 4,570.53
$ 282,144
$ 36,967
$ 24,024
$ 17,445
$ 9,677
$ 840
$ -
PERMANENT SOURCES
total $ 27,246,344 $ 374,828
RDA Gap Loan
RDA Predevelopment Loan
1st Mortgage
B Tranche
Tax Credit Investor Proceeds
County of San Mateo
MHSA
Genentech / HEART funds
Accrued Interest
Deferred Developer Fee
Childcare Fee Waiver
4,007,000 $ -
283,373 $ 4,570.53
2,240,191 $ 36,132
2,694,991 $ 43,468
15,279,682 $ 246,446
1,489,502 $ 24,024
1,081,600 $ 17,445
600,000 $ 9,677
250,104 $ 840
600,000
114,762 $
total $ 28,641,205 $ 461,955
1564573.4
GROUND LEASE
(636 El Camino — Phase B)
by and between
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
as Landlord
and
MP SOUTH CITY II, L.P.,
a California limited partnership
as Tenant
Dated as of , 2011
THIS GROUND LEASE (636 El Camino — Phase B) (this "Lease" or this
"Agreement "), dated as of , 2011 (the "Effective Date "), is entered into
by and between the Redevelopment Agency of the City of South San Francisco, a public body,
corporate and politic (hereafter "Agency" or "Landlord ") and MP South City II, L.P., a
California limited partnership (hereafter "Tenant "). Agency and Tenant are hereafter
collectively referred to as the "Parties."
RECITALS
A. Pursuant to authority granted under Community Redevelopment Law (California
Health and Safety Code Section 33000 et seq.) ( "CRL "), the Agency has responsibility to
implement the redevelopment plan adopted in 1993 by the City Council of the City of South San
Francisco by Ordinance No. 1132 -93 (as subsequently amended, the "Redevelopment Plan ")
for the El Camino Corridor Redevelopment Project (the "Project Area ").
B. Pursuant to Agency's exercise of its option granted under that certain Option and
Purchase and Sale Agreement dated as of June 23, 2010 and executed by and between Agency
and Tenant, Agency is the owner of fee title to the property located adjacent to the Project Area
known as 636 El Camino Real, identified as San Mateo County Assessor's Parcel No. 014 -160-
040, and more particularly described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
C. Tenant proposes to construct a mixed -use multi - family development consisting of
forty -seven (47) units of multi - family housing, common areas, subterranean parking and related
improvements (the "Project" as more particularly described below) on that portion of the Parcel
described in Exhibit A -2 attached hereto (the "Property "). Pursuant to that certain Loan
Agreement dated as of the Effective Date and executed by and between Agency and Tenant (the
"Loan Agreement "), Agency has agreed to provide a loan to Tenant in the amount of Five
Million, Six Hundred Ninety -Eight Thousand, Six Hundred Twenty -Seven Dollars ($5,698,627)
(the "Loan ") to assist in financing the construction of the Project. Pursuant to separate
agreements, the Agency will provide additional financing and will lease the remainder of the
Parcel to an affiliate of Tenant for development of a first phase of affordable housing adjacent to
the Property (the "Phase A Project ").
D. Agency desires to lease to Tenant, and Tenant desires to lease from Agency the
Property, upon the terms and conditions set forth in this Lease, for the undertaking of the Project
as more particularly described herein.
E. The Agency has determined that development of the Project pursuant to this
Lease is consistent with the Redevelopment Plan and the Implementation Plan for the Project
Area, will be of benefit to the Project Area, and will be consistent with and further the goals of
California Community Redevelopment Law and the Redevelopment Plan by assisting in the
elimination of blight and increasing the availability of housing affordable to low- and very low -
income households in close proximity to the Project Area.
F. The City Council and the Agency have each approved the lease of the Property as
set forth in this Agreement, have followed all requisite procedures, and have adopted all requisite
1583217.1 1
findings in connection with the foregoing, including without limitation the requirements of
Sections 33431 and 33433 of the CRL.
G. Pursuant to the California Environmental Quality Act ( "CEQA "), on June 23,
2010, the City Council adopted a Negative Declaration for the Project.
H. In connection with the financing and development of the Project, Landlord and
Tenant will execute and cause to be recorded in the Official Records of San Mateo County the
following documents, substantially in the forms attached as exhibits to the Loan Agreement: an
Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (the
"Regulatory Agreement "), and a Notice of Affordability Restrictions on Transfer of Property.
As more particularly described in the Loan Agreement, Tenant will execute a promissory note
evidencing Tenant's obligation to repay the Loan, an assignment agreement pursuant to which
Agency will be provided a security interest in the Project construction plans, and a leasehold
deed of trust that will be recorded against Tenant's interest in the Property and the Improvements
to secure Tenant's obligation to repay the Loan.
NOW, THEREFORE, for and in consideration of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows.
ARTICLE I
DEFINITIONS
1. Definitions. The following terms shall have the meanings set forth in the Sections
referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional
terms are defined in the Recitals and text of this Agreement.
"Affordable Rent" is defined in the Regulatory Agreement.
"Applicable Laws" is defined in Section 6.3.
"Area Median Income" is defined in the Regulatory Agreement.
"City" means the City of South San Francisco, a municipal corporation.
"City Council" means the City Council of the City of South San
Francisco.
"Claims" is defined in Article X.
"Conditions of Approval" is defined in Section 6.12.
"Construction Plans" is defined in Section 6.14.
"Environmental Laws" is defined in Section 7.11.4.
1583217.1 2
"Financing Plan is defined in Section 2.3.2 of the Loan Agreement.
"Hazardous Material" is defined in Section 7.11.4.
"Improvements" means all buildings, structures, fixtures, fences, walls,
paving, parking improvements, driveways, walkways, plazas, landscaping,
permanently affixed utility systems and equipment, and other improvements
located on the Property, including, without limitation, the Project and all
replacements of the foregoing.
"Indemnitees" is defined in Article X.
"Lease Termination" is defined in Section 8.2.1.
"Leasehold Mortgage" means a mortgage on the leasehold estate created
by this Lease and held by a Leasehold Mortgagee.
"Leasehold Mortgagee" means the mortgagee or beneficiary of any
Leasehold Mortgage and in the event of a transfer of such Leasehold Mortgage,
the successor Leasehold Mortgagee, upon delivery of written notice of the transfer
to Landlord.
"Loan" is defined in Recital C.
"MidPen" is defined in Section 16.1.
"Official Records" means the Official Records of San Mateo County.
"Parcel" is defined in Recital B.
"Phase A Project" is defined in Recital C.
"Prevailing Wage Laws" is defined in Section 6.3.
"Project" means the residential rental project and related improvements
as described in Recital C and Section 6.1, and any replacement thereof pursuant to
this Lease.
"Property" is defined in Recital C.
"Regulatory Agreement" is defined in Recital H.
"Term" is defined in Section 3.1.
"Transfer" is defined in Section 16.1.
1583217.1 3
ARTICLE II
DEMISE OF PREMISES
2.1 Demise. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Property for the Term and on the terms and conditions set forth in this Lease.
2.2 Condition of Title. Landlord leases the Property to Tenant subject to all
easements, covenants, conditions, restrictions and other title matters of record existing as of the
Effective Date, and all matters that would be apparent from an inspection of the Property on the
Effective Date.
2.3 Condition of Property. Tenant specifically acknowledges that the Agency is
leasing the Property to Tenant on an "AS IS ", "WHERE IS" and "WITH ALL FAULTS" basis
and that Tenant is not relying on any representations or warranties of any kind whatsoever,
express or implied, from Agency, its employees, board members, agents, or brokers as to any
matters concerning the Property. The Agency makes no representations or warranties as to any
matters concerning the Property, including without limitation: (i) matters relating to soils,
subsoils, geology, the presence or absence of fill, groundwater, drainage, and flood zone
designation, (ii) the existence, quality, nature, adequacy and physical condition of utilities
serving the Property, (iii) the development potential of the Property, and the Property's use,
habitability, merchantability, or fitness, suitability, value or adequacy of the Property for any
particular purpose, (iv) the zoning or other legal status of the Property or any other public or
private restrictions on use of the Property, (v) the compliance of the Property with
Environmental Laws, covenants, conditions and restrictions of any governmental or quasi -
governmental entity or of any other person or entity, (vi) the presence or removal of Hazardous
Material, substances or wastes on, under or about the Property or the adjoining or neighboring
property; and (vii) the condition of title to the Property.
2.4 Tenant to Rely on Own Experts. Tenant acknowledges that notwithstanding the
delivery by Agency to Tenant of any materials, including, without limitation, third party reports,
Tenant will rely entirely on Tenant's own experts and consultants and its own independent
investigation and judgment as to all matters relating to the Property. Tenant acknowledges that
Tenant has heretofore occupied the Property, is familiar with the condition of the Property, has
made such investigations of the Property as Tenant has deemed desirable, and by execution
hereof, accepts the Property in its current "AS -IS" condition and state.
2.5 Environmental Disclosure. To the extent the Agency has copies of reports
regarding the environmental condition of the Property, it will provide copies to Tenant upon
request; but the Parties acknowledge that Agency will not be conducting a public records search
of any regulatory agency files— although the Agency urges Tenant to do so to satisfy itself
regarding the environmental condition of the Property. By execution of this Agreement, Tenant:
(i) acknowledges its receipt of the foregoing notice respecting the environmental condition of the
Property; (ii) acknowledges that it has had an opportunity to conduct its own independent review
and investigation of the Property; (iii) agrees to rely solely on its own experts in assessing the
environmental condition of the Property and its sufficiency for its intended use; and (iv) waives
1583217.1 4
any and all rights Tenant may have to assert that the Agency failed to disclose information about
the environmental condition of the Property.
2.6 Release by Tenant. Effective upon the Effective Date, Tenant WAIVES,
RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the Indemnitees and any
person acting on behalf of the Agency or the City, from any and all Claims, direct or indirect,
known or unknown, foreseen or unforeseen, which Tenant now has or which may arise in the
future on account of or in any way arising out of or in connection with the physical condition of
the Property, the presence of Hazardous Material in, on, under or about the Property, or any law
or regulation applicable thereto including, without limiting the generality of the foregoing, all
Environmental Laws. The provisions of this Section 2.6 shall survive the expiration or earlier
termination of this Agreement.
TENANT ACKNOWLEDGES THAT TENANT IS FAMILIAR WITH SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
BY INITIALING BELOW, TENANT EXPRESSLY WAIVES THE BENEFITS OF SECTION
1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING
RELEASE:
Tenant's initials:
ARTICLE III
TERM OF LEASE
3.1 Term. The term of this Lease (the "Term ") shall commence on the Effective
Date ( "Commencement Date "). The Parties shall execute a memorandum of this Lease
substantially in the form set forth in Exhibit B attached hereto ( "Memorandum ") which shall be
recorded in the Official Records of San Mateo County. Unless sooner terminated under the
provisions hereof, the Term of this Lease shall expire on the day preceding the seventy -fifth
(75 anniversary of the Commencement Date (the "Expiration Date "). The expiration or
sooner termination of the Term shall be referred to as "Lease Termination." The Memorandum
shall specify the Commencement Date and the Expiration Date.
3.2 Lease Year. For purposes of this Lease, "Lease Year" shall mean each calendar
year, or partial calendar year during the Term. If the Commencement Date does not occur on
January 1, then any amounts required to be paid under this Lease on a Lease Year basis shall be
1583217.1 5
prorated on a per diem basis for the partial Lease Years that commence with the Commencement
Date and end on the Expiration Date.
ARTICLE IV
RENT
4.1 Rent. For the period commencing upon the Effective Date and ending on the
Expiration Date, for each Lease Year during the Term, Tenant shall pay to Landlord, annual rent
( "Base Rent ") in an amount equal to One Dollar ($1.00) per year.
4.2 Additional Rent. Tenant also agrees to pay as rent all sums, Impositions (as
defined in Section 5.1 below), costs, expenses, and other payments which Tenant in any of the
provisions of this Lease assumes or agrees to pay (collectively, "Additional Rent "). If Tenant
fails to pay timely any Additional Rent, Landlord shall have (in addition to all other rights and
remedies) all the rights and remedies provided for herein or by law in the case of non - payment of
rent, subject to the terms and conditions of this Lease.
4.3 Payment of Rent. The Base Rent and Additional Rent shall be collectively
referred to as "Rent" under this Lease. All Rent shall be paid to Landlord in lawful money of
the United States at the place to which notices are to be delivered to Landlord, unless Landlord
designates a different address for the payment of Rent in writing to Tenant. Rent shall be
payable on each anniversary of the Effective Date during the term hereof. In its discretion,
Tenant may elect to prepay one or more installments of Base Rent.
ARTICLE V
TAXES, ASSESSMENTS AND OTHER CHARGES
5.1 Impositions. Tenant covenants and agrees to pay prior to delinquency, all real
property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes,
assessments whether general or special, ordinary or extraordinary, unforeseen, as well as
foreseen, of any kind or nature whatsoever, pertaining to the Property or the Improvements or
part thereof, including, but not limited to (i) any assessment, levy, imposition or charge, in lieu
of or substitution for real estate taxes, and (ii) any assessment for public improvements or
benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien
upon (a) the Property or the Improvements or any part thereof or any personal property,
equipment or other facility used in the operation thereof, (b) the rent or income received by
Tenant from subtenants or licensees, (c) any use or occupancy of the Property or Improvements
or part thereof, or (d) this transaction or, subject to the exclusions specified below, any document
to which Tenant is a party creating or transferring an estate or interest in the Property or part
thereof. All of the foregoing are hereinafter referred to as "Impositions."
5.1.1 Exclusions. Impositions specifically shall exclude (i) any income,
franchise, gross receipts, estate, inheritance, transfer or gift tax imposed on Landlord, and (ii)
any transfer tax imposed on any document to which Landlord is a party creating or transferring
an estate or interest in the Property.
1583217.1 6
5.1.2 Installments. If, by law, any Imposition is payable, or may at the option of
the taxpayer be paid, in installments (whether or not interest shall accrue on the unpaid balance
of such Imposition), Tenant may pay the same together with any accrued interest on the unpaid
balance of such Imposition in installments as the same respectively become due and before any
fine or penalty may be added thereto for the nonpayment of any such installment and interest.
Any Impositions relating to tax years that are only partially included in the Term shall be
prorated between Tenant and Landlord.
5.1.3 Evidence of Payment. Upon request by Landlord, Tenant shall furnish, in
form satisfactory to Landlord, evidence of payment prior to delinquency of all Impositions
payable by Tenant.
5.2 Tenant Right to Contest. Tenant shall have the right before any delinquency
occurs to contest or object to the amount or validity of any Imposition by appropriate legal
proceedings, but such right shall not be deemed or construed in any way as relieving, modifying
or extending Tenant's covenant to pay any such Imposition at the time and in the manner
required by law. Any such contest shall be conducted in accordance with and subject to the
requirements of Applicable Laws and otherwise in a manner that does not subject Landlord's
title to the Property to foreclosure or forfeiture. Tenant shall indemnify, defend, protect and hold
Landlord harmless from and against all claims, damages, losses, liabilities, costs and expenses
(including without limitation attorneys' fees) incurred by Landlord as a result of any such contest
brought by Tenant. During any contest of an Imposition, Tenant shall (by payment of disputed
sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of
Landlord's title, reversion or other interest in the Property or the Improvements.
5.3 Tenant Duty to File. Tenant shall have the duty of making or filing any
exemption application, declaration, statement or report which may be necessary or advisable in
connection with property tax exemption or the determination, equalization, reduction or payment
of any Imposition which is or which may become payable by Tenant under the provisions of this
Article V, and Landlord shall not be responsible for the contents of any such declaration,
statement or report; provided, however Landlord shall cooperate with Tenant in connection with
the foregoing, including joinder in any application pertaining thereto to the extent required under
Applicable Law, all at no cost to Landlord.
5.4 Utilities. Tenant agrees to pay, or cause to be paid, all charges which are incurred
by Tenant or which are otherwise a charge or lien against the Property or part thereof during the
Term, for gas, water, electricity, light, heat or power, telephone or other communication service
use, or other utility use, rendered or supplied upon or in connection with the Property. Tenant
shall also obtain, or cause to be obtained, without cost to Landlord, any and all necessary
permits, licenses or other authorizations required for the lawful and proper installation and
maintenance upon the Property of wires, pipes, conduits and other equipment for the supply of
utilities to the Project. In no event shall Landlord have any liability to Tenant, and Tenant
hereby releases Landlord, from any and all claims, including but not limited to consequential
damages, lost profits and similar damages that Tenant may incur as a result of any interruption,
curtailment or diminishment of such utilities, other than for the active negligence or willful
misconduct of Landlord. Notwithstanding the foregoing, Tenant shall have the right to challenge
the amount or validity of the foregoing charges, provided that doing so does not result in the
1583217.1 7
Property being subjected to any lien or other encumbrance that is not itself adequately released,
insured over or otherwise satisfied by Tenant after Tenant has exhausted its efforts to contest the
same in accordance with all Applicable Laws. Landlord shall cooperate, within reasonable
limits, to assist Tenant in securing utility services for the Project.
ARTICLE VI
DEVELOPMENT OF THE PROPERTY
6.1 Construction of Improvements. Tenant agrees to construct on the Property a 62-
unit multi- family residential rental project, together with related improvements in accordance
with plans and specifications approved by the City. The Project shall include (i) forty -seven (47)
units of multi- family housing consisting of thirteen (13) one - bedroom units, fourteen (14) two -
bedroom units, and twenty (20) three - bedroom units; (ii) 86 parking spaces in a subterranean
garage; (iii) common facilities including laundry facilities and (iv) recreational space; (all of the
foregoing are collectively hereinafter referred to as the "Project "). Ten (10) of the residential
units (consisting of seven (7) 1- bedroom apartments and three (3) 2- bedroom apartments) will be
restricted for occupancy by families and transitional age youth who are homeless or at risk of
homelessness and who also qualify pursuant to the California Housing Finance Agency Mental
Health Services Act (MHSA) Housing Program. Forty -Seven (47) of the residential units will be
subject to affordability restrictions pursuant to the Regulatory Agreement and Article VII hereof.
The third sentence of this Section 6.1 shall terminate and be of no further force and effect if
MHSA program requirements cease to apply to the Project following foreclosure of a Leasehold
Mortgage or assignment in lieu thereof.
6.2 Construction Schedule. Tenant shall commence construction of the Project within
thirty (30) days following the Effective Date, and shall diligently prosecute to completion the
construction of the Project sufficient to allow City to issue a final certificate of occupancy within
twenty -four (24) months following commencement of construction but in no event later than
June 30, 2013. Subject to force majeure and the City's issuance of permits and approvals,
Tenant's failure to commence or complete the Project in accordance with the time periods
specified in this Section 6.2 shall be an Event of Default hereunder.
6.3 Construction Standards. Tenant shall carry out and shall cause its contractors to
carry out the construction of the Project and all subsequent improvements, alterations and
replacements, in a first class and workmanlike fashion in accordance with the Conditions of
Approval and Construction Plans approved by Landlord and City, in compliance with all
applicable state, federal, and local laws, rules, ordinances, codes, and regulations, including
without limitation California Labor Code Section 1720 et seq. and the regulations adopted
pursuant thereto ( "Prevailing Wage Laws "), and all other applicable federal and state labor
laws and standards, applicable provisions of the California Public Contracts Code (if any), the
City zoning and development standards, building, plumbing, mechanical and electrical codes, all
other provisions of the City's Municipal Code, and all applicable disabled and handicapped
access requirements, including without limitation, the Americans with Disabilities Act, 42
U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. (all of the
foregoing, collectively "Applicable Laws ").
1583217.1 8
6.4 Easements; Reciprocal Easement/Joint Use Agreement. From time to time at
Tenant's request, Landlord shall, in its capacity as fee title owner to the Property, join in the
grant of easements to public or private utility companies for utility service to and for the benefit
of the Project. Landlord agrees to join in granting or dedicating such public or private utility or
other easements as may be reasonably required for the development, maintenance, use, operation
or enjoyment of the Property in accordance with this Lease. Concurrently with the Effective
Date, Landlord, Tenant and the owner of the Phase B Project shall execute and cause to be
recorded in the Official Records, a reciprocal easement agreement or joint use and access
agreement ( "REA ") in form approved by Landlord, pursuant to which Tenant and the owner of
the Phase A Project (and the successors in interest of each) shall grant specified reciprocal
easements, including without limitation, reciprocal pedestrian and vehicular access rights to the
parking and common areas of their respective projects.
6.5 Protection of Landlord. Nothing in this Lease shall be construed as constituting
the consent of the Landlord, express or implied, to the performance of any labor or services, or
the furnishing of any materials or any specific improvements, alterations of or repairs to the
Property or any part thereof, by any contractor, subcontractor, laborer or materialman such as to
give rise to any right of any such contractor, subcontractor, laborer or materialman to file a
mechanic's lien or other claim against the fee title to the Property. Landlord shall have the right
at all reasonable times to post, and keep posted, on the Property any notices which Landlord may
deem necessary for the protection of Landlord and the Property from mechanic's liens or other
claims. Tenant shall give Landlord ten (10) days' prior written notice of the commencement of
any work to be done on the Property to enable Landlord to post such notices. In addition, Tenant
shall make, or cause to be made, timely payment of all monies due and legally owing to all
persons doing any work or furnishing any materials or supplies to Tenant or any of its
contractors or subcontractors in connection with the Property (subject to Tenant's right to contest
the same in accordance with all Applicable Laws).
6.6 Mechanic's Liens and Stop Notices. Tenant shall not allow to be placed on the
Property or any part thereof any lien or stop notice on account of materials supplied to or labor
performed on behalf of Tenant. If a claim of a lien or stop notice is given or recorded affecting
the Project or the Property, Tenant shall within twenty (20) days of such recording or service:
(a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release
thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled
thereto a surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to
Agency that the claim of lien or stop notice will be paid or discharged. Tenant shall indemnify,
defend and hold Landlord harmless from and against liability, loss, damages, costs and expenses
(including reasonable attorneys' fees) incurred by or brought against Landlord for claims of lien
of laborers or materialmen or others for work performed or materials or supplies furnished to
Tenant or persons claiming under it.
6.7 Right of Agency to Satisfy Liens on the Property. If Tenant fails to satisfy or
discharge any lien or stop notice on the Property pursuant to and within the time period set forth
in Section 6.6 above, upon not less than ten (10) days' prior written notice to Tenant, the
Agency shall have the right, but not the obligation, to satisfy any such liens or stop notices at
Tenant's expense and without further notice to Tenant, and all sums advanced by Agency for
such purpose shall be payable to Landlord as Additional Rent. In such event Tenant shall be
1583217.1 9
liable for and shall immediately reimburse Agency for such paid lien or stop notice.
Alternatively, the Agency may require Tenant to immediately deposit with Agency the amount
necessary to satisfy such lien or claim pending resolution thereof. The Agency may use such
deposit to satisfy any claim or lien that is adversely determined against Tenant. Tenant shall file
a valid notice of cessation or notice of completion upon cessation of construction work on the
Property for a continuous period of thirty (30) days or more, and shall take all other reasonable
steps to forestall the assertion of claims or liens against the Property. The Agency may (but has
no obligation to) record any notices of completion or cessation of labor, or any other notice that
the Agency deems necessary or desirable to protect its interest in the Property.
6.8 Notice of Completion. Upon completion of construction of any Improvement,
Tenant shall file or cause to be filed in the Official Records of San Mateo County a Notice of
Completion with respect to the subject work. Upon request of Landlord, Tenant shall make
available to Landlord following the completion of the Improvements a full set of as -built plans
for the Improvements.
6.9 Use of Plans. The contracts relating to design and construction of the
Improvements executed by and between Tenant (or MidPen or other affiliate of Tenant) and any
architect, other design professional or any general contractor shall provide, in form and
substance reasonably satisfactory to Landlord, for the assignment thereof to Landlord as security
to Landlord for Tenant's performance hereunder, and Landlord shall be furnished with any such
contract, together with the further agreement of the parties thereto, that if this Lease is terminated
due to Tenant's default, Landlord may, at its election, use any plans and specifications to which
Tenant is then entitled pursuant to any such contract upon the payment of any sums due to any
party thereto, subject to any prior rights of the Project construction lender.
6.10 Cost of Construction. Tenant shall be solely responsible for all direct and indirect
costs and expenses incurred in connection with the development of the Property and the
construction of the Improvements. Except as expressly set forth herein, all costs of designing,
developing and constructing the Improvements and the Project and compliance with the Project
approvals, including without limitation all off -site and on -site improvements required by City in
connection therewith, shall be borne solely by Tenant and shall not be an obligation of the
Agency. If any Applicable Laws are hereafter changed so as to require during the Term any
alteration of the Improvements, or the reinforcement or any other physical modification of the
Improvements, Tenant shall be solely responsible for such cost and expense.
6.11 Project Approvals. Tenant acknowledges and agrees that execution of this
Agreement by Agency does not constitute approval for the purpose of the issuance of building
permits for the Project, does not limit in any manner the discretion of City in such approval
process, and does not relieve Tenant from the obligation to apply for and obtain all necessary
entitlements, approvals, and permits for the development of the Property, including without
limitation, the approval of architectural plans, the issuance of any certificates regarding historic
resources required in connection with the Project (if any), and the completion of any required
environmental review. Tenant covenants that it shall obtain all necessary permits and approvals
which may be required by Agency, City, or any other governmental agency having jurisdiction
over the Property, and shall not commence construction work on the Project prior to issuance of
building permits required for such work. Agency staff shall work cooperatively with Tenant to
1583217.1 10
assist in coordinating the expeditious processing and consideration of all permits, entitlements
and approvals necessary for development of the Project on the Property.
6.12 Conditions of Approval. Tenant shall develop the Property in accordance with
the terms and conditions of this Agreement and in compliance with the terms and conditions of
all approvals, entitlements and permits that the City or any other governmental body or agency
with jurisdiction over the Project or the Property has granted or issued as of the date hereof or
may hereafter grant or issue in connection with development of the Project, including without
limitation, all mitigation measures imposed in connection with environmental review of the
Project and all conditions of approval imposed in connection with any entitlements, approvals or
permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions
of approval are hereafter collectively referred to as the "Conditions of Approval ").
6.13 Fees and Permits. Tenant shall have the sole responsibility for obtaining all
necessary governmental permits and approvals for the construction of the Improvements, at
Tenant's sole cost and expense. Landlord shall cooperate with Tenant in connection with
obtaining any such governmental permits and approvals. Tenant shall be solely responsible for,
and shall promptly pay when due, all customary and usual fees and charges of City and all other
agencies with jurisdiction over development of the Property in connection with obtaining
building permits and other approvals for the Project, including without limitation, those related
to the processing and consideration of amendments, if any, to the current entitlements, any
related approvals and permits, environmental review, architectural review, historic review, and
any subsequent approvals for the Project.
6.14 Construction Plans. Tenant has submitted, and as of the Effective Date, City's
Building Department has approved, detailed construction plans for the Project (the
"Construction Plans "). As used herein "Construction Plans" means all construction
documents upon which Tenant and Tenant's contractors shall rely in developing the Project
(including the landscaping, parking, and common areas) and shall include, without limitation, the
site development plan, final architectural drawings, landscaping, exterior lighting and signage
plans and specifications, materials specifications, final elevations, and building plans and
specifications. The Construction Plans and any modifications thereto shall be based upon the
scope of development set forth herein, the site plan and the elevations approved by the Agency,
and upon the approvals issued by the Agency and the City for the Project, and shall not
materially deviate therefrom without the express written consent of Agency and City.
6.15 Construction Pursuant to Plans. Tenant shall develop the Project in accordance
with the approved Construction Plans, the Conditions of Approval, and all other permits and
approvals granted by the City and /or the Agency pertaining to the Project. Tenant shall comply
with all directions, rules and regulations of any fire marshal, health officer, building inspector or
other officer of every governmental agency having jurisdiction over the Property or the Project.
Each element of the work shall proceed only after procurement of each permit, license or other
authorization that may be required for such element by any governmental agency having
jurisdiction. All design and construction work on the Project shall be performed by licensed
contractors, engineers or architects, as applicable.
1583217.1 11
6.16 Change in Construction Plans. If Tenant desires to make any material change in
the approved Construction Plans, Tenant shall submit the proposed change in writing to the
Agency and City for their written approval, which approval shall not be unreasonably withheld
or delayed if the Construction Plans, as modified by any proposed change, conform to the
requirements of this Agreement and any approvals issued by Agency or City after the Effective
Date. Unless Agency notifies Tenant in writing that a proposed change is rejected or that
Agency requests a modification to such proposed change within twenty (20) days, it shall be
deemed approved. If rejected, the previously approved Construction Plans shall continue to
remain in full force and effect. Any change in the Construction Plans required in order to
comply with applicable codes shall be deemed approved, so long as such change does not
substantially nor materially change the architecture, design, function, use, or amenities of the
Project as shown on the latest approved Construction Plans. Nothing in this Section is intended
to or shall be deemed to modify the City's standard plan review procedures.
6.17 Rights of Access. For the purpose of ensuring that the construction of the Project
is completed in compliance with this Agreement, Tenant shall permit representatives of the
Agency and the City to enter upon the Property following 24 hours written notice (except in the
case of emergency in which case such notice as may be practical under the circumstances shall
be provided).
6.18 Agency Disclaimer. Tenant acknowledges that the Agency and City are under no
obligation, and neither Agency nor City undertakes or assumes any responsibility or duty to
Tenant or to any third party, to in any manner review, supervise, or inspect the progress of
construction or the operation of the Project. Tenant and all third parties shall rely entirely upon
its or their own supervision and inspection in determining the quality and suitability of the
materials and work, the performance of architects, subcontractors, and material suppliers, and all
other matters relating to the construction and operation of the Project. Any review or inspection
undertaken by the Agency or the City is solely for the purpose of determining whether Tenant is
properly discharging its obligations under this Agreement, and shall not be relied upon by Tenant
or any third party as a warranty or representation by the Agency or the City as to the quality of
the design or construction of the improvements or otherwise.
6.19 Defects in Plans. Neither Agency nor City shall be responsible to Tenant or to
any third party for any defect in the Construction Plans or for any structural or other defect in
any work done pursuant to the Construction Plans. Tenant shall indemnify, defend (with counsel
approved by Agency) and hold harmless the Indemnitees from and against all Claims arising out
of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects
in any work done pursuant to the Construction Plans whether or not any insurance policies shall
have been determined to be applicable to any such Claims. Tenant's indemnification obligations
set forth in this Section shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency and City do not, and shall not, waive any rights against Tenant which
they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or Tenant's deposit with Agency of any of the insurance policies
described in this Agreement. Tenant's indemnification obligations pursuant to this Section shall
not extend to Claims arising due to the gross negligence or willful misconduct of the
Indemnitees.
1583217.1 12
6.20 Equal Opportunity. There shall be no discrimination on the basis of race, color,
religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring,
firing, promoting or demoting of any person engaged in construction work on the Property, and
Tenant shall direct its contractors and subcontractors to refrain from discrimination on such
basis.
6.21 Prevailing Wage Requirements. To the full extent required by applicable federal
and state law, Tenant and its contractors and agents shall comply with Prevailing Wage Law and
federal Davis Bacon requirements, and shall be responsible for carrying out the requirements of
such provisions. If applicable, Tenant shall submit to Agency a plan for monitoring payment of
prevailing wages and shall implement such plan at Tenant's expense.
6.22 Performance and Payment Bonds. Prior to commencement of construction
work on the Project, Tenant shall cause its general contractor to deliver to the Agency copies of
payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to
do business in California, each in a penal sum of not less than one hundred percent (100 %) of the
scheduled cost of construction of the Project. The bonds shall name the Agency and the City as
co- obligees. In lieu of such performance and payment bonds, subject to Agency's approval of
the form and substance thereof, Tenant may submit evidence satisfactory to the Agency of the
contractor's ability to commence and complete construction of the Project in the form of an
irrevocable letter of credit, pledge of cash deposit, certificate of deposit, or other marketable
securities held by a broker or other financial institution, with signature authority of the Agency
required for any withdrawal, or a completion guaranty in a form and from a guarantor acceptable
to Agency. Such evidence must be submitted to Agency in approvable form in sufficient time to
allow for Agency's review and approval prior to the scheduled construction start date.
6.23 Insurance Requirements. Tenant shall maintain and shall cause its contractors to
maintain all applicable insurance coverage specified in Article IX.
ARTICLE VII
USE OF THE PROPERTY
7.1 Permitted Uses. Tenant may use the Property for the construction and operation
of the Project and for no other purpose without the prior written consent of Landlord. Tenant
shall not do or permit any activity on or about the Property that constitutes a public or private
nuisance. At Tenant's sole expense, Tenant shall procure and maintain all governmental
licenses or permits required for the proper and lawful conduct of Tenant's activities conducted
on the Property.
7.2 Affordability Requirements. For a term of seventy -five (75) years
commencing upon the City's issuance of a final certificate of occupancy or equivalent for the
Project, no fewer than forty -seven (47) of the dwelling units in the Project shall be both rent -
restricted and occupied (or if vacant, available for occupancy) by eligible households of very
low -, extremely low -, and moderate - income pursuant to and in accordance with the terms and
conditions set forth in the Regulatory Agreement. As more particularly set forth in the
Regulatory Agreement, no fewer than thirteen (13) of the residential units in the Project shall be
1583217.1 13
available at Affordable Rents to households whose income is no greater than thirty percent
(30 %) of Area Median Income, no fewer than ten (10) additional units in the Project shall be
available at Affordable Rents to households whose income is no greater than forty percent (40 %)
of Area Median Income, and no fewer than twenty -four (24) additional units in the Project shall
be available at Affordable Rents to households whose income is no greater than eighty -five
percent (85 %) of Area Median Income. Tenant shall comply with the terms and conditions set
forth in the Regulatory Agreement, which is by this reference incorporated herein. This Section
7_2 shall terminate and be of no further force and effect if the Regulatory Agreement is
terminated following the foreclosure of a Leasehold Mortgage or assignment or deed in lieu
thereof.
7.3 Preference for Displacees, South San Francisco Residents and Employees.
Consistent with the requirements of California Health and Safety Code Section 33411.3, Tenant
shall provide persons and households of low- or moderate - income who have been displaced by
the Project a priority in renting or purchasing housing constructed on the Property. In addition,
in order to ensure that there is an adequate supply of affordable housing within the City of South
San Francisco for residents and employees of businesses within the City, to the extent permitted
by law and consistent with the program regulations for funding sources used for development of
the Project, at initial lease up, Tenant shall give a preference in the rental of the residential units
in the Project to eligible households that include at least one member who lives or works in the
City of South San Francisco. In the event there are fewer eligible persons available than there
are units, units shall be made available to members of the general public. Notwithstanding the
foregoing, in the event of a conflict between this provision and the provisions of Section 42 of
the Internal Revenue Code of 1986, as amended, the provisions of such Section 42 shall control.
7.4 Relocation. Households residing on the Property as of the Effective Date shall not
be displaced before suitable replacement housing is available in comparable replacement
housing. Tenant shall ensure that all occupants of the Property receive all notices, benefits and
assistance to which they are entitled in accordance with California Relocation Assistance Law
(Government Code Section 7260 et seq.), all state and local regulations implementing such law,
and all other applicable local, state and federal laws and regulations (collectively "Relocation
Laws ") relating to the displacement and relocation of eligible persons as defined in such
Relocation Laws. Any and all costs incurred in connection with the temporary and/or permanent
displacement and/or relocation of occupants of the Property, including without limitation
payments to a relocation consultant, moving expenses, and payments for temporary and
permanent relocation benefits pursuant to Relocation Laws shall be paid by Tenant. Tenant shall
indemnify, defend (with counsel approved by Agency) and hold harmless the Indemnitees from
and against any and all Claims arising in connection with the breach of Tenant's obligations set
forth in this Section whether or not any insurance policies shall have been determined to be
applicable to any such Claims. It is further agreed that Agency and City do not and shall not
waive any rights against Tenant which they may have by reason of this indemnity and hold
harmless agreement because of the acceptance by Agency, or Tenant's deposit with Agency of
any of the insurance policies described in this Agreement. Tenant's indemnification obligations
set forth in this Section shall not apply to Claims arising from the gross negligence or willful
misconduct of the Indemnitees. Tenant's obligations set forth in this Section 7.4 shall survive
the expiration or earlier termination of this Agreement.
1583217.1 14
7.5 Reporting Requirements.
7.5.1 Tenant Certification. For so long as the Regulatory Agreement is in
effect, Tenant shall obtain from each household prior to initial occupancy of each dwelling unit
in the Project and on every anniversary thereafter, a written certificate containing all of the
following in such format and with such supporting documentation as reasonably required by
Landlord: (a) the identity of each member of the household; and (b) total household income.
Tenant shall retain such certificates for not less than three (3) years, upon request shall make the
originals available for inspection by Landlord and shall provide copies of such certificates to
Landlord.
7.5.2 Annual Report. For so long as the Regulatory Agreement is in effect,
Tenant shall submit an annual report ( "Annual Report ") to Landlord, which shall, at a
minimum, include the following information for each dwelling unit in the Project: (i) initial
occupancy date; (ii) the number of persons residing in the unit; (iii) the information specified in
Section 7.5.1, and (iv) the monthly rent charged. Upon Landlord's request, Tenant shall include
with the Annual Report, an annual income recertification and documentation verifying tenant
eligibility, and such additional information as Landlord may reasonably request from time to
time in order to show compliance with this Agreement.
7.5.3 Termination of Restrictions. The provisions of Section 7.5 shall terminate
and be of no further force and effect if the Regulatory Agreement is terminated following the
foreclosure of a Leasehold Mortgage or assignment or deed in lieu thereof.
7.6 Intentionally omitted.
7.7 No Condominium Conversion. Tenant shall not convert the Project to
condominium or cooperative ownership or sell condominium or cooperative conversion rights to
the Project during the Term of this Lease.
7.8 Obligation to Refrain from Discrimination. Tenant shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any
portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability,
marital status, ancestry, or national origin of any person. Tenant covenants for itself and all
persons claiming under or through it, and this Agreement is made and accepted upon and subject
to the condition that there shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part
thereof, nor shall Tenant or any person claiming under or through Tenant 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, of,
or for the Property or part thereof. Tenant shall include such provision in all deeds, leases,
contracts and other instruments executed by Tenant, and shall enforce the same diligently and in
good faith.
1583217.1 15
All deeds, leases or contracts made or entered into by Tenant, its successors or assigns, as
to any portion of the Property or the improvements located thereon shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property 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 of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
1583217.1 16
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts, the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
7.9 Management and Operation of the Project; Compliance with Laws. Tenant agrees
to operate, maintain and manage the Property in first -class manner, subject to incidental wear
and tear. Tenant, at its sole cost and expense, shall comply with all Applicable Laws pertaining
to the use, operation, occupancy and management of the Property. Tenant shall not itself, and
shall not permit any subtenant to use the Property or the Improvements for any unlawful purpose
and shall not itself, and shall not permit any subtenant to, perform, permit or suffer any act of
omission or commission upon or about the Property or the Improvements which would result in a
nuisance or a violation of Applicable Law. Landlord shall have the right to review and approve
the qualifications of any management entity proposed by Tenant for the Project. Landlord
hereby approves MidPen Property Management Corporation, a California nonprofit public
benefit corporation, as the initial management entity for the Project. Any contracting of
management services by Tenant shall not relieve Tenant of its primary responsibility for proper
performance of management duties.
7.10 Tenant Right to Contest. Tenant shall have the right to contest by appropriate
proceedings, in the name of Tenant, and without cost or expense to Landlord, the validity or
application of any Applicable Law. If compliance with any Applicable Law may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any lien,
charge or liability against the Property or Tenant's interest therein, and without subjecting
Tenant or Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant
may delay compliance therewith until the final determination of such proceeding. Tenant shall
indemnify, defend, protect and hold Landlord harmless from and against all claims, damages,
losses, liabilities, costs and expenses (including without limitation reasonable attorneys' fees)
incurred by Landlord as a result of any such contest brought by Tenant.
7.11 Hazardous Materials.
7.1 1.1 Obligations of Tenant. Tenant hereby covenants and agrees that:
(1) Tenant shall not cause or permit the Property or any portion thereof to be a
site for the use, generation, treatment, manufacture, storage, disposal or transportation of
1583217.1 17
Hazardous Material or otherwise knowingly permit the presence or release of Hazardous
Material in, on, under, about or from the Property or the Project with the exception of
limited amounts of cleaning supplies and other materials customarily used in
construction, use or maintenance of residential /mixed -use properties similar in nature to
the Project and used, stored and disposed of in compliance with Environmental Laws.
(2) Tenant shall keep and maintain the Property and each portion thereof in
compliance with, and shall not cause or permit the Project or the Property or any portion
of either to be in violation of, any Environmental Laws.
(3) Upon receiving actual knowledge of the same, Tenant shall immediately
advise Agency in writing of: (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against the Tenant,
or the Property pursuant to any applicable Environmental Laws; (ii) any and all claims
made or threatened by any third party against the Tenant or the Property relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Material; (iii) the presence or release of any Hazardous Material in, on, under,
about or from the Property; or (iv) Tenant's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "Border Zone
Property" under the provisions of California Health and Safety Code, Sections 25220 et
seq., or any regulation adopted in connection therewith, that may in any way affect the
Property pursuant to any Environmental Laws or cause it or any part thereof to be
designated as Border Zone Property. The matters set forth in the foregoing clauses (i)
through (iv) are hereinafter referred to as "Hazardous Materials Claims "). The Agency
shall have the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Hazardous Materials Claim.
(4) Tenant shall promptly take all actions at its sole expense as are necessary to
remediate the Property as required by law; provided that Landlord's approval of such
actions shall first be obtained, which approval shall not be unreasonably withheld.
Without the Agency's prior written consent, Tenant shall not enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Materials
Claim.
7.11.2 Environmental Indemnity. To the greatest extent allowed by law, Tenant
shall indemnify, defend (with counsel approved by Agency) and hold Indemnitees harmless from
and against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon
(i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous
Material on, under, in or about the Property, or the transportation of any such Hazardous
Material to or from, the Property, or (ii) the failure of Tenant, Tenant's employees, agents,
contractors, subcontractors, or any person acting on behalf of or as the invitee of any of the
foregoing to comply with Environmental Laws. The foregoing indemnity shall further apply to
any residual contamination in, on, under or about the Property or affecting any natural resources,
and to any contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such Hazardous
Material, and irrespective of whether any of such activities were or will be undertaken in
accordance with Environmental Laws. Tenant's indemnification obligation pursuant to this
1583217.1 18
Section includes, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision.
7.11.3 No Limitation. Tenant hereby acknowledges and agrees that Tenant's duties,
obligations and liabilities under this Agreement are in no way limited or otherwise affected by
any information the Agency or the City may have concerning the Property and /or the presence
in, on, under or about the Property of any Hazardous Material, whether the Agency or the City
obtained such information from the Tenant or from its own investigations, unless such
information was known to the Agency or the City at the time of execution of this Agreement but
not disclosed to Tenant.
7.11.4 Definitions.
7.11.4.1 "Hazardous Material" means any chemical, compound, material,
mixture, or substance that is now or may in the future be defined or listed in, or otherwise
classified pursuant to any Environmental Laws (defined below) as a "hazardous substance ",
"hazardous material ", "hazardous waste ", "extremely hazardous waste ", infectious waste ", toxic
substance ", toxic pollutant ", or any other formulation intended to define, list or classify
substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity. The term "hazardous material" shall also include asbestos or
asbestos - containing materials, radon, chrome and /or chromium, polychlorinated biphenyls,
petroleum, petroleum products or by- products, petroleum components, oil, mineral spirits,
natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate,
and methyl tert butyl ether, whether or not defined as a hazardous waste or hazardous substance
in the Environmental Laws.
7.11.4.2 "Environmental Laws" means any and all federal, state and local
statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental
authorizations or directives, or any other requirements of governmental authorities, as may
presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the
presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Material, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33
U.S.C. § 2701 et seq.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C.
§ 11001 et seq.), the Porter - Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter- Presley - Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
1583217.1 19
ARTICLE VIII
SURRENDER AND RIGHT TO REMOVE
8.1 Ownership During Term.
8.1.1 Improvements. During the Term of this Lease the Improvements shall,
subject to the terms of this Lease, be and remain the property of Tenant.
8.1.2 Personal Property. All personal property, furnishings, fixtures and
equipment installed by Tenant in, on or around the Property which (i) are not attached to the
Property so as to cause substantial damage upon removal, and (ii) are not necessary for the
normal operation and occupancy of the Project, shall be the personal property of Tenant (the
"Personal Property "). At any time during the Term, Tenant shall have the right to remove the
Personal Property provided Tenant shall repair any damage caused by the removal of such
Personal Property. Personal Property shall not include any portion or part of major building
components or fixtures necessary for the operation of the basic building systems (such as
elevators, escalators, chillers, boilers, plumbing, electrical systems, lighting, sanitary fixtures and
HVAC systems) which shall be deemed a part of the Improvements.
8.2 Ownership at Lease Termination.
8.2.1 Improvements. Upon the expiration or earlier termination of the Lease
( "Lease Termination ") the Improvements and all stoves, refrigerators and dishwashers installed
in the residential units (the "Appliances ") shall unconditionally be and become the property
solely of Landlord, and no compensation therefor shall be due or paid by Landlord to Tenant for
any part thereof, and this Lease shall operate as a conveyance and assignment thereof. Upon
Lease Termination, Tenant shall surrender to Landlord the Property, the Improvements and the
Appliances in good order, condition and repair, reasonable wear and tear excepted, free and clear
of all liens, claims and encumbrances other than those matters existing prior to the Effective Date
or matters subsequently created or consented to by Landlord. Upon Lease Termination, at
Landlord's request Tenant agrees to execute, acknowledge and deliver to Landlord such
recordable instruments as are necessary or desirable to confirm the termination of the Lease and
all Tenant's rights hereunder and to perfect Landlord's right, title and interest in and to the
Property, the Improvements and the Appliances.
8.2.2 Personal Property. With the exception of the Appliances, any Personal
Property may be removed prior to Lease Termination by Tenant; provided, however, the removal
shall be with due diligence, and without expense to Landlord, and any part of the Property
damaged by such removal shall be promptly repaired. Any Personal Property which remains on
the Property for thirty (30) days after the Lease Termination may, at the option of Landlord, be
deemed to have been abandoned and either may be retained by Landlord as its property or may
be disposed of in accordance with Applicable Law. If requested by Landlord within a reasonable
time but not less than six months prior to the termination of this Lease, upon Lease Termination
Tenant shall, at Tenant's sole cost and expense, remove all Personal Property, or portions thereof
designated by Landlord.
1583217.1 20
8.3 Condition of Improvements at Lease Termination. Landlord has entered this
Lease in reliance on the fact that, at Lease Termination, Landlord will receive from Tenant the
Improvements in good condition and repair, reasonable wear and tear excepted and reflecting the
age of the Improvements at such time and Landlord's willingness during the Term of this Lease
to consent to the encumbrance of Tenant's interest in the Property for construction financing. At
any time during the Term, upon reasonable advance notice and during normal business hours,
Landlord may inspect the Property and Improvements to confirm that they are being properly
maintained as required herein. Following its inspection, Landlord may deliver to Tenant written
notification of any portions of the Property or Improvements which Landlord has determined are
not being properly maintained and Tenant shall promptly comply with the provisions of this
Lease regarding such items; provided, the failure of Landlord to inspect or to notify Tenant of
any default hereunder shall not be a waiver of Landlord's right to enforce Tenant's maintenance
and repair obligations hereunder.
8.4 Survival. The provisions of this Article VIII shall survive Lease Termination.
ARTICLE IX
INSURANCE
9.1 Insurance. Tenant, at its sole cost and expense, commencing upon the Effective
Date and continuing throughout the Term (except as otherwise specified below) shall keep and
maintain in full force and effect policies of insurance pursuant to and in accordance with the
requirements set forth in this Article IX.
(a) Tenant and all contractors working on behalf of Tenant on the Project
shall maintain a commercial general liability policy in the amount of One Million Dollars
($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate, together with
Three Million Dollars ($3,000,000) excess liability coverage, or such other policy limits as
Agency may require in its reasonable discretion, including coverage for bodily injury, property
damage, products, completed operations and contractual liability coverage. Such policy or
policies shall be written on an occurrence basis and shall name the Indemnitees as additional
insureds.
(b) Tenant and all contractors working on behalf of Tenant shall maintain a
comprehensive automobile liability coverage in the amount of One Million Dollars ($1,000,000),
combined single limit including coverage for owned and non -owned vehicles and shall furnish or
cause to be furnished to Agency evidence satisfactory to Agency that Tenant and any contractor
with whom Tenant has contracted for the performance of work on the Property or otherwise
pursuant to this Agreement carries workers' compensation insurance as required by law.
Automobile liability policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction work and continuing until issuance
of the final certificate of occupancy or equivalent for the Project, Tenant and all contractors
working on behalf of Tenant shall maintain a policy of builder's all -risk insurance in an amount
not less than the full insurable cost of the Project on a replacement cost basis naming Agency as
loss payee.
1583217.1 21
(d) Tenant shall maintain property insurance covering all risks of loss (other
than earthquake), including flood (if required) for 100% of the replacement value of the Project
with deductible, if any, in an amount acceptable to Agency, naming Agency as loss payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a current
A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive
automobile policies required hereunder shall name the Indemnitees as additional insureds.
Builder's Risk and property insurance shall name Agency and City as loss payees as their
interests may appear pursuant to this Lease and the Loan Agreement.
(f) Prior to commencement of construction work, Tenant shall furnish
Agency with certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional insured status.
The certificates shall contain a statement of obligation on the part of the carrier to notify City and
Agency of any material adverse change, cancellation, termination or non - renewal of the coverage
at least thirty (30) days in advance of the effective date of any such material adverse change,
cancellation, termination or non - renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Tenant shall, within fifteen (15) days after receipt of notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or reduction,
file with Agency and City a certificate showing that the required insurance has been reinstated or
provided through another insurance company or companies. Upon failure to so file such
certificate, Agency or City may, without further notice and at its option, procure such insurance
coverage at Tenant's expense, and Tenant shall promptly reimburse Agency or City for such
expense upon receipt of billing from Agency or City.
(h) Coverage provided by Tenant shall be primary insurance and shall not be
contributing with any insurance, or self - insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation for the
benefit of the City and Agency. Tenant shall furnish the required certificates and endorsements
to Agency prior to the commencement of construction of the Project, and shall provide Agency
with certified copies of the required insurance policies upon request of Agency.
ARTICLE X
INDEMNIFICATION BY TENANT
Tenant shall indemnify, defend (with counsel approved by Landlord), protect and save
Landlord and City and their respective elected and appointed officials, officers, employees, and
agents (all of the foregoing, collectively the "Indemnitees ") harmless from and against any and
all claims, liabilities, losses, damages, fines, penalties, claims, demands, suits, actions, causes of
action, judgments, judicial or administrative proceeding, deficiency, order, costs and expenses
(including without limitation reasonable attorneys' fees and court costs) (all of the foregoing,
collectively "Claims ") which directly or indirectly, in whole or in part, are caused by, arise in
connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or
1583217.1 22
relate to: the construction, renovation, use, operation, or management of, the Property or the
Improvements; any breach or default on the part of Tenant in the performance of any covenant or
agreement to be performed by Tenant pursuant to this Lease; any negligence of Tenant or any of
its agents, contractors, employees, sublessees or licensees; any accident, injury or damage caused
to any person in or on the Property or Improvements; the furnishing of labor or materials by
Tenant; or the failure to comply with Applicable Laws (including without limitation, all claims
that may be made by contractors, subcontractors or other third party claimants pursuant to Labor
Code Sections 1726 and 1781); whether or not any insurance policies shall have been determined
to be applicable to any such Claims. It is further agreed that Agency and City do not and shall
not waive any rights against Tenant which they may have by reason of this indemnity and hold
harmless agreement because of the acceptance by Agency, or Tenant's deposit with Agency of
any of the insurance policies described in this Agreement. Tenant's indemnification obligations
set forth in this Section shall not apply to Claims arising solely from the gross negligence or
willful misconduct of the Indemnitees. Tenant's obligations under this Article shall survive the
expiration or earlier termination of this Agreement.
ARTICLE XI
DAMAGE AND DESTRUCTION
11.1 Damage or Destruction. In the event of any damage to or destruction of the
Improvements during the Term for which insurance coverage is required under this Lease or the
Loan Agreement, Tenant shall restore and rebuild the Improvements as nearly as possible to their
condition immediately prior to such damage or destruction, subject to any restrictions imposed
by changes in Applicable Law and the availability of insurance proceeds for such purpose.
Tenant shall commence diligently and continuously to carry out such rebuilding to full
completion as soon as possible. Unless Landlord agrees otherwise in writing, Tenant shall
commence reconstruction of the Improvements within one hundred and eighty (180) days
following the date upon which insurance proceeds are made available for such work. Tenant
shall be deemed to have commenced reconstruction when Tenant engages an architect for such
work. Upon the occurrence of damage or destruction, all insurance proceeds paid in respect of
such damage or destruction shall be applied to the payment of the costs of the restoration and
rebuilding required to be performed by Tenant pursuant to this Lease. The insurance proceeds
shall be held in trust by a financial institution agreed upon by Landlord and Tenant (the
"Insurance Trustee "), with the costs of such trust to be a first charge against the insurance
proceeds. After the completion of the restoration and rebuilding of the Improvements, any
remaining insurance proceeds shall be paid to Tenant and Tenant shall be entitled to retain the
same.
11.1.1 Mortgagee Protection. Notwithstanding the foregoing or any other
provision to the contrary in this Article XI, if a Leasehold Mortgagee requires insurance
proceeds payable with respect to a casualty to be paid to it or its successors or assigns pursuant to
the terms of its Leasehold Mortgage, the insurance proceeds shall be delivered to such Leasehold
Mortgagee to be applied by such Leasehold Mortgagee in accordance with such Leasehold
Mortgage.
1583217.1 23
11.2 Rebuilding by Tenant. The funds held by the Insurance Trustee shall be held in
trust and shall be applied to the cost of rebuilding. Any funds held by the Insurance Trustee
following final completion of rebuilding and payment of all costs and expenses thereof and
removal of any liens related thereto, shall be paid to Tenant.
11.3 Disbursement of Funds. The Insurance Trustee shall disburse funds only on a
periodic basis approved by Landlord and Tenant and only upon receipt of invoices and other
documentation, certified as correct by Tenant's architect, if an architect is required for the repair,
evidencing satisfactory completion of the work for which payment is requested (a "Payment
Request "). Further, the Insurance Trustee shall not disburse any funds unless the payment
request is accompanied by (a) an executed conditional lien release in form complying with
California law relating to all labor and materials described in the Payment Request and (b) an
executed final lien release in form complying with California law releasing all claims for labor
and materials described in the immediately preceding Payment Request.
11.4 Notice Required. In the event of material damage to or destruction of the
Improvements, or any part thereof, Tenant shall promptly give Landlord and Leasehold
Mortgagee notice of such occurrence and take all actions reasonably required to protect against
hazards caused by such damage or destruction. For purposes of this Article XI damage or
destruction shall be deemed to be material if the estimated cost to repair equals or exceeds One
Hundred Thousand Dollars ($100,000).
11.5 Removal of Debris. If this Lease shall terminate following the occurrence of
damage to or destruction of the Improvements and at a time when Tenant shall not have restored
and rebuilt the Improvements, then Tenant shall, at its cost and expense after the use of any
insurance proceeds released for such purpose, remove the debris and damaged portion of
Improvements (including without limitation all foundations) and restore the Property and
Improvements or the applicable portion thereof to a neat, clean and safe condition.
11.6 Tenant's Right to Terminate. Notwithstanding any contrary provision of this
Article XI, Tenant shall have the option to terminate this Lease and be relieved of the obligation
to restore the Improvements where all or substantially all of the Improvements are substantially
damaged or destroyed and such damage or destruction resulted from a cause not insured against
by Tenant nor required to be insured against by Tenant under this Lease (an "Uninsured Loss "),
and where all of the following occur:
(i) No more than one hundred twenty (120) days following the Uninsured
Loss, Tenant shall notify Landlord of its election to terminate this Lease. To be effective, such
notice must include the written consent of all Leasehold Mortgagees and partners of Tenant to
Tenant's exercise of the option to terminate set forth in this Section 11.6. Landlord shall be
entitled to rely upon the foregoing notice and certification as conclusive evidence that Tenant has
obtained the consent of all Leasehold Mortgagees to Tenant's exercise of its option to terminate
this Lease.
(ii) No more than sixty (60) days following the giving of the notice required
by the preceding paragraph (i) or such longer time as may be reasonable under the
circumstances, Tenant shall, at Tenant's expense after the use of any insurance proceeds released
1583217.1 24
for such purpose, remove all debris and other rubble from the Property, secure the Property
against trespassers, and at Landlord's election, remove all remaining Improvements on the
Property.
(iii) No more than thirty (30) days following Tenant's termination notice,
Tenant shall deliver to Landlord a quitclaim deed to the Property and Improvements in
recordable form, in form and content satisfactory to Landlord and /or with such other
documentation as may be reasonably requested by Landlord or any title company on behalf of
Landlord, terminating Tenant's interest in the Property and Improvements.
ARTICLE XII
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
If Tenant shall at any time fail to pay any Imposition or other charge payable by Tenant
to a third party as required by this Lease within the time permitted (which shall be deemed to
include any time to contest the same that is permitted by Applicable Laws), or to pay for or
maintain any of the insurance policies required pursuant to Article IX within the time therein
permitted, or to make any other payment or perform any other act on its part to be made or
performed hereunder within the time permitted by this Lease, then after thirty (30) days' written
notice to Tenant and after satisfying all other notice requirements set forth in this Lease
respecting Leasehold Mortgagees and partners of Tenant and such parties' failure to timely cure
(or as applicable, commence to cure) the same, and without waiving or releasing Tenant from
any obligation of Tenant hereunder, Landlord may (but shall not be required to): (i) pay such
Imposition or other charge payable by Tenant; (ii) pay for and maintain such insurance policies
required pursuant to Article IX; or (iii) make such other payment or perform such other act on
Tenant's part to be made or performed under this Lease; and Landlord may enter upon the
Property and Improvements for such purpose and take all such action thereon as may be
reasonably necessary therefor.
All sums paid by Landlord and all costs and expense incurred by Landlord in connection
with the performance of any such act (together with interest thereon at the Default Rate from the
respective dates of Landlord's making of each such payment) shall constitute additional Rent
payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. The
"Default Rate" shall mean interest calculated at an annual rate equal to the rate of interest most
recently announced by Bank of America N.A. (or its successor bank) at its San Francisco office
as its "reference rate" but in no event more than the maximum rate of interest permitted by law.
If Bank of America or its successor no longer issues a "reference rate," the most comparable rate
of the largest bank with its corporate headquarters in California shall be used. If there is no such
bank or comparable rate, then the Default Rate shall be the highest legal rate of interest that may
be charged at that time.
ARTICLE XIII
REPAIRS, CHANGES, ALTERATIONS AND NEW CONSTRUCTION
13.1 Repairs and Maintenance. Tenant covenants and agrees, throughout the Term,
without cost to Landlord, to take good care of the Property and to keep the same in good order
1583217.1 25
and condition. Tenant shall promptly, at Tenant's own cost and expense, make all necessary
repairs, interior and exterior, structural and nonstructural, ordinary as well as extraordinary,
whether contemplated or not contemplated at the time of execution of this Lease, and shall keep
the Property in a well maintained, safe, clean and sanitary condition. The term "repairs" shall
include replacements or renewals when necessary, and all such repairs made by Tenant shall be
at least equal in quality and class to the original work. Tenant waives any rights created under
any law now or hereafter in force to make repairs to the Improvements at Landlord's expense.
Tenant shall keep and maintain all portions of the Property and the sidewalks adjoining the same
in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti. From time to
time during the Term, upon not less than 48 hours prior notice from Landlord, Landlord may
enter the Property, or portions thereof, to determine if Tenant is properly maintaining the
Property. If, following any such inspection by Landlord, Landlord delivers notice of any
deficiency to Tenant, Tenant shall promptly prepare and deliver to Landlord Tenant's proposed
plan for remedying the indicated deficiencies. Tenant's failure to deliver a remedial plan and to
complete, within a reasonable time, remedial work shall be a default under this Lease (subject to
all applicable notice and cure rights of Tenant, Leasehold Mortgagees, and partners of Tenant).
Landlord's failure to deliver, following any Landlord's inspection, any notice of deficiency to
Tenant, shall not be a waiver of any default by Tenant under this Article XIII. Tenant shall
defend, indemnify and hold Landlord harmless from and against any claim, loss, expense, cost,
or liability incurred by Landlord arising out of Tenant's failure to fully and timely fulfill its
obligations to maintain and repair the Property as required hereunder.
13.2 Changes and Alterations. Tenant shall not during the Term make any changes or
alterations in, to or of the Improvements without the prior written consent of Landlord, which
Landlord shall not unreasonably withhold, so long as Tenant complies with all of the following
at Tenant's sole cost and expense:
(a) The change or alteration shall be in harmony with neighboring buildings
and shall not materially impair the value or structural integrity of the Improvements.
(b) The change or alteration shall be for a use which is permitted hereunder.
(c) No change, alteration or addition shall be undertaken until Tenant shall
have obtained and paid for, so far as the same may be required from time to time, all permits and
authorizations of any federal, state or municipal government or departments or subdivisions of
any of them, having jurisdiction. Landlord shall join in the application for such permits or
authorizations whenever such action is necessary; provided, however, that Landlord shall incur
no liability or expense in connection therewith.
(d) Any change, alteration or addition shall be made in a good and workmanlike
manner and in accordance with all applicable permits and all Applicable Laws.
(e) During the period of initial renovation of, or of construction of any change,
alteration or addition in, to or of, the Improvements or of any permitted demolition or new
construction or of any restoration, Tenant shall maintain or cause to be maintained property and
other applicable insurance described in Article IX, which policy or policies by endorsement
thereto, if not then covered, shall also insure any change, alteration or addition or new
1583217.1 26
construction, including all materials and equipment incorporated in, on or about the
Improvements (including excavations, foundations and footings) under a broad form all risks
builders' risk form or equivalent thereof.
(f) Tenant shall comply with the provisions of Article VI hereof.
(g) At Landlord's request, Tenant shall provide Landlord with a copy of as-
built drawings for the Improvements within sixty (60) days following the completion of the
Improvements.
13.3 Exceptions to Requirement for Consent. The foregoing notwithstanding,
following City's issuance of a final certificate of occupancy or equivalent after completion of
construction of the Project, Tenant shall not be required to obtain Landlord's prior written
consent to any changes, alterations or improvements so long as all the following requirements
are met:
(a) The change, alteration or improvement is nonstructural;
(b) The change, alteration or improvement is not visible from the exterior of
any building on the Land;
(c) The change, alteration or improvement has a cost of less than One
Hundred Thousand Dollars ($100,000); and
(d) The provisions of Article VI are satisfied.
Notwithstanding the foregoing, except in response to emergency situations for which it would
not be reasonably practicable or possible to provide such advance notice, Tenant shall deliver to
Landlord not later than ten (10) days prior to commencement of any construction, change,
alteration or repair, written notice of the proposed work, a general description of the proposed
work and sufficient information to permit Landlord to post a notice of nonresponsibility on the
Land.
13.4 No Right to Demolish. Notwithstanding any other provisions of this Article XIII,
Tenant shall have no right to demolish any Improvement, once built, unless Tenant shall have
received the prior written consent of Landlord which shall not be unreasonably withheld if the
age and condition of the Improvements makes repair or reconstruction impractical or financially
infeasible.
ARTICLE XIV
EMINENT DOMAIN
14.1 Eminent Domain.
14.1.1 Definitions. The following definitions shall apply in construing the
provisions of this Article XIV:
1583217.1 27
(a) "Award" means all compensation, damages or interest, or any
combination thereof, paid or awarded for the taking, whether pursuant to judgment, by
agreement, or otherwise.
(b) "Notice of intended taking" means any notice or notification on
which a reasonably prudent person would rely and would interpret as expressing an existing
intention of taking as distinguished from a mere preliminary inquiry or proposal. It includes, but
is not limited to, the service of a condemnation summons and complaint on a party to this Lease.
The notice is considered to have been received when a party to this Lease receives from the
condemning agency or entity a written notice of intent to take.
(c) "Partial taking" means any taking that is not a total taking, a
substantial taking, or a temporary taking.
(d) "Substantial taking" means the taking of so much of the Property
that the remaining portion thereof would not be economically and feasibly usable by Tenant for
the then existing uses and purposes of the Property, in Tenant's reasonable judgment, but shall
exclude a temporary taking.
(e) "Taking" means any taking of or damage, including severance
damage, to all or any part of the Property or any interest therein by the exercise of the power of
eminent domain, or by inverse condemnation, or a voluntary sale, transfer or conveyance under
threat of condemnation in avoidance of the exercise of the power of eminent domain or while
condemnation proceedings are pending.
( "Temporary taking" means the taking of any interest in the
Property for a period of less than one (1) year.
(g) "Total taking" means the taking of all or substantially all of the
Property, but shall exclude a temporary taking.
14.1.2 Notice. The party receiving any notice of the kind specified below shall
promptly give the other party and all Leasehold Mortgagees written notice of the receipt,
contents and date of the notice received:
(a) notice of intended taking;
(b) service of any legal process relating to condemnation of all or any
portion of the Property;
(c) notice in connection with any proceedings or negotiations with
respect to such a condemnation; or
(d) notice of intent or willingness to make or negotiate a private
purchase, sale or transfer in lieu of condemnation.
Landlord and Tenant, and any Leasehold Mortgagee, each shall have the right to represent its
respective interest in each proceeding or negotiation with respect to a taking or intended taking
1583217.1 28
and to make full proof of their respective claims. No agreement, settlement, sale or transfer to or
with the condemning authority shall be made without the mutual agreement of Landlord and
Tenant and any Leasehold Mortgagee. Landlord and Tenant each agree to execute, acknowledge
and deliver to the other any instruments that may be reasonably required to effectuate or
facilitate the provisions of this Lease relating to condemnation.
14.1.3 Total or Substantial Taking. In the event of a total or substantial taking of
fee title to the Property, Tenant's interest in this Lease and all obligations of Tenant subsequently
accruing hereunder shall cease as of the date of the vesting of title in the condemning authority;
provided, however, that if actual physical possession of all or part of the Property is taken by the
condemning authority prior to such date of vesting of title, Tenant's obligations to pay Rent and
other sums under this Lease shall terminate as of such earlier date. In the event of a total or
substantial taking of an interest in the Property other than fee title, at Tenant's option
(exercisable by written notice to Landlord), Tenant's interest in this Lease and all obligations of
Tenant subsequently accruing hereunder shall cease as aforesaid.
14.1.4 Award. In the event of a total or substantial taking, the Award shall be
apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount owing
on the Leasehold Mortgage.
(b) To Landlord that portion of the Award equal to the fair market
value of the Property. Any "bonus value" attributable to this Lease shall be paid to Landlord.
(c) To Tenant, that portion of the Award equal to the fair market value
of the Improvements (subject to Landlord's reversionary interest), less the amount paid to the
Leasehold Mortgagee pursuant to (a) above.
(d) The balance, if any, shall be allocated between Landlord and
Tenant respectively in that proportion in which (i) the fair market value of the Property bears to
(ii) the fair market value of the Improvements, exclusive of Landlord's reversionary interest.
14.1.5 Temporary Taking. In the event of a temporary taking, Tenant shall be
entitled to the whole Award, and this Lease shall remain in full force and effect.
14.1.6 Partial Taking. In the event of a partial taking, this Lease shall remain in
full force and effect, covering the remainder of the Property, and Tenant shall repair and restore
any damage to the Improvements caused by such partial taking consistent with and subject to the
provisions applicable to a restoration in the event of an insured casualty under Article IX, so that
after completion of the restoration the Improvements shall be, as nearly as possible, in a
condition as good as the condition immediately preceding the partial taking. The Award for any
partial taking shall be deposited and disbursed in the same manner as insurance proceeds are
disbursed for restoration pursuant to Article IX, and upon completion of the restoration, any
remaining portion of the Award shall be allocated as set forth in Section 14.1.6.1.
1583217.1 29
14.1.6.1 Award on Partial Taking. In the event of a partial taking, after
application of the Award for restoration pursuant to Section 14.1.6, any remaining portion of
such Award shall be apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount
owing on the Leasehold Mortgage.
(b) To Landlord, that portion of the Award attributable to the
fair market value of the portion of the Property taken.
(c) To Tenant, that portion of the Award equal to the fair
market value of the portion of the Improvements taken (subject to Landlord's reversionary
interest), less the amount paid to the Leasehold used for storation of the Improvementsnly to the
extent that the proceeds of the Award are not restoration
(d) The balance, if any, shall be allocated between Landlord
and Tenant respectively in that proportion in which (i) the fair market value of the Property
bears to (ii) the fair market value of the Improvements exclusive of the reversionary interest of
Landlord. Any "bonus value" attributable to this Lease shall be paid to Landlord.
(e) Any severance damages awarded or payable because only a
portion of the Property is taken by eminent domain shall be (a) paid to Tenant during the first
37.5 years of this Lease and (b) eq th extent t neeed to replace duritakeng
by next
37.5 years of this Lease (except to e
eminent domain with equivalent Improvements on the remainder of the Property).
No payments shall be made to Tenant pursuant to this Section if any default by Tenant hereunder
has occurred and is continuing unless and until such default is cured.
14.1.6.2 Partial Taking in Last Five Years. If a partial taking occurs
during the last five (5) years of Term and the reasonab
the Improvements, T enant shall have the
exceeds ten percent (10 %) of the replaceme nt value o vements
right and option to treat the same as a substantial taking by giving written notice thereof to
Landlord no later than the earlier of: (a) the date of vesting of title in the condemning authority
of the portion of the Property taken, or (b) the date upon which the condemning authority takes
physical possession of such portion of the Property. If Tenant does give such notice the partial
taking shall be considered as a substantial taking and the taking shall be subject to the provisions
of Section 14.1.3.
ARTICLE XV
MORTGAGES
15.1 Leasehold Mortgages. Tenant shall have the right, at any time and from time to
time during the Term, to encumber its leasehold interest hereunder with a Leasehold Mortgage or
Mortgages subject to Landlord's prior written consent (which consent will not be unreasonably
withheld) provided that (a) no Leasehold Mortgage shall in any way impair (except as otherwise
stated herein or as provided by law) the enforcement of Landlord's right and remedies herein and
1583217A 30
by law provided, (b) any such Leasehold Mortgage shall at all times be subject and subordinate
to, and shall not affect or become a lien upon Landlord's right, title or estate in the Property or in
this Lease, and (c) Tenant shall give Landlord prior written notice of any such Leasehold
Mortgage, accompanied by a true and correct copy of any such Leasehold Mortgage. Any
Leasehold Mortgage shall be subject to the terms and conditions set forth in this Article XV.
Landlord acknowledges approval of the Leasehold Mortgages described in the Financing Plan
attached as Exhibit G to the Loan Agreement.
15.2 Rights of Leasehold Mortgagee.
15.2.1 Notices. If Landlord shall have been provided with written notice of the
address of any Leasehold Mortgagee, Landlord shall mail to such Leasehold Mortgagee a copy
of any notice under this Lease at the time of giving such notice to Tenant, and no such notice
shall be effective against such Leasehold Mortgagee, and no termination of this Lease or
termination of Tenant's right of possession of the Property or reletting of the Property by
Landlord predicated on the giving by Landlord of any notice shall be effective, unless Landlord
gives to such Leasehold Mortgagee written notice or a copy of its notice to Tenant of such
default or termination, as the case may be.
15.2.2 Right to Cure.
(a) In the event of any default by Tenant under the provisions of this
Lease, the Leasehold Mortgagee shall have the right, but not the obligation, to remedy or cause
to be remedied such default (including the right to enter the Property and to take possession of
the Property if necessary to cure the default) within the same cure period as afforded Tenant
hereunder, extended by an additional sixty (60) days, which cure period shall commence as
against the Leasehold Mortgagee upon the receipt by the Leasehold Mortgagee of the notice of
default. Landlord shall accept such performance by the Leasehold Mortgagee as if the same had
been done by Tenant.
(b) The term "incurable default" as used herein means any default
which cannot be reasonably cured by a Leasehold Mortgagee. The term "curable default"
means any default under this Lease which is not an incurable default. Any failure to pay
monetary sums shall at all times be deemed a curable default. Any failure to comply with the
requirements of Section 7.2 hereof (for so long as such Section 7.2 remains in effect) shall at all
times be deemed a curable default, and as to Leasehold Mortgagees or any entity acquiring the
interest of Tenant in the Property and in this Lease as a result of the foreclosure of a Leasehold
Mortgage (or an assignment or deed in lieu thereof), Landlord shall not terminate this Lease
provided such party is diligently and in good faith proceeding to cure any such default. In the
event of any curable default under this Lease, and if prior to the expiration of the applicable
grace period specified in Section 15.2.2 (a) the Leasehold Mortgagee shall give Landlord written
notice that it intends to undertake the curing of such default, or to cause the same to be cured, or
to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or otherwise, and
shall promptly commence and then proceed with diligence to do so, whether by performance on
behalf of Tenant of its obligations under this Lease, by foreclosure or otherwise, then Landlord
will not terminate or take any action to effect a termination of this Lease or re- enter, take
possession of or relet the Property, appoint a receiver, exercise any other remedy under this
1583217.1 31
Lease, or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is
diligently and in good faith engaged in the curing of such default or effecting such foreclosure.
The foregoing sentence shall not be deemed to extend the time period within which a default in
the payment of money must be cured under Section 15.2.2 (a). The Leasehold Mortgagee shall
not be required to continue such possession or continue such foreclosure proceedings. Nothing
herein shall preclude Landlord from terminating this Lease with respect to any additional default
which shall occur during any period of forbearance and not be remedied within the cure period,
if any, applicable to any such additional default, except that Leasehold Mortgagee shall have the
same rights specified in this Article XV with respect to any additional defaults.
In the event of any incurable default under this Lease, and if prior to the expiration of the
applicable grace period specified in Section 15.2.2 (a) of this Lease, the Leasehold Mortgagee
shall give Landlord written notice that it intends to exercise its rights to acquire the leasehold
interest of Tenant by foreclosure or otherwise, and shall promptly commence and then proceed
with diligence to do so, whether by foreclosure or otherwise, then Landlord will not terminate or
take any action to effect a termination of this Lease or re- enter, take possession of or relet the
Property or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is
diligently and in good faith engaged in effecting such foreclosure and such incurable default
shall be deemed cured upon the foreclosure of the Leasehold Mortgage (or assignment or deed in
lieu thereof).
(c) If the default by Tenant pertains to the failure of Tenant to
complete construction of the Project within the time period required under Section 6.2 of this
Lease, and if prior to the expiration of the applicable grace period specified in Section 15.2.2 (a)
of this Lease, the Leasehold Mortgagee shall give Landlord written notice that it intends to
undertake to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or
otherwise, and shall promptly commence and then proceed with diligence to do so, whether by
foreclosure or otherwise, then Landlord will not terminate or take any action to effect a
termination of this Lease or re- enter, take possession of or relet the Property or similarly enforce
performance of this Lease so long as the Leasehold Mortgagee is diligently and in good faith
engaged in the completion of the construction of the Project or effecting such foreclosure;
provided, however, Landlord shall not be obligated to forbear from a termination or other
enforcement of its rights under the Lease in response to such default beyond the date which is
three (3) years following the date of foreclosure of the Leasehold Mortgage (or deed or
assignment in lieu of foreclosure); provided, further, that additional extensions will be granted by
the Agency, in its reasonable discretion, if the Agency determines that there has been good faith
progress in pursuing completion of the Project, which may include, among other things, securing
a substitute developer, obtaining additional or substitute financing, or securing a substitute
construction contractor.
(d) If a Leasehold Mortgagee is prohibited, stayed or enjoined by any
bankruptcy, insolvency or other judicial proceedings involving Tenant from commencing or
prosecuting foreclosure or other appropriate proceedings, the times specified for commencing or
prosecuting such foreclosure or other proceedings for Leasehold Mortgagee shall be extended for
the period of such prohibition.
15.2.3 Execution of New Lease. If this Lease is terminated for any reason,
including by Tenant's trustee in bankruptcy, receiver, liquidator or other similar person on
1583217.1 32
account of a default or if Tenant's interest under this Lease shall be sold, assigned or transferred
pursuant to the exercise of any remedy of the Leasehold Mortgagee, or pursuant to judicial
proceedings, and if (i) all monetary defaults of Tenant have been cured, and (ii) the Leasehold
Mortgagee shall have arranged to the reasonable satisfaction of Landlord to cure any other
curable default of Tenant under this Lease, then Landlord, within thirty (30) days (or such period
as may reasonably be necessary to enable Landlord to comply with statutory requirements
applicable to Landlord's lease of real property) after receiving a written request therefor, which
shall be given within sixty (60) days after such termination or transfer and upon payment to it of
all reasonable out -of- pocket expenses, including attorneys' fees, incident thereto, will execute
and deliver a new lease of the Property to the Leasehold Mortgagee or its affiliate or other
nominee or to the purchaser, assignee or transferee, as the case may be, for the remainder of the
Term, containing the same covenants, agreements, terms, provisions, priority, and limitations, as
are contained herein. The tenant under such new lease shall be personally obligated only for the
performance of obligations under the Lease commencing as of the date of such foreclosure or
assumption, and ending as of the date of any assignment of the Lease to a successor tenant.
(a) Upon the execution and delivery of a new lease, the new tenant, in
its own name or in the name of Landlord may take all appropriate steps as shall be necessary to
remove Tenant from the Property, but Landlord shall not be subject to any liability for the
payment of fees, including attorneys' fees, costs or expenses in connection therewith, and the
new tenant shall pay all such fees, including attorneys' fees, costs and expenses, on demand, and
shall make reimbursement to Landlord of all such fees, including attorneys' fees, costs and
expenses, incurred by Landlord. Tenant acknowledges and agrees that Landlord shall have no
liability whatsoever to Tenant in connection with any such action, and hereby releases Landlord
from any claim Tenant may have with respect thereto.
(b) Upon execution of any new lease, the new tenant named therein
shall cure all uncured curable defaults hereunder. Any nonmonetary cure required of the new
tenant shall be commenced within thirty (30) days following the date the new tenant executes the
new lease and has a right to possession, and thereafter shall be diligently prosecuted to
completion. Any failure to comply with any of the foregoing requirements shall constitute a
default under the new lease.
(c) Following foreclosure or enforcement of a Leasehold Mortgage, or
assignment in lieu thereof, Landlord will recognize the purchaser or assignee of the leasehold
estate as the Tenant under the Lease.
(d) After such termination and cancellation of the Lease and prior to
the expiration of the period within which the Leasehold Mortgagee may elect to obtain a new
lease from Agency, Agency shall refrain from terminating any existing sublease or otherwise
encumbering the Property or the Improvements without the prior written consent of the
Leasehold Mortgagee. Any new lease shall enjoy the same priority in time and in right as the
Lease over any lien, encumbrance or other interest created by Landlord before or after the date of
such new lease, and shall vest in the new lessee all right, title, interest, power and privileges of
Tenant hereunder in and to the Property and the Improvements, including, without limitation, the
assignment of Tenant's interest in and to all then existing subleases and sublease rentals and the
automatic vesting of title to all Improvements, fixtures and personal property of Tenant. Such
1583217A 33
new lease shall provide, with respect to each and every permitted sublease which immediately
prior to the termination of the Lease was superior to the lien of the Leasehold Mortgage that the
new lessee shall be deemed to have recognized the sublessee under the sublease, pursuant to the
terms of the sublease as though the sublease had never terminated but had continued in full force
and effect after the termination of the Lease, and to have assumed all the obligations of the
sublessor under the sublease accruing from and after the termination of the Lease, except that the
obligation of the new lessee, as sublessor, under any covenant of quiet enjoyment, expressed or
implied, contained in any such sublease shall be limited to the acts of such new lessee and those
claiming by, under or through such new lessee. If more than one entity claims to be the
Leasehold Mortgagee that is entitled to a new lease pursuant to this subsection, Agency shall
enter into such new lease with the lender whose mortgage or deed of trust is prior in lien.
Agency, without liability to Tenant or any lender with an adverse claim, may rely upon a lender
title insurance policy issued by a responsible title insurance company doing business in the state
where the Property is located as the basis for determining the appropriate Leasehold Mortgagee
who is entitled to such new lease.
15.2.4 Tenant Default Under Leasehold Mortgage. If Tenant defaults under a
Leasehold Mortgage, the Leasehold Mortgagee may exercise with respect to Tenant's interest in
the Property and the Improvements any right, power or remedy under the Leasehold Mortgage
which is not in conflict with the provisions of this Lease, including without limitation, judicial or
nonjudicial foreclosure of the Leasehold Mortgage (or deed or assignment in lieu thereof),
appointment of a receiver, and/or revocation of Tenant's license to collect rents.
15.2.5 No Merger. There shall be no merger of this Lease or any interest in this
Lease, nor of the leasehold estate created hereby, with the fee estate in the Property, by reason of
the fact that this Lease or such interest therein, or such leasehold estate may be directly or
indirectly held by or for the account of any person who shall hold the fee estate in the Property,
or any interest in such fee estate, nor shall there be such a merger by reason of the fact that all or
any part of the leasehold estate created hereby may be conveyed or mortgaged in a Leasehold
Mortgage to a Leasehold Mortgagee who shall hold the fee estate in the Property or any interest
of the Landlord under this Lease.
15.2.6 Assumption of Obligations. For the purpose of this Article XV, the
making of a Leasehold Mortgage shall not be deemed to constitute an assignment or Transfer of
this Lease or of the leasehold estate hereby created, nor shall any Leasehold Mortgagee, as such,
be deemed an assignee or transferee of this Lease or of the leasehold estate hereby created so as
to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms,
covenants or conditions on the part of Tenant to be performed hereunder. The purchaser at any
sale of this Lease and of the leasehold estate hereby created in any proceedings for the
foreclosure of any Leasehold Mortgage, or the assignee or transferee of this Lease and of the
leasehold estate hereby created under any instrument or assignment or transfer in lieu of the
foreclosure of any Leasehold Mortgage, in order to be deemed to be an assignee or transferee
and before the same shall be binding on Landlord, must assume in writing the performance of all
of the terms, covenants, and conditions on the part of Tenant to be performed hereunder during
the period such party holds a leasehold interest in the Property by an instrument, in recordable
form, reasonably satisfactory to Landlord; provided however, that nothing contained herein shall
be construed to require the purchaser, assignee or transferee as described above to be obligated to
1583217.1 34
cure any default by Tenant. Although a purchaser, assignee or transferee shall not be obligated
to cure any default, if any curable default is not cured, Landlord may exercise any remedy
available under this Lease, including the termination of this Lease, if the curable default is not
cured after the expiration of any applicable cure period.
15.2.7 Limitation of Leasehold Mortgagee Liability for Tenant Defaults.
Notwithstanding any contrary provision hereof: (i) no Leasehold Mortgagee shall be required to
pay any liens or charges that are extinguished by the foreclosure of its Leasehold Mortgage; (ii)
any incurable default shall be, and shall be deemed to have been waived by Landlord upon
completion of foreclosure proceedings or acquisition of Tenant's interest in this Lease by any
purchaser at a foreclosure sale, or any entity who otherwise acquires Tenant's interest from the
Leasehold Mortgagee by deed in lieu of foreclosure. Any entity acquiring the interest of Tenant
in the Property and in this Lease as a result of the foreclosure of a Leasehold Mortgage (or an
assignment or deed in lieu thereof) acquires an interest in the leasehold only, and shall be liable
to perform the obligations of Tenant under this Lease only during the period such entity retains
ownership of the interest of Tenant in the Property and in this Lease.
15.3 Non - Subordination of Fee. Nothing in this Lease shall be construed as an
agreement by Landlord to subordinate its fee interest in the Property or its right to rent payments
hereunder or any other right of Landlord herein. Except as expressly set forth in this Article XV,
no Leasehold Mortgage shall impair Landlord's ability to enforce its rights and remedies under
this Lease or provided by law. Landlord shall have no obligation to encumber or otherwise
subordinate its fee interest in the Property or in this Lease to the interest of any Leasehold
Mortgagee in this Lease or in Tenant's leasehold estate.
15.4 Subsequent Transfers. In the event any person or entity becomes the lessee under
the Lease by means of foreclosure or deed in lieu of foreclosure or pursuant to any new lease
obtained under Section 15.2.7, such person or entity may assign or Transfer the Lease or such
new lease in compliance with the terms of Article XVI.
15.5 Landlord's Rights Under Leasehold Mortgages.
15.5.1 Notice of Tenant's Default. Tenant shall use best efforts to ensure that
every Leasehold Mortgage secured by a deed of trust on Tenant's leasehold estate in the Property
shall expressly provide that:
(a) the lender shall give Landlord contemporaneous notice of any
default by Tenant thereunder, if the failure to cure such default could reasonably be expected to
result in acceleration of the maturity of the debt secured by the Leasehold Mortgage; provided
however, that the lender's giving or failure to give notice shall not affect the lender's rights or
ability to timely pursue all applicable remedies, including, but not limited to, filing a notice of
default or notice of sale, instituting judicial foreclosure proceedings, or seeking the appointment
of a receiver. In addition, within three (3) business days following Tenant's receipt of any notice
of default under any financing document affecting the Property, Tenant shall provide Landlord
with a copy of such notice.
1583217.1 35
(b) Landlord shall have the right to cure any curable default by Tenant
(but without obligation to do so) upon the same terms and conditions and within ninety (90) days
measured from the date that Landlord receives notice thereof; and
(c) If Landlord shall tender payment in full of all sums required to be
paid under the Leasehold Mortgage or the note secured thereby (disregarding any acceleration of
maturity thereunder, but including any costs or expenses arising as a result of such default) on or
before ninety (90) calendar days from the date of such notice of default from the lender to
Landlord, then the lender shall accept such payment and rescind the acceleration, if any. Any
sums paid by Landlord pursuant to this Section 15.5.1 shall become immediately due and
payable from Tenant to Landlord as Rent due under this Lease; provided however, that no
Leasehold Mortgagee shall be obligated to cure a failure by Tenant to pay such amount pursuant
to the rights granted to Leasehold Mortgagees under this Lease and Landlord shall have no right
to terminate this Lease as a result of Tenant's failure to pay such amounts.
(d) Landlord shall have the right and option (but not the obligation),
during the period described in the last sentence of this paragraph, by notice in writing to the
lender, to purchase any Leasehold Mortgage, the note secured thereby, and any other instruments
securing or guaranteeing such note or otherwise evidencing any obligation secured by the
Leasehold Mortgage. The purchase price therefor shall be the full amount due and owing to the
lender thereunder, including any costs, expenses, swap termination fees, and penalties payable in
accordance with the terms thereof. The sale and assignment by the lender shall be without
recourse or warranty by the lender except that such lender has good title to the note (or is
authorized to obtain payment or acceptance on behalf of one who has good title) and has the
authority to transfer the loan to the Agency. The right granted by this paragraph may be
exercised by Landlord at any time after the lender has declared the entire sum secured by any
Leasehold Mortgage to be due and payable or has commenced proceedings to foreclose any
Leasehold Mortgage, and such right shall terminate ninety (90) days following receipt by
Landlord of the notice described above.
15.6 Reserved.
15.7 No Voluntary Surrender /Modification. Notwithstanding anything to the contrary
set forth herein, Landlord will not voluntarily surrender the Lease or accept a voluntary surrender
of the Tenant's leasehold estate, and Landlord will not amend or modify the Lease without the
prior written consent of (i) all holders of any Leasehold Mortgage then in effect (which such
party may withhold in such party's sole discretion), and (ii) the limited partners of Tenant.
Landlord will not enforce against any Leasehold Mortgagee any waiver or election made by
Tenant under the Lease which has a material adverse effect on the value of Tenant's leasehold
estate or the rights of Tenant under the Lease without the prior written consent of such Leasehold
Mortgagee (which may be withheld in its sole discretion).
15.8 Leasehold Mortgagee Right to Pay Landlord Obligations. Leasehold Mortgagees
shall have the right, but not the obligation, upon not less than five (5) business days' prior
written notice to Landlord, to pay any taxes payable by Landlord with respect to the Property,
and to cure any monetary or nonmonetary default by Landlord under any encumbrance on the
Property which has priority over this Lease; and if any Leasehold Mortgagee does so pay or cure,
1583217.1 36
Landlord agrees that it will reimburse such Leasehold Mortgagee for the amount thereof
promptly following Landlord's receipt of Leasehold Mortgagee's written request therefor.
15.9 Amendments for the Benefit of Leasehold Mortgagees. Landlord and Tenant
shall cooperate to include in this Lease by suitable amendment from time to time, provisions
which may reasonably be requested by any proposed Leasehold Mortgagee for the purpose of
implementing the mortgagee protection provisions contained in this Lease and allowing such
Leasehold Mortgagee reasonable means to protect or preserve the lien of the Leasehold
Mortgage upon the occurrence of a default under the Lease. Landlord and Tenant each agree to
execute and deliver (and acknowledge, if necessary for recording purposes) any agreement
reasonably necessary to effect any such amendment; provided however, that any such
amendment shall not in any way affect the Term, the Rent payable hereunder, nor otherwise in
any material respect adversely affect any rights of Landlord under this Lease.
ARTICLE XVI
ASSIGNMENT, TRANSFER, SUBLETTING
16.1 Restrictions on Transfer or Assignment by Tenant. Except as permitted pursuant
to Article XV and this Article XVI, Tenant shall not sell, transfer, encumber, pledge, assign,
sublet or otherwise convey ( "Transfer ") all or any portion of its interest in the Property, the
Improvements or this Lease voluntarily, involuntarily, by operation of law, or otherwise, without
Landlord's prior written consent. Each Transfer shall comply with all requirements therefor set
forth elsewhere in this Lease and Tenant shall have no right to hypothecate or encumber its
interest in this Lease or sublet or assign all or any portion of the Property and /or the
Improvements except as expressly provided under the terms of this Lease. No voluntary or
involuntary assignee, sublessee, or successor in interest of Tenant shall acquire any rights or
powers under this Lease except as expressly set forth herein.
16.1.1 Exceptions. Notwithstanding any contrary provision of this Lease,
Landlord's consent shall not be required, and the provisions of Section 16.2 below shall not be
applicable, with respect to the following Transfers: (A) the renting or leasing of residential units
to tenants in the ordinary course of business; (B) the renting or leasing of retail or commercial
space to tenants in the ordinary course of business, provided that use of the retail and commercial
space will conform to applicable City regulations, including without limitation, the City's zoning
ordinance, and any applicable use restrictions imposed by the Conditions of Approval or
otherwise agreed upon by Landlord and Tenant; (C) the granting of a Leasehold Mortgage in
accordance with Section 15.1 or the foreclosure of a Leasehold Mortgage or the acquisition of
Tenant's interest in this Lease by an assignment or deed in lieu of foreclosure; and (D) the first
Transfer following any event described in clause (C) of this sentence. In addition, Landlord
shall not unreasonably withhold consent to any Transfer of Tenant's interest in the Property or
any portion thereof, or any sublease of the Property, or portion thereof, to MidPen Housing
Corporation, a California nonprofit public benefit corporation ( "MidPen ") or an entity
controlled by MidPen. Neither the transfer of limited partner interests in Tenant, nor the
admission of an investor limited partner to Tenant's partnership shall be considered a Transfer
for purposes of this Article XVI.
1583217.1 37
16.2 Procedure for Obtaining Landlord's Consent.
(a) Transfer Request. With respect to each Transfer requiring the Landlord's
consent under Section 16.1, Tenant shall send to Landlord written request for Landlord's
approval of the Transfer (a "Transfer Consent Request ") specifying the name and address of
the proposed transferee and its legal composition (if applicable). Each Transfer Request shall be
accompanied by all of the following:
(i) An audited or certified financial statement of the proposed
transferee for the three most recent calendar or fiscal years prepared in accordance with generally
accepted accounting procedures by a certified public accounting firm sufficiently current and
detailed to evaluate the proposed transferee's assets, liabilities and net worth and certified as true
and correct by the proposed transferee;
(ii) a description of the nature of the interest proposed to be
transferred, the portion or portions of the Property affected by the Transfer, and the proposed
effective date of such Transfer;
(iii) a true and complete copy of the proposed assumption agreement
described in Section 16.6;
(iv) a complete history of the proposed transferee describing its
background, its current real estate projects and location thereof, and the background of the
principals or personnel to be involved in the development or operation of the portion of the
Property subject to the Transfer and stating whether the proposed transferee ever filed for
bankruptcy or had projects that were foreclosed;
(v) a description of all projects of the proposed transferee which
during the past five (5) years have been the subject of substantial litigation; and
(vi) any such other information as reasonably requested by Landlord
within fifteen (15) days following the receipt of the above information, in order to make an
informed decision whether or not to approve or disapprove the Transfer.
(b) Approval of Landlord. Within thirty (30) days following receipt of all the
information referred to in Section 16.3 (a), Landlord shall approve or disapprove a proposed
transferee with respect to the information supplied which approval shall not be unreasonably
withheld. If Landlord fails to give Tenant written notice of its disapproval of the transferee or
request additional information in writing within such thirty (30) day period, it shall be deemed to
have approved the transferee.
16.3 Subleases; Nondisturbance and Attornment. Tenant agrees for the benefit of
Landlord that each sublease, rental agreement, and any other agreement for occupancy of any
part of the Improvements (each an "Occupancy Agreement "): (a) shall state that it is subject
to the terms and provisions of this Lease, and (b) shall require that the subtenant under the
Occupancy Agreement shall attorn to and accept Landlord as the sublessor or other party under
the Occupancy Agreement in the event this Lease is terminated. Landlord agrees that as long as
each Occupancy Agreement complies with the requirements of the preceding clauses (a) and (b),
1583217.1 38
then upon the expiration or termination of this Lease, Landlord shall recognize the subtenant or
occupant under the Occupancy Agreement as the direct tenant of Landlord under the terms and
conditions contained in the Occupancy Agreement and for a term equal to the then unexpired
term of the Occupancy Agreement; provided however, that: (i) at the time of the expiration or
termination of this Lease no uncured default shall exist under the Occupancy Agreement which
at such time would permit the termination of the Occupancy Agreement or the exercise of any
dispossession remedy provided for therein; and (ii) Landlord shall not be (x) liable for any prior
act or omission of Tenant under the Occupancy Agreement; (y) liable for the return of any
security deposit under the Occupancy Agreement not actually received by Landlord; or (z)
subject to any offsets or defenses that the subtenant or occupant may have against Tenant. The
provisions of this Section 16.3 shall survive the expiration or termination of this Lease.
16.4 Limitations.
(a) Non - Transfer Period. In no event shall Tenant request Landlord to
approve any Transfer prior to the date that all of the following shall have occurred:
(i) the construction of the Improvements shall be complete and a
certificate(s) of occupancy shall be issued with respect to the Project; and
(ii) all costs and expenses with regard to the construction of the
Project and related Improvements shall be paid in full, all lien periods shall have expired and
there shall be no liens on the Property, the Improvements, the Landlord's fee title or any portion
thereof.
The provisions of this Section 16.4 (a) shall not be applicable to the
granting of a Leasehold Mortgage in accordance with Section 15.1, and shall not be applicable
to, or after, the foreclosure of a Leasehold Mortgage or the acquisition of Tenant's interest in this
Lease by assignment or deed in lieu of foreclosure.
(b) No Relief from Liability. No Transfer will limit, diminish or otherwise
relieve Tenant of any liability described herein. The provisions of this Section 16.4 (b) shall not
be applicable to any Transfer following the foreclosure of a Leasehold Mortgage or following the
acquisition of Tenant's interest in this Lease by assignment or deed in lieu of foreclosure.
(c) No Consent If Bankruptcy. In no event shall Landlord be required to
consent or be deemed to consent to a Transfer to a party then subject to any proceedings under
any insolvency, bankruptcy or similar laws.
(d) Criteria for Transfer. Landlord shall be deemed to be reasonable in
withholding its consent to a proposed Transfer if, among other requirements, either of the
following conditions is unsatisfied:
(i) Tenant delivers to Landlord an audited financial statement of the
proposed transferee for the three most recent calendar or fiscal years prepared in accordance with
generally accepted accounting principles by a recognized certified accounting firm
demonstrating that the proposed transferee (or its principals) is a viable, going concern with
sufficient financial ability to own, operate and manage the Property; and
1583217.1 39
(ii) the proposed transferee shall have demonstrated experience
operating and managing affordable residential /mixed -use properties similar to the Project.
16.5 Involuntary and Other Transfers. Without limiting any other restrictions on
transfer contained in this Lease, no interest of Tenant in this Lease, the Property or part thereof
shall be assignable in the following manner:
(a) under an order of relief filed, or a plan of reorganization confirmed, for or
concerning Tenant by a bankruptcy court of competent jurisdiction under the federal bankruptcy
act or the laws of the State of California, whereby any interest in this Lease, the Property or part
thereof is assigned to any party which does not qualify as an approved transferee pursuant to this
Lease unless such order is filed or such plan is confirmed in connection with an involuntary
proceeding brought against Tenant and Tenant reacquires such transferred interest within ninety
(90) days after the date such order is filed or such plan is confirmed;
(b) if Tenant assigns substantially all of its assets for the benefit of its
creditors; or
(c) if an order of attachment is issued by a court of competent jurisdiction,
whereby any interest in this Lease, the Property or part thereof or substantially all of Tenant's
assets are attached by its creditors and such order of attachment is not stayed within ninety (90)
days after the date it is issued.
The transfers described in this Section 16.5 shall constitute a breach under this Lease by
Tenant and Landlord shall have the right to terminate this Lease as a result of any such transfer
taking place, in which case this Lease shall not be treated as an asset of Tenant. In such event, a
Leasehold Mortgagee may request a new lease in accordance with Section 15.2.3.
16.6 Assumption Agreement and Release. No permitted Transfer shall be effective
until any curable default hereunder shall have been cured and there shall have been delivered to
Landlord an assumption agreement, executed by the transferor and the proposed transferee,
whereby such transferee expressly assumes such obligations as arise and /or accrue at any time
after such Transfer takes place; and whereby such transferee assumes liability for the Lease
obligations. The parties agree that as a condition to any Transfer taking place the transferee shall
deliver to Landlord representations and warranties confirming the accuracy of the information
delivered to Landlord concerning its current financial condition and its outstanding or pending
liabilities.
16.7 Change in General Partner of Tenant. In addition to the restrictions on Transfers
as set forth in this Article XVI, Landlord shall have the right to approve any change in the
identity of the general partner of Tenant, including without limitation, any admission of any new
general partner or withdrawal of any existing general partner. Such approval right of Landlord
shall also apply to the transfer of a majority of the ownership interest in a general partner of
Tenant. Landlord shall not unreasonably withhold, delay or condition its approval under this
Section 16.7. Notwithstanding any contrary provision of this Section 16.7, Landlord's approval
shall not be required with respect to any change in the identity or ownership of the general
partner of Tenant as long as following such change (x) the general partner of Tenant continues to
1583217.1 40
be an entity which controls, is controlled by, or is under common control with MidPen, or (y) the
general partner of Tenant is an entity which is controlled by or under common control with
Union Bank, N.A. For purposes of this Article XVI, "control" shall mean the right to direct the
management and affairs of an entity, whether by virtue of the ownership of ownership interests,
by contract, by appointment of directors or by common or overlapping boards.
16.8 Sale by Landlord. Nothing contained in this Lease shall be deemed in any way to
limit, restrict or otherwise affect the right of Landlord to sell, transfer, assign or convey all or any
portion of the right, title and estate of Landlord in the Property and in this Lease; provided,
however, that in each such instance any such sale, transfer, assignment or conveyance shall be
subject to this Lease, and Tenant's other rights arising out of this Lease shall not be affected or
disturbed in any way by any such sale, transfer, assignment or conveyance. Any other provision
of this Lease to the contrary notwithstanding, each covenant, agreement or obligation of
Landlord under this Lease relating to the ownership or use of the Property is intended to and
shall constitute a covenant running with the title to the Property and shall be binding upon the
owner from time to time of the Property. At such time as Landlord shall sell, transfer, assign or
convey the entire right, title and estate of Landlord in the Property and in this Lease, all
obligations and liability on the part of Landlord arising under this Lease after the effective date
of such sale, transfer, assignment or conveyance shall terminate as to Landlord, and thereupon all
such liabilities and obligations shall be binding upon the transferee.
ARTICLE XVII
BREACHES, REMEDIES AND TERMINATION
17.1 Event of Default. Tenant shall be in default under this Lease upon the occurrence
of any of the following ( "Events of Default "):
(a) Monetary Obligation. Tenant at any time is in default hereunder as to any
monetary obligation (including without limitation, Tenant's obligation to pay taxes and
assessments due on the Property or part thereof, subject to Tenant's rights to contest such
charges pursuant to Section 5.2), and such default continues for ten (10) days after Tenant
receives Notice of Breach (as defined in Section 17.2.1);
(b) Insurance. Tenant fails to obtain and maintain any policy of insurance
required pursuant to this Lease, and Tenant fails to cure such default within ten (10) days;
(c) Abandonment. Tenant abandons the Property;
(d) Bankruptcy. Tenant or any general partner of Tenant files a voluntary
petition in bankruptcy or files any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
for itself under any present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the
appointment of any trustee, receiver or liquidator of Tenant (or any general partner of Tenant) or
of all or any substantial part of its property, or of any or all of the royalties, revenues, rents,
issues or profits thereof, or makes any general assignment for the benefit of creditors, or admits
in writing its inability to pay its debts generally as they become due;
1583217.1 41
(e) Reorganization. A court of competent jurisdiction enters an order,
judgment or decree approving a petition filed against Tenant seeking any reorganization,
dissolution or similar relief under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment
or decree remains unvacated and unstayed for an aggregate of ninety (90) days from the first date
of entry thereof, or any trustee receiver or liquidator of Tenant or of all or any substantial part of
its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed
without the consent or acquiescence of Tenant and such appointment remains unvacated and
unstayed for an aggregate of ninety (90) days, such ninety (90) day period to be extended in all
cases during any period of a bona fide appeal diligently pursued by Tenant;
(0 Attachment. Subject to Tenant's right to contest the following charges
pursuant to Sections 5.2 and 6.6, Tenant fails to pay prior to delinquency taxes or assessments
due on the Property or the Improvements or fails to pay when due any other charge that may
result in a lien on the Property or the Improvements, and Tenant fails to cure such default within
ninety (90) days of the date of delinquency, but in all events prior to the date upon which the
holder of any lien has the right to pursue foreclosure thereof;
(g) Transfer. Tenant Transfers all or any portion of Tenant's interest in this
Lease, the Property, the Improvements or part thereof in violation of the provisions of Article
XVI and fails to rescind such Transfer within ten (10) days after written notice from Landlord;
(h) Other Obligations. Tenant defaults in the performance of any term,
provision, covenant or agreement contained in this Agreement other than an obligation
enumerated in this Section 17.1 and unless a shorter cure period is specified for such default, the
default continues for ten (10) days in the event of a monetary default or thirty (30) days in the
event of a nonmonetary default after the date upon which Agency shall have given written notice
of the default to Tenant; provided however, if the default is of a nature that it cannot be cured
within thirty (30) days, an Event of Default shall not arise hereunder if Tenant commences to
cure the default within thirty (30) days and thereafter prosecutes the curing of such default with
due diligence and in good faith to completion.
17.2 Notice and Opportunity to Cure.
17.2.1 Notice of Breach. Unless expressly provided otherwise in this Lease, no
breach by a party shall be deemed to have occurred under this Lease unless another party first
delivers to the nonperforming party a written request to perform or remedy (the "Notice of
Breach "), stating clearly the nature of the obligation which such nonperforming party has failed
to perform, and stating the applicable period of time, if any, permitted to cure the default.
17.2.2 Failure to Give Notice of Breach. Failure to give, or delay in giving,
Notice of Breach shall not constitute a waiver of any obligation, requirement or covenant
required to be performed hereunder. Except as otherwise expressly provided in this Lease, any
failure or delay by either party in asserting any rights and remedies as to any breach shall not
operate as a waiver of any breach or of any such rights or remedies. Delay by either party in
asserting any of its rights and remedies shall not deprive such party of the right to institute and
1583217.1 42
maintain any action or proceeding which it may deem appropriate to protect, assert or enforce
any such rights or remedies.
17.2.3 Limited Partners' Right to Cure. The limited partners of Tenant
( "Limited Partners ") shall have the right to cure any curable default of Tenant hereunder upon
the same terms and conditions afforded to Tenant within the same cure period as afforded Tenant
hereunder extended by an additional sixty (60) days; provided however, if the default is of such a
nature that the Limited Partners reasonably determine that it is necessary to replace the general
partner of Tenant in order to cure such default, then the cure period shall be extended by an
additional sixty (60) days after the removal and replacement of such general partner, provided
that the Limited Partners have promptly commenced and diligently proceeded with all requisite
actions to effect such removal and replacement. Landlord agrees that it shall deliver notice of
default to the Limited Partners in accordance with Section 17.2.1 concurrently with delivery of
such notice to Tenant provided that Landlord has been given the address for delivery of such
notices. Any such cure by a Limited Partner shall be accepted by Landlord as if performed by
Tenant or by any Leasehold Mortgagee. If this Lease has been terminated, upon any such cure
by a Limited Partner, Landlord shall, upon request by such Limited Partner enter into a new lease
with such Limited Partner (or any of its affiliated designees) pursuant to substantially similar
terms and conditions as those set forth in this Lease, subject to the rights of Leasehold
Mortgagees pursuant to Article XV. No rights and remedies of Landlord shall be effective as
against any Limited Partner unless Landlord has delivered to such Limited Partner all notices
required to be so delivered hereunder and such Limited Partner has been afforded the opportunity
to cure as provided herein. Landlord agrees not to amend any material provision of this Lease
without the prior written consent of the Limited Partners.
17.3 Remedies Upon Default.
17.3.1 Landlord's Remedies. Upon the occurrence of any Event of Default and
in addition to any and all other rights or remedies of Landlord hereunder and /or provided by law,
but subject in all events to the rights and remedies of Leasehold Mortgagees under Article XV
hereof and of any Limited Partner under this Article XVII, Landlord shall have the right to
terminate this Lease and /or Tenant's possessory rights hereunder, in accordance with applicable
law to re -enter the Property and take possession thereof and of the Improvements, and except as
otherwise provided herein, to remove all persons and property therefrom, and to store such
property at Tenant's risk and for Tenant's account, and Tenant shall have no further claim
thereon or hereunder. In no event shall this Lease be treated as an asset of Tenant after any final
adjudication in bankruptcy except at Landlord's option so to treat the same but no trustee,
receiver, or liquidator of Tenant shall have any right to disaffirm this Lease.
17.3.2 Remedies Upon Abandonment. If Tenant should breach this Lease and
abandon the Property, Landlord may, at its option, but subject in all events to the rights and
remedies of Leasehold Mortgagees under Article XV hereof and of any Limited Partner under
this Article XVII, enforce all of its rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder. Additionally, Landlord shall be entitled to recover
from Tenant all costs of maintenance and preservation of the Property, and all costs, including
attorneys' and receiver's fees incurred in connection with the appointment of and performance
by a receiver to protect the Property and Landlord's interest under this Lease.
1583217.1 43
17.3.3 Landlord Right to Continue Lease. In the event of any default under this
Lease by Tenant (and regardless of whether or not Tenant has abandoned the Property), this
Lease shall not terminate (except by an exercise of Landlord's right to terminate under Section
17.3.1) unless Landlord, at Landlord's option, elects to terminate Tenant's right to possession or,
at Landlord's further option, by the giving of any notice (including, without limitation, any
notice preliminary or prerequisite to the bringing of legal proceedings in unlawful detainer) to
terminate Tenant's right to possession. For so long as this Lease continues in effect, Landlord
may enforce all of Landlord's rights and remedies under this Lease, including, without
limitation, the right to recover all rent and other monetary payments as they become due
hereunder. For the purposes of this Lease, the following shall not constitute termination of
Tenant's right to possession: (a) acts of maintenance or preservation or efforts to relet the
Property; or (b) the appointment of a receiver upon initiative of Landlord to protect Landlord's
interest under this Lease.
17.3.4 Right to Injunction; Specific Performance. In the event of a default by
Tenant under this Lease that remains uncured beyond any applicable grace periods permitted
hereunder, Landlord shall have the right to commence an action against Tenant for damages,
injunction and/or specific performance. Tenant's failure, for any reason, to comply with a court-
ordered injunction or order for specific performance shall constitute a breach under this Lease.
17.3.5 Damages Upon Termination. Should Landlord elect to re -enter the
Property, or should Landlord take possession pursuant to legal proceedings or to any notice
provided by law, this Lease shall thereupon terminate, and Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid rent which is due,
owing and unpaid by Tenant to Landlord at the time of termination; and
(b) the worth at the time of award of the amount by which the unpaid
rent which would have come due after termination until the time of award exceeds the amount of
rental loss that Tenant proves could have been reasonably avoided; and
(c) the worth at the time of award of the amount by which the unpaid
rent for the balance of the Term after the time of award exceeds the amount of rental loss which
Tenant proves could be reasonably avoided; and
(d) all other amounts necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations under this Lease or
which in the ordinary course of things are likely to result therefrom, including all costs
(including attorneys' fees) of repossession, removing persons or property from the Property,
repairs, reletting and reasonable alterations of the Improvements in connection with reletting, if
any.
All computations of the worth at the time of award of amounts recoverable by Landlord under
subparagraphs (a), (b), and (d) above shall be computed by allowing interest at a rate equal to the
rate of interest most recently announced by Bank of America, N.A., (or any successor bank) at its
principal office in San Francisco as its "reference rate" serving as the basis upon which effective
rates of interest are calculated for those transactions making reference thereto, but in no event in
1583217.1 44
excess of the maximum rate of interest permitted under applicable law. The worth at the time of
the award recoverable by Landlord under (c) above shall be computed by discounting the amount
otherwise recoverable by Landlord at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award plus 1 %, or at such lower discount rate as may hereafter be
specified by applicable California statute.
17.4 Right to Receiver. Following the occurrence of an Event of Default, if Tenant
(and all Leasehold Mortgagees and Limited Partners) fails after receipt of a Notice of Breach to
cure the default within the time period set forth in this Lease, Landlord, at its option, may have a
receiver appointed to take possession of Tenant's interest in the Property with power in the
receiver (a) to administer Tenant's interest in the Property, (b) to collect all funds available in
connection with the operation of the Property, and (c) to perform all other acts consistent with
Tenant's obligations under this Lease, as the court deems proper. Landlord's rights under this
Section 17.4 shall be subject and subordinate to the rights of all Leasehold Mortgagees and
Limited Partners.
17.5 Remedies Cumulative. No remedy in this Article XVII shall be considered
exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or by statute, and
every power and remedy given by this Lease may be exercised from time to time and as often as
occasion may arise or as may be deemed expedient, subject to any limitations referred to
hereinabove.
17.6 No Election of Remedies. The rights given in this Article XVII to receive, collect
or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and
conditions of this Lease, or to prevent the breach or nonobservance thereof, or the exercise of
any such right or of any other right or remedy hereunder or otherwise granted or arising, shall not
in any way affect or impair or toll the right or power of Landlord upon the conditions and subject
to the provisions in this Lease to terminate Tenant's right of possession because of any default in
or breach of any of the covenants, provisions or conditions of this Lease beyond the applicable
cure period.
17.7 Survival of Obligations. Nothing herein shall be deemed to affect the right of
Landlord to indemnification for liability arising prior to the termination of the Lease for personal
injuries or property damage or in connection with any other Claim, nor shall anything herein be
deemed to affect the right of Landlord to equitable relief where such relief is appropriate. No
expiration or termination of the Lease by operation of law, or otherwise, and no repossession of
the Property or any part thereof shall relieve Tenant of its previously accrued liabilities and
obligations hereunder, all of which shall survive such expiration, termination or repossession.
17.8 No Waiver. Except to the extent that Landlord may have agreed in writing, no
waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants
hereunder shall be deemed to be a waiver of any subsequent breach of the same or any other
covenant, agreement or obligation, nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be deemed a waiver by Landlord of its rights or remedies with respect to
such breach.
1583217.1 45
ARTICLE XVIII
GENERAL PROVISIONS
18.1 Estoppel Certificates. At any time and from time to time, Landlord and Tenant,
shall for the benefit of any Limited Partner or Leasehold Mortgagee, on at least twenty (20)
days' prior written request by the requesting party, deliver to the party requesting same a
statement in writing certifying that this Lease is unmodified and in full force and effect (or if
there shall have been modifications that the same is in full force and effect as modified and
stating the modifications) and the dates to which the Rent has been paid and stating whether or
not, to the best knowledge of the certifying party, the other party is in default in the performance
of any covenant, agreement or condition contained in this Lease and, if so, specifying each such
default of which the certifying party may have knowledge and such other statements or
certifications reasonably requested. A prospective purchaser, mortgagee, or Limited Partner
shall be entitled to request such a statement and rely on a statement delivered hereunder.
18.2 Quiet Enjoyment. Landlord covenants and agrees that Tenant (and pursuant to
the provision of Articles XV and XVII, respectively, any Leasehold Mortgagee and Limited
Partner, as applicable), upon paying the Rent and all other charges herein provided for and
observing and keeping all covenants, agreements and conditions of this Lease on its part to be
observed and kept, shall quietly have and enjoy the Property during the Term of this Lease
without hindrance or molestation by anyone claiming by or through Landlord, subject, however,
to the exceptions, reservations and conditions of this Lease.
18.3 Landlord's Right to Enter the Property. Landlord and its agents may enter the
Property or the Improvements from time to time with reasonable notice (and, upon Tenant's
request, when accompanied by representative(s) of Tenant), except for emergencies in which
case no notice shall be required, to inspect the same, to post notices of nonresponsibility and
similar notices, and to discharge Tenant's obligations hereunder when Tenant has failed to do so
within a reasonable time after written notice from Landlord.
18.4 Representations of Landlord and Tenant.
18.4.1 Tenant hereby represents and warrants that all of the following are true
and correct as of the Effective Date:
(a) Tenant is a limited partnership, duly organized, validly existing
and in good standing under the laws of the State of California;
(b) Tenant has taken all requisite action in connection with the
execution of this Lease and the undertaking of the obligations set forth herein. This Lease
constitutes the legally valid and binding obligation of Tenant, enforceable against Tenant in
accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws
or by legal or equitable principles relating to or limiting the rights of contracting parties
generally; and
(c) The execution of this Lease and the acceptance of the obligations
set forth herein do not violate any court order or ruling binding upon Tenant or any provision of
1583217.1 46
any indenture, agreement or other instrument to which Tenant is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or
constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage,
deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest
applicable to Tenant.
18.4.2 Landlord hereby represents and warrants that all of the following are true
and correct as of the Effective Date:
(a) Landlord has taken all requisite action in connection with the
execution of this Lease and the undertaking of the obligations set forth herein. This Lease
constitutes the legally valid and binding obligation of Landlord, enforceable against Landlord in
accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws
or by legal or equitable principles relating to or limiting the rights of contracting parties
generally.
(b) The execution of this Lease and the acceptance of the obligations
set forth herein do not violate any court order or ruling binding upon Landlord or any provision
of any indenture, agreement or other instrument to which Landlord is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or
constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage,
deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest
applicable to Landlord.
(c) As of the Effective Date, Landlord has not executed or consented
to the recordation of any monetary lien on Landlord's fee interest in the Property, and Landlord
agrees that it will not execute or consent to the recordation of any monetary lien on Landlord's
fee interest in the Property unless the holder of such lien agrees irrevocably to recognize this
Lease in the event of any realization upon the Property by such holder or its successors or
assigns.
18.5 Miscellaneous.
18.5.1 Severability. If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
18.5.2 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Lease 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:
(a) personal delivery, in which case notice is effective upon delivery;
1583217.1 47
(b) 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;
(c) 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;
(d) 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.
Landlord: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Tenant: MP South City II, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
Facsimile: (650) 357 -9766
Limited Partner:
Leasehold Mortgagees:
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
1583217.1 48
18.5.3 Captions; Construction. The captions used for the sections and articles of
this Lease are inserted for convenience only and shall not be used to construe this Lease. The
language in all parts of this Lease shall be construed as a whole, according to its fair meaning
and not strictly for or against Landlord or Tenant.
18.5.4 Binding on Successors; City as Successor to Agency. Subject to the
restrictions on Transfers set forth in Article XVI, this Agreement shall bind and inure to the
benefit of the Parties and their respective permitted successors and assigns. Any reference in this
Agreement to a specifically named Party shall be deemed to apply to any permitted successor
and assign of such Party who has acquired an interest in compliance with this Agreement or
under law. If the Agency ceases to exist, the City shall automatically succeed to the interests of
Agency under this Agreement.
18.5.5 Short Form of Lease. A memorandum of lease substantially in the form
attached hereto as Exhibit B shall be executed by Landlord and Tenant and recorded in the
Office of the San Mateo County Recorder.
18.5.6 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard to principles of
conflicts of laws. Any action to enforce or interpret this Agreement shall be filed and heard in
the Superior Court of San Mateo County, California or in the Federal District Court for the
Northern District of California.
18.5.7 Attorneys' Fees. If either Party fails to perform any of its obligations
under this Agreement, or if any dispute arises between the Parties concerning the meaning or
interpretation of any provision hereof, then the prevailing Party in any proceeding in connection
with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in
enforcing or establishing its rights hereunder, including, without limitation, court costs and
reasonable attorneys' fees and disbursements.
18.5.8 Indemnity Includes Defense Costs. In any case where either party is
obligated under an express provision of this Lease, to indemnify and to save the other party
harmless from any damage or liability, the same shall be deemed to include defense of the
indemnitee by the indemnitor, such defense to be through legal counsel reasonably acceptable to
the indemnitee.
18.5.9 No Brokers; No Third -Party Beneficiaries. Landlord represents that it has
not engaged any broker or agent to represent Landlord in this transaction. Tenant represents that
it has not engaged any broker or agent to represent Tenant in this transaction. Each party agrees
to indemnify and hold the other harmless from and against any and all liabilities or expenses,
including attorneys' fees and costs, arising out of, or in connection with claims made by any
broker or individual for commissions or fees as a result of the acts of the indemnifying party.
There shall be no third -party beneficiaries to this Lease other than the Leasehold Mortgagees and
Limited Partners.
1583217.1 49
18.5.10 Disclaimer of Partnership, Lender /Borrower Relationship. The
relationship of the parties under this Lease is solely that of landlord and tenant, and it is
expressly understood and agreed that Landlord does not as a result of this Lease in any way nor
for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of
Tenant's business or otherwise. This Lease is not intended to, and shall not be construed to,
create the relationship of principal and agent, partnership, joint venture, association, or seller and
buyer as between Landlord and Tenant. It is further expressly understood and agreed that this
Lease is not intended to, and shall not be construed to create the relationship of lender and
borrower, and Landlord does not, solely as a result of this Lease, become a lender to Tenant.
18.5.11 Entire Agreement; Amendments. This Lease together with the REA, the
Loan Agreement, the Regulatory Agreement and the other documents executed in connection
with the Loan Agreement contains the entire agreement between the parties relative to the
subject matter hereof. All previous correspondence, communications, discussions, agreements,
understandings or proposals and acceptances thereof between the parties or their representatives,
whether oral or written, are deemed to have been integrated into and superseded by this Lease
and are of no further force and effect except as expressly provided in this Lease. No amendment
or modification hereof shall be effective for any purpose unless in writing signed by Landlord
and Tenant.
18.5.12 Time is of the Essence; Calculation of Time Periods. Time is of the
essence for each condition, term, obligation and provision of this Agreement. Unless otherwise
specified, in computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be included and the last
day of the period so computed is to be included, unless such last day is not a business day, in
which event the period shall run until the next business day. The final day of any such period
shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement,
a "business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of California.
18.5.13 Survival. The following provisions shall survive the expiration or
termination of this Lease: all representations made by Tenant hereunder, Tenant's release of
Landlord pursuant to Section 2.6, Tenant's indemnification obligations pursuant to Sections 5.2,
6.6, 6.19, 7.4, 7.10, 7.11.2, 13.1, and 18.5.9 and Article X, and all other provisions of this Lease
which state that they shall survive the expiration or termination of this Lease.
18.5.14 Headings; Interpretation. The section headings and captions used herein
are solely for convenience and shall not be used to interpret this Agreement. The Parties
acknowledge that this Agreement is the product of negotiation and compromise on the part of
both Parties, and the Parties agree, that since both Parties have participated in the negotiation and
drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the
Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
18.5.15 Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be an original and all of which together shall constitute one and the same
instrument.
1583217.1 50
18.5.16 Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency its capacity
as Landlord hereunder is required or permitted under this Lease, such action shall be in writing,
and such action may be given, made or taken by the Agency Executive Director or by the City
Manager or by any person who shall have been designated by the Agency Executive Director or
the City Manager, without further approval by the governing board of the Agency. In any
approval, consent, or other determination by Landlord required hereunder, Landlord shall act
reasonably and in good faith.
18.5.17 Inspection of Books and Records. Upon request, Tenant shall permit the
Agency to inspect at reasonable times and on a confidential basis those books, records and all
other documents of Tenant necessary to determine Tenant's compliance with the terms of this
Agreement.
SIGNATURES ON FOLLOWING PAGE
1583217.1 51
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the
Effective Date.
LANDLORD:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
TENANT:
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1583217.1 52
Exhibit A -1
LEGAL DESCRIPTION OF LAND
(Attach legal description.)
Exhibit A -2
LEGAL DESCRIPTION OF PROPERTY
(Attach legal description of Phase B leased premises.)
Exhibit B
MEMORANDUM OF LEASE
(Attach form of Memorandum.)
1583217.1 53
Recording Requested by
and when Recorded, return to:
Redevelopment Agency
of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
Date.
MEMORANDUM OF GROUND LEASE
(636 El Camino — Phase B)
1585570.2 1
Space above this line for Recorder's use.
This Memorandum of Ground Lease (this "Memorandum "), dated for reference
purposes as of , 20_, is executed by and between the Redevelopment Agency
of the City of South San Francisco, a public body, corporate and politic (the "Agency ") and MP
South City II, L.P., a California limited partnership (hereafter "Tenant ") in reference to and
consideration of that certain Ground Lease dated as of , 20 ( "Effective
Date "), by and between Tenant and Agency (the "Lease ").
1. The purpose of this Memorandum is to provide notice of the existence of the
Lease which is incorporated herein by this reference. This Memorandum incorporates all of the
terms and provisions of the Lease as though fully set forth herein.
2. The Agency is the owner of fee title to the Property known as 636 El Camino
Real, identified as San Mateo County Assessor's Parcel No. 014 - 160 -040, and more particularly
described in Exhibit A -1 attached hereto (hereafter, the "Parcel ").
3. Pursuant to the Ground Lease Tenant shall construct a mixed -use multi - family
development (the "Project ") that will include, among other improvements, forty -seven (47)
residential units on that portion of the Parcel described in Exhibit A -2 attached hereto (the
"Property ").
4. Pursuant to the Lease, the Agency leases to Tenant, and Tenant leases from the
Agency, the Property subject to all of the terms and conditions set forth in the Lease.
5. The term of the Lease is seventy -five (75) years commencing on the Effective
6. In the event of any conflict between this Memorandum and the terms and
conditions of the Lease, the terms and conditions of the Lease shall control.
7. This Memorandum may be executed in counterparts, each of which shall be an
original, and all of which together shall constitute one fully- executed agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
first set forth above.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
TENANT:
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED.
1585570.2 2
STATE OF CALIFORNIA
COUNTY OF SAN MATEO )
COUNTY OF SAN MATEO )
On , 20, before me, , (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
On , 20 , before me, , (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1585570.2 3
Exhibit A -1
PARCEL
(Attach legal description.)
Exhibit A -2
PROPERTY
(Attach legal description of Phase B property.)
1585570.2 4
1583230.1
LOAN AGREEMENT
(636 El Camino - Phase B)
by and between
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
and
MP SOUTH CITY II, L.P.,
a California limited partnership
, 2011
Exhibits
A -1 Legal Description of the Parcel
A -2 Legal Description of the Property (Phase B Leased Premises)
B Form of Promissory Note
C Form of Leasehold Deed of Trust
D Form of Regulatory Agreement
E Form of Assignment Agreement
F Financing Plan
1583230.1 2
THIS LOAN AGREEMENT (636 El Camino — Phase B) (this "Agreement ") is entered
into effective as of , 2011 ( "Effective Date ") by and between the
Redevelopment Agency of the City of South San Francisco, a public body corporate and politic
( "Agency ") and MP South City II, L.P., a California limited partnership ( "Developer "). Agency
and Developer are hereinafter collectively referred to as the "Parties."
RECITALS
A. Pursuant to authority granted under Community Redevelopment Law (California
Health and Safety Code Section 33000 et seq.) ( "CRL "), the Agency has responsibility to
implement the redevelopment plan adopted in 1993 by the City Council of the City of South San
Francisco by Ordinance No. 1132 -93 (as subsequently amended, the "Redevelopment Plan ")
for the El Camino Corridor Redevelopment Project (the "Project Area ").
B. Agency and Developer entered into an Owner Participation and Loan Agreement
dated as of November 19, 2008 (the "OPA ") pursuant to which Agency provided a loan to
Developer in the amount of $4,950,000 (the "Original Loan ") to assist Developer in financing
the acquisition of the property located adjacent to the Project Area known as 636 El Camino
Real, identified as San Mateo County Assessor's Parcel No. 014- 160 -040, and more particularly
described in Exhibit A -1 attached hereto (the "Parcel ") and certain predevelopment expenses
related to the development of the Project.
C. Pursuant to Agency's exercise of its option granted under that certain Option and
Purchase and Sale Agreement dated as of June 23, 2010 and executed by and between Agency
and Developer, as of the Effective Date Agency has acquired fee title to the Parcel.
D. Pursuant to that certain Ground Lease dated as of the Effective Date and executed
by and between Agency and Developer (the "Ground Lease "), Developer intends to construct a
development consisting of forty -seven (47) units of multi - family housing, common areas,
subterranean parking, and related improvements (collectively, the "Project ") on that portion of
the Parcel described in Exhibit A -2 attached hereto (the "Property ").
E. In connection with the OPA: (i) Developer executed and delivered to Agency a
promissory note in the amount of the Original Loan (the "Original Note "); (ii) Developer
executed a deed of trust to secure repayment of the Original Note, which deed of trust was
recorded against the Parcel on November 19, 2008 as Instrument No. 2008 - 126319 (the
"Original Deed of Trust "); and (iii) Developer and Agency executed (a) an affordable housing
regulatory agreement which was recorded against the Parcel on November 19, 2008 as
Instrument No. 2008 - 126317 (the "Original Regulatory Agreement; (b) a Notice of
Affordability Restrictions which was recorded against the Parcel on November 19, 2008 as
Instrument No. 2008 - 126318 (the "Original Affordability Notice "); (c) a memorandum of the
OPA which was recorded against the Parcel on November 19, 2008 as Instrument No. 2008-
126315 (the "Original Memorandum of OPA "); and (d) a Memorandum of Option which was
recorded against the Parcel on November 19, 2008 as Instrument No. 2008 - 126316 (the
"Original Memorandum of Option "). The OPA, the Original Note, the Original Deed of Trust,
the Original Regulatory Agreement, the Original Affordability Notice, the Original
1583230.1 3
Memorandum of OPA and the Original Memorandum of Option are collectively referred to
herein as the "Original Documents."
F. The Parties intend that the terms of this Agreement and the Agency Documents
(defined below) shall prevail over any inconsistent provision in the Original Documents, and
have agreed to execute and record such instruments as may be necessary to terminate and as
applicable, reconvey, the Original Documents.
G. Upon satisfaction of the conditions precedent set forth in this Agreement and
subject to the terms and conditions set forth herein and in the Ground Lease, the Agency will
lease the Property to Developer, and will provide a construction/permanent loan to assist in
financing the development of the Project. Pursuant to separate agreements, the Agency will
provide additional financing and will lease the remainder of the Parcel to an affiliate of
Developer for development of a first phase of affordable housing (the "Phase A Project ").
H. Concurrently with the execution of this Agreement, among other documents,
Developer shall execute: (a) the Ground Lease and recordable memorandum thereof
( "Memorandum "), (b) a secured promissory note in the amount of the new Agency
construction/permanent loan, (c) a leasehold deed of trust which shall provide Agency with a
security interest in the Project and Developer's interest in the Property, (d) an Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants which shall require
Project rents to be affordable to low -, and very low- income households for a term of not less than
seventy -five (75) years, and (e) a Notice of Affordability Restrictions.
I. The purpose of this Agreement is to effectuate the Redevelopment Plan by
providing for the redevelopment of the Property as more particularly set forth herein. The
Agency has determined that (i) the lease and development of the Property pursuant to this
Agreement and the Ground Lease (a) is consistent with the Redevelopment Plan and the
Implementation Plan for the Project Area, (b) will be of benefit to the Project Area, and (c) will
further the goals of the Redevelopment Plan by providing affordable housing in proximity to the
Project Area, and (ii) the Agency financing is necessary to make the Project economically
feasible and affordable to low- and very low - income households.
J. The City Council and the Agency have each approved the lease of the Property
pursuant to the Ground Lease and have followed all requisite procedures and adopted all
requisite findings in connection with the foregoing, including without limitation the requirements
of Sections 33431 and 33433 of the CRL.
K. A material inducement to Agency to enter into this Agreement is the agreement
by Developer to develop the Project within the time periods specified herein and in accordance
with the provisions hereof, and the Agency would be unwilling to enter into this Agreement in
the absence of an enforceable commitment by Developer to take such actions and complete such
work in accordance with such provisions and within such time periods.
L. Pursuant to the California Environmental Quality Act ( "CEQA "), on June 23,
2010, the City Council adopted a Negative Declaration for the Project.
1583230.1 4
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows.
1. Definitions. The following terms shall have the meanings set forth in the Sections
referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional
terms are defined in the Recitals and text of this Agreement.
"Agency Documents" means collectively, this Agreement, the Ground
Lease, the Note, the Deed of Trust, the Regulatory Agreement and the Assignment Agreement.
Francisco.
for the Loan.
ARTICLE I
DEFINITIONS
"Affordable Rent" is defined in the Regulatory Agreement.
"Agency's Permitted Exceptions" is defined in Section 2.7.
"Area Median Income" is defined in the Regulatory Agreement.
"Assignment Agreement" is defined in Section 2.3.9.
"City" means the City of South San Francisco, a municipal corporation.
"City Council" means the City Council of the City of South San
"Claims" is defined in Article X of the Ground Lease.
"Closing Date" or "Close of Escrow" shall be the date that escrow closes
"Conditions of Approval" is defined in Section 2.3.5 and further
described in Section 5.4.
"Construction Plans" is defined in Section 6.14 of the Ground Lease.
"Deed of Trust" is defined in Section 2.3.9.
"Environmental Laws" is defined in Section 7.11.4 of the Ground Lease.
"Ground Lease" is defined in Recital D.
"Financing Plan" is defined in Section 2.3.2.
"Hazardous Material" is defined in Section 7.11.4 of the Ground Lease.
"Improvements" is defined in Section 2.3.4.
1583230.1 5
"Indemnitees" is defined in Article X of the Ground Lease.
"Lender's Title Policy" is defined in Section 2.7.
"Loan" is defined in Section 3.1.2.
"Note" is defined in Section 2.3.9.
"Official Records" means the Official Records of San Mateo County.
"Original Documents" is defined in Recital E.
"Original Loan" is defined in Recital B.
"Original Note" is defined in Recital E.
"Parcel" is defined in Recital B.
"Partnership Agreement" is defined in Section 5.3.
"Phase A Project" is defined in Recital G.
"Project" is defined in Recital D and further described in Section 2.3.4.
"Property" is defined in Recital D.
"REA" is defined in Section 2.3.9.
"Regulatory Agreement" is defined in Section 2.3.9.
"Transfer" is defined in Section 5.2.
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE; CONDITIONS PRECEDENT TO LOAN
CLOSING
2.1 Developer's Representations. Developer represents and warrants to Agency as
follows, and Developer covenants that until the expiration or earlier termination of this
Agreement, upon learning of any fact or condition which would cause any of the warranties and
representations in this Section 2.1 not to be true, Developer shall immediately give written notice
of such fact or condition to Agency. Developer acknowledges that Agency shall rely upon
Developer's representations made herein notwithstanding any investigation made by or on behalf
of Agency.
(i) Authority; General Partner. Developer is a limited partnership, duly
organized and in good standing under the laws of the State of California. Developer's general
partner is Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation that
is duly organized and in good standing under the laws of the State of California and tax - exempt
1583230.1
under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Developer has the
full right, power and authority to undertake all obligations of Developer as provided herein, and
the execution, performance and delivery of this Agreement by Developer has been duly
authorized by all requisite actions. The persons executing this Agreement on behalf of
Developer have been duly authorized to do so. This Agreement and the other Agency
Documents constitute valid and binding obligations of Developer, enforceable in accordance
with their respective terms.
(ii) No Conflict. Developer's execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any contract,
agreement or order to which Developer is a party or by which it is bound.
(iii) No Litigation or Other Proceeding. No litigation or other proceeding
(whether administrative or otherwise) is outstanding or has been threatened which would
prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement.
(iv) No Developer Bankruptcy. Developer is not the subject of a bankruptcy
or insolvency proceeding.
2.2 Effective Date. The obligations of Developer and Agency hereunder shall be
effective as of the Effective Date which date is set forth in the preamble to this Agreement.
2.3 Conditions Precedent. Agency's obligation to make the Loan to Developer is
conditioned upon the satisfaction of all of the requirements set forth in each subsection of this
Section 2.3 and all of the requirements set forth in Section 2.7 unless any such condition is
waived by Agency acting in the discretion of its Executive Director. The closing of the Loan
shall be deemed to indicate Agency's agreement that all of the conditions set forth in this Section
2.3 and the subsections thereof have been satisfied. Prior to the Closing Date, Developer shall
satisfy all of the following conditions:
2.3.1 Due Authorization and Good Standing. Developer shall have delivered to
Agency of each of the following: (i) certificate of good standing, certified by the Secretary of
State indicating that Developer is properly organized and authorized to do business in the State
of California, (ii) a certified resolution indicating that Developer's general partner has authorized
the transactions contemplated by this Agreement and that the persons executing the Agency
Documents on behalf of Developer have been duly authorized to do so, (iii) certified copy of
Developer's LP -1, (iv) a copy of Developer's executed partnership agreement, certified as
accurate and complete by an authorized officer of Developer's general partner; (v) certified
copies of Developer's general partner's bylaws and articles of incorporation; and (vi) verification
of the tax - exempt status of Developer's general partner.
2.3.2 Financing Plan. Developer has previously submitted to Agency, and the
Agency has approved, Developer's plan for financing the construction and permanent financing
of the Project (hereinafter the "Financing Plan "). Proposed modifications to the approved
Financing Plan (if any) shall be submitted to the Agency for review and approval. Agency staff
shall promptly review such proposed modifications, and acting through the Agency's Executive
Director, the Agency shall approve such plan in writing within fifteen (15) business days
1583230.1 7
following receipt provided that the plan conforms to the requirements of this Agreement and the
Ground Lease. If the Agency does not approve proposed modifications to the Financing Plan,
the Agency shall set forth its objections in writing and notify Developer of the reasons for its
disapproval. Developer shall thereafter submit a revised Financing Plan that addresses the
reasons for disapproval. The approved Financing Plan is attached hereto as Exhibit F.
2.3.3 Evidence of Availability of Funds. Prior to the Closing Date, Developer
shall submit to the Agency copies of all loan documents for the financing sources identified in
the approved Financing Plan, together with evidence reasonably satisfactory to Agency that (i)
all conditions to the release and expenditure of the initial draw of funds from each source
described in the approved Financing Plan as a source of construction financing for the Project
have been met (or will be met upon the lease of the Property to Developer and close of the Loan
and the satisfaction of such additional conditions as Agency shall reasonably approve) and that
such funds will be available upon the lease of the Property to Developer, (ii) all approvals,
permits, and authorizations which are conditioned upon the lease of the Property to Developer
will be received promptly after the execution of the Ground Lease, and (iii) all construction
financing (including draws subsequent to the initial draw of funds) will be available upon the
lease of the Property to Developer and satisfaction of the conditions set forth in the construction
loan documents.
2.3.4 Scope of Development and Site Plan. Agency and City have previously
approved Developer's proposed Scope of Development ( "Scope of Development ") and site plan
for the Project. The Scope of Development includes the construction of: (i) forty -seven (47)
units of multi - family housing consisting of thirteen (13) one - bedroom units, fourteen (14) two -
bedroom units, and twenty (20) three- bedroom units; (ii) 86 parking spaces in a subterranean
garage; (iii) common facilities including laundry facilities and (iv) recreational space; (all of the
foregoing are collectively hereinafter referred to as the "Improvements "). Ten (10) of the
residential units (consisting of seven (7) 1- bedroom apartments and three (3) 2- bedroom
apartments) will be restricted for occupancy by families and transitional age youth who are
homeless or at risk of homelessness and who also qualify pursuant to the California Housing
Finance Agency Mental Health Services Act (MHSA) Housing Program.
2.3.5 Design Review; Conditions of Approval. The Agency and City have
approved Developer's preliminary design documents including elevations and schematic
drawings for the Project (collectively, "Preliminary Design Documents "). The City and
Agency staff have determined that the Preliminary Design Documents are consistent with the
approved Project Site Plan, the Redevelopment Plan, and the City's Municipal Code. On June
23, 2010, the City approved the Preliminary Design Documents and adopted Conditions of
Approval for the Project (the "Conditions of Approval ").
2.3.6 Permits and Approvals; Cooperation. Developer acknowledges that the
execution of this Agreement by Agency does not relieve Developer from the obligation to apply
for and to obtain from City and all other agencies with jurisdiction over the Property, all
necessary approvals, entitlements, and permits for the development of the Project (including
without limitation approval of the Project in compliance with CEQA and if applicable, NEPA),
nor does it limit in any manner the discretion of the City or any other agency in the approval
process. Prior to the Closing, Developer shall have obtained all entitlements, permits, licenses
1583230.1 8
and approvals required for the development and operation of the Project, including without
limitation, building permits and use permits or shall provide evidence satisfactory to Agency that
receipt of such permits and approvals is subject only to such conditions as Agency may
reasonably approve. Agency staff shall work cooperatively with Developer to assist in
coordinating the expeditious processing and consideration of all permits, entitlements and
approvals necessary for the development and operation of the Project as contemplated by this
Agreement.
2.3.7 Payment of Fees. Developer shall have paid when due all customary and
reasonable fees and charges in connection with the processing of City and all other applicable
agency permits and approvals.
2.3.8 Construction Plans, Budget and Schedule. Agency shall have approved
the construction budget and schedule for the Project, and City shall have approved the
Construction Plans and specifications for the Project.
2.3.9 Execution, Delivery and Recordation of Documents. Developer shall have
executed, acknowledged as applicable, and delivered to Agency this Agreement, and all other
documents required in connection with the transactions contemplated hereby, including without
limitation the Ground Lease, a promissory note substantially in the form attached hereto as
Exhibit B (the "Note "), a leasehold deed of trust substantially in the form attached hereto as
Exhibit C (the "Deed of Trust "), an Affordable Housing Regulatory Agreement and Declaration
of Restrictive Covenants substantially in the form attached hereto as Exhibit D (the "Regulatory
Agreement "), a Notice of Affordability Restrictions on Transfer of Property substantially in the
form attached as Exhibit D to the Regulatory Agreement (the "Notice ") and an Assignment
Agreement substantially in the form attached hereto as Exhibit E ( "Assignment Agreement ")
Concurrently with the Closing, the Memorandum, the Deed of Trust, the Regulatory Agreement
and the Notice shall be recorded in the Official Records. In addition to the foregoing, Agency,
Developer and the Developer of the Phase A Project shall have executed a reciprocal easement
agreement ( "REA ") which shall be recorded in the Official Records in form approved by
Agency.
2.3.10 Insurance; Payment and Performance Bonds. Developer shall have
provided evidence reasonably satisfactory to Agency that Developer has obtained insurance
coverage meeting the requirements set forth in Article VIII and shall have provided to Agency
copies of payment bonds and performance bonds or other assurance of completion reasonably
satisfactory to Agency pursuant to the requirements set forth in the Ground Lease.
2.4 Escrow. Agency and Developer shall open escrow at the office of Old Republic
Title Company located at 555 12 Street, Oakland, California, or such other title company as the
Parties may agree upon ( "Title Company" or "Escrow Agent ") in order to consummate the
closing of escrow for the transactions contemplated hereby.
2.5 Costs of Closing and Escrow. Developer shall pay all recording fees, transfer
taxes, escrow fees and closing costs incurred in connection with the lease of the Property and the
Close of Escrow. Developer shall pay for the cost of any lender's policy of title insurance that
Agency elects to acquire in connection with the transactions contemplated hereby.
1583230.1 9
2.6 Closing. The Closing Date shall be a date that is mutually acceptable to the
Parties, and which shall occur within thirty (30) days following the Developer's satisfaction or
Agency's waiver of all conditions precedent to Close of Escrow as set forth in Section 2.3 (and
all subsections thereof) and Section 2.7. Prior to the Close of Escrow, Developer shall deposit
into escrow the Agency Documents, executed and acknowledged as applicable and Developer's
share of closing costs. Provided that all conditions precedent to Close of Escrow have been
satisfied or waived, Agency shall deposit into escrow executed copies of the Agency Documents
to which Agency is a party. On the Closing Date the Escrow Agent shall cause the REA, the
Deed of Trust, the Memorandum, the Regulatory Agreement and the Notice to be recorded in the
Official Records.
2.7 Conditions to Closing. Agency's obligation to fund the Loan is conditioned upon
the satisfaction of the terms and conditions set forth in this Section 2.7.
a. No Default. There shall exist no condition, event or act which would
constitute a material breach or default under this Agreement or any other Agency Document, or
which, upon the giving of notice or the passage of time, or both, would constitute such a material
breach or default.
b. Representations. All representations and warranties of Developer
contained herein or in any other Agency Document or certificate delivered in connection with the
transactions contemplated by this Agreement shall be true and correct in all material respects as
of the Close of Escrow.
c. Satisfaction of Conditions Precedent. All conditions set forth in Section
2.3 and each subsection thereof shall have been satisfied.
d. Lender's Title Policy. The Title Company shall, upon payment of the
premium therefor, be ready to issue an ALTA Lender's Policy of Title Insurance for the benefit
and protection of Agency ( "Lender's Title Policy ") in the amount of the Loan, insuring that the
lien of the Deed of Trust is subject only to title exceptions and such other defects, liens,
conditions, encumbrances, restrictions, easements and exceptions as Agency may reasonably
approve in writing (collectively, "Agency's Permitted Exceptions ") and containing such
endorsements as Agency may reasonably require, with the cost of such Lender's Title Policy to
be paid by Developer.
ARTICLE III
AGENCY FINANCIAL ASSISTANCE
3.1 Loan and Note.
3.1.1 Original Loan. The Parties acknowledge that (A) in connection with the
conveyance of the Parcel by Developer to Agency, Agency forgave that portion of the
outstanding principal balance of the Original Loan equal to the purchase price of the Parcel
originally paid by Developer, together with interest accrued thereon, and (B) the remaining
balance of the Original Loan has been expended for predevelopment costs associated with the
Project and the Phase A Project.
1583230.1 10
3.1.2 Construction/Permanent Loan. In order to increase the affordability of the
Project, Agency agrees to provide a construction/permanent loan to Developer in the principal
amount of Five Million, Six Hundred Ninety -Eight Thousand, Six Hundred Twenty -Seven
Dollars ($5,698,627) (equal to the sum of Five Million, Four Hundred Ninety -Two Thousand,
Forty -Two and 58/100 Dollars ($5,492,042.58) in new money plus One Hundred Ninety -Six
Thousand, Six Hundred Twenty -Seven Dollars ($196,627) previously disbursed for Project
predevelopment costs pursuant to the Original Note and Nine Thousand, Nine Hundred Fifty -
Seven and 42/100 Dollars ($9,957.42) in interest accrued on such predevelopment
disbursements] (the "Loan ") upon the terms and conditions and for the purposes set forth in this
Agreement. The Loan shall be evidenced by a secured promissory note in the amount of the
Loan (the "Note ") dated as of the Closing Date and executed by Developer substantially in the
form attached hereto as Exhibit B.
Upon the closing for the Loan, Agency shall return the cancelled Original Note to
Developer, and Developer shall execute the Note evidencing Developer's obligation to repay the
previously disbursed predevelopment funds, the interest accrued thereon, and the new funds to
be advanced by the Agency pursuant to this Agreement.
Provided that Developer has complied with all conditions precedent to disbursement of
the Loan set forth in Section 3.6, the proceeds of the Loan ( "Loan Proceeds ") shall be disbursed
pursuant to approved draw requests as described in Section 3.6. The Parties agree that Agency
shall disburse the Loan Proceeds only for the purpose of funding development of the Property
and the Project.
3.2 Interest Rate; Payment Dates; Cost Savings; Maturity Date. The outstanding
principal balance of the Note will bear interest at a rate equal to three percent (3 %) simple annual
interest commencing upon the date of disbursement. Annual payments shall be due and payable
on a residual receipts basis in accordance with the formula set forth in the Note. The entire
outstanding principal balance of the Loan together with accrued interest and all other sums due
under the Agency Documents shall be payable in full on the date (the "Maturity Date ") which is
the earlier of (i) the fifty -fifth (55 anniversary of the date of issuance of the final certificate of
occupancy for the Project, or (ii) the fifty- seventh (57 anniversary of the Loan origination date.
Notwithstanding the foregoing, the Agency shall have the right to accelerate the Maturity
Date and declare all sums payable under the Note immediately due and payable upon the and the
expiration of all applicable cure periods following the occurrence of an Event of Default
including without limitation, termination of the Ground Lease due to an event of default on the
part of Developer under the Ground Lease.
Within ten (10) business days after Developer's receipt of its limited partner(s)' capital
contribution following the issuance of the IRS Form 8609 for the Project, Developer shall pay to
the Agency as a reduction of the outstanding principal balance of the Note, a one -time payment
in the amount of Excess Proceeds as defined in and pursuant to the Note.
3.3 Security. As security for repayment of the Note, Developer shall execute the
Deed of Trust in favor of Agency as beneficiary pursuant to which Agency shall be provided a
lien against Developer's interest in the Property and the Improvements. The Deed of Trust shall
1583230.1 11
be dated as of the Closing Date, shall be substantially in the form attached hereto as Exhibit C,
and shall be recorded in the Official Records on the Closing Date. The Deed of Trust may be
subordinated only to such liens and encumbrances consistent with the approved Financing Plan
as Agency shall approve in writing. As additional security, Developer shall execute and deliver
to Agency the Assignment Agreement substantially in the form attached hereto as Exhibit E.
3.4 Prepayment; Acceleration.
(a) Prepayment. Developer shall have the right to prepay the Loan at any
time and from time to time, without penalty or premium, provided that any prepayment of
principal must be accompanied by interest accrued but unpaid to the date of prepayment.
Prepayments shall be applied first to accrued but unpaid interest and then to principal. Any such
prepayment shall have no effect upon Developer's obligations under the Regulatory Agreement
which shall survive for the full term of the Regulatory Agreement.
(b) Due On Transfer or Encumbrance. Unless Agency agrees otherwise in
writing, the entire unpaid principal balance and all interest and other sums accrued under the
Note shall be due and payable upon the Transfer absent the prior written consent of Agency of
all or any part of or interest in the Property or the Project except as otherwise permitted pursuant
to this Agreement.
3.5 Nonrecourse. Except as expressly provided in Section 3.9 of the Note, the Note
shall be non - recourse to Developer.
3.6 Conditions to Disbursement of Loan Proceeds. Agency's obligation to fund the
Loan and disburse the Loan Proceeds is conditioned upon the satisfaction of all of the conditions
set forth in Sections 2.3 and 2.7 and all of the following conditions:
(i)
The execution and delivery of the Ground Lease.
(ii) Developer's execution and delivery to Agency of this Agreement, the
Note, the Deed of Trust, the Memorandum, the Regulatory Agreement, the Notice and the
Assignment Agreement.
(iii) Recordation of the Memorandum, the REA, the Deed of Trust, the Notice
and the Regulatory Agreement in the Official Records.
(iv) Developer's delivery to Agency of evidence reasonably satisfactory to
Agency that there are no mechanics' liens or stop notices related to the Property or the Project,
and Developer's provision to Agency of full waivers or releases of lien clams if required by
Agency.
(v) The issuance by an insurer satisfactory to Agency of an A.L.T.A. lender's
policy of title insurance ( "Title Policy ") for the benefit of Agency in the amount of the Loan,
insuring that the Deed of Trust, and the Regulatory Agreement, are subject only to Agency's
Permitted Exceptions and containing such endorsements as Agency may reasonably require.
1583230.1 12
(vi) Developer's delivery to the Agency of evidence of property and liability
insurance coverage in accordance with the requirements set forth herein.
(vii) Developer's delivery to Agency of certified copies of updated versions of
any documents listed in Section 2.3.1 which have been amended since the date of delivery to the
Agency, together with all of the following if not previously provided: a certified copy of
Developer's LP -1 and partnership agreement, and certified copies of the formation documents
for Developer's general partner, documentation of the general partner's tax - exempt status, and
resolutions authorizing the execution of and performance under the Agency Documents.
(viii) Intentionally omitted.
(ix) For Loan Proceeds to be used for construction: (a) Developer's delivery
to Agency of evidence reasonably satisfactory to Agency that Developer has obtained all
necessary entitlements, permits (including without limitation building permits), licenses, and
approvals required to develop the Project, or that the receipt of such permits is subject only to
such conditions as Agency shall reasonably approve; (b) City shall have approved the final plans
and specifications for the Project; (c) Developer's construction financing for the Project shall
have closed or shall close concurrently with Agency's disbursement of funds for construction,
and Developer shall have delivered to Agency evidence reasonably satisfactory to Agency that
Developer has secured binding commitments, subject only to commercially reasonable
conditions, for all Project construction and permanent financing, (d) Developer's delivery to
Agency and Agency approval of all of the following: (1) Project construction and operating
budgets; (2) payment bonds and performance bonds or other assurance of completion reasonably
acceptable to Agency pursuant to the requirements set forth in the Ground Lease; (3)
construction schedule; (4) evidence of insurance coverage required pursuant to Article VIII; (5)
an executed copy of the construction contract for the Project, (6) such other documents related to
the development and financing of the Project as Agency may reasonably request; (7) Agency's
receipt of a written requisition from Developer specifying the amount and use of the requested
funds, accompanied by copies of third -party invoices, evidence of Developer's payment for
services rendered in connection with the work (if applicable), and such other documentation as
Agency may reasonably require; and (8) Agency's inspection and approval of the work that is
the subject of the requisition.
3.8 No Obligation to Disburse Proceeds Upon Default. Notwithstanding any other
provision of this Agreement, the Agency shall have no obligation to disburse or authorize the
disbursement of any portion of the Loan Proceeds following:
(i) the failure of any of Developer's representations and warranties made in
this Agreement or in connection with the Loan to be true and correct in all material respects;
(ii) the termination of this Agreement by mutual agreement of the Parties;
(iii) the occurrence of an Event of Default under any Agency Document
(including without limitation, the Ground Lease) which remains uncured beyond any applicable
cure period, or the existence of any condition, event or act which upon the giving of notice or the
passage of time or both would constitute an Event of Default under any Agency Document.
1583230.1 13
ARTICLE IV
USE OF THE PROPERTY
4.1 Development of the Project; Compliance with Laws. Developer shall carry out
and shall cause its contractors to carry out construction of the Project in accordance with the
Conditions of Approval and the Construction Plans approved by City and in compliance with all
applicable state, federal, and local laws, rules, ordinances, codes, and regulations ( "Applicable
Laws "), including without limitation California Labor Code Section 1720 et seq. and the
regulations adopted pursuant thereto ( "Prevailing Wage Laws "), and all other applicable federal
and state labor laws and standards, applicable provisions of the California Public Contracts Code
(if any), the City zoning and development standards, building, plumbing, mechanical and
electrical codes, all other provisions of the City's Municipal Code, and all applicable disabled
and handicapped access requirements, including without limitation, the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq.,
Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section
51, et seq.. Developer shall indemnify, defend (with counsel approved by Agency) and hold the
Indemnitees harmless from and against any and all Claims arising in connection with a violation
or alleged violation of Applicable Laws in connection with the development of the Property or
the construction or operation of the Project, whether or not any insurance policies shall have
been determined to be applicable to any such Claims. It is further agreed that Agency and City
do not and shall not waive any rights against Developer which they may have by reason of this
indemnity and hold harmless agreement because of the acceptance by Agency, or Developer's
deposit with Agency of any of the insurance policies described in this Agreement. Developer's
indemnification obligations set forth in this Section shall not apply to Claims arising from the
gross negligence or willful misconduct of the Indemnitees. Developer's defense and
indemnification obligations set forth in this Section 4.1 shall survive the expiration or earlier
termination of this Agreement.
4.2 Affordable Housing. Developer covenants and agrees for itself, its successors and
assigns that the Property and the Improvements will be subject to recorded covenants that will
restrict use of the Property to development of a multifamily residential project and that for a term
of not less than seventy -five (75) years commencing upon the issuance of a final certificate of
occupancy for the Project, no fewer than thirteen (13) of the residential units in the Project shall
be available at Affordable Rents to households whose income is no greater than thirty percent
(30 %) of Area Median Income, no fewer than ten (10) additional units in the Project shall be
available at Affordable Rents to households whose income is no greater than forty percent (40 %)
of Area Median Income, and no fewer than twenty -four (24) additional units in the Project shall
be available at Affordable Rents to households whose income is no greater than eighty -five
percent (85 %) of Area Median Income, in accordance with the terms hereof and the Regulatory
Agreement.
4.3 Preference for Displacees, South San Francisco Residents and Employees.
Consistent with the requirements of California Health and Safety Code Section 33411.3,
Developer shall provide persons and households of low- or moderate - income who have been
displaced by the Project a priority in renting or purchasing housing constructed on the Property.
In addition, in order to ensure that there is an adequate supply of affordable housing within the
1583230.1 14
City of South San Francisco for residents and employees of businesses within the City, to the
extent permitted by law and consistent with the program regulations for funding sources used for
development of the Project, at initial lease up, Developer shall give a preference in the rental of
the residential units in the Project to eligible households that include at least one member who
lives or works in the City of South San Francisco. In the event there are fewer eligible persons
available than there are units, units shall be made available to members of the general public.
Notwithstanding the foregoing, in the event of a conflict between this provision and the
provisions of Section 42 of the Internal Revenue Code of 1986, as amended, the provisions of
such Section 42 shall control.
4.4 Relocation. Households residing on the Property shall not be displaced before
suitable replacement housing is available in comparable replacement housing. Developer shall
ensure that all occupants of the Property receive all notices, benefits and assistance to which they
are entitled in accordance with California Relocation Assistance Law (Government Code Section
7260 et seq.), all state and local regulations implementing such law, and all other applicable
local, state and federal laws and regulations (collectively "Relocation Laws ") relating to the
displacement and relocation of eligible persons as defined in such Relocation Laws. Any and all
costs incurred in connection with the temporary and/or permanent displacement and/or relocation
of occupants of the Property, including without limitation payments to a relocation consultant,
moving expenses, and payments for temporary and permanent relocation benefits pursuant to
Relocation Laws shall be paid by Developer. Developer shall indemnify, defend (with counsel
approved by Agency) and hold harmless the Indemnitees from and against any and all Claims
arising in connection with the breach of Developer's obligations set forth in this Section whether
or not any insurance policies shall have been determined to be applicable to any such Claims. It
is further agreed that Agency and City do not and shall not waive any rights against Developer
which they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or Developer's deposit with Agency of any of the insurance policies
described in this Agreement. Developer's indemnification obligations set forth in this Section
shall not apply to Claims arising from the gross negligence or willful misconduct of the
Indemnitees. Developer's obligations set forth in this Section 4.4 shall survive the expiration or
earlier termination of this Agreement.
4.5 Maintenance. Developer shall at its own expense, maintain the Property and the
Improvements, including the landscaping and common areas in good physical condition, in good
repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with
all Applicable Laws. Without limiting the foregoing, Developer agrees to maintain the Property
and the Improvements (including without limitation, landscaping, driveways, parking areas, and
walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti,
disrepair, abandoned vehicles /appliances, and illegal activity, and shall take all reasonable steps
to prevent the same from occurring on the Property. Developer shall prevent and /or rectify any
physical deterioration of the Improvements and shall make all repairs, renewals and
replacements necessary to keep the Property and the Improvements in good condition and
repair.
4.6 Taxes and Assessments. Developer shall pay all real and personal property taxes,
assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes
assessed against the Property or the Improvements, at such times and in such manner as to
1583230.1 15
prevent any penalty from accruing, or any lien or charge from attaching to the Property or
Improvements; provided, however, Developer shall have the right to contest in good faith, any
such taxes, assessments, or charges. In the event the Developer exercises its right to contest any
tax, assessment, or charge, the Developer, on final determination of the proceeding or contest,
shall immediately pay or discharge any decision or judgment rendered against it, together with
all costs, charges and interest.
4.7 Obligation to Refrain from Discrimination. Developer shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the
Improvements, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual
orientation, disability, marital status, ancestry, or national origin of any person. Developer
covenants for itself and all persons claiming under or through it, and this Agreement is made and
accepted upon and subject to the condition that there shall be no discrimination against or
segregation of any person or group of persons on account of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Property or the Improvements, or part thereof, nor shall Developer or any
person claiming under or through Developer 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, of, or for the Property or Improvements,
or part thereof. Developer shall include such provision in all deeds, leases, contracts and other
instruments executed by Developer, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Developer, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
1583230.1 16
51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property 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 of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts, the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
ARTICLE V
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
5.1 Identity of Developer; Changes Only Pursuant to this Agreement. Developer and
its principals have represented that they possess the necessary expertise, skill and ability to carry
out the development of the Project pursuant to this Agreement and the Ground Lease. The
1583230.1 17
qualifications, experience, financial capacity and expertise of Developer and its principals are of
particular concern to the Agency. It is because of these qualifications, experience, financial
capacity and expertise that the Agency has entered into this Agreement with Developer. No
voluntary or involuntary successor, assignee or transferee of Developer shall acquire any rights
or powers under this Agreement, except as expressly provided herein.
5.2 Prohibition on Transfer. Prior to the expiration of the term of the Ground Lease,
Developer shall not, except as expressly permitted by this Agreement, directly or indirectly,
voluntarily, involuntarily or by operation of law make or attempt any total or partial sale,
transfer, conveyance, assignment or lease (collectively, "Transfer ") of the whole or any part of
the Property, the Project, the Improvements, or this Agreement, without the prior written
approval of Agency which approval shall not be unreasonably withheld. Any such attempt to
assign this Agreement without the Agency's consent shall be null and void and shall confer no
rights or privileges upon the purported assignee. In addition to the foregoing, prior to the
expiration of the term of the Ground Lease, except as expressly permitted by this Agreement,
Developer shall not undergo any significant change of ownership without the prior written
approval of Agency. For purposes of this Agreement, a "significant change of ownership" shall
mean a transfer of the beneficial interest of more than twenty -five percent (25 %) in aggregate of
the present ownership and /or control of Developer, taking all transfers into account on a
cumulative basis; provided however, neither the admission of an investor limited partner, nor the
transfer by the investor limited partner to subsequent limited partners shall be restricted by this
provision.
5.3 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions set forth in this Article shall not be deemed to prevent: (i) the granting of temporary
easements or permits to facilitate development of the Property; (ii) the dedication of any property
required pursuant to this Agreement or the Ground Lease; (iii) the lease of individual residences
to tenants for occupancy as their principal residence in accordance with the Regulatory
Agreement or the lease of any commercial space to individual tenants; (iv) assignments creating
security interests for the purpose of financing the acquisition, construction or permanent
financing of the Project in accordance with the approved Financing Plan as it may be updated
with Agency approval, and subject to the requirements of Article VI, or Transfers directly
resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security
interest; (v) a Transfer to a tax - exempt entity under the direct control of or under common
control with MidPen Housing Corporation, a California nonprofit public benefit corporation
( "MidPen "); (vi) the admission of limited partners and any transfer of limited partnership
interests in accordance with Developer's agreement of limited partnership (the "Partnership
Agreement "); (vii) the removal of the general partner by the investor limited partner for a
default under the Partnership Agreement, provided that the replacement general partner is an
entity which is controlled by, or is under common control with Union Bank N.A., or is an entity
reasonably satisfactory to Agency; or (viii) the transfer of the general partner's interest to a
nonprofit entity that is tax - exempt under Section 501(c)(3) of the Internal Revenue Code of 1986
as amended, provided such replacement general partner is reasonably satisfactory to Agency.
5.4 Requirements for Proposed Transfers. The Agency may, in the exercise of its
sole discretion, consent to a proposed Transfer of this Agreement, the Property, the
Improvements or part thereof if all of the following requirements are met (provided however, the
1583230.1 18
requirements of this Section 5.4 shall not apply to Transfers described in clauses (i), (ii), (iii),
(iv) and (vi) of Section 5.3):
(i) The proposed transferee demonstrates to the Agency's satisfaction that it
has the qualifications, experience and financial resources necessary and adequate as may be
reasonably determined by the Agency to competently complete and manage the Project and to
otherwise fulfill the obligations undertaken by the Developer under this Agreement.
(ii) The Developer and the proposed transferee shall submit for Agency
review and approval all instruments and other legal documents proposed to effect any Transfer of
all or any part of or interest in the Property, the Improvements or this Agreement together with
such documentation of the proposed transferee's qualifications and development capacity as the
Agency may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Developer under this Agreement and the other Agency Documents arising
after the effective date of the Transfer and all obligations of Developer arising prior to the
effective date of the Transfer (unless Developer expressly remains responsible for such
obligations) and shall agree to be subject to and assume all of Developer's obligations pursuant
to the Conditions of Approval and all other conditions, and restrictions set forth in this
Agreement.
(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the Agency in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the Agency's Executive
Director unless the Executive Director, in his or her discretion, refers the matter of approval to
the Agency's governing board. If the Agency has not rejected a proposed Transfer or requested
additional information regarding a proposed Transfer in writing within thirty (30) days following
Agency's receipt of written request by Developer, the proposed Transfer shall be deemed
approved.
5.5 Effect of Transfer without Agency Consent.
5.5.1 In the absence of specific written agreement by the Agency, no Transfer
by Developer shall be deemed to relieve the Developer or any other party from any obligation
under this Agreement.
5.5.2 It shall be an Event of Developer Default hereunder entitling Agency to
pursue remedies including without limitation, termination of this Agreement and /or foreclosure
under the Deed of Trust if without the prior written approval of the Agency, Developer assigns
or Transfers this Agreement, the Improvements, or Developer's interest in the Property in
violation of Article V. This Section 5.5.2 shall not apply to Transfers described in clauses (i),
(ii), (iii), (iv) and (vi) of Section 5.3).
5.6 Recovery of Agency Costs. Developer shall reimburse Agency for all Agency
costs, including but not limited to reasonable attorneys' fees, incurred in reviewing instruments
and other legal documents proposed to effect a Transfer under this Agreement and in reviewing
1583230.1 19
the qualifications and financial resources of a proposed successor, assignee, or transferee within
ten (10) days following Agency's delivery to Developer of an invoice detailing such costs.
ARTICLE VI
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
6.1 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or
any other reasonable security instrument are permitted to be placed upon Developer's interest in
the Property or the Improvements only for the purpose of securing loans for the purpose of
financing the design and construction of the Improvements, and other expenditures reasonably
necessary for development of the Property pursuant to this Agreement. Developer shall not enter
into any conveyance for such financing that is not contemplated in the Financing Plan as it may
be updated with Agency approval, without the prior written approval of Agency's Executive
Director or his or her designee. As used herein, the terms "mortgage" and "deed of trust" shall
mean any security instrument used in financing real estate acquisition, construction and land
development. Except with respect to the REA, nothing in this Agreement is intended to or shall
be interpreted to operate as consent to the encumbrance of the Agency's fee interest in the
Property.
6.1.1 Subordination. The Agency agrees that pursuant to Health and Safety
Code Section 33334.14(a)(4), Agency will not withhold consent to reasonable requests for
subordination of the Deed of Trust and Regulatory Agreement to deeds of trust provided for the
benefit of lenders identified in the Financing Plan as it may be updated with Agency approval,
provided that the instruments effecting such subordination include reasonable protections to the
Agency in the event of default consistent with the requirements of Health and Safety Code
Section 33334.14(a)(4), including without limitation, extended notice and cure rights and the
rights set forth in Section 6.5 below.
6.2 Holder Not Obligated to Construct. The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated to complete construction of the
Improvements or to guarantee such completion. Nothing in this Agreement shall be deemed to
permit or authorize any such holder to devote the Property or any portion thereof to any uses, or
to construct any improvements thereon, other than those uses or improvements provided for or
authorized by this Agreement and the Ground Lease.
6.3 Notice of Default and Right to Cure. Whenever Agency delivers any notice of
default hereunder, Agency shall concurrently deliver a copy of such notice to each holder of
record of any mortgage or deed of trust secured by Developer's interest in the Property or the
Improvements, provided that Agency has been provided with the address for delivery of such
notice. Agency shall have no liability to any such holder for any failure by the Agency to
provide such notice to such holder. Each such holder shall have the right, but not the obligation,
at its option, to cure or remedy any such default or breach within the cure period provided to
Developer extended by an additional sixty (60) days. In the event that possession of Developer's
interest in the Property or the Improvements (or any portion thereof) is required to effectuate
such cure or remedy, the holder shall be deemed to have timely cured or remedied the default if
it commences the proceedings necessary to obtain possession of Developer's interest in the
1583230.1 20
Property or Improvements, as applicable, within the applicable cure period, diligently pursues
such proceedings to completion, and after obtaining possession, diligently completes such cure
or remedy. A holder who chooses to exercise its right to cure or remedy a default or breach shall
first notify Agency of its intent to exercise such right prior to commencing to cure or remedy
such default or breach. Nothing contained in this Agreement shall be deemed to permit or
authorize such holder to undertake or continue the construction of the Project (beyond the extent
necessary to conserve or protect the same) without first having expressly assumed in writing
Developer's obligations to Agency under this Agreement and the Ground Lease. The holder in
that event must agree to complete, in the manner provided in this Agreement, the Project and the
Improvements and submit evidence reasonably satisfactory to Agency that it has the
development capability on staff or retainer and the financial capacity necessary to perform such
obligations. Any such holder properly completing the Project pursuant to this Section shall
assume all rights and obligations of Developer under this Agreement and the Ground Lease.
6.4 Failure of Holder to Complete Improvements. In any case where, six (6) months
after default by Developer in completion of construction of the Improvements, the holder of
record of any mortgage or deed of trust has not exercised its option to construct the
Improvements, or having first exercised its option to construct, has not proceeded diligently with
construction, Agency shall be afforded those rights against such holder that it would otherwise
have against Developer under this Agreement.
6.5 Agency Right to Cure Defaults. In the event of a breach or default by Developer
under a mortgage or deed of trust secured by Developer's interest in the Property or the
Improvements, Agency may cure the default, without acceleration of the subject loan, following
prior notice thereof to the holder of such instrument and Developer. In such event, Developer
shall be liable for, and Agency shall be entitled to reimbursement from Developer for all costs
and expenses incurred by Agency associated with and attributable to the curing of the default or
breach and such sum shall constitute a part of the indebtedness secured by the Agency Deed of
Trust.
6.6 Holder to be Notified. Developer agrees to use best efforts to ensure that each
term contained herein dealing with security financing and rights of holders shall be either
inserted into the relevant deed of trust or mortgage or acknowledged and accepted in writing by
the holder prior to its creating any security right or interest in Developer's interest in the Property
or the Improvements.
6.7 Modifications to Agreement. Agency shall not unreasonably withhold its consent
to modifications of this Agreement requested by Project lenders or investors provided such
modifications do not alter Agency's substantive rights and obligations under this Agreement.
6.8 Estoppel Certificates. Either Party shall, at any time, and from time to time,
within fifteen (15) days after receipt of written request from the other Party, execute and deliver
to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this
Agreement is in full force and effect and a binding obligation of the Parties (if such be the case),
(ii) this Agreement has not been amended or modified, or if so amended, identifying the
amendments, and (iii) the requesting Party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature of any such defaults.
1583230.1 21
ARTICLE VII
DEFAULTS, REMEDIES AND TERMINATION
7.1 Event of Developer Default. The following events shall constitute an event of
default on the part of Developer hereunder ( "Event of Developer Default "):
(a) Developer fails to commence or complete construction of the Project
within the time period set forth in the Ground Lease, or subject to force majeure, abandons or
suspends construction of the Project prior to completion for a period of sixty (60) days or more;
(b) Developer fails to pay when due the principal and interest (if any) payable
under the Note and such failure continues for ten (10) days after Agency notifies Developer
thereof in writing;
Article V;
(c) A Transfer occurs, either voluntarily or involuntarily, in violation of
(d) Developer fails to maintain insurance as required pursuant to this
Agreement, and Developer fails to cure such default within ten (10) days;
(e) Subject to Developer's right to contest the following charges pursuant to
Section 4.6, Developer fails to pay prior to delinquency taxes or assessments due on the Property
or the Improvements or fails to pay when due any other charge that may result in a lien on the
Property or the Improvements, and Developer fails to cure such default within ninety (90) days
of the date of delinquency, but in all events prior to the date upon which the holder of any lien
has the right to pursue foreclosure thereof;
(f) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Improvements or Developer's interest in the
Property and remains uncured beyond any applicable cure period such that the holder of such
security instrument has the right to accelerate repayment of such loan;
(g) Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate or report submitted to the Agency or the City in
connection with this Agreement or Developer's request for the Loan proves to have been
incorrect in any material and adverse respect when made and continues to be materially adverse
to the Agency or the City;
(h) 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 "), Developer or any general partner thereof (i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against Developer or any general partner thereof in
an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator
or similar official for Developer or any general partner thereof; (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;
1583230.1 22
(i) A court of competent jurisdiction shall have made or entered any decree or
order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a
petition seeking reorganization of the Developer or seeking any arrangement for Developer
under bankruptcy law or any other applicable debtor's relief law or statute of the United States
or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the
Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding
up or liquidation of the Developer, in each case if such decree, order, petition, or appointment is
not removed or rescinded within ninety (90) days;
(j) Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution
on any substantial part of its property, unless the property so assigned, sequestered, attached or
executed upon shall have been returned or released within ninety (90) days after such event
(unless a lesser time period is permitted for cure pursuant to paragraphs (h) or (i) above or
pursuant to any other mortgage on the Improvements or Developer's interest in the Property, in
which event such lesser time period shall apply under this subsection as well) or prior to any
sooner sale pursuant to such sequestration, attachment, or execution;
(k) The Developer shall have voluntarily suspended its business or Developer
shall have been dissolved or terminated;
(1) An event of default arises under the Ground Lease or any other Agency
Document and remains uncured beyond any applicable cure period; or
(m) Developer defaults in the performance of any term, provision, covenant or
agreement contained in this Agreement other than an obligation enumerated in this Section 7.1
and unless a shorter cure period is specified for such default, the default continues for ten (10)
days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default
after the date upon which Agency shall have given written notice of the default to Developer;
provided however, if the default is of a nature that it cannot be cured within thirty (30) days, a
Developer Event of Default shall not arise hereunder if Developer commences to cure the default
within thirty (30) days and thereafter prosecutes the curing of such default with due diligence
and in good faith to completion.
7.2 Agency Default. An event of default on the part of Agency ( "Event of Agency
Default ") shall arise hereunder if Agency fails to keep, observe, or perform any of its covenants,
duties, or obligations under this Agreement, and the default continues for a period of sixty (60)
days after written notice thereof from Developer to Agency, or in the case of a default which
cannot with due diligence be cured within sixty (60) days, Agency fails to commence to cure the
default within sixty (60) days of such notice and thereafter fails to prosecute the curing of such
default with due diligence and in good faith to completion.
7.3 Agency's Remedies and Rights Upon an Event of Developer Default. Upon the
occurrence of an Event of Developer Default and the expiration of any applicable cure period,
Agency shall have all remedies available to it under this Agreement or under law or equity,
including, but not limited to the following, and Agency may, at its election, without notice to or
1583230.1 23
demand upon Developer, except for notices or demands required by law or expressly required
pursuant to the Agency Documents, exercise one or more of the following remedies:
(a) Accelerate and declare the balance of the Note and interest accrued
thereon immediately due and payable;
Trust;
(b) Seek specific performance to enforce the terms of the Agency Documents;
(c) Foreclose on Developer's interest in the Property pursuant to the Deed of
(d) Pursue any and all other remedies available under this Agreement or under
law or equity to enforce the terms of the Agency Documents and Agency's rights thereunder.
7.4 Developer's Remedies Upon an Event of Agency Default. Upon the occurrence
of an Agency Event of Default, in addition to pursuing any other remedy allowed at law or in
equity or otherwise provided in this Agreement, Developer may bring an action for equitable
relief seeking the specific performance of the terms and conditions of this Agreement, and /or
enjoining, abating, or preventing any violation of such terms and conditions, and /or seeking to
obtain any other remedy consistent with the purpose of this Agreement, and may pursue any and
all other remedies available under this Agreement or under law or equity to enforce the terms of
the Agency Documents and Developer's rights thereunder.
7.5 Remedies Cumulative; No Consequential Damages. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the
exercise by either Party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different time, of any other rights or remedies for the same or any other
default by the other Party. Notwithstanding anything to the contrary set forth herein, a Party's
right to recover damages in the event of a default shall be limited to actual damages and shall
exclude consequential damages.
7.6 Inaction Not a Waiver of Default. No failure or delay by either Party in asserting
any of its rights and remedies as to any default shall operate as a waiver of such default or of any
such rights or remedies, nor deprive either Party of its rights to institute and maintain any action
or proceeding which it may deem necessary to protect, assert or enforce any such rights or
remedies in the same or any subsequent default.
7.7 Construction Plans. If this Agreement is terminated by mutual agreement of the
Parties or by Agency as a result of a Developer Event of Default, the Developer, at no cost to the
Agency, shall deliver to the Agency copies of all construction plans and studies in the
Developer's possession or in the possession of the Developer' s consultants related to
development of the Project on the Property, including without limitation, the Construction Plans,
subject only to the rights of senior construction lenders identified in the Financing Plan as it may
be updated with Agency approval. If the Agency utilizes the Construction Plans or studies, the
Agency shall indemnify the Developer for any claims arising from such use.
7.8 Rights of Limited Partners. Whenever Agency delivers any notice of default
hereunder, Agency shall concurrently deliver a copy of such notice to Developer's limited
1583230.1 24
partner(s) in accordance with Section 9.3. The limited partner(s) shall have the same right as
Developer to cure or remedy any default hereunder within the cure period provided to Developer
extended by an additional sixty (60) days; provided however, if the default is of such nature that
the Limited Partners reasonably determine that it is necessary to replace the general partner of
Tenant in order to cure such default, then the cure period shall be extended by an additional sixty
(60) days after the removal and replacement of such general partner, provided that the Limited
Partners have promptly commenced and diligently proceeded with all requisite actions to effect
such removal and replacement.
ARTICLE VIII
INDEMNITY AND INSURANCE
8.1 Indemnity. Developer shall indemnify, defend (with counsel approved by
Agency) and hold the Indemnitees harmless from and against any and all Claims arising directly
or indirectly, in whole or in part, as a result of or in connection with the development,
construction, improvement, operation, ownership or maintenance of the Project or the Property,
or any part thereof by Developer or Developer's contractors, subcontractors, agents, employees
or any other party acting for or on behalf of Developer, or otherwise arising out of or in
connection with Developer's performance or failure to perform under this Agreement, including
without limitation, Claims arising or alleged to have arisen in connection with any violation of
Applicable Laws in connection with the development, operation or management of the Project.
Developer's indemnification obligations under this Section 8.1 shall not extend to Claims
resulting solely from the gross negligence or willful misconduct of Indemnitees. The provisions
of this Section 8.1 shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency and City do not and shall not waive any rights against Developer that
they may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or the deposit with Agency by Developer, of any of the insurance
policies described in this Agreement.
8.2 Liability and Workers Compensation Insurance.
(a) Prior to initiating work on the Project and continuing through the issuance
of final certificates of occupancy or equivalent for the Project, Developer and all contractors
working on behalf of Developer on the Project shall maintain a commercial general liability
policy in the amount of One Million Dollars ($1,000,000) each occurrence, Two Million Dollars
($2,000,000) annual aggregate, together with Three Million Dollars ($3,000,000) excess liability
coverage, or such other policy limits as Agency may require in its reasonable discretion,
including coverage for bodily injury, property damage, products, completed operations and
contractual liability coverage. Such policy or policies shall be written on an occurrence basis
and shall name the Indemnitees as additional insureds.
(b) Until issuance of the final certificate of occupancy or equivalent for the
Project, Developer and all contractors working on behalf of Developer shall maintain a
comprehensive automobile liability coverage in the amount of One Million Dollars ($1,000,000),
combined single limit including coverage for owned and non -owned vehicles and shall furnish or
cause to be furnished to Agency evidence satisfactory to Agency that Developer and any
1583230.1 25
contractor with whom Developer has contracted for the performance of work on the Property or
otherwise pursuant to this Agreement carries workers' compensation insurance as required by
law. Automobile liability policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction work and continuing until issuance
of the final certificate of occupancy or equivalent for the Project, Developer and all contractors
working on behalf of Developer shall maintain a policy of builder's all -risk insurance in an
amount not less than the full insurable cost of the Project on a replacement cost basis naming
Agency as loss payee.
(d) Developer shall maintain property insurance covering all risks of loss
(other than earthquake), including flood (if required) for 100% of the replacement value of the
Project with deductible, if any, in an amount acceptable to Agency, naming Agency as loss
payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a current
A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive
automobile policies required hereunder shall name the Indemnitees as additional insureds.
Builder's Risk and property insurance shall name Agency and City as loss payees as their
interests may appear.
(f) Prior to commencement of construction work, Developer shall furnish
Agency with certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional insured status.
The certificates shall contain a statement of obligation on the part of the carrier to notify City and
Agency of any material adverse change, cancellation, termination or non - renewal of the coverage
at least thirty (30) days in advance of the effective date of any such material adverse change,
cancellation, termination or non - renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Developer shall, within fifteen (15) days after receipt of notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or reduction,
file with Agency and City a certificate showing that the required insurance has been reinstated or
provided through another insurance company or companies. Upon failure to so file such
certificate, Agency or City may, without further notice and at its option, procure such insurance
coverage at Developer's expense, and Developer shall promptly reimburse Agency or City for
such expense upon receipt of billing from Agency or City.
(h) Coverage provided by Developer shall be primary insurance and shall not
be contributing with any insurance, or self - insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation for the
benefit of the City and Agency. Developer shall furnish the required certificates and
endorsements to Agency prior to the commencement of construction of the Project, and shall
provide Agency with certified copies of the required insurance policies upon request of Agency.
1583230.1 26
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 No Brokers. Each Party warrants and represents to the other that no person or
entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transactions contemplated by this Agreement. Each Party
agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs
or liabilities arising in connection with a breach of this warranty and representation. The terms
of this Section shall survive the close of escrow and the expiration or earlier termination of this
Agreement.
9.2 Enforced Delay: Extension of Times of Performance. Subject to the limitations
set forth below, performance by either Party shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended where delays are due
to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God,
acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental
restrictions or priority, litigation, including court delays, unusually severe weather, acts or
omissions of the other Party, acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of Agency which shall not
excuse performance by Agency), or any other cause beyond the affected Party's reasonable
control. An extension of time for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of the cause, if notice by the
Party claiming such extension is sent to the other Party within thirty (30) days of the
commencement of the cause and such extension is not rejected in writing by the other Party
within ten (10) days of receipt of the notice. Neither Party shall unreasonably withhold consent
to an extension of time pursuant to this Section.
Times of performance under this Agreement may also be extended in writing by the
mutual agreement of Developer and Agency (acting in the discretion of its Executive Director
unless he or she determines in his or her discretion to refer such matter to the governing board of
the Agency). Agency and Developer acknowledge that, notwithstanding any contrary provision
of this Agreement, adverse changes in economic conditions, either of the affected Party
specifically or the economy generally, changes in market conditions or demand, and /or inability
to obtain financing to complete the Project shall not constitute grounds of enforced delay
pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or
market changes and /or financial inability, whether or not foreseeable as of the Effective Date.
9.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement or any other Agency Document 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;
1583230.1 27
(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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Developer: MP South City II, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copy to:
And:
And:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
1583230.1 28
9.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this
Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation
of any provision hereof, then the prevailing Party in any proceeding in connection with such
dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or
establishing its rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements.
9.5 Waivers; Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving Party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the Party granting the extension. This Agreement may be amended or modified only
by a written instrument executed by the Parties.
9.6 Binding on Successors; City as Successor to Agency. Subject to the restrictions
on Transfers set forth in Article V, this Agreement shall bind and inure to the benefit of the
Parties and their respective permitted successors and assigns. Any reference in this Agreement
to a specifically named Party shall be deemed to apply to any permitted successor and assign of
such Party who has acquired an interest in compliance with this Agreement or under law. If the
Agency ceases to exist, the City shall automatically succeed to the interests of Agency under this
Agreement and the other Agency Documents.
9.7 Survival. All representations made by Developer hereunder and Developer's
obligations pursuant to Sections 4.1, 4.4, 8.1, and 9.1 shall survive the expiration or termination
of this Agreement. None of the provisions, terms, representations, warranties and covenants of
this Agreement are intended to or shall be merged by any grant deed or ground lease conveying
any interest in the Property to Developer or any successor in interest, and neither such grant
deed, ground lease, nor any other document shall affect or impair the provisions, terms,
representations, warranties and covenants contained herein.
9.8 Headings; Interpretation. The section headings and captions used herein are
solely for convenience and shall not be used to interpret this Agreement. The Parties
acknowledge that this Agreement is the product of negotiation and compromise on the part of
both Parties, and the Parties agree, that since both Parties have participated in the negotiation and
drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the
Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
9.9 Action or Approval. Whenever action and/or approval by Agency is required
under this Agreement, Agency's Executive Director or his or her designee may act on and/or
approve such matter unless specifically provided otherwise, or unless the Agency Executive
Director determines in his or her discretion that such action or approval requires referral to
Agency's Board for consideration.
9.10 Entire Agreement. This Agreement, including Exhibits A through F attached
hereto and incorporated herein by this reference, together with the other Agency Documents
contains the entire agreement between the Parties with respect to the subject matter hereof, and
1583230.1 29
supersedes all prior written or oral agreements, understandings, representations or statements
between the Parties with respect to the subject matter hereof.
9.11 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be an original and all of which taken together shall constitute one instrument. The
signature page of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto having additional signature pages executed by the other Party. Any executed
counterpart of this Agreement may be delivered to the other Party by facsimile and shall be
deemed as binding as if an originally signed counterpart was delivered.
9.12 Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless an essential purpose of this Agreement is defeated
by such invalidity or unenforceability.
9.13 No Third Party Beneficiaries. Except as expressly set forth herein, nothing
contained in this Agreement is intended to or shall be deemed to confer upon any person, other
than the Parties and their respective successors and assigns, any rights or remedies hereunder.
9.14 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.
9.15 Time of the Essence; Calculation of Time Periods. Time is of the essence for
each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is not a business day, in which event
the period shall run until the next business day. The final day of any such period shall be
deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a
"business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of California.
9.16 Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of San Mateo County, California or in the Federal District Court for the Northern District
of California.
9.17 Inspection of Books and Records. Upon request, Developer shall permit the
Agency to inspect at reasonable times and on a confidential basis those books, records and all
other documents of Developer necessary to determine Developer's compliance with the terms of
this Agreement.
1583230.1 30
IN WITNESS WHEREOF, the Parties have entered into this Loan Agreement (636 El
Camino — Phase B) effective as of the date first written above.
AGENCY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO
By:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
DEVELOPER:
Agency Counsel
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1583230.1 31
Exhibit A -1
LEGAL DESCRIPTION OF PARCEL
(Attach legal description.)
Exhibit A -2
LEGAL DESCRIPTION OF PROPERTY
(Attach legal description of Phase B leased premises.)
Exhibit B
FORM OF PROMISSORY NOTE
(Attach form of Note.)
Exhibit C
FORM OF DEED OF TRUST
(Attach form of Deed of Trust.)
Exhibit D
FORM OF AFFORDABLE HOUSING REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS
(Attach form of Regulatory Agreement.)
Exhibit E
ASSIGNMENT AGREEMENT
(Attach form of Assignment Agreement.)
Exhibit F
FINANCING PLAN
(Attach approved Financing Plan.)
1583230.1 32
1583222.1
Exhibit A
PROPERTY
(Attach legal description.)
1581370.4 1
EXHIBIT B
SECURED PROMISSORY NOTE
(636 El Camino - Phase B)
$5,698,627 South San Francisco, California
, 2011
FOR VALUE RECEIVED, MP South City II, L.P., a California limited partnership
( "Borrower "), promises to pay to the Redevelopment Agency of the City of South San
Francisco, a public body corporate and politic ( "Agency "), in lawful money of the United States
of America, the principal sum of Five Million, Six Hundred Ninety -Eight Thousand, Six
Hundred and Twenty -Seven Dollars ($5,698,627) or so much thereof as may be advanced by
Agency pursuant to the Loan Agreement referred to below, together with interest on the
outstanding principal balance in accordance with the terms and conditions described herein. The
face amount of this Note includes the sum of One Hundred Ninety -Six Thousand, Six Hundred
Twenty -Seven Dollars ($196,627) previously disbursed by Agency to Borrower for
predevelopment expenses associated with the Project and Nine Thousand, Nine Hundred Fifty -
Seven and 42/100 Dollars ($9,957.42) in interest accrued on such prior disbursements. Interest
shall accrue on the outstanding principal balance of this Note at a rate equal to three percent (3 %)
simple interest per annum, commencing upon the date of disbursement thereof. Interest shall be
calculated on the basis of a year of 365 days, and charged for the actual number of days elapsed.
This Secured Promissory Note (this "Note ") has been executed and delivered pursuant to
and in accordance with that certain Loan Agreement executed by and between Borrower and
Agency, dated as of the date hereof (the "Loan Agreement "), and is subject to the terms and
conditions of the Loan Agreement, which is 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 a Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing ( "Deed of Trust ") dated as of the date hereof, executed by
Borrower for the benefit of Agency and encumbering the property described therein. Agency
shall be entitled to the benefits of the security provided by the Deed of Trust and shall have the
right to enforce the covenants and agreements contained herein, in the Deed of Trust, the Loan
Agreement, the Regulatory Agreement and the other Agency Documents. The Regulatory
Agreement shall remain effective for the full term thereof and shall survive the repayment of this
Note.
1. PAYMENTS
1.1 PAYMENT DATES; MATURITY DATE. Subject to adjustment as set forth in
this Section, annual payments on this Note shall be payable on a residual receipts basis with Fifty
Percent (50 %) of all Surplus Cash (defined below) payable to Agency toward principal and
accrued interest; provided however, during such time that Borrower is obligated to make loan
repayments on a residual receipts basis to additional public agency lenders, then Agency's share
of Surplus Cash shall be reduced to equal a proportionate share of Fifty Percent (50 %) of Surplus
Cash equal to a fraction the numerator of which is equal to the original principal amount of this
Note and the denominator of which is equal to the sum of the original principal amount of this
Note plus the original principal amounts of all such other public agency residual receipts loans
that remain outstanding on each payment date hereunder. Based on the foregoing and the
Financing Plan (defined in the Loan Agreement), Agency's share of Surplus Cash as of the
origination date of this Note is equal to Thirty -Eight percent (38 %). Payments shall be credited
first to any unpaid late charges and other costs and fees then due, then to accrued interest, and
then to principal. In no event shall any amount due under this Note become subject to any rights,
offset, deduction or counterclaim on the part of Borrower. The entire outstanding principal
balance of this Note, together with interest accrued thereon and any other sums accrued
hereunder shall be payable in full on the date (the "Maturity Date ") which is the earlier of (i)
the fifty -fifth (55 anniversary of the date upon which the City of South San Francisco issues a
final certificate of occupancy for the Project, or (ii) the fifty- seventh (57 anniversary of the
date hereof.
1.2 ANNUAL PAYMENTS FROM SURPLUS CASH. By no later than June 1 of
each year following the issuance of a final certificate of occupancy for the Project, Borrower
shall pay to Agency the percentage share of Surplus Cash determined pursuant to Section 1.1
above generated by the Project during the previous calendar year. No later than May 1 of each
year following the issuance of a final certificate of occupancy for the Project, Borrower shall
provide to Agency Borrower's calculation of Surplus Cash for the previous calendar year,
accompanied by such supporting documentation as Agency may reasonably request, including
without limitation, an independent audit prepared for the Project by a certified public accountant
in accordance with generally accepted accounting principles including a statement showing the
balance of all outstanding residual receipts loans together with their respective maturity dates.
No later than November 1 of each year following issuance of the final certificate of occupancy
for the Project, Borrower shall provide to Agency a projected budget for the following calendar
year which shall include an estimate of Surplus Cash.
1.2.1 "Surplus Cash" shall mean for each calendar year during the term hereof,
the amount by which Gross Revenue (defined below) exceeds Annual Operating Expenses
(defined below) for the Project. Surplus Cash shall also include net cash proceeds realized from
any refinancing of the Project, less fees and closing costs reasonably incurred in connection with
such refinancing, and any Agency- approved uses of the net cash proceeds of the refinancing.
1.2.2 "Gross Revenue" shall mean for each calendar year during the term
hereof, all revenue, income, receipts and other consideration actually received by Borrower from
the operation and leasing of the Project. Gross Revenue shall include, but not be limited to: all
rents, fees and charges paid by tenants; Section 8 payments or other rental subsidy payments
received for the dwelling units; deposits forfeited by tenants; all cancellation fees, price index
adjustments and any other rental adjustments to leases or rental agreements; proceeds from
vending and laundry room machines; the proceeds of business interruption or similar insurance;
the proceeds of casualty insurance not required to be paid to the holders of Approved Senior
Loans (defined below) (provided however, expenditure of such proceeds (or projected
expenditures approved by Agency) for repair or restoration of the Project shall be included
1581370.4 2
within Annual Operating Expenses in the year of the expenditure); condemnation awards for a
taking of part or all of Borrower's interest in the Property or the Improvements for a temporary
period; and the fair market value of any goods or services provided to Borrower in consideration
for the leasing or other use of any part of the Project. Gross Revenue shall include any release of
funds from replacement or other reserve accounts to Borrower other than for costs associated
with the Project. Gross Revenue shall not include tenant security deposits, loan proceeds, capital
contributions or similar advances.
1.2.3 "Annual Operating Expenses" shall mean for each calendar year during
term hereof, the following costs reasonably and actually incurred for the operation and
maintenance of the Project to the extent that they are consistent with an annual independent audit
performed by a certified public accountant using generally accepted accounting principles:
ground lease payments; property taxes and assessments; debt service currently due and payable
on a non - optional basis (excluding debt service due from residual receipts or surplus cash of the
Project) on loans which have been approved by the Agency and which are secured by deeds of
trust senior in priority to the Deed of Trust ( "Approved Senior Loans "); property management
fees and reimbursements in amounts in accordance with industry standards for similar residential
projects; premiums for property damage and liability insurance related to the Project; utility
service costs not paid for directly or indirectly by tenants; maintenance and repair costs; fees for
licenses and permits required for the operation of the Project; organizational costs (e.g., annual
franchise tax payments) and costs associated with accounting, tax preparation and legal fees of
Borrower incurred in the ordinary course of business; expenses for security services; advertising
and marketing costs; payment of deductibles in connection with casualty insurance claims not
paid from reserves; tenant services; the amount of uninsured losses actually replaced, repaired or
restored and not paid from reserves; cash deposits into reserves for capital replacements in an
amount no more than $500 per unit per year, increasing by 3.5% per year, or such greater amount
as reasonably required by the holder of an Approved Senior Loan or as required by a physical
needs assessment prepared by a third -party selected or approved by Agency and prepared at
Borrower's expense; partnership management fees payable to the general partner of Borrower in
the maximum aggregate sum of $15,000 per year, increasing by 3% per year, payable only
during the first fifteen (15) years following issuance of a final certificate of occupancy for the
Project; an asset management fee not to exceed $10,000 per year, increasing by 3% per year,
payable to the investor limited partner of Borrower only during the first fifteen (15) years
following issuance of a final certificate of occupancy for the Project; any previously unpaid
portion of the developer fee (without interest) due in accordance with the Financing Plan
approved by Agency as set forth in the Loan Agreement (provided that the cumulative amount of
such fee does not exceed the maximum allowable by the California Tax Credit Allocation
Committee; cash deposits into operating reserves in an amount reasonably approved by Agency
or required by the holder of an Approved Senior Loan, but only if the accumulated operating
reserve does not exceed four (4) months' projected Project operating expenses; and other
ordinary and reasonable operating expenses. Payments to Borrower, its partners or affiliates in
excess of the limitations set forth in this Section shall not be counted toward Annual Operating
Expenses for the purpose of calculating Surplus Cash.
1.2.4 EXCLUSIONS FROM ANNUAL OPERATING EXPENSES. Annual
Operating Expenses shall exclude the following: developer fees and interest on any deferred
developer fees (except as permitted pursuant to Section 1.2.3); contributions to Project operating
1581370.4 3
reserves (except as permitted pursuant to Section 1.2.3); debt service payments on any loan
which is not an Approved Senior Loan, including without limitation, unsecured loans or loans
secured by deeds of trust which are subordinate to the Deed of Trust; depreciation, amortization,
depletion and other non -cash expenses; expenses paid for with disbursements from any reserve
account; distributions to partners (except as permitted pursuant to Section 1.2.3); any amount
paid to Borrower, any general partner of Borrower, or any entity controlled by the persons or
entities in control of Borrower or any general partner of Borrower (except as permitted pursuant
to Section 1.2.3). Notwithstanding the foregoing limitation regarding payments to Borrower and
related parties, the following fees shall be included in Annual Operating Expenses in accordance
with and subject to the limitations set forth in Section 1.2.3 above even if paid to an affiliate of
Borrower or a partner of Borrower: fees paid to a property management agent, resident services
agent or social services agent, partnership management fees, developer fees, asset management
fees, and subject to Section 1.2.5, repayment of cash advances by Borrower's general or limited
partners to cover operating expense deficits.
1.2.5 ADJUSTMENT TO OPERATING EXPENSES. Notwithstanding
anything to the contrary set forth herein, for the purpose of calculating Surplus Cash, Annual
Operating Expenses shall include: (a) the repayment of operating deficit loans provided by
Borrower's limited partner(s) provided however, interest payable on such loans may be included
in Annual Operating Expenses only in an amount equivalent to the lesser of (i) interest accrued at
the actual interest rate charged for the loan, or (ii) interest accrued at a rate equal to three percent
(3 %) in excess of the rate of interest most recently announced by Bank of America, NT & SA (or
its successor bank) at its San Francisco office as its "prime rate ", and (b) the amount of any tax
credit adjustor that is required to be paid from Project cash flow.
1.3 COST SAVINGS. Within ten (10) business days after Borrower's receipt of its
limited partner(s)' capital contribution following the issuance of the IRS Form 8609 for the
Project, Borrower shall pay to the Agency as a reduction of the outstanding principal balance of
this Note, a one -time payment in the amount of Excess Proceeds. "Excess Proceeds" shall mean
the sum of all sources of financing received by Borrower for permanent financing of the Project
(including equity, residual receipts mortgages and conventional mortgage debt to the extent such
debt is supportable by Project cash flow and rent or operating subsidies), less the sum of actual
uses as shown on the final cost certificate for the Project. For purposes of calculating Excess
Proceeds: (i) no portion of the deferred developer fee identified on the Financing Plan approved
pursuant to the Loan Agreement shall be paid, and (ii) Borrower shall fund a tenant social
services reserve in an amount equal to One Hundred Seventy -Five Thousand Dollars ($175,000).
Interest earned on the foregoing reserve shall become a part of such reserve and used only for the
purpose for which such reserve is established.
1.4 DUE ON TRANSFER. The entire unpaid principal balance and all interest and
other sums accrued hereunder shall be due and payable upon the Transfer (as defined in Section
5_2 of the Loan Agreement) absent Agency consent, of all or any part of the Project or
Borrower's interest in the Property or any interest therein other than a Transfer permitted without
Agency consent pursuant to the Loan Agreement. Without limiting the generality of the
foregoing, this Note shall not be assumable without Agency's prior written consent, which
consent may be granted or denied in Agency's sole discretion.
1581370.4 4
1.5 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. The Regulatory Agreement shall remain in full force for the entire term
thereof regardless of any prepayment of this Note.
1.6 MANNER OF PAYMENT. All payments of principal and interest on this Note
shall be made to Agency at 400 Grand Ave, South San Francisco, CA 94080 or such other place
as Agency shall designate to Borrower in writing, or by wire transfer of immediately available
funds to an account designated by Agency in writing.
2. DEFAULTS AND REMEDIES.
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) Borrower fails to pay when due the principal and interest payable hereunder and
such failure continues for ten (10) days after Agency notifies Borrower thereof in writing.
(B) Pursuant to or within the meaning of the United States Bankruptcy Code or any
other federal or state law relating to insolvency or relief of debtors ( "Bankruptcy Law "),
Borrower or any general partner thereof (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against Borrower or any general partner thereof in an
involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or
similar official for Borrower or any general partner thereof; (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.
(C) A court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against Borrower or any general partner thereof in an involuntary case,
(ii) appoints a trustee, receiver, assignee, liquidator or similar official for Borrower or any
general partner thereof or substantially all of such entity's assets, (iii) orders the liquidation of
Borrower or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of
attachment or similar process against Borrower's interest in the Property or the Project, and in
each case the order or decree is not released, vacated, dismissed or fully bonded within ninety
(90) days after its issuance.
(D) The occurrence of a Transfer in violation of Article V of the Loan Agreement.
(E) A default arises under any debt instrument secured by a mortgage or deed of trust
on the Project or Borrower's interest in the Property and remains uncured beyond any applicable
cure period such that the holder of such instrument has the right to accelerate payment
thereunder.
(F) Borrower fails to maintain insurance on the Property and the Project as required
pursuant to the Agency Documents and Borrower fails to cure such default within ten (10) days.
1581370.4 5
(G) Subject to Borrower's right to contest the following charges pursuant to the
Agency Documents, if Borrower fails to pay taxes or assessments due on the Property or the
Project or fails to pay any other charge that may result in a lien on the Property or the Project,
and Borrower fails to cure such default within ninety (90) days of delinquency but in all events
prior to the date that the holder of any such lien has the right to pursue foreclosure thereof.
(H) If any representation or warranty contained in any Agency Document, or any
certificate furnished in connection therewith, or in connection with any request for disbursement
of the proceeds of the Loan proves to have been false or misleading in any material adverse
respect when made and continues to be materially adverse to the Agency.
(I) A default arises under the Ground Lease, the Loan Agreement, the Regulatory
Agreement or any other Agency Document and remains uncured beyond the expiration of the
applicable cure period.
2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder, Agency
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 and all sums due hereunder, 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
Agency under this Note and the other Agency Documents, including without limitation the right
to pursue foreclosure under the Deed of Trust. Borrower shall pay all reasonable costs and
expenses incurred by or on behalf of Agency including, without limitation, reasonable attorneys'
fees, incurred in connection with Agency's enforcement of this Note and the exercise of any or
all of its rights and remedies hereunder and all such sums shall be a part of the indebtedness
secured by the Deed of Trust. The rights and remedies of Agency under this Note shall be
cumulative and not alternative.
2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest shall
automatically be increased without notice to the lesser of ten percent (10 %) per annum or the
maximum rate permitted by law (the "Default Rate "); provided however, if any payment due
hereunder is not paid when due, the Default Rate shall apply commencing upon the due date for
such payment. 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 Agency from exercising any of its other rights or remedies.
2.4 LIMITED PARTNERS RIGHT TO CURE. Borrower's limited partners shall
have the right to cure any default of Borrower hereunder pursuant to the terms of the Loan
Agreement. Any cure tendered by a limited partner of Borrower shall be deemed to be a cure by
Borrower and shall be accepted or rejected on the same basis as if tendered by Borrower.
3. MISCELLANEOUS
1581370.4 6
3.1 WAIVERS; BORROWER'S WAIVERS. No waiver by Agency of any right or
remedy under this Note shall be effective unless in a writing signed by Agency. 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 Agency will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. No waiver that may be given by
Agency will be applicable except in the specific instance for which it is given. No notice to or
demand on Borrower will be deemed to be a waiver of any obligation of Borrower or of the right
of Agency to take further action without notice or demand as provided in this Note.
To the maximum extent permitted by applicable law 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 9.3 of the Loan Agreement.
3.3 SEVERABILITY. If any provision in this Note is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Note will remain in full force
and effect. Any provision of this Note held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of the
State of California without regard to principles of conflicts of laws. Any legal action filed in
connection with this Note shall be filed in the Superior Court of San Mateo County, California,
or in the Federal District Court for the Northern District of California.
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its successors and
assigns and shall accrue to the benefit of Agency and its successors and assigns.
3.6 SECTION HEADINGS, CONSTRUCTION; AMENDMENTS. The headings of
Sections in this Note are provided for convenience only and will not affect its construction or
interpretation. There shall be no amendment to or modification of this Note except by written
instrument executed by Borrower and Agency.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and Agency
under this Note is solely that of borrower and lender, and the loan evidenced by this Note and
secured by the Deed of Trust will in no manner make Agency the partner or joint venturer of
Borrower.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to every
provision of this Note.
3.9 NONRECOURSE. Except as expressly provided in this Section 3.9, neither
Borrower nor its partners shall have personal liability for payment of the principal of, or interest
on, this Note, and the sole recourse of Agency with respect to the payment of the principal of,
and interest on, this Note shall be to the Project, Borrower's interest in the Property and any
1581370.4 7
other collateral held by Agency as security for this Note; provided however, nothing contained in
the foregoing limitation of liability shall:
(A) impair the enforcement against all such security for the Loan of all the rights and
remedies of the Agency under the Deed of Trust and any financing statements Agency files in
connection with the Loan as each of the foregoing may be amended, modified, or restated from
time to time;
(B) impair the right of Agency to bring a foreclosure action, action for specific
performance or other appropriate action or proceeding to enable Agency to enforce and realize
upon the Deed of Trust, the interest in the Project and the Property created thereby and any other
collateral given to Agency in connection with the indebtedness evidenced hereby and to name
the Borrower as party defendant in any such action;
(C) be deemed in any way to impair the right of the Agency to assert the unpaid principal
amount of the Loan as a demand for money within the meaning of Section 431.70 of the
California Code of Civil Procedure or any successor provision thereto;
(D) constitute a waiver of any right which Agency may have under any bankruptcy law to
file a claim for the full amount of the indebtedness owed to Agency hereunder or to require that
the Project and Borrower's interest in the Property shall continue to secure all of the
indebtedness owed to Agency hereunder in accordance with this Note and the Deed of Trust; or
(E) limit or restrict the ability of Agency to seek or obtain a judgment against Borrower
to enforce against Borrower and its general partners to:
(1) recover under Sections 4.1, 4.4, 8.1 and 9.1 of the Loan Agreement or
Sections 5.2, 6.6, 6.19, 7.4, 7.10, 7.11.2, 13.1, and 18.5.9 and Article X of the Ground
Lease (pertaining to Borrower's indemnification obligations), or
(2) recover from Borrower and its general partners compensatory damages as well
as other costs and expenses incurred by Agency (including without limitation attorney's
fees and expenses) arising as a result of the occurrence of any of the following:
(a) any fraud or material misrepresentation on the part of the Borrower,
any general partner thereof, or any officer, director or authorized representative of
Borrower or any general partner thereof in connection with the request for or
creation of the Loan, or in any Agency Document, or in connection with any
request for any action or consent by Agency in connection with the Loan;
(b) any failure to maintain insurance on the Property and the Project as
required pursuant to the Agency Documents;
(c) failure to pay taxes, assessments or other charges which may become
liens on the Property or the Project;
(d) the presence of Hazardous Materials (defined in Section 7.11.4 of the
Ground Lease) on the Property or other violation of the Borrower's obligations
1581370.4 8
under Section 7.11 of the Ground Lease or Section 7.9 of the Deed of Trust
(pertaining to environmental matters);
(e) the occurrence of any act or omission of Borrower that results in waste
to or of the Project or the Property and which has a material adverse effect on the
value of the Project or the Property;
(f) the material misapplication of the Loan proceeds;
(g) the removal or disposal of any personal property or fixtures or the
retention of rents, insurance proceeds, or condemnation awards in violation of the
Deed of Trust, the Loan Agreement or the Ground Lease;
(h) the material misapplication of the proceeds of any insurance policy or
award resulting from condemnation or the exercise of the power of eminent
domain or by reason of damage, loss or destruction to any portion of the Project
or the Property; and
(i) the failure of Borrower to pay all amounts payable under this Note in
full if Borrower Transfers Borrower's interest in the Property or the Project in
violation of the Loan Agreement.
1581370.4 9
SIGNATURE(S) ON FOLLOWING PAGE.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date
first written above.
BORROWER
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1581370.4 10
Recording Requested by
and when Recorded, return to:
Redevelopment Agency
of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
EXHIBIT C
Space above this line for Recorder's use.
LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(636 El Camino — Phase B)
THIS LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING ( "Deed of Trust ") is made as of
, 2011, by MP South City II, L.P., a California limited partnership
( "Trustor ") to Title Company as trustee ( "Trustee "), for the benefit
of the Redevelopment Agency of the City of South San Francisco, a public body,
corporate, and politic ( "Beneficiary ").
RECITALS
A. Beneficiary owns fee simple title to the land described in Exhibit A
attached hereto and incorporated herein by this reference (the "Land "). The Land is
located adjacent to the El Camino Redevelopment Project Area ( "Project Area ").
Beneficiary and Trustor have entered into a ground lease (the "Ground Lease ") dated
as of the date hereof, pursuant to which Trustor shall lease the Land for the purposes of
developing and operating an affordable multifamily residential /mixed -use development
on the Land (the "Project "). A Memorandum of the Ground Lease will be recorded in
the Official Records of San Mateo County concurrently herewith.
B. Beneficiary and Trustor have entered into a Loan Agreement dated as of
the date hereof (the "Loan Agreement ") pursuant to which Beneficiary is providing a
loan to Trustor in the amount of Five Million, Six Hundred Ninety -Eight Thousand, Six
Hundred and Twenty -Seven Dollars ($5,698,627) (the "Loan ") for the purpose of
partially financing the Project. Trustor has issued to Beneficiary a secured promissory
note dated as of the date hereof (the "Note ") to evidence Trustor's obligation to repay
the Loan.
C. As a condition precedent to the making of the Loan, Beneficiary has
required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of
Beneficiary, a lien and security interest in the Project and in Trustor's leasehold interest
1583228.1 1
in the Land and the Property (defined below) to secure repayment of the Note and
performance of Trustor's obligations under the Loan Agreement and under the Agency
Documents (defined below).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing
payment and performance of the Secured Obligations defined and described in Section
2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns
to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry
and possession, all estate, right, title and interest which Trustor now has or may later
acquire in and to the Land, and all of the following, whether presently owned or
hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or
constructed on the Land ( "Improvements ");
b. All appurtenances, easements, rights of way, pipes, transmission lines or
wires and other rights used in connection with the Land or the Improvements or as a
means of access thereto, whether now or hereafter owned or constructed or placed
upon or in the Land or Improvements and all existing and future privileges, rights,
franchises and tenements of the Land, including all minerals, oils, gas and other
commercially valuable substances which may be in, under or produced from any part of
the Land, and all water rights, rights of way, gores or strips of land, and any land lying in
the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and
Improvements (collectively, "Appurtenances ");
c. All machinery, equipment, fixtures, goods and other personal property of
the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor
and now or hereafter located at or used in connection with the Land, the Improvements
or Appurtenances, and all improvements, restorations, replacements, repairs, additions
or substitutions thereto (collectively, "Equipment ");
d. All existing and future leases, subleases, licenses, and other agreements
relating to the use or occupancy of all or any portion of the Land or Improvements
(collectively, "Leases "), all amendments, extensions, renewals or modifications thereof,
and all rent, royalties, or other payments which may now or hereafter accrue or
otherwise become payable thereunder to or for the benefit of Trustor, including but not
limited to security deposits (collectively, "Rents ");
e. All insurance proceeds and any other proceeds from the Land,
Improvements, Appurtenances, Equipment, Leases, and Rents, including without
limitation, all deposits made with or other security deposits given to utility companies, all
claims or demands relating to insurance awards which the Trustor now has or may
hereafter acquire, including all advance payments of insurance premiums made by
1583228.1 2
Trustor, and all condemnation awards or payments now or later made in connection
with any condemnation or eminent domain proceeding ( "Proceeds ");
f. All revenues, income, rents, royalties, payments and profits produced by
the Land, Improvements, Appurtenances and Equipment, whether now owned or
hereafter acquired by Trustor ( "Gross Revenues ");
g. All architectural, structural and mechanical plans, specifications, design
documents and studies produced in connection with development of the Land and
construction of the Improvements (collectively, "Plans "); and
h. All interests and rights in any private or governmental grants, subsidies,
loans or other financing provided in connection with development of the Land and
construction of the Improvements (collectively, "Financing ").
All of the above - referenced interests of Trustor in the Land, Improvements,
Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and
Financing as hereby conveyed to Trustee or made subject to the security interest herein
described are collectively referred to herein as the "Property."
2. Obligations Secured. This Deed of Trust is given for the purpose of securing
payment and performance of the following (collectively, the "Secured Obligations "): (i)
all present and future indebtedness evidenced by the Note and any amendment thereof,
including principal, interest and all other amounts payable under the terms of the Note;
(ii) all present and future obligations of Trustor to Beneficiary under the Agency
Documents (defined below); (iii) all additional present and future obligations of Trustor
to Beneficiary under any other agreement or instrument acknowledged by Trustor
(whether existing now or in the future) which states that it is or such obligations are,
secured by this Deed of Trust; (iv) all obligations of Trustor to Beneficiary under all
modifications, supplements, amendments, renewals, or extensions of any of the
foregoing, whether evidenced by new or additional documents; and (v) reimbursement
of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary's interests
under this Deed of Trust or any other Agency Document as such may be modified,
supplemented, amended, renewed or extended. The Ground Lease, the Note, the Loan
Agreement, this Deed of Trust, and the Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants ( "Regulatory Agreement ") dated as of the date
hereof, executed by and between Trustor and Beneficiary and recorded substantially
concurrently herewith are hereafter collectively referred to as the "Agency
Documents."
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits,
revenue, income and proceeds of the Property. This is an absolute assignment and not
an assignment for security only. Beneficiary hereby confers upon Trustor a license to
collect and retain such Rents, royalties, issues, profits, revenue, income and proceeds
as they become due and payable prior to any Event of Developer Default hereunder.
Upon the occurrence of any such Event of Developer Default, Beneficiary may
1583228.1 3
terminate such license without notice to or demand upon Trustor and without regard to
the adequacy of any security for the indebtedness hereby secured, and may either in
person, by agent, or by a receiver to be appointed by a court, enter upon and take
possession of the Property or any part thereof, and sue for or otherwise collect such
rents, issues, and profits, including those past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable attorneys'
fees, to any indebtedness secured hereby, and in such order as Beneficiary may
determine. Beneficiary's right to the rents, royalties, issues, profits, revenue, income
and proceeds of the Property does not depend upon whether or not Beneficiary takes
possession of the Property. The entering upon and taking possession of the Property,
the collection of such rents, issues, and profits, and the application thereof as aforesaid,
shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice. If an Event of Developer Default occurs while Beneficiary
is in possession of all or part of the Property and /or is collecting and applying Rents as
permitted under this Deed of Trust, Beneficiary, Trustee and any receiver shall
nevertheless be entitled to exercise and invoke every right and remedy afforded any of
them under this Deed of Trust and at law or in equity, including the right to exercise the
power of sale granted hereunder. Regardless of whether or not Beneficiary, in person
or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall
not be deemed to be a "mortgagee in possession," shall not be responsible for
performing any obligation of Trustor under any Lease, shall not be liable in any manner
for the Property, or the use, occupancy, enjoyment or operation of any part of it, and
shall not be responsible for any waste committed by Trustor, lessees or any third
parties, or for dangerous or defective condition of the Property or any negligence in the
management, repair or control of the Property. Absent Beneficiary's written consent,
Trustor shall not accept prepayment of Rents for any rental period exceeding one
month.
4. Security Agreement. The parties intend for this Deed of Trust to create a lien on
the Property, and an absolute assignment of the Rents and Leases, all in favor of
Beneficiary. The parties acknowledge that some of the Property may be determined
under applicable law to be personal property or fixtures. To the extent that any Property
may be or be determined to be personal property, Trustor as debtor hereby grants to
Beneficiary as secured party a security interest in all such Property to secure payment
and performance of the Secured Obligations. This Deed of Trust constitutes a security
agreement under the California Uniform Commercial Code, as amended or recodified
from time to time (the "UCC "), covering all such Property. To the extent such Property
is not real property encumbered by the lien granted above, and is not absolutely
assigned by the assignment set forth above, it is the intention of the parties that such
Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in
and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such
section may be modified or supplemented) of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby
authorizes Beneficiary, as secured party, to file such financing statements and
amendments thereof and such continuation statements with respect thereto as
Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest
1583228.1 4
in the Property and Rents, without requiring any signature or further authorization by
Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary
may incur in filing such documents in public offices and in obtaining such record
searches as Beneficiary may reasonably require. If any financing statement or other
document is filed in the records normally pertaining to personal property, that filing shall
not be construed as in any way derogating from or impairing this Deed of Trust or the
rights or obligations of the parties under it.
Everything used in connection with the Property and /or adapted for use therein and /or
which is described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be regarded as part of the
estate encumbered by this Deed of Trust irrespective of whether (i) any such item is
physically attached to the Improvements, (ii) serial numbers are used for the better
identification of certain equipment items capable of being thus identified in a recital
contained herein or in any list filed with Beneficiary, or (iii) any such item is referred to or
reflected in any such financing statement so filed at any time. Similarly, the mention in
any such financing statement of (1) rights in or to the proceeds of any fire and /or hazard
insurance policy, or (2) any award in eminent domain proceedings for a taking or for
lessening of value, or (3) Trustor's interest as lessor in any present or future lease or
rights to income growing out of the use and /or occupancy of the property conveyed
hereby, whether pursuant to lease or otherwise, shall not be construed as in any way
altering any of the rights of Beneficiary as determined by this instrument or impugning
the priority of Beneficiary's lien granted hereby or by any other recorded document.
Such mention in any financing statement is declared to be solely for the protection of
Beneficiary in the event any court or judge shall at any time hold, with respect to the
matters set forth in the foregoing clauses (1), (2), and (3), that notice of Beneficiary's
priority of interest is required in order to be effective against a particular class of
persons, including but not limited to the federal government and any subdivisions or
entity of the federal government.
6. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing
pursuant to the provisions of the UCC with respect to all of the Property constituting
fixtures, is being recorded as a fixture financing statement and filing under the UCC,
and covers property, goods and equipment which are or are to become fixtures related
to the Land and the Improvements. Trustor covenants and agrees that this Deed of
Trust is to be filed in the real estate records of San Mateo County and shall also operate
from the date of such filing as a fixture filing in accordance with Section 9502 and other
applicable provisions of the UCC. This Deed of Trust shall also be effective as a
financing statement covering minerals or the like (including oil and gas) and accounts
subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and
Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor's Representations, Warranties and Covenants; Rights and Duties of the
Parties.
7.1 Representations and Warranties. Trustor represents and warrants that:
(i) Trustor lawfully possesses and holds a leasehold interest in the Land, (ii) Trustor will
1583228.1 5
hold a fee interest in the Improvements that Trustor will cause to be constructed on the
Land pursuant to the Ground Lease, (iii) Trustor has good and marketable title to or a
leasehold interest in all of the Property; (iv) other than as limited by the Agency
Documents, Trustor has the full and unlimited power, right and authority to encumber
Trustor's interests in the Property with this Deed of Trust and assign the Rents as
contemplated herein; (iv) subject only to encumbrances of record and senior liens
permitted pursuant to the Agency Documents or otherwise approved in writing by
Beneficiary ( "Permitted Encumbrances "), this Deed of Trust creates a valid lien on
Trustor's entire interest in the Property; (v) except with respect to Permitted
Encumbrances, Trustor holds a leasehold in the Land and will hold a fee interest in the
Improvements Trustor will cause to be constructed on the Land pursuant to the Ground
Lease free and clear of all deeds of trust, mortgages, security agreements, reservations
of title or conditional sales contracts, (vi) there is no financing statement affecting the
Property on file in any public office other than as set forth in the Loan Agreement or
otherwise disclosed in writing to Beneficiary; and (vii) the correct address of Trustor's
chief executive office is specified in Section 10.2.
Beneficiary agrees that pursuant to Health and Safety Code Section
33334.14(a)(4), it will not withhold consent to reasonable requests for subordination of
this Deed of Trust to deeds of trust provided for the benefit of lenders identified in the
Financing Plan approved in connection with the Loan Agreement provided that the
subordination agreement includes reasonable protections to the Beneficiary in the event
of default.
7.2 Condition of Property. Trustor represents and warrants that except as
disclosed to Beneficiary in writing or as set forth in the Loan Agreement, as of the date
hereof: (i) Trustor has not received any notice from any governmental authority of any
threatened or pending zoning, building, fire, or health code violation or violation of other
governmental regulations concerning the Property that has not previously been
corrected, (ii) no condition on the Land violates any health, safety, fire, environmental,
sewage, building, or other federal, state or local law, ordinance or regulation; (iii) no
contracts, licenses, leases or commitments regarding the maintenance or use of the
Property or allowing any third party rights to use the Property are in force; (iv) there are
no threatened or pending actions, suits, or administrative proceedings against or
affecting the Property or any portion thereof or the interest of Trustor in the Property; (v)
there are no threatened or pending condemnation, eminent domain, or similar
proceedings affecting the Property or any portion thereof; (vi) Trustor has not received
any notice from any insurer of defects of the Property which have not been corrected;
(vii) there are no natural or artificial conditions upon the Land or any part thereof that
could result in a material and adverse change in the condition of the Land; (viii) all
information that Trustor has delivered to Beneficiary, either directly or through Trustor's
agents, is accurate and complete; and (ix) Trustor or Trustor's agents have disclosed to
Beneficiary all material facts concerning the Property.
7.3 Authority. Trustor represents and warrants that this Deed of Trust and all
other documents delivered or to be delivered by Trustor in connection herewith: (a)
have been duly authorized, executed, and delivered by Trustor; (b) are binding
1583228.1 6
obligations of Trustor; and (c) do not violate the provisions of any agreement to which
Trustor is a party or which affects the Property. Trustor further represents and warrants
that there are no pending, or to Trustor's knowledge, threatened actions or proceedings
before any court or administrative agency which may adversely affect Trustor's
ownership of the Property.
7.4 Payment and Performance of Secured Obligations. Trustor shall promptly
pay when due the principal and any interest due on the indebtedness evidenced by the
Note, and shall promptly pay and perform all other obligations of Trustor arising in
connection with the Secured Obligations or the Agency Documents in accordance with
the respective terms thereof.
7.5 Use of Loan Proceeds; Preservation and Maintenance of Property;
Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan
(the "Loan Proceeds ") solely for purposes authorized by the Agency Documents.
Trustor covenants that it shall keep the Land and Improvements in good repair and
condition, and from time to time shall make necessary repairs, renewals and
replacements thereto so that the Property shall be preserved and maintained. Trustor
covenants that it shall comply with all federal, state and local laws, regulations,
ordinances and rules applicable to the Property and the Project, including without
limitation all applicable requirements of state and local building codes and regulations,
Prevailing Wage Laws, and all applicable statutes and regulations relating to
accessibility for the disabled. Trustor shall not remove, demolish or materially alter any
Improvement without Beneficiary's consent, shall complete or restore promptly and in
good and workmanlike manner any building, fixture or other improvement which may be
constructed, damaged, or destroyed thereon, and shall pay when due all claims for
labor performed and materials furnished therefor. Trustor shall use the Land and the
Improvements solely for purposes authorized by the Agency Documents, shall not
commit or allow waste of the Property, and shall not commit or allow any act upon or
use of the Property which would violate any applicable law or order of any governmental
authority, nor shall Trustor bring on or keep any article on the Property or cause or allow
any condition to exist thereon which could invalidate or which would be prohibited by
any insurance coverage required to be maintained on the Property pursuant to the
Agency Documents.
7.6 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be
an Event of Developer Default hereunder if the Property or the Improvements, or any
part thereof or interest therein is sold, assigned, conveyed, transferred, hypothecated,
leased, licensed, or encumbered in violation of the Agency Documents or if any other
Transfer (as defined in the Loan Agreement) occurs in violation of the Agency
Documents. If any such Transfer shall occur in violation of such requirements, without
limiting the provisions of Section 8 hereof, all obligations secured by this Deed of Trust,
irrespective of the maturity dates of such obligations, shall at the option of Beneficiary,
and without demand, immediately become due and payable, subject to any applicable
cure period.
1583228.1 7
7.7 Inspections; Books and Records. Beneficiary and its agents and
representatives shall have the right at any reasonable time upon reasonable notice to
enter upon the Land and inspect the Property to ensure compliance with the Agency
Documents. Trustor shall maintain complete and accurate books of account and other
records (including copies of supporting bills and invoices) adequate to document the
use of the Loan Proceeds and the operation of the Property, together with copies of all
written contracts, Leases and other instruments which affect the Property. The books,
records, contracts, Leases and other instruments shall be subject to examination and
inspection by Beneficiary at any reasonable time following two business days prior
notice.
7.8 Charges, Liens, Taxes and Assessments. Trustor shall pay before
delinquency all taxes, levies, assessments and other charges affecting the Property that
are (or if not paid may become) a lien on all or part of the Property. Trustor may, at
Trustor's expense, contest the validity or application of any tax, levy, assessment or
charge affecting the Property by appropriate legal proceedings promptly initiated and
conducted in good faith and with due diligence, provided that (i) Beneficiary is
reasonably satisfied that neither the Property nor any part thereof or interest therein will
be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor
shall have posted a bond or furnished other security as may reasonably be required
from time to time by Beneficiary; and provided further that Trustor shall timely make any
payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.9 Subrogation. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole or in
part by Beneficiary in accordance with this Deed of Trust.
7.10 Hazard, Liability and Workers' Compensation Insurance. At all times
during the term hereof, at Trustor's expense, Trustor shall keep the Improvements and
personal property now existing or hereafter located on the Property insured against loss
by fire, vandalism and malicious mischief by a policy of standard fire and extended all -
risk insurance. The policy shall be written on a full replacement value basis and shall
name Beneficiary as loss payee as its interest may appear. The full replacement value
of the improvements to be insured shall be determined by the company issuing the
policy at the time the policy is initially obtained. Not more frequently than once every
two (2) years, either the Trustor or the Beneficiary shall have the right to notify the other
party that it elects to have the replacement value redetermined by the insurance
company. Subject to the rights of any senior lienholder, the proceeds collected under
any insurance policy may be applied by Beneficiary to any indebtedness secured
hereby and in such order as Beneficiary may determine, or at the option of Beneficiary,
the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice. Notwithstanding the foregoing, if
any senior lienholder permits such proceeds to be utilized for rebuilding or restoration of
the Improvements, Beneficiary shall approve the use of the proceeds for such purpose.
1583228.1 8
7.10.1 Trustor shall at all times during the term hereof, maintain a
comprehensive general liability insurance policy in an amount not Tess than One Million
Dollars ($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual
aggregate, together with Three Million Dollars ($3,000,000) excess liability coverage or
such other policy limits as Agency may require in its reasonable discretion, including
coverage for bodily injury, property damage, products, completed operations and
contractual liability coverage. Such policy or policies shall be written on an occurrence
basis and shall name the Beneficiary as an additional insured. Trustor shall maintain
workers' compensation insurance as required by law.
7.10.2 Trustor shall file with Beneficiary prior to the commencement of the
term hereof, certificates (or such other proof as Beneficiary may require, including
without limitation, copies of the required insurance policies) evidencing each of the
insurance policies and endorsements thereto as required by this Section, and such
certificates (or policies) shall provide that at least thirty (30) days' prior written notice
shall be provided to Beneficiary prior to the expiration, cancellation or change in
coverage under each such policy.
7.10.3 If any insurance policy required hereunder is canceled or the
coverage provided thereunder is reduced, Trustor shall, within fifteen (15) days after
receipt of written notice of such cancellation or reduction in coverage, but in no event
later than the effective date of cancellation or reduction, file with Beneficiary a certificate
showing that the required insurance has been reinstated or provided through another
insurance company or companies. Upon failure to so file such certificate, Beneficiary
may, with notice and at its option, procure such insurance coverage at Trustor's
expense, and Trustor shall promptly reimburse Beneficiary for such expense upon
receipt of billing from Beneficiary.
7.10.4 The insurance policies required hereunder shall be issued by
insurance companies authorized to do business in the State of California with a financial
rating of at least A VII status as rated in the most recent edition of Best's Key Rating
Guide. Each policy of insurance shall contain an endorsement requiring the insurer to
provide at least thirty (30) days written notice to Beneficiary prior to change in coverage,
cancellation or expiration thereof. If any insurance policy required pursuant to the
Agency Documents is canceled or the coverage provided thereunder is reduced,
Trustor shall, within ten (10) days after receipt of written notice of such cancellation or
reduction in coverage, but in no event later than the effective date of cancellation or
reduction, file with Beneficiary a certificate showing that the required insurance has
been reinstated or provided through another insurance company or companies. Upon
failure to so file such certificate, Beneficiary may, without further notice and at its option,
procure such insurance coverage at Trustor's expense, and Trustor shall promptly
reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.
7.11 Hazardous Materials. Trustor represents and warrants that except as
disclosed to Beneficiary in writing, as of the date hereof to the best knowledge of
Trustor: (i) the Land is free and has always been free of Hazardous Materials (as
defined below) and is not and has never been in violation of any Environmental Law (as
1583228.1 9
defined below); (ii) there are no buried or partially buried storage tanks located on the
Land; (iii) Trustor has received no notice, warning, notice of violation, administrative
complaint, judicial complaint, or other formal or informal notice alleging that conditions
on the Land are or have ever been in violation of any Environmental Law or informing
Trustor that the Land is subject to investigation or inquiry regarding Hazardous
Materials on the Land or the potential violation of any Environmental Law; (iv) there is
no monitoring program required by the Environmental Protection Agency or any other
governmental agency concerning the Land; (v) no toxic or hazardous chemicals, waste,
or substances of any kind have ever been spilled, disposed of, or stored on, under or at
the Land, whether by accident, burying, drainage, or storage in containers, tanks,
holding areas, or any other means; (vi) the Land has never been used as a dump or
landfill; and (vii) Trustor has disclosed to Beneficiary all information, records, and
studies in Trustor's possession or reasonably available to Trustor relating to the Land
concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Material (as defined below) to
be brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its
agents, employees, contractors or invitees except for incidental supplies ordinarily used
in connection with the construction, rehabilitation, repair, and operation of
residential /mixed -use developments and in compliance with all applicable laws, and
shall not cause any release of Hazardous Materials into, onto, under or through the
Land. If any Hazardous Material is discharged, released, dumped, or spilled in, on,
under, or about the Land and results in any contamination of the Land or adjacent
property, or otherwise results in the release or discharge of Hazardous Materials in, on,
under or from the Land, Trustor shall promptly take all actions at its sole expense as are
necessary to comply with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to
Beneficiary), and hold Beneficiary and its elected and appointed officials, officers,
agents and employees (collectively, "Indemnitees ") harmless from and against any and
all loss, claim, liability, damage, demand, judgment, order, penalty, fine, injunctive or
other relief, cost, expense (including reasonable fees and expenses of attorneys, expert
witnesses, and other professionals advising or assisting Beneficiary), action, or cause of
action (all of the foregoing, hereafter individually "Claim" and collectively "Claims ")
arising in connection with the breach of Trustor's covenants and obligations set forth in
this Section 7.11 or otherwise arising in connection with the presence or release of
Hazardous Materials in, on, under, or from the Property, provided that no Indemnitee
shall be entitled to indemnification under this Section for matters caused by such
lndemnitee's gross negligence or willful misconduct. The foregoing indemnity includes,
without limitation, all costs of investigation, assessment, containment, removal,
remediation of any kind, and disposal of Hazardous Materials, all costs of determining
whether the Land is in compliance with Environmental Laws, all costs associated with
bringing the Land into compliance with all applicable Environmental Laws, and all costs
associated with claims for damages or injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor's own
cost and expense, do all of the following:
1583228.1 10
a. pay or satisfy any judgment or decree that may be entered against any
Indemnitee or Indemnitees in any legal or administrative proceeding incident to any
matters against which Indemnitees are entitled to be indemnified under this Deed of
Trust;
b. reimburse Indemnitees for any expenses paid or incurred in connection
with any matters against which Indemnitees are entitled to be indemnified under this
Deed of Trust; and
c. reimburse Indemnitees for any and all expenses, including without
limitation out -of- pocket expenses and fees of attorneys and expert witnesses, paid or
incurred in connection with the enforcement by Indemnitees of their rights under this
Deed of Trust, or in monitoring and participating in any legal or administrative
proceeding.
Trustor's obligation to indemnify the Indemnitees shall not be limited or impaired
by any of the following or by any failure of Trustor to receive notice of or consideration
for any of the following: (i) any amendment or modification of any Agency Document;
(ii) any extensions of time for performance required by any Agency Document; (iii) any
provision in any of the Agency Documents limiting Beneficiary's recourse to property
securing the Secured Obligations, or limiting the personal liability of Trustor, or any
other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or
inaccuracy of any representation and warranty made by Trustor under this Deed of
Trust or by Trustor or any other party under any Agency Document, (v) the release of
Trustor or any other person, by Beneficiary or by operation of law, from performance of
any obligation under any Agency Document; (vi) the release or substitution in whole or
in part of any security for the Secured Obligations; and (vii) Beneficiary's failure to
properly perfect any lien or security interest given as security for the Secured
Obligations.
The provisions of this Section 7.11 shall be in addition to any and all other
obligations and liabilities that Trustor may have under applicable law, and each
Indemnitee shall be entitled to indemnification under this Section without regard to
whether Beneficiary or that lndemnitee has exercised any rights against the Property or
any other security, pursued any rights against any guarantor or other party, or pursued
any other rights available under the Agency Documents or applicable law. The
obligations of Trustor to indemnify the Indemnitees under this Section shall survive any
repayment or discharge of the Secured Obligations, any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of
record of the lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor
acknowledges and agrees that each of the provisions in this Section 7.11 is an
environmental provision (as defined in Section 736(f)(2) of the California Code of Civil
Procedure) made by Trustor relating to real property security (the "Environmental
Provisions "), and that Trustor's failure to comply with any of the Environmental
Provisions will be a breach of contract that will entitle Beneficiary to pursue the
1583228.1 11
remedies provided by Section 736 of the California Code of Civil Procedure ( "Section
736 ") for the recovery of damages and for the enforcement of the Environmental
Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or
enforcement of the Environmental Provisions shall not constitute an action within the
meaning of Section 726(a) of the California Code of Civil Procedure or constitute a
money judgment for a deficiency or a deficiency judgment within the meaning of
Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure.
"Hazardous Materials" means any substance, material or waste which is or
becomes regulated by any federal, state or local governmental authority, and includes
without limitation (i) petroleum or oil or gas or any direct or indirect product or by-
product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance,
material or waste regulated by or listed (directly or by reference) as a "hazardous
substance ", "hazardous material ", "hazardous waste ", "toxic waste ", "toxic pollutant ",
"toxic substance ", "solid waste" or "pollutant or contaminant" in or pursuant to, or
similarly identified as hazardous to human health or the environment in or pursuant to,
the Toxic Substances Control Act [15 U.S.C. Section 2601, et seq.]; the Comprehensive
Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et
seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section
5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. Section 6901,
et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air
Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous
Substances Act [California Health and Safety Code Section 25280, et seq.], the
California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seq.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the
Porter - Cologne Water Quality Control Act [California Water Code Section 13000, et
seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder; (iv) any substance, material or waste which is defined as such
or regulated by any "Superfund" or "Superlien" law, or any Environmental Law; or (v)
any other substance, material, chemical, waste or pollutant identified as hazardous or
toxic and regulated under any other federal, state or local environmental law, including
without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and
synthetic fuel products and by- products.
"Environmental Law" means all federal, state or local statutes, ordinances,
rules, regulations, orders, decrees, judgments or common law doctrines, and provisions
and conditions of permits, licenses and other operating authorizations regulating, or
relating to, or imposing liability or standards of conduct concerning (i) pollution or
protection of the environment, including natural resources; (ii) exposure of persons,
including employees and agents, to any Hazardous Material (as defined above) or other
products, raw materials, chemicals or other substances; (iii) protection of the public
health or welfare from the effects of by- products, wastes, emissions, discharges or
releases of chemical substances from industrial or commercial activities; (iv) the
manufacture, use or introduction into commerce of chemical substances, including
without limitation, their manufacture, formulation, labeling, distribution, transportation,
1583228.1 12
handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous
substances or Hazardous Materials or the remediation of air, surface waters,
groundwaters or soil, as now or may at any later time be in effect, including but not
limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the
Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C.
Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49
U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C.
6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the
Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of
Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.],
the California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seq.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the
Porter - Cologne Water Quality Control Act [California Water Code Section 13000, et
seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder.
7.12 Notice of Claims; Defense of Security; Reimbursement of Costs.
a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any
uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or
property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within
five business days of the occurrence of such loss. Trustor shall ensure that Beneficiary
shall receive timely notice of, and shall have a right to cure, any default under any other
financing document or other lien affecting the Property and shall use best efforts to
ensure that provisions mandating such notice and allowing such right to cure shall be
included in all such documents. Within three business days of Trustor's receipt thereof,
Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in
connection with any financing document secured by the Property or any part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect,
preserve and defend the Property and Trustor's interest in and right of possession of the
Property, the security of this Deed of Trust and the rights and powers of Beneficiary and
Trustee created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all
reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service
that Beneficiary or Trustee may render in connection with this Deed of Trust, including
without limitation, fees and expenses related to provision of a statement of obligations
or related to a reconveyance. Trustor further agrees to pay or reimburse Beneficiary for
all costs, expenses and other advances which may be incurred or made by Beneficiary
or Trustee in any efforts to enforce any terms of this Deed of Trust, including without
limitation any rights or remedies afforded to Beneficiary or Trustee or both of them
under Sections 7.18 and 8.2, whether or not any lawsuit is filed, or in defending any
action or proceeding arising under or relating to this Deed of Trust, including reasonable
attorneys' fees and other legal costs, costs of any disposition of the Property under the
1583228.1 13
power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of
title.
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of
any change in the address of Trustor and the location of any property, including books
and records pertaining to the Property.
7.13 Indemnification. Trustor shall indemnify, defend (with counsel reasonably
acceptable to Beneficiary), and hold harmless the Trustee and the lndemnitees (as
defined in Section 7.11) from and against all Claims arising directly or indirectly in any
manner in connection with or as a result of (a) any breach of Trustor's covenants under
any Agency Document, (b) any representation by Trustor in any Agency Document
which proves to be false or misleading in any material respect when made, (c) injury or
death to persons or damage to property or other loss occurring on the Land or in any
improvement located thereon, whether caused by the negligence or any other act or
omission of Trustor 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 lndemnitee which relates to or arises
out of the Property, or any Agency Document or any transaction contemplated thereby,
or any failure of Trustor to comply with all applicable state, federal and local laws and
regulations applicable to the Property, provided that no lndemnitee shall be entitled to
indemnification under this Section for matters caused by such Indemnitee's gross
negligence or willful misconduct. The obligations of Trustor under this Section shall
survive the repayment of the Loan and shall be secured by this Deed of Trust.
Notwithstanding any contrary provision contained herein, the obligations of Trustor
under this Section shall survive any foreclosure proceeding, any foreclosure sale, any
delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed
of Trust.
7.14. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to
Trustor or any other person as a consequence of any of the following: (i) Beneficiary's
exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary
in this Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any
obligation or liability of Trustor under any agreement related to the Property or under
this Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or
any third parties, or any dangerous or defective condition of the Property (excepting
conditions caused by one or more Indemnitees); or (iv) any loss sustained by Trustor or
any third party resulting from any act or omission of Beneficiary in managing the
Property after an Event of Developer Default, unless the loss is caused by the willful
misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly
waives and releases all liability of the types described in this Section 7.14 and agrees
that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.15 Condemnation Proceeds. Subject to the rights of any senior Iienholders,
any award of damages in connection with any condemnation for public use of, or injury
to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary
1583228.1 14
who may apply such moneys to any indebtedness secured hereby in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so
collected or any part thereof may be released to Trustor. Such application or release
shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
7.16 Release, Extension, Modification. At any time and from time to time,
without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and the Note for endorsement, Trustee may release
or reconvey all or any part of the Property, consent to the making of any map or plat of
the Land or part thereof, join in granting any easement or creating any restriction
affecting the Property, or join in any extension agreement or other agreement affecting
the lien or charge hereof. At any time and from time to time, without liability therefor
and without notice, Beneficiary may (i) release any person liable for payment of any
Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of
payment of any Secured Obligation; (iii) accept additional real or personal property of
any kind as security for any Secured Obligation, or (iv) substitute or release any
property securing the Secured Obligations.
7.17 Reconveyance. Upon written request of Beneficiary stating that all of the
Secured Obligations have been paid in full, and upon surrender of this Deed of Trust,
and the Note, Trustee shall reconvey, without warranty, the Property or so much of it as
is then held under this Deed of Trust. The recitals in any reconveyance executed under
this Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness
thereof. Trustor shall pay all fees of Trustee and all recordation fees related to such
reconveyance.
7.18 Cure; Protection of Security. Upon the occurrence of an Event of
Developer Default, either Beneficiary or Trustee may cure any breach or default of
Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or
Trustee may also enter the Property and /or do any and all other things which it may in
its sole discretion consider necessary and appropriate to protect the security of this
Deed of Trust. Such other things may include: appearing in and /or defending any action
or proceeding which purports to affect the security of, or the rights or powers of
Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or
compromising any encumbrance, charge, lien or claim of lien which in Beneficiary's or
Trustee's sole judgment is or may be senior in priority to this Deed of Trust, such
judgment of Beneficiary or Trustee to be conclusive as among Beneficiary, Trustee and
Trustor; obtaining insurance and /or paying any premiums or charges for insurance
required to be carried hereunder; otherwise caring for and protecting any and all of the
Property; and /or employing counsel, accountants, contractors and other appropriate
persons to assist Beneficiary or Trustee. Beneficiary and Trustee may take any of the
actions permitted under this Section 7.18 either with or without giving notice, except for
notices required under applicable law. Any amounts disbursed by Beneficiary pursuant
to this paragraph shall become additional indebtedness secured by this Deed of Trust.
1583228.1 15
7.19 Limited Partners Right to Cure. Trustor's limited partners and the Project
lenders shall have the right to cure any default of Trustor hereunder pursuant to the
terms set forth in the Loan Agreement. Beneficiary shall provide any notice of default
hereunder to such parties concurrently with the provision of such notice to Trustor, and
as to the limited partners, and Project lenders, the cure periods specified herein and in
the Loan Agreement shall commence upon the date of delivery of such notice in
accordance with Section 10.2.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of
Developer Default shall occur under this Deed of Trust upon the occurrence of any one
or more of the following events:
a. Beneficiary's declaration of an Event of Developer Default under
any Agency Document, subject to the expiration of any applicable cure period set forth
in such document;
b. Trustor fails to perform any monetary obligation which arises under
this Deed of Trust, and does not cure that failure within ten (10) days following written
notice from Beneficiary or Trustee;
c. If Trustor's interest in the Property or any part thereof is voluntarily
or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in
violation of Section 7.6 hereof or if any other Transfer occurs in violation of the Agency
Documents;
d. Trustor fails to maintain the insurance coverage required hereunder
and fails to cure such default within ten (10) days, or Developer otherwise fails to
comply with the requirements of Section 7.10 hereof and Trustor fails to cure such
default within the applicable time specified in Section 7.10;
e. Subject to Trustor's right to contest such charges as provided
herein, Trustor fails to pay taxes or assessments due on the Land or the Improvements
or fails to pay any other charge that may result in a lien on the Land or the
Improvements, and Trustor fails to cure such default within and Tenant fails to cure
such default within ninety (90) days of the date of delinquency, but in all events prior to
the date upon which the holder of any such lien has the right to pursue foreclosure
thereof;
f. Any representation or warranty of Trustor contained in or made in
connection with the execution and delivery of this Deed of Trust or in any certificate or
statement furnished pursuant hereto or in any other Agency Document proves to have
been false or misleading in any material adverse respect when made;
g. 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 "), Trustor or any general partner thereof (i) commences a
1583228.1 16
voluntary case or proceeding; (ii) consents to the entry of an order for relief against
Trustor or any general partner thereof in an involuntary case; (iii) consents to the
appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or
any general partner thereof; (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;
h. If a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in
an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar
official for Trustor or any general partner thereof or substantially all of such entity's
assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues
or levies a judgment, writ, warrant of attachment or similar process against the Property
or the Project, and in each case the order or decree is not released, vacated, dismissed
or fully bonded within 90 days after its issuance;
i. The holder of any other debt instrument secured by a mortgage or
deed of trust on the Property or part thereof declares an event of default thereunder and
exercises a right to declare all amounts due under that debt instrument immediately due
and payable, subject to the expiration of any applicable cure period set forth in such
holder's documents;
j. Trustor fails to perform any obligation arising under this Deed of
Trust other than one enumerated in this Section 8.1, and does not cure that failure
either within ten (10) days after written notice from Beneficiary or Trustee in the event of
a monetary default, or within thirty (30) days after such written notice in the event of a
nonmonetary default, provided that in the case of a nonmonetary default that in
Beneficiary's reasonable judgment cannot reasonably be cured within thirty (30) days,
an Event of Developer Default shall not arise hereunder if Trustor commences to cure
such default within thirty (30) days and thereafter prosecutes such cure to completion
with due diligence and in good faith and in no event later than ninety (90) days following
receipt of notice of default; or
k. A default on the part of Trustor arises under the Ground Lease and
remains uncured beyond any applicable cure period such that the fee owner of the Land
has the right to terminate the Ground Lease.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth
herein, at any time after an Event of Developer Default, Beneficiary and Trustee shall be
entitled to invoke any and all of the rights and remedies described below, and may
exercise any one or more or all, of the remedies set forth in any Agency Document, and
any other remedy existing at law or in equity or by statute. All of Beneficiary's rights and
remedies shall be cumulative, and the exercise of any one or more of them shall not
constitute an election of remedies. Beneficiary shall be entitled to collect all expenses
incurred in pursuing the remedies provided hereunder, including without limitation
reasonable attorneys' fees and costs.
1583228.1 17
a. Acceleration. Beneficiary may declare any or all of the Secured
Obligations, including without limitation all sums payable under the Note and this Deed
of Trust, to be due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property.
c. Entry. Beneficiary, in person, by agent or by court- appointed
receiver, may enter, take possession of, manage and operate all or any part of the
Property, and may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: taking and possessing
copies of all of Trustor's or the then owner's books and records concerning the Property;
entering into, enforcing, modifying, or canceling Leases on such terms and conditions
as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying
Rents; collecting and receiving any payment of money owing to Trustor; completing any
unfinished construction; and /or contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the Property that has been
removed from the Land and make all of it available to Beneficiary at the site of the Land.
Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney -in-
fact to perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with taking these measures,
including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the
remedies granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for
foreclosure of mortgages on real property and /or to obtain specific enforcement of any
of the covenants or agreements of this Deed of Trust.
f. Power of Sale. Under the power of sale hereby granted,
Beneficiary shall have the discretionary right to cause some or all of the Property,
including any Property which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable law.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby
granted, Beneficiary shall execute or cause the Trustee to execute a written notice of
such default and of its election to cause the Property to be sold to satisfy the obligations
hereof, and shall cause such notice to be recorded in the office of the Recorder of each
County wherein the Property or some part thereof is situated as required by law and this
Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this
Deed of Trust and the Note or other evidence of indebtedness which is secured hereby,
1583228.1 18
together with a written request for the Trustee to proceed with a sale of the Property,
pursuant to the provisions of law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the
time then required by law having elapsed after recordation of such notice of default,
Trustee, without demand on Trustor, shall sell the Property at the time and place fixed
by it in the notice of sale, either as a whole or in separate parcels and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the
United States, payable at time of sale. Trustee may, and at Beneficiary's request shall,
postpone sale of all or any portion of the Property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time and place fixed by the preceding postponement. Trustee
shall deliver to the purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any matters or
facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby
created, including reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary
or Trustee under the terms hereof and all outstanding sums then secured hereby, and
the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees
that regardless of whether or not a default has occurred hereunder, if an Event of
Developer Default has occurred under the Agency Documents, and if in connection with
such Event of Developer Default Beneficiary exercises its right to foreclose on the
Property, then: (i) Beneficiary shall be entitled to declare all amounts due under the
Note immediately due and payable, and (ii) the proceeds of any sale of the Property in
connection with such foreclosure shall be used to pay all Secured Obligations, including
without limitation, the outstanding principal balance and all other amounts due under the
Note.
At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary,
may bid for and acquire the Property or any part of it to the extent permitted by then
applicable law. Instead of paying cash for such property, Beneficiary may settle for the
purchase price by crediting the sales price of the property against the following
obligations:
a. First, the portion of the Secured Obligations attributable to the
expenses of sale, costs of any action and any other sums for which Trustor is obligated
to pay or reimburse Beneficiary or Trustee under Section 7.12(c); and
b. Second, the remaining balance of all other Secured Obligations in
any order and proportions as Beneficiary in its sole discretion may choose.
1583228.1 19
8.4 Trustor's Right to Reinstate. Notwithstanding Beneficiary's acceleration of
the sums secured by this Deed of Trust, Trustor shall have the right to have any
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any
time prior to five days before sale of the Property pursuant to the power of sale
contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this
Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under
the Agency Documents if the Secured Obligations had no acceleration provision; (b)
Trustor cures all breaches of any other covenants or agreements of Trustor contained in
this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and
Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of
Trust, and in enforcing Beneficiary's and Trustee's remedies as provided herein,
including, but not limited to, reasonable attorney's fees; and (d) Trustor takes such
action as Beneficiary may reasonably require to assure that the lien of this Deed of
Trust, Beneficiary's interest in the Property and Trustor's obligation to pay the sums
secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure
by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full
force and effect as if no acceleration had occurred.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all
statutes of limitations as a defense to any action or proceeding brought against Trustor
by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be
enacted providing for any appraisement, valuation, stay, extension, redemption or
moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all
presentments, demands for performance, notices of nonperformance, protests, notices
of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the
existence, creation, or incurring of new or additional indebtedness, and demands and
notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The Agency Documents grant further rights to
Beneficiary and contain further agreements and affirmative and negative covenants by
Trustor which apply to this Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of
sale be mailed to Trustor at the address set forth below. That address is also the
mailing address of Trustor as debtor under the UCC. Beneficiary's address set forth
below is the address for Beneficiary as secured party under the UCC. Except for any
notice required under applicable law to be given in another manner, all notices to be
sent pursuant to this Deed of Trust 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:
upon receipt;
a. personal delivery, in which case notice shall be deemed delivered
1583228.1 20
b. certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered two (2) business days after deposit, postage prepaid
in the United States mail;
c. nationally recognized overnight courier, in which case notice shall
be deemed delivered one (1) day after deposit with such courier; or
d. facsimile transmission, in which case notice shall be deemed
delivered on transmittal, provided that a transmission report is generated reflecting the
accurate transmission thereof.
Beneficiary:
Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Trustor: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
Facsimile: (650) 357 -9766
Limited Partner: Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Leasehold Mortgagees: Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
10.3 Binding on Successors. The terms, covenants and conditions of this
Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators,
executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary
and Trustee; provided however this Section 10.3 does not waive the provisions of
Section 7.6.
1583228.1 21
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time
substitute a trustee or trustees to execute the trust hereby created, and when any such
substitution has been filed for record in the office of the Recorder of San Mateo County,
it shall be conclusive evidence of the appointment of such trustee or trustees, and such
new trustee or trustees shall succeed to all of the powers and duties of the Trustee
named herein.
10.5 Attorneys' Fees and Costs. In any action or proceeding to foreclose this
Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to
Beneficiary and Trustee all costs of such action or proceeding, including reasonable
attorneys' fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be
governed by the laws of the State of California without regard to principles of conflicts of
laws. Trustor agrees that any controversy arising under or in relation to this Deed of
Trust shall be litigated exclusively in the jurisdiction where the Land is located (the
"Property Jurisdiction "). The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which
shall arise under or in relation to the Agency Documents. Trustor irrevocably consents
to service, jurisdiction, and venue of such courts for any such litigation, and waives any
other venue to which it might be entitled by virtue of domicile, habitual residence or
otherwise. If any provision of this Deed of Trust is held unenforceable or void, that
provision shall be deemed severable from the remaining provisions, and shall in no way
affect the validity of this Deed of Trust. The captions used in this Deed of Trust are for
convenience only and are not intended to affect the interpretation or construction of the
provisions herein contained. In this Deed of Trust, whenever the context so requires,
the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any
obligation of Trustor hereunder must be in writing, and no waiver shall be construed as
a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary
or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or
Trustee to any act or omission by Trustor shall not be construed as a consent to any
other or subsequent act or omission or to waive the requirement for Beneficiary's or
Trustee's consent to be obtained in any future or other instance. No amendment to or
modification of this Deed of Trust shall be effective unless and until such amendment or
modification is in writing, executed by Trustor and Beneficiary. Without limiting the
generality of the foregoing, Beneficiary's acceptance of payment of any sum secured
hereby after its due date shall not constitute a waiver by Beneficiary of its right either to
require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
10.8 Action by Beneficiary. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, or consent by the Beneficiary is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by Beneficiary's Executive Director or by any
1583228.1 22
person who shall have been designated by Beneficiary's Executive Director, without
further approval by the governing board of Beneficiary.
10.9 Joint and Several Liability. If Trustor consists of more than one person or
entity, each shall be jointly and severally liable for the faithful performance of all of
Trustor's obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this
Deed of Trust.
10.11 Partial Subordination to Extended Use Agreement. Trustor and the
California Tax Credit Allocation Committee may enter into a Regulatory Agreement (the
"TCAC Regulatory Agreement "), which constitutes the extended low- income housing
commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as
amended (the "Code "). In the event of a foreclosure of Beneficiary's interest under this
Deed of Trust or delivery by the Trustor of a deed in lieu thereof (collectively, a
"Foreclosure "), the following rule shall apply:
In the event of a Foreclosure, throughout the extended use
period specified in the TCAC Regulatory Agreement, with
respect to any unit that had been regulated by the TCAC
Regulatory Agreement, (i) none of the eligible tenants
occupying those units at the time of Foreclosure may be
evicted or their tenancy terminated (other than for good
cause, including but not limited to, the tenants' ineligibility
pursuant to regulations of the HOME Program or Section 42
of the Code), (ii) nor may any rent be increased except as
otherwise permitted under Section 42 of the Code.
11. Leasehold Mortgagee Provisions. The provisions of this Section 11 shall apply
for so long any portion of the Property consists of Trustor's interest as tenant under the
Ground Lease defined and described in Recital A. As used in this Section 11, the term
"Ground Lease" means the Ground Lease and any extension, renewal or replacement
thereof. The lien of this Deed of Trust shall encumber all of Trustor's rights and
interests under and in connection with the Ground Lease, including without limitation
renewal and extension rights and purchase options (all of which rights shall be
collectively referred to herein as the "Leasehold ").
11.1 Trustor shall timely perform its obligations in connection with the Ground
Lease. Trustor specifically acknowledges Beneficiary's right, while any default by
Trustor under the Ground Lease remains uncured, to perform the defaulted obligations
and take all other actions which Beneficiary reasonably deems necessary to protect its
interests with respect thereto, and Trustor hereby irrevocably appoints Beneficiary its
true and lawful attorney- in- fact in its name or otherwise to execute all documents, and
perform all other acts, which Beneficiary reasonably deems necessary to preserve its or
Trustor's rights with respect to the Leasehold.
1583228.1 23
11.2 Trustor shall not, without Beneficiary's prior written consent, modify, or
cause or permit the termination of, the Ground Lease, or waive or in any way release
the landlord under the Ground Lease of any obligation or condition.
11.3 Trustor shall notify Beneficiary promptly in writing of (i) the occurrence of
any material default by the landlord under the Ground Lease and (ii) the receipt by
Trustor of any notice claiming the occurrence of any default by Trustor under the
Ground Lease or the occurrence of any event which, with the passage of time or the
giving of notice or both, would constitute a default by Trustor under the Ground Lease
(and Trustor shall also promptly deliver a copy of any such notice to Beneficiary).
11.4 Unless Beneficiary otherwise consents in writing, so long as any Secured
Obligation remains outstanding, neither the fee title to, nor any other estate or interest
in, the Property subject to the Ground Lease shall merge with any Leasehold,
notwithstanding the union of such estates in the landlord or the tenant or in a third party.
Any acquisition of the landlord's interest in the Ground Lease by Trustor or any affiliate
of Trustor shall be accomplished in such a manner as to avoid a merger of the interests
of landlord and tenant unless Beneficiary consents to such merger in writing.
11.5 If Trustor acquires fee title to any portion of the real property subject to the
Ground Lease, this Deed of Trust shall automatically be a lien on such fee title.
11.6 Except as permitted by the Agency Documents, Trustor shall not
subordinate the Ground Lease or Leasehold to any deed of trust or other encumbrance
of, or lien on, any interest in the real property subject to such Leasehold without the
prior written consent of Beneficiary. Any such subordination without such consent
shall, at Beneficiary's option, be void.
11.7 Intentionally omitted.
11.8 Trustor shall notify Beneficiary promptly in writing of the institution of any
legal proceeding involving obligations under the Ground Lease, and Beneficiary may
intervene in any such legal proceeding and be made a party. Trustor shall promptly
provide Beneficiary with a copy of any decision rendered in connection with any such
proceeding.
11.9 To the extent permitted by law, the price payable by Trustor or any other
party in the exercise of the right of redemption, if any, from any sale under, or decree of
foreclosure of, this Deed of Trust shall include all rents and other amounts paid and
other sums advanced by Beneficiary on behalf of Trustor as the tenant under the
Ground Lease.
11.10 Trustor shall promptly notify the landlord in writing, in accordance with
Section 25359.7 of the California Health and Safety Code and any successor and /or
similar statutes (and shall simultaneously notify Beneficiary in writing), in the event that
Trustor knows or has cause to believe that any Hazardous Substance has come to be
located on or beneath the property leased under the Ground Lease.
1583228.1 24
11.11 The generality of the provisions of this Deed of Trust shall not be limited by
any provision of this Section 11 that sets forth particular obligations of Trustor as the
tenant under the Ground Lease.
SIGNATURES ON FOLLOWING PAGE.
1583228.1 25
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED.
1583228.1 26
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1583228.1 27
Exhibit A
LAND
(Attach legal description.)
1583228.1 28
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of South San
Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE § §6103, 27383
1583222.1
EXHIBIT D
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
(636 El Camino — Phase B)
Space above this line for Recorder's use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
and
This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement ") is entered into effective as of , 2011
( "Effective Date ") by and between the Redevelopment Agency of the City of South San
Francisco, a public body, corporate, and politic ( "Agency ") and MP South City II, L.P., a
California limited partnership ( "Owner "). Agency and Owner are hereinafter collectively
referred to as the "Parties."
RECITALS
A. Owner possesses a leasehold interest in that certain real property located
in the City of South San Francisco ( "City ") at 636 El Camino Real, known as a portion
of San Mateo County Assessor's Parcel No. 014 - 160 -040, and more particularly
described in Exhibit A attached hereto (the "Property ").
B. Owner intends to construct, own and operate a multi - family residential
project (the "Project ") on the Property in accordance with that certain Loan Agreement
executed by and between the Parties and dated as of the date hereof (the "Loan
Agreement ") and that certain Ground Lease executed by and between the Parties and
dated as of the date hereof (the "Ground Lease "), a memorandum of which shall be
recorded substantially concurrently herewith in the Official Records of San Mateo
County ( "Official Records ").
C. The Loan Agreement and Ground Lease provide that for a period of not
Tess than seventy -five (75) years sixty -one of the residential units in the Project shall be
rented at Affordable Rents to Eligible Households.
D. Subject to the conditions set forth in the Loan Agreement and Ground
Lease, Agency has agreed to provide to Owner a loan in the amount of Five Million, Six
Hundred Ninety -Eight Thousand, Six Hundred Twenty -Seven Dollars ($5,698,627) (the
"Loan ") in order to provide partial financing for the development of the Project. The
Loan is evidenced by a Secured Promissory Note (the "Note ") executed by Owner and
dated as of the date hereof, and is secured by a Leasehold Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing ( "Deed of Trust ") dated as of the date
hereof and executed by Owner for the benefit of Agency. The Deed of Trust will be
recorded in the Official Records substantially concurrently herewith.
E. As a condition to its agreement to provide the Loan to Owner, Agency
requires the Property to be subject to the terms, conditions and restrictions set forth
herein. Community Redevelopment Law (California Health and Safety Code Section
33000, et seq. (the "CRL ")), requires the Agency to require residential rental units
assisted with funds from the Agency's low- and moderate - income housing fund to
remain affordable for the longest feasible time. In addition, to the extent permitted by
the CRL, this Agreement is intended to enable the Agency to count the residential units
in the Project toward satisfaction of the Agency's housing production obligation under
CRL Section 33413(b)(2).
1583222.1 2
F. In connection with its application for planning approvals for the Project,
Developer requested, and the City Planning Commission /City Council approved: (i) a
Childcare Fee Waiver pursuant to Section 20.115.040 of the Municipal Code of the City
of South San Francisco; (ii) a reduction in the amount of the rear setback from the
required 15 feet to a setback of between one (1) and five (5) feet; and (iii) a reduction in
required parking spaces.
G. The Parties have agreed to enter into and record this Agreement in order
to satisfy the conditions described in the foregoing Recitals. The purpose of this
Agreement is to regulate and restrict the occupancy and rents of the Project's
Restricted Units for the benefit of the Project occupants. The Parties intend the
covenants set forth in this Agreement to run with the land and to be binding upon
Owner and Owner's successors and assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate for the Unit" shall be determined
consistent with Section 50052.5(h) of the California Health and Safety Code and
applicable federal rules (if any).
"Affordable Rent" means the following amounts, Tess a utility allowance and
such other adjustments as required pursuant to the CRL: (i) for units that are restricted
for rental to households with incomes of not more than thirty percent (30 %) of AMI
( "30% Units "), a monthly rent that does not exceed one - twelfth of thirty percent (30 %)
of thirty percent (30 %) of Area Median Income, Adjusted for Family Size Appropriate for
the Unit, (ii) for units that are restricted for rental to households with incomes of not
more than forty percent (40 %) of AMI ( "40% Units "), a monthly rent that does not
exceed one - twelfth of thirty percent (30 %) of forty percent (40 %) of Area Median
Income, Adjusted for Family Size Appropriate for the Unit, and (iii) for units that are
restricted for rental to households with incomes of not more than eighty -five percent
(85 %) of AMI ( "85% Units "), a monthly rent that does not exceed one - twelfth of thirty
percent (30 %) of sixty percent (60 %) of Area Median Income, Adjusted for Family Size
Appropriate for the Unit.
"Area Median Income" or "AMI" means the median income for San Mateo
County, California, adjusted for Actual Household Size, as determined by the U.S.
Department of Housing and Urban Development ( "HUD ") pursuant to Section 8 of the
United States Housing Act of 1937 and as published from time to time by the State of
California Department of Housing and Community Development ( "HCD ") in Section
1583222.1 3
6932 of Title 25 of the California Code of Regulations or successor provision published
pursuant to California Health and Safety Code Section 50093(c).
"Claims" is defined in Section 10.
"Eligible Household" means a household for which gross household income
upon initial occupancy does not exceed the applicable maximum income level for a
Restricted Unit as specified in Section 2.1 and Exhibit B.
"Indemnitees" is defined in Section 10.
"Low- Income" or "Lower Income" means an annual gross household income
that is less than or equal to the qualifying limits for households of Lower Income
adjusted for actual household size, as determined periodically by HUD on the basis of
gross annual household income and published by HCD in the Regulations for San
Mateo County. If HUD ceases to make such determination, "Lower Income" shall be
defined as not greater than 80% of Area Median Income adjusted for actual household
size, as published by HCD in the Regulations. If both HCD and HUD cease to make
such determinations, Agency in its reasonable discretion may designate another
definition of "Lower Income" used by any other federal or state agency so long as such
definition is no more restrictive than that set forth herein.
"Moderate- Income" means an annual gross household income that is less than
or equal to 120% of AMI, adjusted for actual household size as determined periodically
by HCD on the basis of gross annual household income and published in the
Regulations for San Mateo County.
"Regulations" means Title 25 of the California Code of Regulations.
"Restricted Unit" means a dwelling unit which is reserved for occupancy at an
Affordable Rent by a household of not more than a specified household income in
accordance with and as set forth in Sections 2.1 and 2.2 and Exhibit B.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for
itself and its successors and assigns, that the Property shall be used solely for the
operation of a mixed -use, multifamily rental housing development in compliance with
the Loan Agreement, the Ground Lease, and the requirements set forth herein. Owner
represents and warrants that it has not entered into any agreement that would restrict or
compromise its ability to comply with the occupancy and affordability restrictions set
forth in this Agreement, and Owner covenants that it shall not enter into any agreement
that is inconsistent with such restrictions without the express written consent of Agency.
2.1 Affordability Requirements. For a term of seventy -five (75) years
commencing upon the date of issuance of a final certificate of occupancy for the
Project not less than thirteen (13) of the residential units in the Project shall be both
Rent Restricted (as defined below) and occupied (or if vacant, available for occupancy)
available at Affordable Rents to Eligible Households whose income is no greater than
1583222.1 4
thirty percent (30 %) of Area Median Income, no fewer than ten (10) additional units in
the Project shall be both Rent Restricted and occupied (or if vacant, available for
occupancy) available at Affordable Rents to Eligible Households whose income is no
greater than forty percent (40 %) of Area Median Income, and no fewer than twenty -four
(24) additional units in the Project shall be both Rent Restricted and occupied (or if
vacant, available for occupancy) available at Affordable Rents to Eligible Households
whose income is no greater than eighty -five percent (85 %) of Area Median Income.
In the event that recertification of tenant incomes indicates that the number of
Restricted Units actually occupied by Eligible Households falls below the number
reserved for each income group as specified in this Section 2.1 and Exhibit B, Owner
shall rectify the condition by renting the next available dwelling unit(s) in the Project to
Eligible Household(s) until the required income mix is achieved. A dwelling unit shall
qualify as "Rent Restricted" if the gross rent charged for such unit does not exceed the
Affordable Rent for the applicable household income category as set forth in Exhibit B,
subject to Section 2.2.
Notwithstanding anything to the contrary contained in this Agreement, if other
Project lenders, investors or regulatory agencies restrict a greater number of units than
restricted by this Agreement or require stricter household income eligibility or
affordability requirements than those imposed hereby, the requirements of such other
lenders, investors or regulatory agencies shall prevail.
2.2 Rents for Restricted Units. Rents for Restricted Units shall be limited to
Affordable Rents for households of the applicable income limit in accordance with
Section 2.1 and Exhibit B. Notwithstanding the foregoing, no tenant qualifying for a
Restricted Unit shall be denied continued occupancy of a unit in the Project because,
after admission, such tenant's adjusted income increases to exceed the qualifying limit
for such Restricted Unit. A household which at initial occupancy qualifies in a particular
income category shall be treated as continuing to be of such income category so long
as the household's gross income does not exceed one hundred forty percent (140 %) of
the applicable income limit. In the event the gross household income of a household
that qualified at the applicable income limit at initial occupancy exceeds the applicable
income limit for a unit, that unit will continue to be considered as satisfying the
applicable income limit if the unit remains Rent - Restricted.
If upon recertification of tenant incomes, Owner determines that a tenant has a
household income exceeding the maximum qualifying income for such tenant's unit, the
tenant shall be permitted to continue to occupy the unit, and upon expiration of the
tenant's lease and upon sixty (60) days' written notice, Owner may increase the rent for
such unit to the lesser of one - twelfth of thirty percent (30 %) of the tenant's actual
household income or the fair market rent, and Owner shall rent the next available unit to
a tenant whose household income does not exceed the applicable income limit in order
to achieve the affordability requirements of this Agreement.
In the event of inconsistency between the provisions of this Section 2.2 and the
rules applicable to the Project in connection with the use of low- income housing tax
1583222.1 5
credits or financing provided by HUD, the rules applicable pursuant to such financing
source shall prevail.
2.3 Notice of Affordability Restrictions on Transfer of Property. Pursuant to
the requirements of California Community Redevelopment Law, Owner and Agency
shall execute a Notice of Affordability Restrictions on Transfer of Property substantially
in the form attached hereto as Exhibit D, and shall cause such notice to be recorded
substantially concurrently with the recordation of this Agreement.
2.4 Unit Sizes, Design and Location. The Restricted Units shall be of
comparable design quality as unrestricted units in the Project, but may have reduced
interior amenities. Tenants of Restricted Units shall have access to all common
facilities of the Project equal to that of tenants of units in the Project that are not
Restricted Units. The Restricted Units shall be allocated among affordability categories
as set forth in Exhibit B.
2.5 Intentionally Omitted.
2.6 No Condominium Conversion. Owner shall not convert the residential
units in the Project to condominium or cooperative ownership or sell condominium or
cooperative rights to the residential portion of the Project or any part thereof during the
term of this Agreement. Agency's prior written consent shall be required with respect to
the sale or condominium conversion of the retail /commercial portion of the Project or
any part thereof.
2.7 Non - Discrimination; Compliance with Fair Housing Laws.
2.7.1 Preferences. Consistent with the requirements of California Health
and Safety Code Section 33411.3, Owner shall give first priority for the rental of
Restricted Units to Eligible Households of Low- or Moderate - Income who have been
displaced by development of the Project. In order to ensure that there is an adequate
supply of affordable housing within the City for City residents and employees of
businesses located within the City, to the extent permitted by law and consistent with
the program regulations for funding sources used for development of the Project, at
initial lease up, Owner shall give a preference in the rental of the residential units in the
Project to Eligible Households that include at least one member who lives or works in
the City. If there are fewer Eligible Households than the number of such units, the units
will be made available to the general public. Notwithstanding the foregoing, in the event
of a conflict between this provision and the provisions of Section 42 of the Internal
Revenue Code of 1986, as amended, the provisions of such Section 42 shall control.
2.7.2 Fair Housing. Owner shall comply with state and federal fair
housing laws in the marketing and rental of the units in the Project. Owner shall accept
as tenants, on the same basis as all other prospective tenants, persons who are
recipients of federal certificates or vouchers for rent subsidies pursuant to the existing
Section 8 program or any successor thereto.
1583222.1 6
2.7.3 Non - Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion
thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability,
marital status, ancestry, or national origin of any person. Owner covenants for itself
and all persons claiming under or through it, and this Agreement is made and accepted
upon and subject to the condition that there shall be no discrimination against or
segregation of any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof,
nor shall Owner or any person claiming under or through Owner 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, of, or for the Property or part thereof. Owner shall include
such provision in all deeds, leases, contracts and other instruments executed by
Owner, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Owner, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the
following language:
(a) (1) In Deeds, the following language shall appear:
"Grantee herein covenants by and for itself, its successors and assigns,
and all persons claiming under or through it, that there shall be no
discrimination against or segregation of a person or of a group of persons
on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the property
herein conveyed nor shall the grantee or any person claiming under or
through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the property herein conveyed. The foregoing covenant shall
run with the land."
2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons,
as defined in Section 12955.9 of the Government Code. With respect to
familial status, nothing in paragraph (1) shall be construed to affect
Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section
12955 of the Government Code shall apply to paragraph (1).
1583222.1 7
(b) (1) In Leases, the following language shall appear:
"The lessee herein covenants by and for the lessee and lessee's heirs,
personal representatives and assigns, and all persons claiming under the
lessee or through the lessee, that this lease is made subject to the
condition that there shall be no discrimination against or segregation of
any person or of a group of persons on account of race, color, creed,
religion, sex, sexual orientation, marital status, national origin, ancestry or
disability in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the property 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 of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the property herein leased."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons,
as defined in Section 12955.9 of the Government Code. With respect to
familial status, nothing in paragraph (1) shall be construed to affect
Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section
12955 of the Government Code shall apply to paragraph (1).
(c) In Contracts:
"There shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the property nor shall the transferee or any person claiming
under or through the transferee establish or permit any such practice or
practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants,
sublessees or vendees of the land."
2.8 Relocation. Persons residing on the Property as of the Effective Date
shall not be displaced before suitable replacement housing is available in comparable
replacement housing. Owner shall ensure that all occupants of the Property receive all
notices, benefits and assistance to which they are entitled in accordance with California
Relocation Assistance Law (Government Code
l other act' 7260
e local, state all
and federal laws
regulations implementing such law, al applicable
and regulations (collectively "Relocation Laws ") relating to the displacement and
relocation of eligible persons as defined in such Relocation Laws. Any and all costs
incurred in connection with the temporary and /or permanent displacement and /or
1583222.1 8
relocation of occupants of the Property, including without limitation payments to a
relocation consultant, moving expenses, and payments for temporary and permanent
relocation benefits pursuant to Relocation Laws shall be paid by Owner. Owner shall
indemnify, defend (with counsel approved by Agency) and hold harmless the
Indemnitees (defined in Section 10) from and against any and all Claims (defined in
Section 10) arising in connection with the breach of Owner's obligations set forth in this
Section except to the extent such Claims arise from the gross negligence or willful
misconduct of the Indemnitees. Owner's indemnification obligations set forth in this
Section 2.8 shall survive the expiration or earlier termination of this Agreement.
3. Reporting Requirements.
3.1. Tenant Certification. Owner or Owner's authorized agent shall obtain
from each household prior to initial occupancy of each Restricted Unit, and on every
anniversary thereafter, a written certificate containing all of the following in such format
and with such supporting documentation as Agency may reasonably require:
(a) The identity of each household member; and
(b) The total gross household income,
Owner shall retain such certificates for not less than three (3) years, and upon
Agency's request, shall provide copies of such certificates to Agency and make the
originals available for Agency inspection.
3.2 Annual Report; Inspections. By not later than April 30 of each year during
the term of this Agreement, Owner shall submit an annual report ( "Annual Report") to
the Agency in form satisfactory to Agency, together with a certification that the Project is
in compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information for each dwelling unit in the Project: (i) unit
number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any
vacancies during the previous year; (v) number of people residing in the unit; (vi) total
gross household income of residents; (vii) documentation of source of household
income; and (viii) the information required by Section 3.1.
Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying tenant eligibility, and such additional information as
Agency may reasonably request from time to time in order to demonstrate compliance
with this Agreement. The Annual Report shall conform to the format requested by
Agency; provided however, during such time that the Project is subject to a regulatory
agreement restricting occupancy and /or rents pursuant to requirements imposed in
connection with the use of state or federal low- income housing tax credits, Owner may
satisfy the requirements of this Section by providing Agency with a copy of compliance
reports required in connection with such financing.
Owner shall permit representatives of Agency to enter and inspect the Property
and the Project during reasonable business hours in order to monitor compliance with
1583222.1 9
this Agreement upon 48 -hours advance notice of such visit to Owner or to Owner's
management agent.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect through the
seventy -fifth (75 anniversary of the issuance of the final certificate of occupancy for
the Project, unless the term is extended by mutual agreement of the Parties.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan.
This Agreement shall remain effective and fully binding for the full term hereof, as such
may be extended pursuant to Section 4.1, regardless of (i) any sale, assignment,
transfer, or conveyance of the Property or the Project or any part thereof or interest
therein, (ii) any payment, prepayment or extinguishment of the Loan or Note, or (iii) any
reconveyance of the Deed of Trust.
4.3 Reconvevance. Upon the termination of this Agreement, the Parties
agree to execute and record appropriate instruments to release and discharge this
Agreement; provided, however, the execution and recordation of such instruments shall
not be necessary or a prerequisite to the termination of this Agreement upon the
expiration of the term as such may be extended pursuant to Section 4.1.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby
subjects its interest in the Property and the Project to the covenants and restrictions set
forth in this Agreement. The Agency and Owner hereby declare their express intent
that the covenants and restrictions set forth herein shall be deemed covenants running
with the land and shall be binding upon and inure to the benefit of the heirs,
administrators, executors, successors in interest, transferees, and assigns of Owner
and Agency, regardless of any sale, assignment, conveyance or transfer of the
Property, the Project or any part thereof or interest therein. Any successor -in- interest to
Owner, including without limitation any purchaser, transferee or lessee of the Property
or the Project (other than the tenants of the individual dwelling units or retail /commercial
space within the Project) shall be subject to all of the duties and obligations imposed
hereby for the full term of this Agreement. Each and every contract, deed, ground
lease or other instrument affecting or conveying the Property or the Project or any part
thereof, shall conclusively be held to have been executed, delivered and accepted
subject to the covenants, restrictions, duties and obligations set forth herein, regardless
of whether such covenants, restrictions, duties and obligations are set forth in such
contract, deed, ground lease or other instrument. If any such contract, deed, ground
lease or other instrument has been executed prior to the date hereof, Owner hereby
covenants to obtain and deliver to Agency an instrument in recordable form signed by
the parties to such contract, deed, ground lease or other instrument pursuant to which
such parties acknowledge and accept this Agreement and agree to be bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land,
1583222.1 10
such covenants shall be enforced as equitable servitudes against the Property and the
Project in favor of Agency.
The City shall automatically succeed to the rights of the Agency hereunder if the
Agency ceases to exist.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all
management functions with respect to the Property and the Project, including without
limitation the selection of tenants, certification and recertification of household income
and eligibility, evictions, collection of rents and deposits, maintenance, landscaping,
routine and extraordinary repairs, replacement of capital items, and security. Agency
shall have no responsibility for management or maintenance of the Property or the
Project.
6.2 Management Entity. Agency shall have the right to review and approve
the qualifications of the management entity proposed by Owner for the Project. The
contracting of management services to a management entity shall not relieve Owner of
its primary responsibility for proper performance of management duties. Agency
hereby approves MidPen Property Management Corporation, a California nonprofit
public benefit corporation, as the initial management entity for the Project.
6.3 Repair, Maintenance and Security. Throughout the term of this
Agreement, Owner shall at its own expense, maintain the Property and the Project in
good physical condition, in good repair, and in decent, safe, sanitary, habitable and
tenantable living conditions in conformity with all applicable state, federal, and local
laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees
to maintain the Project and the Property (including without limitation, the residential
units, common areas, meeting rooms, landscaping, driveways, parking areas and
walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping,
graffiti, disrepair, abandoned vehicles /appliances, and illegal activity, and shall take all
reasonable steps to prevent the same from occurring on the Property or at the Project.
Owner shall prevent and /or rectify any physical deterioration of the Property and the
Project and shall make all repairs, renewals and replacements necessary to keep the
Property and the improvements located thereon in good condition and repair. Owner
shall provide adequate security services for occupants of the Project.
6.3.1 Agency's Right to Perform Maintenance. In the event that Owner
breaches any of the covenants contained in Section 6.3, and such default continues for
a period of ten (10) days after written notice from Agency (with respect to graffiti, debris,
and waste material) or thirty (30) days after written notice from Agency (with respect to
landscaping, building improvements and general maintenance), then Agency, in
addition to any other remedy it may have under this Agreement or at law or in equity,
shall have the right, but not the obligation, to enter upon the Property and perform all
acts and work necessary to protect, maintain, and preserve the improvements and the
landscaped areas on the Property. All costs expended by Agency in connection with
1583222.1 11
the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall
be paid by Owner to Agency upon demand. All such sums remaining unpaid thirty (30)
days following delivery of Agency's invoice therefor shall bear interest at the lesser of
10% per annum or the highest rate permitted by applicable law. Notwithstanding
anything to the contrary set forth in this Section, Agency agrees that it will provide
Owner with not Tess than thirty (30) days' written notice prior to undertaking any work for
which Owner will incur a financial obligation.
6.4 Marketing and Management Plan. Within 180 days following the Effective
Date of this Agreement, Owner shall submit for Agency review and approval, a plan for
marketing and managing the Property ( "Marketing and Management Plan" or "Plan ").
The Marketing and Management Plan shall address in detail how Owner plans to
market the Restricted Units to prospective Eligible Households in accordance with fair
housing laws and this Agreement, Owner's tenant selection criteria, and how Owner
plans to certify the eligibility of Eligible Households. The Plan shall also describe the
management team and shall address how the Owner and the management entity plan
to manage and maintain the Property and the Project. The Plan shall include the
proposed management agreement and the form of rental agreement that Owner
proposes to enter into with Project tenants. Owner shall abide by the terms of the
Marketing and Management Plan in marketing, managing, and maintaining the Property
and the Project, and throughout the term of this Agreement, shall submit proposed
modifications to Agency for review and approval.
6.5 Approval of Amendments. If Agency has not responded to any
submission of the Management and Marketing Plan, the proposed management entity,
or a proposed amendment or change to any of the foregoing within thirty (30) days
following Agency's receipt of such plan, proposal or amendment, the plan, proposal or
amendment shall be deemed approved by Agency.
6.6 Fees, Taxes, and Other Levies. Owner shall be responsible for payment
of all fees, assessments, taxes, charges, liens and levies applicable to the Property or
the Project, including without limitation possessory interest taxes, if applicable, imposed
by any public entity, and shall pay such charges prior to delinquency. However, Owner
shall not be required to pay any such charge so long as (a) Owner is contesting such
charge in good faith and by appropriate proceedings, (b) Owner maintains reserves
adequate to pay any contested liabilities, and (c) on final determination of the
proceeding or contest, Owner immediately pays or discharges any decision or judgment
rendered against it, together with all costs, charges and interest. Nothing in this Section
6.6 is intended to prohibit Owner from applying for any exemption from property taxes
and fees that may be available to the owners of low- income housing.
6.7 Insurance Coverage. Throughout the term of this Agreement Owner shall
comply with the insurance requirements set forth in Exhibit C, and shall, at Owner's
expense, maintain in full force and effect insurance coverage as specified in Exhibit C.
6.8 Property Damage or Destruction. If any part of the Project is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and
1583222.1 12
rent restriction requirements set forth in this Agreement. Such work shall be
commenced as soon as reasonably practicable after the damage or loss occurs and
shall be completed within one year thereafter or as soon as reasonably practicable,
provided that insurance proceeds are available to be applied to such repairs or
restoration within such period and the repair or restoration is financially feasible. During
such time that lenders or low- income housing tax credit investors providing financing for
the Project impose requirements that differ from the requirements of this Section the
requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official
Records of San Mateo County. Owner hereby represents, warrants and covenants that
with the exception of easements of record, absent the written consent of Agency, this
Agreement shall not be subordinated in priority to any lien (other than those pertaining
to taxes or assessments), encumbrance, or other interest in the Property or the Project.
If at the time this Agreement is recorded, any interest, lien, or encumbrance has been
recorded against the Project in position superior to this Agreement, upon the request of
Agency, Owner hereby covenants and agrees to promptly undertake all action
necessary to clear such matter from title or to subordinate such interest to this
Agreement consistent with the intent of and in accordance with this Section 7, and to
provide such evidence thereof as Agency may reasonably request. Notwithstanding the
foregoing, the Agency agrees that pursuant to Health and Safety Code Section
33334.14(a)(4), the Agency will not withhold consent to reasonable requests for
subordination of this Agreement to deeds of trust provided for the benefit of lenders
identified in the Financing Plan approved in connection with the Loan Agreement,
provided that the instruments effecting such subordination include reasonable
protections to the Agency in the event of default consistent with the requirements of
Health and Safety Code Section 33334.14(a)(4), including without limitation, extended
notice and cure rights.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this
Agreement, except as permitted pursuant to the Ground Lease, the Loan Agreement or
this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by
operation of law make or attempt any total or partial sale, transfer, conveyance,
assignment or lease (collectively, "Transfer ") of the whole or any part of the Property,
the Project, or the improvements located on the Property, without the prior written
consent of the Agency, which approval shall not be unreasonably withheld. In addition,
prior to the expiration of the term of this Agreement, except as expressly permitted by
this Agreement, the Ground Lease or the Loan Agreement, Owner shall not undergo
any significant change of ownership without the prior written approval of Agency. For
purposes of this Agreement, a "significant change of ownership" shall mean a transfer
of the beneficial interest of more than twenty -five percent (25 %) in aggregate of the
present ownership and /or control of Owner, taking all transfers into account on a
cumulative basis; provided however, neither the admission of an investor limited
1583222.1 13
partner, nor the transfer by the investor limited partner to subsequent limited partners
shall be restricted by this provision.
8.2 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the
granting of easements or permits to facilitate development of the Property; (ii) the
dedication of any property required pursuant to the Ground Lease or the Loan
Agreement; (iii) the lease of individual dwelling units to tenants for occupancy as their
principal residence in accordance with this Agreement and the lease of commercial
space to retail and commercial tenants, if applicable; (iv) assignments creating security
interests for the purpose of financing the acquisition, construction, or permanent
financing of the Project or the Property in accordance with the Ground Lease and the
Loan Agreement, or Transfers directly resulting from the foreclosure of, or granting of a
deed in lieu of foreclosure of, such a security interest; (v) a Transfer to an entity which
is under the direct control of or under common control with MidPen Housing
Corporation, a California nonprofit public benefit corporation ( "Controlled Affiliate ");
(vi) the admission of limited partners and any transfer of limited partnership interests in
accordance with Owner's agreement of limited partnership (the "Partnership
Agreement "); (vii) the removal of the general partner by the investor limited partner for
a default under the Partnership Agreement, provided the replacement general partner is
an entity which is controlled by, or is under common control with Union Bank N.A. or is
an entity that is reasonably satisfactory to Agency; or (viii) the transfer of the General
Partner's interest to a nonprofit entity that is tax - exempt under Section 501(c)(3) of the
Internal Revenue Code of 1986 as amended, provided such replacement general
partner is reasonably satisfactory to Agency.
In addition, Agency shall not withhold its consent to the sale, transfer or other
disposition of the Project, in whole or in part, provided that (1) the Project is and shall
continue to be operated in compliance with this Agreement; (2) the transferee expressly
assumes all obligations of Owner imposed by this Agreement; (3) the transferee
executes all documents reasonably requested by the Agency with respect to the
assumption of the Owner's obligations under this Agreement, and upon Agency's
request, delivers to the Agency an opinion of its counsel to the effect that such
document and this Agreement are valid, binding and enforceable obligations of such
transferee; and (4) either (A) the transferee has at least three years' experience in the
ownership, operation and management of low- income multifamily rental housing
projects of similar size to that of the Project, without any record of material violations of
nondiscrimination provisions or other state or federal laws or regulations applicable to
such projects, or (B) the transferee agrees to retain a property management firm with
the experience and record described in subclause (A).
Consent to any proposed Transfer may be given by the Agency's Executive
Director unless the Executive Director, in his or her discretion, refers the matter of
approval to the Agency's governing board. If a proposed Transfer has not been
approved by Agency in writing within thirty (30) days following Agency's receipt of
written request by Owner, it shall be deemed rejected.
1583222.1 14
Owner shall reimburse Agency for all Agency costs, including but not limited to
reasonable attorneys' fees, incurred in reviewing instruments and other legal
documents proposed to effect a Transfer under this Agreement and in reviewing the
qualifications and financial resources of a proposed successor, assignee, or transferee
within ten (10) days following Agency's delivery of an invoice detailing such costs.
8.3 Encumbrances. Owner agrees to use best efforts to ensure that all deeds
of trust or other security instruments and any applicable subordination agreement
recorded against the Property , the Project or part thereof for the benefit of a lender
other than Agency ( "Third -Party Lender ") shall contain each of the following
provisions: (i) Third -Party Lender shall use its best efforts to provide to Agency a copy
of any notice of default issued to Owner concurrently with provision of such notice to
Owner; (ii) Agency shall have the reasonable right, but not the obligation, to cure any
default by Owner within the same period of time provided to Owner for such cure
extended by an additional 90 days; (iii) provided that Agency has cured any default
under Third -Party Lender's deed of trust and other loan documents, Agency shall have
the right to foreclose Agency's Deed of Trust and take title to the Project without
acceleration of Third -Party Lender's debt; and (iv) Agency shall have the right to
transfer the Project without acceleration of Third -Party Lender's debt to a nonprofit
corporation or other entity which shall own and operate the Project as an affordable
rental housing Project, subject to the prior written consent of the Third -Party Lender.
Owner agrees to provide to Agency a copy of any notice of default Owner receives from
any Third -Party Lender within three (3) business days following Owner's receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon all or any portion of the Project or the Property, and the purchaser at any
trustee's sale or foreclosure sale shall not be liable for any violation of any provision
hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall
be bound by and subject to this Agreement from and after such trustee's sale or
foreclosure sale. Promptly upon determining that a violation of this Agreement has
occurred, Agency shall give written notice to the holders of record of any mortgages or
deeds of trust encumbering the Project or the Property that such violation has occurred.
9. Default and Remedies.
9.1 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) The occurrence of a Transfer in violation of Section 8 hereof;
(b) Owner's failure to maintain insurance on the Property and the
Project as required hereunder, and the failure of Owner to cure such default within ten
(10) days;
(c) Subject to Owner's right to contest the following charges, Owner's
failure to pay taxes or assessments due on the Property or the Project or failure to pay
1583222.1 15
any other charge that may result in a lien on the Property or the Project, and Owner's
failure to cure such default within ninety (90) days of delinquency, but in all events prior
to the date upon which the holder of any lien has the right to pursue foreclosure thereof;
(d) A default arises under any loan secured by a mortgage, deed of
trust or other security instrument recorded against the Property and remains uncured
beyond any applicable cure period such that the holder of such security instrument has
the right to accelerate repayment of such loan;
(e) A default arises under the Ground Lease, the Loan Agreement, the
Note, the Deed of Trust or any other Agency Document (as defined in the Loan
Agreement) and remains uncured beyond the expiration of all applicable cure periods.
(f) Owner's default in the performance of any term, provision or
covenant under this Agreement (other than an obligation enumerated in this Subsection
9.1), and unless such provision specifies a shorter cure period for such default, the
continuation of such default for ten (10) days in the event of a monetary default or thirty
(30) days in the event of a non - monetary default following the date upon which Agency
shall have given written notice of the default to Owner, or if the nature of any such non -
monetary default is such that it cannot be cured within 30 days, Owner's failure to
commence to cure the default within thirty (30) days and thereafter prosecute the curing
of such default with due diligence and in good faith to completion.
The limited partners of Owner shall have the right to cure any default of Owner
hereunder pursuant to the terms of the Loan Agreement. Provided that Agency has
been given written notice of the address for delivery of notices to the limited partners,
Agency shall provide any notice of default hereunder to the limited partners
concurrently with the provision of such notice to Owner, and as to the limited partners,
the cure periods specified herein and in the Loan Agreement shall commence upon the
date of delivery of such notice in accordance with Subsection 11.3.
9.2 Remedies. Upon the occurrence of an Event of Default and its
continuation beyond any applicable cure period, Agency may proceed with any of the
following remedies:
A. Bring an action for equitable relief seeking the specific performance of the
terms and conditions of this Agreement, and /or enjoining, abating, or
preventing any violation of such terms and conditions, and /or seeking
declaratory relief;
B. Accelerate and declare the balance of the Note and interest accrued
thereon immediately due and payable and proceed with foreclosure under
the Deed of Trust;
C. For violations of obligations with respect to rents for Restricted Units,
impose as liquidated damages a charge in an amount equal to the actual
amount collected in excess of the Affordable Rent;
1583222.1 16
D. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The
Agency may exercise from time to time any rights and remedies available to it under
applicable law or in equity, in addition to, and not in lieu of, any rights and remedies
expressly provided in this Agreement.
10. Indemnity. Owner shall indemnify, defend (with counsel approved by Agency)
and hold Agency, the City, and their respective elected and appointed officers, officials,
employees, agents, and representatives (collectively, the "Indemnitees ") harmless from
and against all liability, loss, cost, expense (including without limitation attorneys' fees
and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding,
penalty, deficiency, fine, order, and damage (all of the foregoing collectively "Claims ")
arising directly or indirectly, in whole or in part, as a result of or in connection with
Owner's construction, management, or operation of the Property and the Project or any
failure to perform any obligation as and when required by this Agreement. Owner's
indemnification obligations under this Section 10 shall not extend to Claims resulting
solely from the gross negligence or willful misconduct of Indemnitees. The provisions of
this Section 10 shall survive the expiration or earlier termination of this Agreement. It is
further agreed that Agency does not and shall not waive any rights against Owner that it
may have by reason of this indemnity and hold harmless agreement because of the
acceptance by Agency, or the deposit with Agency by Owner, of any of the insurance
policies described in this Agreement, the Ground Lease, or the Loan Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
11.2 No Waiver. Any waiver by Agency of any term or provision of this
Agreement must be in writing. No waiver shall be implied from any delay or failure by
Agency to take action on any breach or default hereunder or to pursue any remedy
allowed under this Agreement or applicable law. No failure or delay by Agency at any
time to require strict performance by Owner of any provision of this Agreement or to
exercise any election contained herein or 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 or a relinquishment for the future of such election.
11.3 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;
1583222.1 17
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered upon 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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Owner: MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copies to:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, CA 95814
Attn: Office of the General Counsel
1583222.1 18
11.4 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.
11.5 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.
11.6 Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by the Agency Executive Director or by any person
who shall have been designated by the Agency Executive Director, without further
approval by the governing board of the Agency.
11.7 Non - Liability of Agency and Agency Officials, Employees and Agents. No
member, official, employee or agent of the Agency or the City shall be personally liable
to Owner or any successor in interest, in the event of any default or breach by the
Agency, or for any amount of money which may become due to Owner or its successor
or for any obligation of Agency under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of
this Agreement are for convenience only and shall not be used to interpret 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.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought
to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled
to recover all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement, together with the Ground
Lease, the Loan Agreement, the Note, the Deed of Trust and the other Agency
Documents contains the entire agreement of 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.
1583222.1 19
11.14 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.
SIGNATURES ON FOLLOWING PAGE
1583222.1 20
IN WITNESS WHEREOF, the Parties have executed this Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants as of the date first
written above.
AGENCY
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO,
a Public Body Corporate and Politic
By:
Name:
Title:
ATTEST:
By:
APPROVED AS TO FORM:
By:
OWNER
, Agency Secretary
, Agency Counsel
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED
1583222.1 21
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
)
)
)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
)
)
)
On , 20_, before me, , (here insert name
and title of the officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1583222.1 22
Exhibit A
PROPERTY
1583222.1 23
(Attach legal description.)
Maximum
Household
Income
30% AMI
40% AMI
85% AMI
Manager's
Unit
Total
1- Bedroom
7
0
6
13
2- Bedroom
3
2
9
14
3- Bedroom
3
8
9
20
Total
13
10
24
47
Exhibit B
Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels
1583222.1 24
Exhibit C
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing through throughout the term
of this Agreement, Owner shall obtain and maintain the following policies of insurance:
(a) a commercial general liability policy in the amount of One Million Dollars
($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate,
together with Three Million Dollars ($3,000,000) excess liability coverage, or such other
policy limits as Agency may require in its reasonable discretion, including coverage for
bodily injury, property damage, products, completed operations and contractual liability
coverage. Such policy or policies shall be written on an occurrence basis and shall
name the Indemnitees as additional insureds.
(b) a comprehensive automobile liability coverage in the amount of One
Million Dollars ($1,000,000), combined single limit including coverage for owned and
non -owned vehicles and shall furnish or cause to be furnished to Agency evidence
satisfactory to Agency that Owner and any contractor with whom Owner has contracted
for the performance of work on the Property or otherwise pursuant to this Agreement
carries workers' compensation insurance as required by law. Automobile liability
policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction and continuing until issuance of a
Certificate of Completion, Owner and all contractors working on behalf of Owner shall
maintain a policy of builder's all -risk insurance in an amount not less than the full
insurable cost of the Project on a replacement cost basis naming Agency as loss
payee.
(d) Upon completion of Project construction, Owner shall maintain property
insurance covering all risks of loss (other than earthquake), including flood (if required)
for 100% of the replacement value of the Project with deductible, if any, in an amount
acceptable to Agency, naming Agency as loss payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a
current A.M. Best's rating of no less than A: VII. The Commercial General Liability and
comprehensive automobile policies required hereunder shall name the Indemnitees as
additional insureds. Builder's Risk and property insurance shall name Agency and City
as loss payees as their interests may appear.
(f) Prior to commencement of construction, Owner shall furnish Agency with
certificates of insurance in form acceptable to Agency evidencing the required
insurance coverage and duly executed endorsements evidencing such additional
insured status. The certificates shall contain a statement of obligation on the part of the
carrier to notify City and Agency of any material adverse change, cancellation,
termination or non - renewal of the coverage at least thirty (30) days in advance of the
1583222.1 25
effective date of any such material adverse change, cancellation, termination or non -
renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Owner shall, within fifteen (15) days after receipt of notice of such cancellation
or reduction in coverage, but in no event later than the effective date of cancellation or
reduction, file with Agency and City a certificate showing that the required insurance
has been reinstated or provided through another insurance company or companies.
Upon failure to so file such certificate, Agency or City may, without further notice and at
its option, procure such insurance coverage at Owner's expense, and Owner shall
promptly reimburse Agency or City for such expense upon receipt of billing from Agency
or City.
(h) Coverage provided by Owner shall be primary insurance and shall not be
contributing with any insurance, or self- insurance maintained by Agency or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation
for the benefit of the City and Agency. Owner shall furnish the required certificates and
endorsements to Agency prior to the commencement of construction of the Project, and
shall provide Agency with certified copies of the required insurance policies upon
request of Agency.
1583222.1 26
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of
South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
1583222.1
Exhibit D
Space above this line for Recorder's use.
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(636 El Camino — Phase B)
THIS NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF
PROPERTY (this "Notice ") is dated as of , 2011 with reference to
that certain real property located at 636 El Camino Real in South San Francisco,
California, known as a portion of San Mateo County Assessor's Parcel No. 014 -160-
040, and more particularly described in Exhibit A attached hereto and incorporated
herein (the "Property ").
1. The Redevelopment Agency of the City of South San Francisco, a public body,
corporate, and politic ( "Agency ") and MP South City II, L.P., a California limited
partnership ( "Owner ") have entered into that certain Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement ")
dated as of the date hereof and recorded in the Official Records of San Mateo County
substantially concurrently herewith.
2. The Regulatory Agreement requires not less than thirteen (13) of the residential
units in the Project shall be rented at affordable rents to households whose income is
no greater than thirty percent (30 %) of Area Median Income, no fewer than ten (10)
additional units in the Project shall be rented at affordable rents to households whose
income is no greater than forty percent (40 %) of Area Median Income, and no fewer
than twenty -four (24) additional units in the Project shall be rented at affordable rents to
households whose income is no greater than eighty -five percent (85 %) of Area Median
Income, as more particularly set forth in the Regulatory Agreement.
3. The restrictions set forth in the Regulatory Agreement will be in effect for a
period of seventy -five (75) years, commencing on the date of issuance of a final
certificate of occupancy for the Project developed on the Property.
This Notice is intended to provide notice of documents that affect title to the Property.
Reference should be made to the Regulatory Agreement for a more detailed description
of all matters described in this Notice. In the event of any conflict between the terms of
27
this Notice and the terms of the Regulatory Agreement, the Regulatory Agreement shall
prevail.
This Notice is being recorded and filed in compliance with California Health and Safety
Code Section 33334.3(0(3) and (4), and shall be indexed by the Agency and the
current owner of the Property.
IN WITNESS WHEREOF, Agency and Owner have executed this Notice as of
the date first written above.
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO,
A PUBLIC BODY CORPORATE AND POLITIC
By:
Name:
Title:
ATTEST:
By:
, Agency Secretary
APPROVED AS TO FORM:
By:
, Agency Counsel
OWNER:
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
SIGNATURES MUST BE NOTARIZED.
1583222.1 28
Exhibit A
PROPERTY
(Attach legal description of Phase B property.)
1583222.1 29
This Assignment of Agreements, Plans and Specifications (this "Agreement ") is
entered into effective as of , 2011 ( "Effective Date ") by and among the
Redevelopment Agency of the City of South San Francisco, a public body, corporate
and politic (the "Agency "), and MP South City II, L.P., a California limited partnership
( "Assignor "). Assignor and the Agency are hereinafter 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 (defined in Section 2 below).
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows.
1. Assignor hereby assigns to the Agency and grants to Agency a security
interest in all of its right, title and interest in and to the contracts and agreements listed
in Exhibit A attached hereto and incorporated herein by reference, and all of the items
listed in the following paragraphs (A), (B) and (C). All of the foregoing are collectively
hereafter referred to as the "Assigned Documents ").
2. This Agreement is entered into pursuant to that certain Loan Agreement
executed by and between Assignor and Agency dated as of the date hereof (the "Loan
Agreement').
1585574.1
EXHIBIT E
ASSIGNMENT OF AGREEMENTS, PLANS AND SPECIFICATIONS
(636 El Camino — Phase B)
(A) All architectural, design, engineering, consulting and construction
contracts, and any and all amendments, modifications, supplements,
addenda and general conditions thereto (collectively "Agreements "),
heretofore or hereafter entered into by Assignor (or any affiliate of
Assignor) and any architect, engineer, analyst, contractor or other person
or entity ( "Contractor ") in connection with the preparation of plans,
specifications, studies, analyses, drawings or any other similar service
related to the Property, the Project, or the improvements to be installed or
constructed on the Property pursuant to the Loan Agreement (the
"Improvements ");
(B) All reports, analyses, studies, plans and specifications, shop drawings,
working drawings, amendments, modifications, changes, supplements,
general conditions and addenda thereto (collectively "Reports, Plans and
Specifications ") heretofore or hereafter prepared by or for Assignor or
any affiliate, agent, employee or Contractor of Assignor with respect to the
Property, the Project or the Improvements; and
(C) All Construction Plans (as defined in Section 6.14 of the Loan
Agreement).
3. This Assignment Agreement is made to secure: (a) payment to the
Agency of all sums now or hereafter owing to Agency pursuant to the promissory note
to be executed by Assignor pursuant to the Loan Agreement, and any and all additional
advances, modifications, extensions, renewals and amendments thereof; and (b)
payment and performance by Assignor of all of its obligations under the Loan
Agreement.
4. Assignor hereby irrevocably appoints Agency as its attorney -in -fact (which
agency is coupled with an interest) upon the occurrence of an Event of Developer
Default under the Loan Agreement, to demand, receive, and enforce any and all of
Assignor's rights with respect to the Assigned Documents applicable to Assignor's
obligations under the Loan Agreement and to perform any and all acts in the name of
Assignor or in the name of the Agency with the same force and effect as if performed by
Assignor in the absence of this Agreement.
5. Assignor agrees to obtain from each Contractor and deliver to Agency a
duly executed Consent substantially in the form attached hereto as Exhibit B.
6. Assignor represents and warrants to Agency that no previous assignment
of its rights or interest in or to any of the Assigned Documents has been made. So long
as the Agency holds or retains any interest under the Loan Agreement or the
promissory note executed by Assignor in connection therewith, Assignor agrees not to
assign, sell, pledge, transfer, mortgage, or hypothecate its rights or interest in any of the
Assigned Documents without prior written approval of the Agency. The Agency
acknowledges that certain assignments have been or will be made to Union Bank, N.A.
in connection with construction and permanent financing for the Improvements, and the
Agency consents to such assignments.
7. This Agreement shall be binding upon and inure to the benefit of the heirs,
legal representatives, assigns, and successors -in- interest of Assignor and the Agency;
provided, however, this shall not be construed and is not intended to waive the
restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation or
encumbrance contained in the Loan Agreement.
8. Unless an Event of Developer Default (as defined in the Loan Agreement)
shall have occurred, Assignor shall be entitled (subject to the provisions of Section 6
above) to enjoy and enforce all of its rights under the Assigned Documents. If such an
Event of Default occurs and Agency gives written notice to any Contractor who is a
party to any Assigned Document referring to this Agreement and stating that such an
Event of Developer Default has occurred under the applicable agreement and that
Agency intends to exercise its rights hereunder (an "Exercise Notice "), then Agency
shall be entitled thereafter to enjoy and enforce all of the rights of the Assignor under
such Assigned Document and shall become bound to perform all future obligations of
the Assignor thereunder, it being understood that in no event shall Agency be liable for
payments or costs relating to any work which any Contractor has performed prior to the
date of Agency's delivery of such Exercise Notice. Unless and until such Exercise
1585574.1 2
Notice is given, Agency shall not be obliged to perform any of the obligations of the
Assignor under the Assigned Documents.
9. Assignor represents and warrants that to the best of its knowledge after
reasonable inquiry, there are no defaults under any Assigned Document by any party
thereto.
10. Assignor further represents and warrants that all sums due and owing to
any Contractor to date under any Assigned Document have been duly paid in full,
except to the extent deferral of such sums is allowed pursuant to such Assigned
Document.
11. Agency may assign its rights under this Agreement, and the Assigned
Documents, and the rights and obligations of any assignee of Agency shall be the same
as provided herein as to Agency and Contractor. Agency may, in its discretion, make
any such assignment to the City of South San Francisco, a municipal corporation, 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.
12. This Agreement shall not be deemed to release or affect in any way the
obligations of Assignor to any Contractor under the Assigned Documents.
13. The Assignor is executing this Agreement to induce Agency to enter into
and disburse funds pursuant to the Loan Agreement, and the Assignor understands that
Agency would not do so but for the execution and delivery of this Agreement by
Assignor.
14. Financing Statements.
14.1 Assignor shall execute any and all further agreements,
assignments (including separate assignments of Assigned Documents), documents,
financing statements, and authorizations of financing statements, and shall take such
other further actions as Agency may reasonably request from time to time, in order to
evidence, protect, perfect, or continue the security interest of Agency in the Assigned
Documents or otherwise carry out the purposes and intent of this Agreement.
14.2 Assignor authorizes Agency to file financing statements (and
continuation statements, and amendments thereto) in all states, counties, and other
jurisdictions as Agency may elect without the signature of Assignor to the extent
permitted by law.
15. 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
1585574.1 3
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.
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
Facsimile: (650) 829 -6629
Assignor: MP South City II, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: General Partner
With copies to:
Facsimile: (650) 357 -9766
Union Bank, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Attention: CDF Division Head
Facsimile: (925) 947 -2455
Union Bank, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Attention: Manager
1585574.1 4
16. Amendments. This Agreement may be modified only by a written instrument
signed by the Parties.
17. 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
Agreement.
18. 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.
19. Action by the Agency. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the Agency is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by the Agency's Executive Director or by any
person who shall have been designated by the Executive Director, without further
approval by the Agency's governing board unless the Executive Director determines
that such matter requires the consent of such governing board.
20. Non - Liability of Agency and Agency Officials, Employees and Agents. No
member, official, employee or agent of the Agency or the City of South San Francisco
shall be personally liable to Assignor, or any successor in interest, in the event of any
default or breach by the Agency, or for any amount of money which may become due to
Assignor or its successor or for any obligation of Agency under this Agreement.
21. No Third Party Beneficiaries. There shall be no third party beneficiaries to
this Agreement.
22. 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.
23. Governing Law; Venue. This Agreement shall be construed in accordance
with the laws of the State of California without regard to principles of conflicts of law.
The Parties agree that any controversy arising under or in relation to this Agreement,
shall be litigated exclusively in courts having jurisdiction in San Mateo County,
California.
24. Attorneys' Fees. If any claim, at law or otherwise is made 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.
25. 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
1585574.1 5
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.
26. 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.
SIGNATURES ON FOLLOWING PAGE.
1585574.1 6
IN WITNESS WHEREOF, the Parties have each duly executed this Agreement
effective as of the date first above written.
AGENCY
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO,
a Public Body Corporate and Politic
By:
Name:
Title:
ATTEST:
By:
, Agency Secretary
APPROVED AS TO FORM:
By:
, Agency Counsel
ASSIGNOR
MP SOUTH CITY II, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Mid - Peninsula Greenridge, Inc., a California nonprofit public benefit corporation
Its: General Partner
By:
Its:
1585574.1 7
Exhibit A
CONTRACTS AND AGREEMENTS
(Attach List.)
1585574.1 8
Exhibit B
CONSENT
This Consent ( "Consent ") is executed effective as of , 20_, pursuant to
that certain Amended and Restated Assignment of Agreements, Plans and Specifications
( "Assignment Agreement ") executed by and among the Redevelopment Agency of the City of
South San Francisco, a public body, corporate and politic (the "Agency ") and MP South City II,
L.P., a California limited partnership ( "Assignor ") dated as of , 20_ Unless
otherwise defined herein, capitalized terms used in this Consent 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 Agency or the
enforcement thereof by Agency.
Contractor agrees that if at any time, the Agency 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 Agency may, at its option, use and rely upon the
Assigned Documents 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 Agency 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 Agency, and Contractor
agrees to be bound by such Exercise Notice.
By its execution of this Consent, Contractor agrees to look solely to the 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 Agency.
Contractor agrees that, after the occurrence of an Event of Developer Default under the
Loan Agreement or the Loan and Grant Agreement, as applicable, and the giving of an Exercise
Notice by Agency, Contractor will perform all of its obligations under the Assigned Documents to
which Contractor is a party, Agency being liable to pay the costs thereof relating to any services
performed at the direction of Agency after the giving of the Exercise Notice. However, Agency
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, Agency will not become liable for any such costs, charges or
expenses incurred prior to the giving of such Exercise Notice), and the fact that Assignor may
not have paid and /or may be unable to pay any such costs, charges, expenses or liabilities may
not be asserted by Contractor as a defense to its obligations to perform services for Agency as
set forth herein.
Contractor agrees that, notwithstanding anything hereinabove contained or contained in
the Assigned Documents to the contrary, Agency will have the right to receive and to use
(without cost to Agency) any and all Assigned Documents relating to the Property, the Project or
1585574.1 9
the Improvements, 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 Agency (whether or not any Event of Developer
Default has occurred), it will execute and deliver a certification confirming Agency's rights with
respect to such Assigned Documents as Agency 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 Agency. Unless and until such notice is given to Agency, 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, Agency 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 Agency); and
(iii) there presently exists no unpaid claims presently due to Contractor, except as disclosed in
writing to the Agency, 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 Agency) to any entity
other than a lender whose loan is secured by the Property, the Project or the Improvements with
the prior written approval of the Agency.
IN WITNESS WHEREOF, Contractor has duly executed this Consent as of the date first
written above.
CONTRACTOR
B Contractor's Address:
Its: Telephone:
Facsimile:
1585574.1 10
EXHIBIT F
El Camino Family Housing, Building B
LAND
Acreage
Density
# of Stones
1 acres
47.00 units /acre
4
BUILDING
Residential 44,050 sf
Circulation and Common 14,653 sf
Garage 35,469 sf
Total Residential Building Area 58,703 sf
PARKING
# of spaces 96
residential parking ratio 2.05
type Podium
ACQUISITION
total
per unit
Land & Buildings
Other Acquisition Costs
44,055 $
937
Total Acquisition Costs $
HARD COSTS
44,055 $ 937
Construction/Rehabilitation $ 13,237,947 $ 281,658
Site Improvement/Landscaping $ - $
Demo & Off-site Improvements $ 382,730 $ 8,143
Construction Contingency $ 824,952 $ 17,552
14,445,629 $ 307,354
SOFT COSTS
Total Hard Costs $
Architectural 5 637,997 $ 13,574
Survey & Engineering $ 364,694 $ 7,759
Construction Interest + Fees $ 1,075,680 5 22,887
Financing & Syndication 3 40,000 $ 851
Local Permits and Fees $ 734,174 $ 15,621
Legal Fees $ 70,500 $ 1,500
Developer Fee $ 1,400,000 $ 29,787
Net Upfront Developer Fee $ 834,500 $ 17,755
Relocation $ 194,790 $ 4,144
Reserves $ 171,069 $ 3,640
Other Soft Costs $ 942,021 5 20,043
5,630,924 $ 119,807
TOTAL DEVELOPMENT COSTS
Total Soft Costs $
$ 20,120,609 $ 428,098
Prepared by: Mid - Peninsula Housin • Coalition
UNIT TYPES
Studios
1- Bedroom
2- Bedroom
3- Bedroom
4- Bedroom
Rental Range
$0.00 - 30.00
$526.00 - $728.00
$627.00 - $1,111.00
$719.00 - $1,278.00
$0.00 - $0.00
TOTAL RENTABLE UNITS
0
13
14
20
0
47
AFFORDABILITY
Income Range
15% AMI 1 Person $11880 to 5 Person $18315
20% AMI 1 Person $15840 to 5 Person $24420
25% AMI 1 Person $19800 to 5 Person $30525
30% AMI I Person $23760 to 5 Person $36630
35% AMI 1 Person $27720 to 5 Person $42735
40% AMI 1 Person $31680 to 5 Person $48840
45% AMI 1 Person $35640 to 5 Person $54945
50% AMI 1 Person $39600 to 5 Person $61050
55% AMI 1 Person $43560 to 5 Person $67155
60% AMI 1 Person $47520 to 5 Person $73260
Manager's Unit
TOTAL UNITS
AVERAGE AFFORDABILITY
0
0
0
13
0
17
0
17
0
0
0
47
42%
PREDEVELOPMENT SOURCES
total
per unit
RDA Predevelopment Loan
Genentech /HEART
San Mateo County Funds
0$
196,627 $ 4,183.55
400,000 $ 8,510.64
34,253 $ 729
CONSTRUCTION SOURCES
total S
630,880 $ 13,423
RDA Predevelopment Loan $ 5,698,627 $ 4,184
Tax Exempt Constriction Loan $ 10,900,000 $ 231,915
Tax Credit Investor Proceeds $ 151,729 $ 3,228
MHSA $ 1,081,600 $ 23,013
GP Equity $ - $ -
San Mateo County Funds $ 299,341 $ 6,369
Heart/Genentech Funds $ 400,000 $ 8,511
0 $ - $ -
total $ 18,531,297 $ 277,219
PERMANENT SOURCES
RDA Gap Loan $ 5,502,000 $ -
RDA Predevelopment Loan $ 196.627 $ 4,184
1st Mortgage S 1,795,334 $ 38,199
B Tranche Loan $ 2,354,891 $ 50,104
Tax Credit Investor Proceeds $ 7,586,445 $ 161,414
MHSA $ 1,081,600 $ 23,013
Accrued Construction Interest $ 219,224 $ -
Child Fee Waiver $ 85,146
San Mateo County Funds $ 299,341 $ 6,369
Heart/Genentech Funds $ 400,000 $ 8,511
Deferred Developer Fee $ 600,000 $ 12,766
0 $
total $
20,120,608
$ 426,099
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
[FOR RECORDER'S USE ONLY]
GUBB & BARSHAY LLP
Fifty California Street, Suite 3155
San Francisco, CA 94111
Attn: Natalie L. Gubb
SOUTH CITY MIXED -USE DEVELOPMENT
EASEMENT AND JOINT USE AGREEMENT
This Easement and Joint Use Agreement ( "Agreement ") is entered into as of
, 20 by and between MP South City, L.P., a California limited partnership
( "MP ") and MP South City II, L.P., a California limited partnership ( "MP -II ").
RECITALS
A. The City of South San Francisco Redevelopment Agency ( "Agency ") is the fee
owner of certain real property located in South San Francisco, California, APN 014 - 160 -050 (the
"Property "). The Agency will ground lease a portion of the Property to MP (the "MP Parcel ")
pursuant to a ground lease (the "MP Lease "). The Agency will ground lease a portion of the
Property to MP -II (the "M -II Parcel ") pursuant to a separate ground lease (the "MP -II Lease ").
The MP Parcel is described on Exhibit A attached hereto, and the MP -II Parcel is described on
Exhibit B attached hereto.
B. MP intends to develop on the MP Parcel a mixed -use multifamily housing
development ( "Project A" or the "MP- Project ") which will be built on a podium over a
concrete slab, each of which will be connected to a podium and slab to be built on the MP -II
Parcel, as described in the following Recital. The podium and the slab on the MP Parcel and on
the MP -II Parcel are collectively referred to as the "Podium" and the "Slab ", respectively. The
MP Project will include sixty -two (62) residential units. MP has leased to the Agency the
commercial portion of the MP- Project pursuant to a Master Lease Agreement between MP and
the Agency (the "Agency Lease ").
C. MP -II intends to develop on the MP -II Parcel a multifamily housing development
( "Project B" or the "MP -II Project ") which will be built on the Podium over the Slab. The MP -II
Project will include forty -seven (47) residential units.
easement and joint use agmt_2-3- 1 1 .doc 1
D. An underground parking garage (the "Garage ") will be located beneath the
Podium. A portion of the Garage will be located in the MP Parcel and be a part of the MP
Project, and a portion of the Garage will be located in the MP -II Parcel and be part of the MP -II
Project. The MP Project and the MP -II Project will utilize the Garage as further described in
this Agreement.
E. The Parties desire to grant to each other certain easements and rights of joint
use with respect to certain facilities and equipment located on each Party's Parcel.
NOW, THEREFORE, the Parties hereby create and establish easements, covenants and
restrictions which shall run with the land and be binding upon and inure to the benefit of the
owners of the MP Parcel and the MP -II Parcel and their respective successors in title.
1. DEFINITIONS
1.1 City means the City of South San Francisco
1.2 Commercial Area means the commercial portion of the MP- Project, consisting of
approximately 5735 square feet of rentable space.
1.3
Records.
Effective Date means the date of the recording of this Agreement in the Official
1.4 Improvements means all buildings, structures, landscaping and other
improvements built or installed from time to time on the Property.
1.5 Laws means all applicable laws, statutes, ordinances, regulations, rules, orders
and requirements of all governmental and regulatory authorities.
1.6 Limited Partner means the limited partner of each Party. The name and
address of the initial Limited Partner of the MP Project and the MP -II Project is indicated in
Section 10.1.
1.7 Mortgage means any mortgage, deed of trust, or other conveyance held by a
Mortgagee as security for the repayment of indebtedness, against all or any portion of the MP
Parcel or the MP -II Parcel, as applicable, whether fee or leasehold, together with all other
instruments securing the payment of the indebtedness secured by such mortgage, indenture,
deed of trust or other instruments, and all amendments, modifications, supplements and
extensions of such instruments.
1.8 Mortgagee means the holder of a Mortgage (including, without limitation, the
beneficiary of a deed of trust), provided the holder of such Mortgage has notified the Parties of
its status as such. The names and addresses of the initial Mortgagees of the MP Project and
the MP -II Project are:
easement and joint use agmt_2- 3- 11.doc 2
(1) Union Bank, N.A.
Attn: Manager
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Fax No. (949) 553 -7123
Phone No.
With a copy to
Union Bank, N.A.
Attn: Manager
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596 -3570
Fax No.(925) 947 -2455
Phone No. (925) 947 -2491
(2) California Housing Finance Agency
Multifamily Programs
500 Capital Mall, Suite 1400 MS 1420
Sacramento, CA 95814
(3) San Mateo County Department of Housing
262 Harbor Blvd. Bldg. A
Belmont, CA 94002
(4) Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
(5) Housing Endowment and Regional Trust of San Mateo County
c/o San Mateo County Department of Housing
262 Harbor Blvd. Bldg. A
Belmont, Ca. 94002
1.9 Occupant means each tenant entitled under written lease to occupy a portion of
the MP Project or the MP -II Project.
1.10 Official Records means the official records of San Mateo County.
1.11 Parcel means each of the MP Parcel and the MP -II Parcel
easement and joint use agmt_2-3-1 1 .doc 3
1.12 Party means each of MP and MP -II during the term of its respective Ground
Lease, and the successor owner of any interest in the MP Parcel or the MP -II Parcel. The term
"Party" shall mean the Agency upon (i) merger of title between the ground leasehold interest
in the MP Parcel or the MP -II Parcel, as applicable, and the fee estate, or (ii) the expiration or
termination of the MP Lease or MP -II Lease, as applicable.
1.13 Permittees means all Occupants and their respective visitors, and the invitees,
contractors and agents of the Parties, as applicable.
1.14 Project means each of the MP Project and the MP -II Project
1.15 Prorata Percentage means as to MP, fifty -seven percent (57 %), and as to MP -II,
forty -three percent (43 %). The Prorata Percentage for each Party is a percentage equal to the
number of residential units in each Party's Project divided by 109, which is the total number of
residential units in both Projects.
1.16 Rules and Regulations means rules and regulations to be developed by the
Parties for the use of the Improvements, as deemed necessary or desirable by the Parties from
time to time; provided that such Rules and Regulations may not be inconsistent with the terms
of this Agreement, and further provided that such Rules and Regulations are subject to the
prior approval of the limited partner and any Mortgagee of each Party.
2. LEASES AND GRANT DEEDS
2.1 Priority of Leases and Grant Deeds. The terms and provisions of this Agreement are
and shall be prior and superior to (i) any subsequent leases, (ii)the MP Lease and the MP -II Lease;
(iii) any subsequent grant deed or other such instrument or agreement creating or transferring an
interest in the MP Parcel or the MP -II Parcel; and (iv) any deed of trust, mortgage or other
monetary lien affecting the leasehold or fee ownership of the Property; provided, however, that
except as provided in Section 10, this Agreement shall not relieve any Party from any obligation or
affect or modify any right under such instruments as to the parties to such instruments.
2.2 Binding Effect. This Agreement shall govern and be binding upon the Property and
shall be binding and inure to the benefit of the parties hereto and their successors in interest to
each Party's Parcel, or any interest therein unless and until (except as to certain rights and
obligations set forth herein which continue after termination) expiration of the Term (defined in
Section 13).
3. EASEMENTS
3.1 Definitions and Documentation.
(1) All easements granted hereby shall not merge or terminate during any
period in which the Property is owned by one Party or ground leased to one Party, but shall
easement and joint use agmt_2- 3- 11.doc 4
continue during the Term as a benefit or obligation, as applicable, of the owner of the MP Parcel
and the MP -II Parcel. The Party granting an easement in a Parcel is called the "Grantor." The Party
to whom the easement in a Parcel is granted is called the "Grantee."
(2) The grant of an easement by a Grantor shall bind and burden its Parcel
which shall, for the purpose of this Agreement, be the servient tenement. The grant of an
easement to a Grantee shall benefit its Parcel which shall, for the purpose of this Agreement, be
the dominant tenement.
(3) The word "in" with respect to an easement granted "in" the MP Parcel or the
MP -II Parcel means, as the context may require, "in ", "to ", "on ", "over ", "through ", "upon" and
"across ", or any one or more of the foregoing.
(4) Unless provided otherwise, all easements granted hereunder are
non - exclusive, perpetual, and irrevocable by the Grantor, and shall be appurtenant to the parcel
(either the MP Parcel or the M -Il Parcel) benefitted by such easement.
(5) No easement rights shall exist until this Agreement has been executed and
recorded in the Official Records. All easements granted hereunder shall exist as of the Effective
Date hereof by virtue of this Agreement, without the necessity of confirmation by any other
document.
3.2 Easements for Access, Underground Access and Parking.
(1) The Garage includes a total of One Hundred Ninety Two (192) parking
spaces. One Hundred Four (104) of the parking spaces (the "MP Spaces ") are located in the MP
Project, and shall be used exclusively by the Permittees of the MP Project. Eighty -eight (88) of the
parking spaces (the "MP -II Spaces ") are located in the MP -II Project, and shall be used exclusively
by the Permittees of the MP -II Project.
(2) A vehicular ramp located on the MP Parcel (the "Ramp ") provides access for
cars to enter and exit the Garage from El Camino Real. A security gate with a telephone entry
system, as described in Section 4.7, will restrict access to the Garage. MP hereby grants to the MP-
II Parcel, solely for use by Permittees of the MP -II Project, a perpetual, non - exclusive easement for
vehicular access from El Camino Real down the Ramp and into the Garage as necessary to permit
ingress and egress for vehicles from El Camino Real to the MP -II Spaces. This easement is
described in "Exhibit 3.2(2)" attached hereto.
(3) The MP Parcel includes a vehicular access area leading east from the El
Camino Real entrance to the MP Parcel, then north to the northern border of the Property, then
west to the exit onto El Camino Real from the MP Parcel (the "Surface Driveway "). MP hereby
grants to the MP -II Parcel, solely for use by Permittees of the MP -II Project, a perpetual, non-
exclusive easement for vehicular access over the Surface Driveway as necessary to enter and exit
easement and joint use agmt_2- 3- 11.doc 5
the Ramp leading to and from the Garage. This easement is described in "Exhibit 3.2(3)" attached
hereto.
(4) MP hereby grants to MP -II a perpetual, non - exclusive easement for
pedestrian access between El Camino Real and the MP -II Project over the pedestrian walkways
located on the MP Project. This easement is described in "Exhibit 3.2(4)" attached hereto.
(5) MP -II hereby grants to MP a perpetual, non - exclusive easement for
pedestrian access between B Street and the MP Project over the pedestrian walkways located on
the MP -II Project. This easement is described in "Exhibit 3.2(5)" attached hereto.
3.3 Easement for Resident Storage Spaces. The Garage portion of the MP Project
includes a total of twenty -nine (29) storage spaces located along the southern border of the
Garage. Sixteen (16) of the storage cages are for the use of Occupants of the MP Project, and
thirteen (13) of the storage cages are for the use of Occupants of the MP -II Project. MP hereby
grants to MP -II, for use by Occupants of the MP -II Project, a perpetual, non - exclusive easement for
pedestrian access from the portion of the Garage located in the MP -II Project over the southern
drive aisle located in the MP Project which is necessary to provide access to and from the storage
cages allocated for use by the Occupants of the MP -II Project, together with the right to use the
storage cages. This easement is described in "Exhibit 3.3" attached hereto. Each of the one -
bedroom units in the MP Project and the MP -II Project shall be assigned a storage cage for the
exclusive use of residents of each such unit. The Rules and Regulations shall describe any
additional terms for the use of the storage spaces.
3.4 Easement for Bicycle Storage Lockers. The Garage portion of the MP Project
includes a total of fifty -seven (57) bicycle storage lockers located along the northern border of the
Garage. Thirty -two (32) of the bicycle storage lockers are for the use of Occupants of the MP
Project, and twenty -five (25) of the bicycle storage lockers are for the use of Occupants of the MP-
II Project. MP hereby grants to MP -II, for use by Occupants of the MP -II Project, a perpetual, non-
exclusive easement for pedestrian access from the portion of the Garage located in the MP -II
Project over the northern drive aisle located in the MP Project which is necessary to provide such
access to and from the bicycle storage lockers allocated for use by the Occupants of the MP -II
Project, together with the right to use the bicycle storage lockers. This easement is described in
"Exhibit 3.4" attached hereto. The bicycle storage lockers shall be available to residents of the MP
Project and the MP -II Project on a first -come, first - served basis. The Rules and Regulations shall
describe any additional terms for the use of the bicycle storage lockers.
3.5 Easement for Sanitary Sewer Line. The MP Project includes a sanitary sewer line
which runs easterly along the underside of the Slab from the MP Parcel along approximately the
east -west center line of the Property, then into the City's sanitary sewer system located in B
Street, to the east of the MP-II Parcel. MP -II hereby grants to MP a perpetual, non - exclusive
easement for the installation and operation of the sanitary sewer line along the underside of the
Podium located on the MP -II Project into the City's sanitary sewer system located in B Street. This
easement is described in "Exhibit 3.5" attached hereto.
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3.6 Easement for Stormwater Flow and Oil -Sand Separator. The MP -II Project includes
an underground oil -sand separator in the center of the Garage of the MP -II Project. Surface
stormwater from the Garage of the MP Project may flow into multiple floor drains located in the
Garage of the MP Project into an underground pipe leading to the oil -sand separator on the MP -II
Project, and thereafter into the City's sanitary sewer system. MP -II hereby grants to MP a
perpetual, non - exclusive easement for the flow of stormwater from the Garage of the MP Project,
through the underground pipe leading to the oil -sand separator on the MP -II Project, and
thereafter into the City's sanitary sewer system located in B Street. This easement is described in
"Exhibit 3.6" attached hereto.
3.7 Easement for Cable and Telephone Lines. The MP Project includes an MPOE room
through which a single cable and telephone line from El Camino Real is converted into two lines for
cable and telephone service, with one of the two lines serving the MP Project and the second line
serving the MP -II Project. MP hereby grants to MP -II a perpetual, non - exclusive easement for the
installation and operation of the cable and telephone line which runs from the MPOE room
easterly to the border between the MP Parcel and the MP -II Parcel. This easement is described in
"Exhibit 3.7" attached hereto.
3.8 Easement for Electrical Lines. The MP Parcel and the MP -II Parcel each includes a
secondary joint trench located beneath the Slab which will carry electrical lines from the primary
joint trench located under the Slab of the MP Project into each Project. MP hereby grants to MP -II
a perpetual, non - exclusive easement for the operation of the electrical line which runs through the
secondary joint trench from the MP Parcel easterly to the border of the MP -II Parcel. This
easement is described in "Exhibit 3.8" attached hereto.
3.9 Easement for Bioswale. The Property includes a bioswale which runs along the
southern border of the Property. MP -II hereby grants to MP a perpetual, nonexclusive easement
for the flow of storm water from the MP Parcel into the bioswale located on the MP -II Parcel, and
thereafter into a pipe located along the eastern border of the MP -II Parcel, and into the City's
storm drain system located in B Street near the north eastern corner of the MP -II Parcel. This
easement is described in "Exhibit 3.9" attached hereto.
3.10. Easement for Stormwater into Footing Drain. A footing drain extends around the
perimeter of the Property, and is intended to carry surface stormwater from the MP Parcel to the
MP -II Parcel, and thereafter into the City's storm drain system located in B Street. MP -II hereby
grants to MP a perpetual, non - exclusive easement for the flow of stormwater from the footing
drain located on the MP Parcel into the footing drain located on the MP -II Parcel, and thereafter
into the City's storm drain system located in B Street. This easement is described in "Exhibit 3.10"
attached hereto.
3.11 Easements for Facilities Located on the MP- Project. The MP Project includes the
following facilities on the ground floor of Project A: administrative offices, an exercise room, a
maintenance office, a mail room, two storage rooms, a community kitchen and two bathrooms;
easement and joint use agmt_2- 3- 11.doc 7
and the following outdoor facilities: a central courtyard, including a play yard and community
gardens (collectively, the "Facilities "). The Facilities will be for the shared use of MP, MP -II and
their respective Occupants, subject to the Rules and Regulations. MP hereby grants to MP -II, for
use by MP -II and its Occupants, a perpetual, non - exclusive easement for pedestrian access
westerly from the border between the MP Parcel and the MP -II Parcel into the MP Parcel as
necessary for the use and enjoyment of the Facilities. This easement is described in "Exhibit 3.11"
attached hereto.
3.12 Easements for Use of Life - Safety Systems. MP hereby grants to MP -II perpetual,
non - exclusive easements for the use of the life- safety systems described in Article 4.
3.13 Easements for Maintenance. Each Party hereby grants to the other a perpetual,
non - exclusive easement for maintenance over the MP Parcel or the MP -II Parcel, as applicable, and
perpetual, non - exclusive easements for pedestrian and vehicular access over each Grantor's Parcel
as necessary for the Grantee to perform its maintenance obligations under Article 5.
3.14 Easements for Construction. Each Party hereby grants to the other a perpetual,
non - exclusive easement for access to, and ingress and egress over and across, each Grantor's
Parcel in order for each Grantee to undertake and complete development and construction of the
Improvements on the its respective Parcel, and to repair, replace or restore the Improvements
situated within its Parcel.
3.15 Easements for Support. Each Party hereby grants to the other perpetual, non-
exclusive easements onto and through such portions of the Grantor's Parcel which are reasonably
necessary for the right of support and for the installation, use, maintenance, repair, replacement,
relocation, restoration, and strengthening of, any structural component located on the Grantor's
Parcel which is required to support Improvements located on the Grantee's Parcel.
3.16 Easements for Encroachments. Each Party hereby grants to the other a perpetual,
non - exclusive easement over the Grantor's Parcel for the purpose of accommodating any
encroachment due to foundations, exterior walls, windows, roof overhangs, balconies and fences
or walls which are built in accordance with the original design, plans and specifications of the
Grantee's Project, or due to engineering errors, errors or adjustments in original construction,
settlement or shifting of a building on the Grantee's Parcel, or similar causes. The rights and
obligations of the Parties shall not be altered in any way by said encroachment, settlement or
shifting; provided, however that in no event shall a valid easement for encroachment be created in
favor of a Party if said encroachment occurred due to the intentional conduct of said owner. The
extent of the encroachment easement shall be the location of the encroaching structure as
originally constructed. If a structure is partially or totally destroyed, the structure may be repaired
or rebuilt in accordance with the original plans, including the replacement of any encroaching
Improvement.
3.17 Use and Maintenance of Easements.
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(1) Each Grantee agrees to use due care in exercising the rights granted under
this Article 3, and to comply with all applicable Laws and any governmental approval, permit or
license in exercising such rights.
(2) Each Grantee's use of the easements shall not unreasonably interfere with
or interrupt the operations of the servient tenement, and shall not damage, injure or otherwise
adversely affect Grantor's Improvements (including the structural integrity thereof), and all due
care shall be exercised to not disturb tenants in possession. Further use of all easements shall be
subject to the reasonable security, health and safety requirements of the servient tenement.
(3) Each Grantee's use of the easements shall be subject to Grantor's
reasonable security requirements.
(4) Each Grantee, at its expense, shall promptly repair, replace or restore any
and all of Grantor's Improvements which have been disturbed, damaged or destroyed by Grantee
in exercising its rights with respect to the easements granted under this Article 3 to substantially
the same condition as before such exercise commenced; provided, however, that nothing in this
Section shall provide Grantee with the right to disturb, damage or destroy any of Grantor's
Improvements.
(5) The Parties shall not enter into any agreement, make any conveyance or
transfer any interest in all or any portion of their respective Parcels or do or suffer any other act
which, in any case, would unreasonably interfere with the use and enjoyment of the easements by
the benefited Parcels. Each Party shall use its best efforts to cause each of its respective
Occupants and Permittees to comply with each of the obligations, covenants and conditions in this
Agreement and the Rules and Regulations.
(6) Except as otherwise provided in this Agreement, each of the Parties shall
maintain and repair, at its cost and expense, the Improvements owned by it within which the
easements are located, in such condition and to such extent as is necessary so that no
unreasonable interference with the use and benefit of the easements results; provided, however,
the obligations to maintain and repair the Improvements within which the easements are located
shall not otherwise affect Grantor's rights to use such easement areas.
3.18 No Merger. This Agreement and the easements herein created and the covenants
herein described shall not be extinguished by merger of any or all of the ownership of more than
one Parcel or leasehold interest in any one Party.
3.19 Easements Appurtenant. The easements established pursuant to this Agreement
shall be perpetual non - exclusive easements and shall run with the land and be appurtenant to the
ownership of Parcels as described in this Agreement. Such easements shall not be conveyed
separate and apart from ownership of a Parcel.
4. JOINT USE OF LIFE - SAFETY SYSTEMS
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4.1 General. The MP Parcel includes certain life- safety systems which are intended to
serve both the MP Parcel and the MP-II Parcel as described below.
4.2 Fire Service Connection. The southwest corner of Project A includes two fire service
connections which will allow firefighters to obtain a water supply from the offsite fire hydrant
located on El Camino Real. The Parties agrees that the water supply from the fire service
connections may be used to fight fires located on the MP -II Parcel and in the MP -II Project.
4.3 Fire Panel. There is a central fire alarm panel located in the lobby of Project A which
will indicate the location of fires on both the MP Parcel and the MP -II Parcel.
4.4 Security System. There is a central security system located in the lobby of Project A
which will monitor the feed from security cameras located on both the MP Parcel and the MP -II
Parcel.
4.5 Generator. There is an emergency generator, fuel tank and fuel port located in the
Garage portion of the MP Parcel which will provide emergency power to both the MP Parcel and
the MP -II Parcel in the event of a loss of power that affects either Parcel.
4.6 Signal Repeater. There are signal repeater cables located in the Garage portion of
each Project, which may be used by emergency personnel serving both the MP Parcel and the MP-
II Parcel.
4.7 Telephone Entry System. The Ramp includes a telephone entry system which may
be used by Permittees of both the MP Parcel and the MP -II Parcel.
5. INSTALLATION, MAINTENANCE, REPAIR, AND RESTORATION OF EASEMENT AND JOINT USE
IMPROVEMENTS
5.1 Installation of Improvements.
(1) MP shall be solely responsible for the cost and performance of the
installation of any of the Improvements described in Article 3 and Article 4 which are located on
the MP Parcel and for which MP has granted easement and /or joint use rights to MP -II under this
Agreement. MP shall ensure that such Improvements are completed no later than the time
required by its Mortgagees and which will allow for MP -II and the MP -II Project to have the use
and enjoyment of such improvements, as described in this Agreement, from and after the date
that the MP -II Project is available for occupancy, otherwise MP -II shall have the remedies
described in Section 6.2. Additionally, MP shall be solely responsible for the cost and installation
of any furniture, fixtures and equipment located in the Facilities (defined in Section 3.11) (the
"FF &E ") no later than the time which will allow for MP -II and the MP -II Project to have the use and
enjoyment of the FF &E, as described in this Agreement, from and after the date that the MP -II
Project is available for occupancy.
easement and joint use agmt_2-3- 1 1.doc 10
(2) MP -II shall be solely responsible for the cost and performance of the
installation of any of the Improvements described in Article 3 which are located on the MP -II Parcel
and for which MP -II has granted easement rights to MP under this Agreement. MP -II shall ensure
that such Improvements are completed no later than the time required by its Mortgagees and
which will allow for MP and the MP Project to have the use and enjoyment of such improvements,
as described in this Agreement, from and after the date that the MP Project is available for
occupancy, otherwise MP shall have the remedies described in Section 6.2.
(3) Each Party shall have the right to monitor the construction activities of the
other Party, and to obtain periodic updates of such activities, so as to confirm the other Party's
compliance with the terms of this Agreement.
5.2 Maintenance of Improvements.
(1) MP shall be responsible for the performance of any maintenance, repair and
restoration of (a) each of the Improvements described in Section 5.1(1), (b) that portion of the
sanitary sewer line, pipes, cable and telephone lines and electrical lines (as described in Sections
3.5, 3.7 and .3.8) which are located on the MP -II Parcel, and (c) the FF &E. MP -II shall reimburse
MP for MP -II's Prorata Percentage of all and actual costs incurred by MP in performing such
obligations on the terms described in Section 5.3.
(2) MP -II shall be responsible for the performance of any maintenance, repair
and restoration of each of the Improvements described in Section 5.1(2). MP shall reimburse MP -II
for MP's Prorata Percentage of all and actual costs incurred by MP -II in performing such obligations
on the terms described in Section 5.3.
(3) To the extent practicable, the Parties shall coordinate the maintenance of
the Improvements on their respective Parcels so as to assure the uniform maintenance of such
Improvements.
(4) Except as otherwise provided in Subsections (1) and (2), each Party shall
promptly maintain, repair and /or restore, as nearly as possible to the condition existing
immediately prior to any damage or condemnation, any Improvement on such Party's Parcel which
is required in order for the other Party to use and enjoy the easement rights granted under this
Agreement, regardless of the availability of insurance or condemnation proceeds for such purpose.
5.3 Cost Sharing.
(1) No more than 30 days after finalizing an operating budget for its respective
Project, and in no event later than April 1 of each calendar year following completion of the
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Projects, each Party shall provide the other with a budget showing the estimated annual costs of
performing such Party's obligations under Section 5.2 (the "Maintenance Costs ") for the remainder
of the calendar year. The budgets shall each show each Party's Prorata Percentage of the
Maintenance Costs. The non - preparing party shall have the right to reasonably disapprove a
budget prepared by the other Party within ten (10) business days of receipt, otherwise the
budget(s) shall be deemed approved subject to the reconciliations in Section 5.3(3).
(2) Beginning on the first day of the first month following the completion of the
construction of each Project, and continuing on the first day of each month thereafter during the
then - current calendar year, each Party shall pay to the other an amount equal to 1/12 of the
total amount of Maintenance Costs payable by that Party as shown on the annual budget.
(3) On or before the first day of each calendar quarter, each Party shall
deliver to the other a reconciliation of the actual Maintenance Costs incurred for the preceding
quarter (the "Reconciliation ") which shall compare the Maintenance Costs in the budget for
the preceding quarter to the actual Maintenance Costs for such quarter. If a Party has paid less
than its share of the actual Maintenance Costs, as shown in the Reconciliation, then that Party
shall remit the difference to the other Party within thirty (30) days of notice thereof. If a Party
has paid more than its share of the actual Maintenance Costs, then the other Party, in its
discretion, may either reimburse the paying Party for the excess or credit the paying Party
against future payments due without interest. If a credit is given, then the paying Party shall
not be required to make further annual payments on the budget for the current quarter until
the credit is exhausted.
6. DEFAULT
6.1 Default. A Party in default under this Agreement shall be known as a "Defaulting
Party." No Party shall be a Defaulting Party until such Party has failed to perform an obligation
under this Agreement, together with the expiration of ten (10) business days after notice (in the
case of default in monetary obligations) or thirty (30) days after notice (in the case of default in all
other obligations) from receipt by such Party and its Mortgagee and Limited Partner of notice of
such default. If such default (other than a monetary default) cannot be reasonably cured within
such thirty (30) day period, a Party shall not be in default so long as, within such thirty (30) day
period, the Party commences curing such default with due diligence and thereafter prosecutes
such cure to completion diligently. Any Party shall have the right to make payment of a monetary
obligation under protest and reserve all rights with respect to such payment notwithstanding such
payment.
6.2 Additional Remedies for Default. The following provisions shall apply in addition to
those rights and remedies described in Section 6.1:
(1) If a Party determines that the other Party is in default of its construction,
maintenance and /or repair obligations as described in this Agreement or otherwise takes an action
or fails to take an action that renders it impossible or impracticable to operate or continue to
easement and joint use agmt_2- 3- 11.doc 12
operate the Improvements on the non - defaulting Party's Parcel, the non - defaulting Party shall
notify the defaulting Party in writing of the default (the "Default Notice "). If the defaulting Party
fails to respond to the Default Notice or fails to commence and diligently pursue the necessary
steps to cure the default within thirty (30) days of the Default Notice, the non - defaulting Party
may, at its election, take the necessary steps to cure the default and the defaulting Party shall
reimburse the non - defaulting Party for its costs to cure the default, including attorneys' fees, no
later than thirty (30) days after receipt of the demand for reimbursement together with
reasonable documentation of the costs incurred. If the defaulting Party fails to make the
reimbursement when due, the non - defaulting Party, in addition to any other remedy available at
law or in equity, shall have the right to levy a reimbursement assessment against the defaulting
Party's Parcel and to enforce the assessments, including the establishment and enforcement of a
lien as permitted by applicable law
(2) Notwithstanding anything in this section to the contrary, any Party (the
"Repairing Party ") shall have the right to make immediate repairs to any Improvement maintained
by the other Party (the "Responsible Party ") if necessary to prevent imminent and likely injury to
any person or damage to any property. The Responsible Party shall reimburse the Repairing Party
for all costs of repair no later than thirty (30) days after receipt of demand for reimbursement
together with reasonable documentation of the costs incurred. If the Responsible Party fails to
make the reimbursement, the Repairing Party, in addition to any other remedy available at law or
in equity, shall have the right to levy a reimbursement assessment against the Responsible Party's
Parcel and to enforce the assessment, including the establishment and enforcement of a lien as
permitted by applicable law.
7. INSURANCE
7.1 Builder's Risk. During the course of any construction on a Parcel, the Owner of such
Parcel shall carry a policy of "builder's risk special form" insurance in nonreporting form, in an
amount not less than the full insurable completed value of the applicable Project on a
replacement cost basis. Each policy shall name the other Party as an additional insured. The policy
shall contain such other provisions as required by Mortgagees. Such policy must insure against loss
or damage by hazards customarily included within such "all risk" policies.
7.2 Special Form or All Risk Insurance. Following completion of construction of a Project,
the Owner of such Project shall obtain a policy or policies of special form or all -risk property
insurance covering the Project, excluding earthquake coverage. Such policy of insurance shall be
in an amount equal to the full replacement value of the Project and naming the other party as an
additional insured. The policy shall contain such other provisions as required by Mortgagees.
7.3 Liability Insurance. Each Party shall carry commercial general liability with blanket
contractual endorsement, with a combined single limit of $1,000,000 per occurrence, $2,000,000
in the aggregate, $10,000 umbrella coverage, for personal and bodily injury, death and property
damage occurring on or around their respective Parcels or arising from the activities conducted
easement and joint use agmt_2 -3 -1 1.doc 13
thereon or occurring on or around the easements granted hereunder. The policies shall contain
such other provisions as required by Mortgagees.
7.4 General Requirements.
(1) The Party responsible for procuring any insurance under this Agreement
shall provide evidence of the existence of such insurance to and at the request of any of the other
insureds under such policy, and shall inform the other insureds of any material changes in
coverage.
(2) All insurance policies shall be carried under a valid and enforceable policy or
policies issued by insurers qualified to do business in the State of California and with a rating
sufficient to meet the requirements of each Party's Mortgagees and Limited Partner. In any case,
the minimum rating for carriers will be equivalent to A- :VII or better from Best's Rating Service in
the most current edition of Best's Insurance Reports, or if such rating is modified or discontinued,
the most nearly equivalent rating.
(3) All insurance policies shall name the Party procuring such insurance as the
named insured, or in the case of blanket policies, as additional named insureds.
(4) All policies of general liability insurance obtained by either Party shall name
its Limited Partner, its Mortgagees, and the other Party as additional insureds, as their respective
interests may appear.
(5) The deductibles or retentions under the insurance described in this Article
(i) shall not exceed amounts which are reasonable and customary for the applicable coverage, and
(ii) shall meet the requirements of each Party's Mortgagees and Limited Partner.
(6) All policies shall provide that any losses payable to a Mortgagee of the Party
procuring such insurance or to another Party shall be payable notwithstanding any act or
negligence of the Party procuring such insurance. All policies shall provide that they constitute
primary insurance to any other insurance available to any additional insured, with respect to
claims insured by such policies, and such insurance shall include a severability of interest provision.
Such severability of interest provision shall not increase the limit of liability of the respective
insurers.
(7) All insurance policies shall provide that no cancellation, modification or
termination thereof for any reason other than nonpayment of premiums, a false statement
knowingly made, or a substantial change in the exposure or risk other than indicated in the
applications unless otherwise notified to the underwriter, shall be effective as to the entities
entitled to be named as additional insureds until at least thirty (30) days, and in the case of
nonpayment of premiums until at least ten (10) days, after giving written notice thereof to each
additional insured thereunder, to the extent that such notice is available.
easement and joint use agmt_2- 3- 11.doc 14
7.5 Indemnification. Each Party ( "Indemnitor ") shall indemnify, defend and hold
harmless (collectively "Indemnify "), the other Party, and its officers, directors, employees, agents,
representatives and partners (collectively, "Indemnitee ") against all claims, costs, expenses
(including reasonable attorneys' fees) and liabilities (collectively "Claims "), arising from the death ,
injury, loss or damage caused to any natural person or to the property of any Party ( "Damage ") as
a result of any breach of or default under this Agreement, or which shall occur in or on the Parcel
of the Indemnitor during the period Indemnitor is a Party hereunder (except to the extent such
Claims arise from the negligence or willful misconduct of the Indemnitee or its agents, Occupants
or employees).
Subject to and in accordance with the applicable provisions of Article 3, each Grantee of an
easement shall Indemnify the Grantor of such easement and its officers, directors, employees,
agents and partners against any Claims arising from Damage occurring in connection with the
Grantee's use of such easement (except to the extent such Claims arise from the negligence or
willful misconduct of the Grantor).
7.6 Release and Waiver of Subrogation. Notwithstanding anything to the contrary set
forth herein, to the extent that waiver of subrogation is permitted under the insurance maintained
by a Party hereunder, each Party hereby waives all rights of recovery and causes of action, and
releases the other Party, from all losses and damages occasioned to property located within or
upon or constituting a part of the Property, which losses and damages are of the type covered
under the policies actually maintained pursuant to this Articlei provided, however, that the Party
responsible for any such losses or damages shall pay for any deductible under the policies.
8. GENERAL USE RESTRICTIONS.
8.1 Residential Uses. The MP -II Project and the residential portion of the MP-
Project shall be used solely for multifamily residential purposes. In no event shall the MP
Project include more than sixty -two (62) residential units, or such greater number as permitted
by the City or the Agency, and in no event shall the MP -II Project include more than forty -seven
(47) residential units, or such greater number as permitted by the City or the Agency.
8.2 Commercial Uses. The Commercial Area shall be used in accordance with the
provisions of the MP Lease, and may be used for any lawful purpose, except as indicated in
Exhibit C ( "Prohibited Uses of Commercial Parcel ") .
9. DISPUTE RESOLUTION
9.1 Good Faith Negotiations. In the event of any dispute under this Agreement, the
Parties to the dispute shall meet within thirty (30) days of delivery of a request by either party
to meet and discuss the dispute. The meeting shall be held in the City of South San Francisco
unless the parties agree otherwise. Each party shall have a representative in attendance who
has the authority to resolve the dispute on behalf of that party. The parties shall negotiate in
good faith to resolve the dispute.
easement and joint use agmt_2- 3- 11.doc 15
9.2 Mediation.
(1) If the Parties cannot resolve the dispute under the procedures in Section
9.1, the matter shall be submitted to mediation pursuant to the mediation procedures adopted
by the American Arbitration Association or any successor thereto or to any other entity
offering mediation services that is acceptable to the Parties. No person shall serve as a
mediator in any dispute in which the person has any financial or personal interest in the result
of the mediation, except by the written consent of all Parties. Prior to accepting any
appointment, the prospective mediator shall disclose any circumstances likely to create a
presumption of bias or prevent a prompt commencement of the mediation process. The
mediator(s) shall have at least five (5) years experience in the subject area of the matter in
dispute.
(2) Within ten (10) days of the selection of the mediator, each Party shall
submit a brief memorandum setting forth its position with regard to the issues that need to be
resolved. The mediator shall have the right to schedule a pre- mediation conference, and all
parties shall attend unless otherwise agreed. The mediation shall be commenced within ten
(10) days following the submittal of the memorandum and shall be concluded within fifteen
(15) days from the commencement of the mediation unless the parties mutually agree to
extend the mediation period. The mediation shall be held in San Francisco County or such
other place as is mutually acceptable to the parties.
(3) The mediator has discretion to conduct the mediation in the manner in
which the mediator believes is most appropriate for reaching a settlement of the dispute. The
mediator is authorized to conduct joint and separate meetings with the Parties and to make
oral and written recommendations for settlement. Whenever necessary, the mediator may
also obtain expert advice concerning technical aspects of the dispute, provided the parties
agree and assume the expenses of obtaining such advice. The mediator does not have the
authority to impose a settlement on the Parties.
(4) The expenses of witnesses for either side shall be paid by the Party
producing such witnesses. All other expenses of the mediation, including required traveling
and other expenses of the mediator, and the expenses of any witnesses, or the cost of any
proofs or expert advice produced at the direct request of the mediator, shall be borne equally
by the Parties unless they agree otherwise.
9.3. Litigation. In the event the parties are unable to resolve a dispute pursuant to
Section 9.2 above, or are unable to agree upon a mediator within thirty (30) days following
written notice from a Party to the other Party requesting mediation hereunder, either Party
may institute any remedy available at law or in equity to resolve such dispute.
10. NOTICES AND APPROVALS
easement and joint use agmt_2-3- 1 1.doc 16
10.1 Notices. All notices, demands, requests, approvals, disapprovals, or other
communications ( "Notice ") that a Party gives to any other Party shall be in writing and deemed
properly given if (a) served personally, or (b) mailed, when deposited with the United States
Postal Service for certified delivery, return receipt requested, with postage prepaid, or (c) sent
by overnight courier, postage prepaid, or (b) sent by facsimile, in each case addressed to the
applicable recipient as follows:
To MP:
MP South City, L.P.
c/o Mid - Peninsula Housing Coalition
303 Vintage Park Dr., Suite 250
Foster City, CA 94404
Attn: President
Fax No.
Phone No.
With copies to:
Union Bank, N.A.
Attn: Manager
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Fax No. (949) 553 -7123
Phone No.
With a copy to:
Union Bank, N.A.
Attn: Manager
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596 -3570
Fax No. (925) 947 -2455
Phone No. (925) 947 -2491
And to the Mortgagees of MP -II, as indicated in Section 1.8
To MP - II:
MP South City II, L.P.
c/o Mid - Peninsula Housing Coalition
303 Vintage Park Dr., Suite 250
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Foster City, CA 94404
Attn: President
Fax No.
Phone No.
With copies to:
Union Bank, N.A.
Attn: Manager
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Fax No. (949) 553 -7123
Phone No.
With a copy to:
Union Bank, N.A.
Attn: Manager
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596 -3570
Fax (925) 947 -2455
Phone No. (925) 947 -2491
And to the Mortgagees of MP -II, as indicated in Section 1.8
or such other place(s) as the above - listed entity or its successors may from time to time
designate by notice to the others. Notices shall be deemed given as of the earlier of actual
receipt or three (3) days from the date of mailing. Upon any subsequent transfer of either
Parcel, the Transferee shall notify the other Party in writing of its address for notices under this
Section.
In addition to the notice addresses above, each Party shall provide copies of notices to
Mortgagees and Limited Partners as provided in Section 11.1 below at the same time and in
the same manner as provided to the other Party under this Agreement.
10.2 Time and Form of Approvals. Wherever in this Agreement approval of a Party is
required, and unless a different time limit is provided herein, such approval or disapproval shall
be given in writing within thirty (30) days after receipt of the item to be so approved or
disapproved. Failure to give approval within the time specified shall be conclusively deemed to
constitute approval.
11. MORTGAGEE AND LIMITED PARTNER PROTECTION
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11.1 Notice to Mortgagees, Cure Rights.
(1) Copies of all notices of default and all other notices given or required
under this Agreement must be provided to the Mortgagee(s) and Limited Partners of the
Parties, provided such Mortgagee or Limited Partner has delivered a notice to such Party
stating that it is a Mortgagee or Limited Partner to a specified Parcel, and providing its name
and address for notice hereunder. Any notice to a Mortgagee or Limited Partner shall be given
as provided in Section 10.1, and no notice to a Party shall be effective until a copy thereof has
been given to such Mortgagee or Limited Partner.
(2) If any notice is given of a Party's default, then each Mortgagee under a
Mortgage affecting the defaulting Party's interest in a Parcel or Parcels and the Limited Partner
of the defaulting Party shall be entitled (but shall not be required) to cure any such default. .
In the event that any notice shall be given of the default of a Party, any Mortgagee under any
Mortgage affecting the Parcel of such Party shall be entitled to receive an additional notice
given in the manner provided in Section 10.1, above, that the defaulting Party has failed to
cure such default, and such Mortgagee shall have ninety (90) days after the receipt of said
additional notice to cure any such default, or, if such default cannot be cured within ninety (90)
days, to diligently commence curing within such time and diligently cure within a reasonable
time thereafter. Mortgagees may jointly or singly pay any sum or take any other action
reasonably necessary to cure any default of the Party hereunder with the same effect as cure
by the Party itself. If any such default cannot be cured or remedied by the Mortgagee without
the Mortgagee obtaining possession of the applicable Parcel by appropriate proceedings
and /or title to said Party's Parcel by judicial or non - judicial foreclosure proceedings or by deed
in lieu thereof, then any such default shall be remedied or deemed remedied if the Mortgagee
shall have complied with the following provisions: (i) within sixty (60) days after receiving said
notice the Mortgagee (or its nominee) shall have acquired the Party's estate or shall have
commenced judicial or non - judicial foreclosure proceedings or appropriate proceedings to
obtain possession of the Parcel; (ii) the Mortgagee shall diligently prosecute any such
proceedings to completion; and (iii) subject to Section 11.1(3), below, after gaining possession
of the Parcel, the Mortgagee (or its nominee) shall perform all other obligations of the Party as
and when the same are due in accordance with the terms of this Declaration.
(3) Nothing herein contained shall require any Mortgagee to cure any
default of a Party hereunder prior to its acquisition of title to a Parcel pursuant to a foreclosure
of its Mortgage, trustee sale thereunder or deed in lieu foreclosure thereof. Upon acquisition
of title to a Parcel, such Mortgagee or the purchaser or grantee, as applicable shall only be
liable and responsible for defaults first arising after the date of such acquisition.
11.2 Priority of Mortgage Liens. No breach of any provision of this Agreement, nor
the enforcement of any lien provided in this Agreement, shall impair, defeat or invalidate the
lien of any Mortgage; but all provisions hereof shall thereafter be binding upon and effective
against a Party whose title is derived through Foreclosure of any Mortgage; provided, however,
easement and joint use agmt_2 -3- 11.doc 19
that neither any Mortgagee nor successor thereof shall be liable for any damages, costs,
liabilities or expenses, and such Party's Parcel shall not be subject to a lien under this
Agreement for any amounts due hereunder based upon the actions, defaults or violations
taken or suffered by any Lessee hereunder prior to the date of such Foreclosure.
11.3 Effect on Mortgages. Nothing in this Agreement shall excuse any Party from
compliance with its respective obligations under any Mortgage or any regulatory agreement or
other agreement or instrument executed in connection with any such Mortgage, whether or
not of record respecting its Parcel. The parties acknowledge that compliance with this
Agreement may not constitute compliance with such documents (for example, the terms of a
Mortgage may impose a shorter time period for the performance of certain obligations under
this Agreement to avoid a default under the Mortgage), that the consent of a Mortgagee may
be required before a Party is authorized to comply with this Agreement, and that a default
under this Agreement may constitute a default under such documents. Each Party is
responsible for compliance with the requirements of its respective Mortgagee(s).
12. AMENDMENT
12.1 Amendment. This Agreement may be amended only by a writing signed and
acknowledged by the Parties (and consented to in writing by the Limited Partner of each Party)
and recorded in the Official Records. No amendment shall be binding on a Mortgagee unless
such Mortgagee has consented thereto in writing.
12.2 Mortgagee Consent. No Party, nor any Mortgagee whose consent is requested,
shall unreasonably withhold or delay approval of any amendment requested by another Party,
provided that such amendment does not result in increased unreimbursed costs or other
material detriment for the Party or Mortgagee whose consent is requested (including, without
limitation, a material decrease in value of such Party's Parcel or a material impairment of such
Party's operations). A Party requesting any such amendment shall agree to bear the
reasonable attorneys' fees of the other Party and its Mortgagees in connection with reviewing
and approving such amendment.
13. TERM
The term of this Agreement ( "Term ") shall commence on the Effective Date and shall
end on the earlier of (1) the effective date of the termination of both the MP Lease and the
MP -II Lease, or (2) ninety -nine (99) years from the Effective Date ( "Termination Date "). In the
event the Termination Date is determined under Section 13(2), the Term shall automatically be
renewed thereafter for successive ten (10) year terms, provided, however, that this Agreement
shall terminate on such earlier date as may be required in order that this Agreement will not
be invalidated or be subject to invalidation under applicable Law. Notwithstanding the
foregoing, any easements granted to a Grantee of a Parcel which exist on the Termination Date
shall continue in perpetuity so long as such Party has Improvements on its Parcel and has not
abandoned its easement, notwithstanding the rights and remedies provided in Article 3, so
long as the use of such easement or right continues.
easement and joint use agmt_2- 3- 11.doc 20
14. NO DEDICATION
Nothing contained in this Agreement shall be deemed to create or result in a dedication
of any portion of the Property for public use or to create any rights in the general public.
15. MISCELLANEOUS
15.1 Exhibits. Each reference herein to an Exhibit refers to the applicable Exhibit that
is attached to this Agreement, each of which constitutes a part of this Agreement.
15.2 Agreement for Exclusive Benefit of the Parties. Except for provisions expressly
stated to be for a Mortgagee's benefit, the provisions of this Agreement are for the exclusive
benefit of the Parties, their successors and assigns, and not for the benefit of nor give rise to
any claim or cause of action by any third party, and this Agreement shall not be deemed to
have conferred any rights upon any Permittee or other third party.
15.3 Waiver of Default. A waiver of any default by a Party must be in writing and no
such waiver shall be implied from a Party's failure to take action regarding such default. One or
more written waivers of any default in the performance of any provision of this Agreement
shall not be deemed to be a waiver of any subsequent default in the performance of the same
provisions of any other term or provision contained herein.
15.4 No Partnership, Joint Venture or Principal -Agent Relationship. Neither anything
in this Agreement nor any acts of the Parties shall be deemed to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any association between the
Parties.
15.5 Successors. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns of the Parties.
15.6 Severability. If any provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby.
15.7 Governing Laws. This Agreement shall be construed and governed in accordance
with the laws of the State of California.
15.8 Release. If a Party obligated to comply with any provisions of this Agreement
sells, transfers or otherwise conveys its Parcel (or leasehold estate in the Parcel if a Lessee),
such Party will, as respects the Parcel or part thereof so conveyed, be released from all
obligations to comply with this Agreement which accrue after the effective date of such sale,
transfer or other conveyance, provided:
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(1) It gives notice to the other Parties of its sale, transfer or other
conveyance promptly after the filing for record of the instrument effecting the same;
(2) Such Party delivers to the other Party an instrument signed by its grantee
in recordable form that acknowledges such grantee's assumption of the duties, responsibilities
and obligations imposed on such party by this Agreement and assumed by such grantee, which
instrument must be in a form reasonably satisfactory to said other Party; and
transfer.
(3) Nothing, however, relieves a Party of obligations arising before such
15.9 Covenants Run with the Land. It is intended that the covenants, easements,
agreements, promises and duties of each Party set forth in this Agreement shall be construed
as covenants and not as conditions, and that, to the fullest extent legally possible, all such
covenants shall constitute perpetual easements running with the land and shall constitute
equitable servitudes as between the two Parcels.
15.10 Default Shall Not Permit Agreement Termination. No default under this
Agreement shall entitle any Party to cancel or otherwise rescind this Agreement, provided,
however, that this limitation shall not affect any other rights or remedies that the Parties may
have by reason of any default under this Agreement.
15.11 Counterparts. This Agreement may be signed in several counterparts, each of
which shall be deemed an original, and all such counterparts shall constitute one and the same
instrument.
15.12 Attorney Fees. If any Party institutes any action or proceeding, excluding any
mediation proceeding, against the other or others relating to the provisions of this Agreement,
or any default hereunder, then, the unsuccessful litigant(s) in such action or proceeding
agree(s) to reimburse the successful litigant(s) therein for the reasonable expenses and
attorneys' fees and disbursements incurred therein by the successful litigant(s) as determined
by the court.
15.13 Time of Essence. Time is of the essence with respect to the performance of each
of the covenants and agreements contained in this Agreement.
15.14 Estoppel Certificates. Each Party ( "Providing Party "), within twenty (20) days of
its receipt of a written request from any other Party or any Mortgagee ( "Requesting Party ")
shall from time to time provide the Requesting Party, a certificate binding upon such Providing
Party stating: (a) to the best of such Providing Party's knowledge, whether any party to this
Agreement is in default or violation of this Agreement and if so identifying such default or
violation; (b) that this Agreement is in full force and effect and identifying any amendments to
the Agreement as of the date of such certificate; (c) that there is no current outstanding
amount owed by such Providing Party, or to the best of such Providing Party's knowledge,
easement and joint use agmt_2- 3- 11.doc 22
owed from any other Party pursuant to the terms of this Agreement; and (d) that, if such
Providing Party is responsible for maintaining certain Improvements pursuant to this
Agreement, such Providing Party has the right to receive reimbursement from another Party
and, if the Providing Party is not responsible for maintaining certain Improvements pursuant to
this Agreement, such Providing Party has the obligation to reimburse another Party for its pro
rata portion of such costs pursuant to this Agreement; together with the current percentage
share of each Party, the corresponding dollar amount of such Party's obligation, the day of the
month such reimbursement is due or received, and the date such reimbursement is paid
current.
Signatures on Following Page
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The Parties have executed this Agreement as of the date first written above.
By:
Its:
MP South City, L.P.,
a California limited partnership
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation, its general partner
By:
Its:
MP South City II, L.P.,
a California limited partnership
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation, its member /manager
By:
Its:
ACKNOWLEDGEMENT:
The City of South San Francisco Redevelopment Agency ( "Agency ") acknowledges and agrees
that this Agreement shall remain in full force and effect following the merger of title between
the ground leasehold interest in the MP Parcel or the MP -II Parcel, as applicable, and the fee
estate, or the expiration or termination of the MP Lease and /or the MP —II Lease., as
applicable, and in such event, the Agency shall become a Party hereto.
The City of South San Francisco Redevelopment Agency
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Signatures Must be Notarized
easement and joint use agmt_2 -3 -1 1.doc 25
State of California
County of
On before me
Date
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is /are subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Place Notary Seal Above
WITNESS my hand and official seal.
Signature of Notary Public
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EXHIBIT A
Legal Description of the MP Parcel
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EXHIBIT B
Legal Description of the MP -II Parcel
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EXHIBIT C
Prohibited Uses of Commercial Parcel
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[ADDITIONAL EXHIBITS TO BE ATTACHED AS DESCRIBED IN ARTICLE 3]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Union Bank, N.A.
18300 Von Karman Avenue, Suite 200
Irvine, California 92715
Attention: Manager
SUBORDINATION AGREEMENT
(Space Above This Line For Recorder's Use)
Union Bank — MP South City II, L.P.
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR RIGHTS
UNDER CERTAIN AGREEMENTS RELATING TO CERTAIN REAL PROPERTY
BECOMING SUBJECT TO, AND OF LOWER PRIORITY THAN, THE LIEN OF A
SECURITY INTEREST.
THIS SUBORDINATION AGREEMENT (this "Agreement "), made as of the 1 day of February,
2011 [CHECK], by and between the CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY,
a ( "Subordinating Party "), whose address is
, and UNION BANK, N.A., in its capacity as Agent for the Issuer ( "Bank "), whose
address is Union Bank, N.A., Commercial Real Estate Loan Administration, 18300 Von Karman Avenue,
Suite 200, Irvine, California 92715, Attention: Manager, is made with reference to the following facts:
A. Unless expressly defined herein, all capitalized terms used herein shall have the
meanings ascribed to them in Appendix I or Exhibit "B" attached hereto and made a part hereof.
B. Borrower is the owner (or, concurrently with the recording of this Agreement, will be the
owner) of the Property, which Property is more particularly described in Exhibit "A" attached hereto and
made a part hereof.
C. Borrower and Subordinating Party have heretofore entered into or, concurrently herewith,
are entering into, those certain loan documents more particularly described in Exhibit "B" attached hereto
( "Subordinating Party's Loan Documents "), pursuant to the terms of which Subordinating Party shall make
to Borrower a Five Million Nine Hundred Fifty -Five Thousand Eight Hundred Twenty -Two Dollar
($5,955,822) [CHECK] loan ( "Subordinating Party's Loan ") which Subordinating Party's Loan is secured
by, among other things, that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing ( "Subordinating Party's Deed of Trust ") dated , 20 , executed by Borrower for the
benefit of Subordinating Party, and recorded concurrently herewith in the Official Records of San Mateo
County, California, and encumbering the Property and all Improvements to be constructed thereon and
those certain (the "Subordinating Party's Restrictions ") dated
, 20_, and recorded concurrently herewith in the Official Records of
County, California, pursuant to the terms of which Borrower agreed, among other things,
for itself and its successors and assigns, to operate the Project as a low income apartment project in
accordance with the terms and conditions set forth therein. Subordinating Party's Deed of Trust and the
Restrictions are sometimes hereinafter collectively referred to as "Subordinating Party's Security
Documents ". [NEED TO CONFORM TO AGENCY DOCUMENTS]
D. Concurrently herewith, Borrower and Bank are entering into the Loan Agreement,
pursuant to the terms of which Bank shall make to Borrower the Loan to cover a portion of the cost of
constructing the Improvements and certain other costs related thereto, which Loan is evidenced by the
Note, made by Borrower to the order of Issuer, and secured by, among other things, the Deed of Trust,
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1140496 a01/04/11
executed by Borrower for the benefit of Bank, and encumbering the Property and all Improvements to be
constructed thereon. The Loan Agreement, the Note, the Deed of Trust and all other documents
evidencing, securing or pertaining to the Loan are sometimes hereinafter collectively referred to as the
"Loan Documents ".
E. As a condition precedent to Bank's making the Loan, Bank requires that the Deed of
Trust shall unconditionally be and remain at all times a lien or charge upon the Project which is prior and
superior to the liens or charges of Subordinating Party's Security Documents.
NOW, THEREFORE, in consideration of Bank's making the Loan to Borrower, and in
consideration of the mutual promises and agreements hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Bank
to make the Loan to Borrower, the parties to this Agreement do hereby agree as follows:
1. SUBORDINATION OF SUBORDINATING PARTY'S SECURITY DOCUMENTS. The
Deed of Trust, and any and all renewals or extensions thereof and all amendments and modifications
hereafter made thereto, and any and all disbursements made by Bank to or for the account or benefit of
Borrower the repayment of which is secured thereunder, shall unconditionally be and remain at all times a
lien or charge against the Project that is prior and superior to the liens or charges of Subordinating Party's
Security Documents, to the same extent and purpose as though Subordinating Party's Security
Documents had been executed and recorded subsequent to the recording of the Deed of Trust and the
making of each disbursement or advance made by Bank to Borrower the repayment of which is secured
by the Deed of Trust, regardless of whether Borrower, at the time of any such disbursement or advance,
may have been in default under the Loan Agreement, the Deed of Trust, or any of the other the Loan
Documents and regardless of whether Bank was obligated to make any such disbursement or advance.
Notwithstanding the foregoing, Bank shall not amend or modify the terms of the Loan and /or the Loan
Documents without the prior written consent of the Subordinating Party if such amendment or
modification has the effect of: (i) increasing or decreasing the amount of the Loan, except in the case of
sums advanced by Bank in exercising its rights and remedies under the Loan Documents or as otherwise
provided in Paragraph 2 of this Agreement; (ii) increasing the annual interest rate(s), including the default
rate, above the rate(s) described in the Note; or (iii) modifying the maturity date to be sooner than the
stated maturity date of the Note.
2. ALL DISBURSEMENTS UNDER THE LOAN SECURED BY THE DEED OF TRUST.
Notwithstanding anything to the contrary set forth in the Loan Agreement or any other agreement
between Bank and Borrower with respect to the disbursement of all or any portions of the proceeds of the
Loan, any and all disbursements made by Bank to or for the account or benefit of Borrower or the Project
in connection with the following, whether or not Bank is obligated to make such disbursements pursuant
to the Loan Documents: (a) any costs or expenses incurred in complying with any laws, rules, regulations,
or statutes or any directives of any governmental agencies or authorities having or exercising jurisdiction
over the Project; (b) any sums advanced to pay for the cost of completing the construction of the Project,
Project cost overruns and /or to lease -up and stabilize the Project made by Bank; and (c) any sums
advanced by Bank for the payment of real estate taxes or assessments or insurance premiums, or any
other sums advanced or obligations incurred by Bank in connection with the protection or preservation of
any security given to Bank with respect to the Loan, including, without limitation, interest thereon shall be
deemed to be, and in all events shall be, secured by the Deed of Trust and, as so secured, and
regardless of whether Borrower at the time of any such disbursements may have been in default under
the Loan Documents and regardless of whether Bank was obligated to make any such disbursements,
shall be and remain a lien or charge against the Project that is unconditionally prior and superior to the
lien and effect of Subordinating Party's Security Documents.
3. APPLICATION OF PAYMENTS UNDER SUBORDINATING PARTY'S LOAN. Until such
time as all amounts outstanding under the Loan have been indefeasibly paid in full, prior to the
occurrence of an Event of Default (as such term is defined in the Loan Documents), Subordinating Party
shall be entitled to receive and retain payments made pursuant to and in accordance with the
Subordinating Party's Loan documents; provided, however, that no such payment is made more than
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ninety (90) days in advance of its scheduled due date. Upon the occurrence of an Event of Default under
the Loan Documents, all amounts (including, without limitation, all insurance proceeds and condemnation
awards) received by Subordinating Party from, or for the account of, Borrower under Subordinating
Party's Loan shall be immediately remitted to Bank at the address set forth above to be applied by Bank
in reduction of amounts outstanding under the Loan, in such amounts and in such order as Bank shall
determine. In the event that any payment is made to Subordinating Party which is not permitted under
this Agreement, such payment shall be held by Subordinating Party in trust for the benefit of Bank and
shall be paid immediately to Bank for application to the payment of all of indebtedness and obligations
remaining unpaid under the Loan. Without limiting the complete subordination of the Subordinating
Party's Loan to the payment in full of the Loan, in any bankruptcy, insolvency, receivership or proceeding,
upon any payment or distribution to creditors, the Bank shall be paid in full first in cash before the
Subordinating Party shall be entitled to receive any payment or other distribution on account of or in
respect to the Subordinating Party's Loan and, until the entire Loan is paid in full in cash, any payment or
distribution to which the Subordinating Party will be entitled but for this Agreement (whether in cash,
property or other assets) shall be paid to Bank.
4. SUBORDINATION TO MODIFICATION OF LOAN. If Bank extends or otherwise
modifies the terms of the Loan (including any amendment or modification which requires the
Subordinating Party's prior written consent pursuant to Paragraph 1 and for which Subordinating Party
has granted such consent), Subordinating Party, upon 20 days' prior notice to Subordinating Party, shall
execute a new subordination agreement, in the form of this Agreement, confirming Subordinating Party's
subordination of the effect of Subordinating Party's Security Documents against the Project to the lien or
charge of the Deed of Trust. The execution of such new subordination agreement, however, shall not be
a condition to the effectiveness of the subordination of Subordinating Party's Security Documents against
the Project to the lien or charge of the Deed of Trust, which subordination shall be automatic.
5. SUBORDINATING PARTY'S RIGHT TO CURE DEFAULTS. Upon the occurrence of a
default under the Loan Documents, Bank shall: (a) concurrently with notifying Borrower of the occurrence
of such event of default, notify Subordinating Party at its address set forth above of the occurrence of
such event of default (to the extent notice of default is required to be provided to Borrower); (b) permit
Subordinating Party to cure or correct (provided that such event of default is curable) any such event of
default within ninety (90) calendar days (to the extent notice is required) after receipt of such notice
( "Subordinating Party Cure Period "); provided, however, that Bank has the continuing right to commence
to pursue its remedies under the Loan Documents on account of such default during the Subordinating
Party Cure Period, including but not limited to the right to accelerate the Loan, record a notice of default
and to obtain a receiver; provided further, that if the cure is completed during the Subordinating Party
Cure Period, Bank will rescind any notice of default after reimbursement of all of its costs incurred in
connection with the default, including, without limitation, attorneys' fees and court costs; and (c) accept all
payments and all acts done by Subordinating Party on behalf of Borrower within the Subordinating Party's
Cure Period as though the same had been timely done and performed by Borrower, so that such acts and
payments shall fully and totally cure and correct all such defaults, breaches, failures or refusals for all
purposes. Subordinating Party shall not be subrogated to the rights of Bank under the Loan Documents
by reason of Subordinating Party having cured any default under the Loan Documents; however, Bank
acknowledges that, to the extent so provided in the Subordinating Party's Security Documents, amounts
advanced or expended by Subordinating Party to cure an event in default under the Loan Documents
may be added to and become a party of the Subordinating Party's Loan. In the event that an Event of
Default occurs and Bank has recorded a notice of default, then for the period from the date of recordation
of the notice of default, until the date of recordation of a notice of sale, so long as the noticed default
continues, Subordinating Party shall have the right, but not the obligation, in lieu of curing any default
under the Loan Documents, to purchase the Bonds and Bank's rights as agent under the Loan
Documents, the Master Agency Agreement and Master Pledge and Assignment and the holder of the
Bonds pursuant to the Master Pledge and Assignment subject to Subordinating Party satisfying any
requirements under the Master Pledge and Assignment to purchase the Bonds and to act as the agent of
the Issuer. Such purchase will be accomplished by Subordinating Party paying to Bank the outstanding
principal amount of the Loan, plus all accrued and unpaid interest thereon and any prepayment premium,
together with reasonable expenses incurred by Bank in connection therewith (including reasonable
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attorneys' fees and costs), in exchange for the assignment of the Bonds and Bank's rights as agent and
holder of the Bonds without recourse or warranty, except that Bank will warrant that it owns and has all
requisite authority to transfer the Bonds at the time of the transfer. Borrower acknowledges and agrees,
by executing the joinder attached hereto, that after the Bonds and Bank's rights as agent and holder of
the Bonds under the Loan Documents, the Master Agency Agreement and Master Pledge and
Assignment have been assigned to Subordinating Party or its nominee, Bank shall be relieved from all
liability to Borrower under or in connection with the Loan Documents.
6. BANK'S RIGHT TO CURE DEFAULT UNDER SUBORDINATING PARTY'S LOAN.
Upon the occurrence of a default under the Subordinating Party's Loan, Subordinating Party shall: (a)
concurrently with notifying Borrower of the occurrence of such event of default, notify Bank at its address
set forth above of the occurrence of such default or event of default; (b) permit Bank to cure or correct
(provided that such event of default is curable) any such event of default within ninety (90) calendar days
after receipt of such notice ( "Bank Cure Period "); provided, however, that Subordinating Party has the
continuing right to commence to pursue its remedies under the Subordinating Party's Loan Documents on
account of such default during the Bank Cure Period, including but not limited to the right to accelerate
the Subordinating Party's Loan, record a notice of default and to obtain a receiver; provided further, that if
the cure is completed during the Bank Cure Period, Subordinating Party will rescind any notice of default
after reimbursement of all of its costs incurred in connection with the default, including, without limitation,
attorneys fees and court costs; and (c) accept all payments and all acts done by Bank on behalf of
Borrower within the Bank Cure Period as though the same had been timely done and performed by
Borrower, so that such acts and payments shall fully and totally cure and correct all such defaults,
breaches, failures or refusals for all purposes.
7. RECEIPT AND APPLICATION OF INSURANCE PROCEEDS AND CONDEMNATION
AWARDS; RECEIPT AND APPLICATION OF PROCEEDS FROM BONDS.
(a) Receipt and Application of Insurance Proceeds and Condemnation Awards.
Notwithstanding anything stated to the contrary in any of Subordinating Party's Security Documents, so
long as the Deed of Trust continues to encumber all or portions of the Project, all insurance proceeds that
may become available from time to time as a result of damage or destruction to all or portions of the
Improvements and all condemnation awards that may become available from time to time as a result of
the condemnation of all or portions of the Project shall be held by Bank, disbursed by Bank and applied
by Bank in accordance with the terms and conditions of the Deed of Trust and the other the Loan
Documents and Subordinating Party shall have no right to hold, disburse or apply any of such proceeds
and /or awards. Without limiting the generality of the foregoing, the Bank shall have all approval, consent
and oversight rights in connection with any insurance claims or condemnation proceedings related to the
Property and any decision regarding the use of insurance proceeds after a casualty loss or condemnation
awards and Subordinating Party shall have no right to object to any such action or approval taken by
Bank and shall consent thereto and be bound thereby. Subordinating Party shall execute such
documents as Bank may require from time to time in order to assure compliance with the provisions of
this Paragraph 7(a).
(b) Receipt and Application of Proceeds from Bonds. With respect to all labor and
material bonds and /or completion bonds that are issued from time to time to assure payment and
completion of the Improvements and which name Bank and Subordinating Party (or any other party) as
dual obligees, all proceeds that may become available from time to time under such bonds shall be held
by Bank and disbursed by Bank and Subordinating Party shall have no right to hold or disburse any of
such proceeds. Subordinating Party shall execute such documents as Bank may require from time to
time in order to assure compliance with the provisions of this Paragraph 7(b).
8. NOTICES. Any notice, demand or request required or permitted to be delivered
hereunder shall be deemed to have been duly and properly given at the time of such delivery if personally
delivered (which shall include (i) delivery by means of professional overnight courier service which
confirms receipt in writing and (ii) transmission by telecopier or telefacsimile machine capable of
confirming transmission and receipt), or if mailed, forty -eight (48) hours after deposit in United States
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registered or certified mail, postage prepaid, return receipt requested, addressed to Subordinating Party
or Bank, as the case may be, at their addresses set forth above.
9. ENTIRE AGREEMENT. This Agreement shall be the whole and only agreement with
respect to the subordination of the effect of Subordinating Party's Security Documents to the lien or
charge of the Deed of Trust and all disbursements and advances made thereunder, and shall supersede
and cancel any prior agreements as to such subordination, including without limitation any provisions
contained in Subordinating Party's Security Documents that provide for the subordination of the effect
thereof to one or more deeds of trust.
10. SUBORDINATING PARTY'S REPRESENTATIONS, WARRANTIES, COVENANTS,
CONSENTS, APPROVALS AND ACKNOWLEDGEMENTS. Subordinating Party hereby warrants,
represents, declares, agrees and acknowledges as follows:
(a) For purposes of this Agreement, Subordinating Party acknowledges that
Subordinating Party has been provided the opportunity to review the Loan Documents before executing
this Agreement;
(b) Bank, in making disbursements pursuant to the Loan Agreement, is under no
obligation or duty to insure, nor has Bank represented that it will insure, the proper application of such
proceeds by the person(s) to whom Bank disburses such proceeds, and any application or use of such
proceeds for purposes other than as provided in any such agreement shall not defeat or render invalid, in
whole or in part, the subordination provided for in this Agreement;
(c) Bank has not made any warranty or representation of any kind or nature
whatsoever to Subordinating Party with respect to (i) the application of the proceeds of the Loan being
made by Bank to Borrower upon the security of the Deed of Trust, (ii) the value of the Property, the
Improvements to be constructed thereon pursuant to the Loan Agreement, or the marketability or value
thereof upon completion of such construction, or (iii) the ability of Borrower to honor its covenants and
agreements with Bank or Subordinating Party;
(d) Bank's release of any security for the Loan, including, without limitation, the
reconveyance of any portion(s) of the Project from the lien of the Deed of Trust shall not constitute a
waiver or relinquishment of Subordinating Party's unconditional subordination of the liens or charges of
Subordinating Party's Security Documents against the Project to the lien or charge of the Deed of Trust;
(e) Issuer and Bank would not make the Loan to Borrower absent the execution of
this Agreement by Subordinating Party;
(f) Bank has no duty to disclose to Subordinating Party any facts Bank may now
know or hereafter know about Borrower or the partners or successors of Borrower, regardless of whether
(i) Bank has reason to believe that any such facts may increase materially the risk beyond that which
Subordinating Party intends to assume, (ii) Bank may have reason to believe that such facts are unknown
to Subordinating Party, or (iii) Bank has a reasonable opportunity to communicate such facts to
Subordinating Party, it being understood and agreed that Subordinating Party is fully responsible for
being and keeping informed of the financial condition of Borrower and /or any partners or successors of
Borrower and of all circumstances bearing on the risk of non - payment of any indebtedness of Borrower to
Bank described in this Agreement;
(g) Subordinating Party has made such independent legal and factual inquiries and
examinations as Subordinating Party deems necessary or desirable, and Subordinating Party has relied
solely on said independent inquiries and examinations in entering into this Agreement;
(h) The Subordinating Party's Loan Documents as described in Exhibit "B" attached
hereto are all of the documents evidencing, securing or pertaining to Subordinating Party's Loan, true,
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correct and complete copies thereof have been delivered to Bank and the Subordinating Party's Loan
Documents have not been amended or modified except as reflected thereon;
(i) As of the date set forth above, the Subordinating Party has no offset, defense,
deduction or claim against Borrower under any of the Subordinating Party's Loan Documents, Borrower is
not in default under any of the Subordinating Party's Loan Documents and the Subordinating Party knows
of no event that has occurred or is continuing which, with the passage of time or the giving of notice, or
both would constitute a default under any of the Subordinating Party's Loan Documents;
(j) Each and every covenant, condition and obligation contained in the
Subordinating Party's Loan Documents required to be performed or satisfied as of the date hereof, and
each and every matter required to be approved the Subordinating Party as of the date hereof, has been
satisfied and /or approved and /or waived as applicable, including, without limitation, all conditions
precedent to Borrower's right to commence construction of the Improvements and those matters listed in
Sections of the Subordinating Party's Loan Agreement, all of which conditions have
been satisfied and /or approved and /or waived, as applicable, as of the date set forth above;
(k) Borrower is not obligated to commence construction of the Improvements until
, 2011 [CHECK], and construction of the Improvements need not be completed until
, 201_ [CHECK], subject to extension for force majeure;
(I) [Except for the sum of $ (which is to be used to cover
to be incurred in connection with ), the Subordinating Party's
Loan has been fully funded and Borrower's use of the Subordinating Party's Loan funds complies
with the provisions of the budget attached to the Subordinating Party's Loan Agreement;]
(m) Notwithstanding anything stated to the contrary in the Subordinating Party's Loan
Documents, (i) the limited partner in Borrower shall have the right at any time and from time to time,
without the approval or consent of the Subordinating Party, to assign, sell or otherwise transfer to any
third party its limited partnership interest in Borrower, provided that Borrower provides notice to the
Subordinating Party of such assignment, sale or transfer concurrently with such assignment, sale or
transfer, and (ii) the general partner in Borrower shall have the right, without the approval or consent of
the Subordinating Party, to pledge or otherwise encumber its partnership interest in Borrower to Bank and
the foreclosure of such pledge by Bank shall not cause an event of default under the Subordinating
Party's Loan Documents;
(n) Notwithstanding anything stated to the contrary in the Subordinating Party's Loan
Documents, Subordinating Party's interest in the plans and specifications and all data, drawings,
contracts and agreements relating thereto and all contracts and agreements relating to the construction of
the Improvements shall be subject and subordinate to Bank's interest in the same;
(o) Notwithstanding anything stated to the contrary in the Subordinating Party's
Loan Documents, Subordinating Party's rights in and to the leases and rents of the Property shall be
subject and subordinate to the rights of Bank to same; and
(p) Notwithstanding anything stated to the contrary in the Subordinating Party's Loan
Documents, if an Event of Default occurs under the Deed of Trust or the other Loan Documents, which in
and of itself does not constitute a default under the Subordinating Party's Loan Documents and Bank
waives or accepts a cure of such default by Borrower, then such waiver or cure shall also conclusively be
deemed to have waived or cured (as applicable) the default or event of default under the Subordinating
Party's Loan Documents.
(q) The subordination of the Subordinating Party's Loan shall continue in the event
that any payment with respect to any Loan Document (whether by or on behalf of Borrower, as proceeds
of security or enforcement of any right of set -off or otherwise) is for any reason repaid or returned to
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Borrower or its insolvent estate, or avoided, set aside or required to be paid to Borrower, a trustee, a
receiver or other similar party under any bankruptcy, insolvency or receivership or similar law under any
bankruptcy, insolvency, receivership or similar proceeding. In such event, the Loan or any part thereof
originally intended to be satisfied shall be deemed to be reinstated and outstanding to the extent of any
repayment, return or other action, as if such payment on account of the Loan had not been made.
(r) Subordinating Party shall not commence in or join with any other creditor in
commencing any bankruptcy, insolvency, receivership or similar proceeding involving Borrower and
Subordinating Party shall not initiate any action, motion or request in any such proceeding involving any
other person or entity, which seeks the consolidation of some or all of the assets of Borrower into such
proceeding. In the event of any such proceeding relating to Borrower or the Property or, in the event of
any such proceeding relating to any other person or entity into which (notwithstanding the covenant in the
first sentence of this clause) the assets or interests of Borrower are consolidated, then in either event, the
Loan shall first be paid in full before Subordinating Party shall be entitled to receive or retain any payment
or distribution with respect to the Subordinating Party's Loan. Subordinating Party agrees that (i) the
Bank shall receive all payments and distributions of every kind or character in respect of the
Subordinating Party's Loan to which the Subordinating Party would otherwise be entitled, before the
subordination provisions of this Agreement (including, without limitation, any payments or distributions
during the pendency of any bankruptcy, insolvency, receivership or similar proceeding involving Borrower
or the Property) until the Loan is repaid in full, and (ii) the subordination of the Subordinating Party's Loan
and the Subordinating Party's security documents shall not be affected in any way by the Bank electing,
under Section 1111(b) of the Federal Bankruptcy Code, to have its claim treated as being a fully secured
claim. In addition, Subordinating Party hereby covenants and agrees that, in connection with such a
proceeding involving Borrower, neither Subordinating Party nor any of its affiliates shall (i) make or
participate in a loan facility to or for the benefit of Borrower on a basis that is senior to or pari passu with
the liens and interests held by Bank pursuant to the Loan Documents and (ii) not contest the continued
accrual of interest on the Loan, in accordance with and at the rate specified in the Loan Documents, both
for periods before and for periods after commencement of such proceedings.
11. ATTORNEYS' FEES. If either Subordinating Party or Bank shall bring an action against
the other by reason of the breach of any covenant, provision, or condition of this Agreement, or otherwise
arising out of this Agreement, the unsuccessful party shall pay to the prevailing party reasonable
attorneys' fees, which fees shall be payable whether or not any action is prosecuted to judgment. The
term "prevailing party" shall include, without limitation, a party who brings an action against the other by
reason of the other's breach or default and obtains substantially the relief sought, whether by
compromise, settlement, or judgment.
12. ESTOPPEL CERTIFICATES. Either party shall, within twenty (20) days following the
other party's written request therefor, execute and deliver to such requesting party an estoppel certificate
in form and substance reasonably satisfactory to the requesting party.
13. GOVERNING JURISDICTION. This Agreement shall be governed by the laws of the
State of California and shall be binding upon, and shall inure to the benefit of, the parties to this
Agreement and their respective successors and assigns.
14. SEVERABILITY. In case one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained herein unless the effect thereof
would materially alter the benefits or burdens hereof to the parties hereto.
15. THIRD PARTIES. Subordinating Party recognizes that Bank may show copies of this
Agreement to other institutional lenders who are interested in the matters covered in this Agreement and
Subordinating Party agrees that such other institutional lenders may also materially rely upon the
representations, warranties and agreements made by the Subordinating Party in this Agreement.
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16. COUNTERPARTS. This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original but all of which together shall constitute but one and the same
instrument.
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[Signature page follows]
-8-
WHEREAS, this Subordination Agreement has been executed by the parties as of the date first
written above.
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Bank:
UNION BANK, N.A.,
in its capacity as Agent for the Issuer
By:
Name:
Its:
Subordinating Party:
CITY OF SOUTH SAN FRANCISCO
REDEVELOPMENT AGENCY,
a
By:
Name:
Its:
-9-
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JOINDER
Unless expressly defined herein, all capitalized terms used herein shall have the same meanings
ascribed to them in the Subordination Agreement (the "Subordination Agreement ") to which this Joinder is
attached.
The undersigned hereby acknowledges receipt of a copy of the Subordination Agreement and, as
owner of the Leasehold Estate in the Property, hereby consents to, approves and agrees to be bound by
all of the terms and conditions set forth in the Subordination Agreement.
MP South City II, L.P.,
a California limited partnership
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit corporation,
its general partner
By:
Its:
State of California
County of
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument, and acknowledged to me that he /she /they executed the same
in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of
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On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument, and acknowledged to me that he /she /they executed the same
in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
(seal)
State of California
County of
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument, and acknowledged to me that he /she /they executed the same
in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument, and acknowledged to me that he /she /they executed the same
in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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(seal)
(seal)
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EXHIBIT "A"
LEGAL DESCRIPTION
(ATTACHED)
EXHIBIT "A"
EXHIBIT "B"
SUBORDINATING PARTY'S LOAN DOCUMENTS
1. dated , 20_ by and between Subordinating
Party and Borrower (the "Subordinating Party's Loan Agreement ").
2.
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EXHIBIT "B"
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APPENDIX I
(Appendix I - Definitions)
Attached
GROUND LESSOR'S ESTOPPEL CERTIFICATE
UNION BANK, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
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1144816
RE: Ground Lease (636 El Camino - Phase 1) dated , 2011 (the "Lease ")
Lessor: Redevelopment Agency of the City of South San
Francisco
Lessee: MP South City, L.P.
Premises: Real property located in the City of South San Francisco,
County of San Mateo, State of California (the "Real
Property "), and more particularly described on Exhibit
"A" attached hereto.
Commencement Date:
Termination Date:
Rent:
, 2011
, 2086
Base rent of $1 per year, plus other charges in accordance
with the Lease.
Terms not otherwise defined herein shall be given the meanings in the Lease.
Lessor has been advised by Lessee that Lessee has applied to UNION BANK, N.A.
( "Bank ") for a loan in the amount of $18,261,840 [CHECK] (the "Loan ") which shall be
secured by, among other things, a Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing in favor of Bank encumbering Lessee's leasehold interest under the Lease and in
and to the Premises and all improvements now or hereafter situated on the Premises (the "Deed
of Trust ") (the "Deed of Trust "), and that Bank is relying upon this Ground Lessor's Estoppel
Certificate (this "Estoppel Certificate ") in so doing.
For purposes of this Estoppel Certificate, to the fullest extent the context so permits, (i) the term
"Transfer" shall mean any transfer of Lessee's interest in the Premises by judicial or nonjudicial
foreclosure, trustee's sale or any other action or proceeding for the enforcement of the Deed of
Trust, by Bank's exercise of its rights under the assignment of rents and leases contained in the
Deed of Trust or any of the other Loan documents, or by deed in lieu of foreclosure; and (ii) the
term "Bank" shall mean Bank, its successors and assigns and /or the purchaser through or
following a Transfer of the Premises.
With such understanding, Lessor hereby states, declares, represents, warrants and certifies for the
benefit of Bank, that as of the date hereof:
1. Attached hereto as Exhibit "B" is a true, correct and complete copy of the Lease, a
memorandum of the Lease, and all amendments thereto (collectively, the "Lease "). The Lease
has been duly authorized, executed and delivered by Lessor and is in full force and effect. The
Lease constitutes the entire agreement between Lessor and Lessee pertaining to the Premises
(including, without limitation, all amendments, assignments, tenant improvement work letters
and subordination or nondisturbance agreements). The Lease shall not be amended,
supplemented or modified except as described above and attached hereto. There are no other
agreements, whether oral or written, between Lessee and Lessor concerning the Premises.
2. Lessor currently holds all of the right, title and interest of the "Lessor" under the Lease
and has not assigned, hypothecated, encumbered, mortgaged, pledged or subordinated any of its
interest under the Lease or any of its interest in the Premises (or otherwise leased or encumbered
any of the Premises except pursuant to the Lease) in whole or in part. Lessor agrees that any
mortgage, deed of trust or other encumbrance on the fee estate in the Premises shall be junior and
subordinate to the Lease, the Deed of Trust, and any other leasehold mortgage, and Lessor agrees
to execute, acknowledge (if appropriate) and deliver any additional documents reasonably
requested by the Bank to confirm the foregoing. Lessor recognizes Lessee identified above as
the holder of the leasehold interest in the Premises and the "Lessee" under the Lease.
3. The Lease term shall commence as of the Commencement Date indicated above, and the
Lease term shall expire on the Termination Date indicated above unless sooner terminated
pursuant to the terms of the Lease.
4. Lessee makes all of its rent and other payments directly to Lessor under the Lease (and
not to any receiver, assignee, property management company or other person or entity). The
current minimum rent under the Lease is in the amount specified above. Lessee has paid all rent
due under the Lease to and including the date set forth above. No additional rent or charge
(including, without limitation, as applicable, taxes, maintenance, operating expenses or
otherwise) that has been billed to Lessee by Lessor or, to Lessor's knowledge, by any other
party, is overdue.
5. No amounts have been paid by Lessee to or for the account of Lessor by way of any
deposit as security or for any other purpose, the return of which Lessee would be entitled.
6. Lessor has no knowledge of any other leases affecting the Premises. To Lessor's
knowledge, Lessee currently holds all right, title and interest of the "Lessee" under the Lease and
Lessor has not received notice of any assignment, hypothecation, encumbrance, mortgage,
pledge or subordination of any such rights or of any other right, title or interest of Lessee under
the Lease or in the Premises, or any part thereof except the proposed encumbrance of the
leasehold interest by Lessee in favor of Bank and the proposed encumbrance of the leasehold
interest by Lessee in favor of Lessor, which encumbrances are subordinate to the Bank's
encumbrances on the Premises.
7. No default, or any event or condition which, with the passing of time or giving of notice
or both, would constitute a default, on the part of Lessor, or, to Lessor's actual knowledge, on the
part of Lessee, exists under the Lease in the performance of the terms, covenants and conditions
of the Lease required to be performed on the part of Lessee and Lessor and no event has occurred
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which authorizes, or with the lapse of time or with the giving of notice or both, will authorize
either Lessor or Lessee to terminate the Lease. To Lessor's actual knowledge, Lessee has timely
and fully complied with all obligations of Lessee in connection with the improvement, use,
maintenance and repair of the Premises or any improvements thereon. The use presently being
made of the Premises is not in violation of the use provisions of the Lease. Lessor has made no
outstanding unresolved claim against Lessee nor now makes any such claim under the Lease.
Lessor has no existing defenses as to its obligations under the Lease and claims no offsets against
enforcement of the Lease by Lessee or counterclaim against Lessee. To Lessor's actual
knowledge, Lessee has no defense, set -offs, basis for withholding rent, claims or counterclaims
against Lessor for any failure of performance of any of the terms of the Lease.
8. Lessor agrees that Bank shall constitute a "Leasehold Mortgagee" within the meaning of
the Lease, including, without limitation, Article XV of the Lease, such rights being incorporated
herein by reference for the benefit of Bank as if fully set forth, and, to the extent such consent is
required under the Lease, Lessor hereby consents to the Deed of Trust and the other security
interests to be given to Bank, including, without limitation, an assignment of the Lessee's
interest in rents, issues and profits of the Premises. The execution of and delivery by Lessee of
the Deed of Trust in favor of Bank, or any subsequent modification thereof, will constitute
neither a breach of Lessee's obligations as Lessee under the Lease nor an event of default
thereunder. Foreclosure of the Deed of Trust or any sale thereunder, whether by judicial
proceedings or by virtue of any power of sale contained in the Deed of Trust, or any conveyance
of the leasehold interest under the Lease from Lessee to Bank by virtue of any deed in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of
Lessor or constitute of breach of any provision or of a default under the Lease. Lessor shall
recognize Bank as the Lessee under the Lease following any Transfer, subject to the obligations
of Bank to comply with the Lease and cure any defaults which are reasonably susceptible of cure
by Bank.
9. Lessor hereby acknowledges, notwithstanding the provisions of provisions of
Section 16.7 of the Lease, the general partner in Lessee shall have the right, without the approval
or consent of the Lessor, to pledge or otherwise encumber its general partner interest in Lessee to
Bank and the foreclosure of such pledge by Bank shall not cause an event of default under the
Lease.
10. During the term of the Loan and until reconveyance of the Deed of Trust, Lessor will not
terminate or enter into any agreement with any other party to terminate, cancel, surrender,
amend, alter, modify or extend the Lease or any interest of Lessee thereunder without prior
written consent of Bank and any such purported agreement shall not be valid or effective without
the prior written consent of Bank. Without limiting the generality of the foregoing, Bank's prior
written consent shall be required prior to Lessee being permitted to terminate the Lease
following occurrence of a damage, destruction or taking of the Premises.
11. Lessor has no right or option to acquire any of Lessee's right, title or interest in or to the
Premises or any improvements or personal property located thereon other than the option to lease
the Retail /Commercial component pursuant to the Option Agreement. There are no provisions
for, and Lessor has no rights with respect to, terminating the Lease or increasing the rent payable
thereunder, except as expressly set forth in the Lease.
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12. Lessor agrees that by acceptance of this Estoppel Certificate or by acceptance of the Deed
of Trust or other encumbrance of the Lease, Bank has not become liable under the terms of the
Lease. Lessee and Lessor agrees that Bank shall be so liable only if Bank acquires ownership of
the leasehold interest in the Premises pursuant to a Transfer, and then only for such period of
time as Bank holds such leasehold interest. Lessor further agrees that Bank's personal liability
shall be limited to Bank's interest in the Premises, notwithstanding any assumption of the Lease
or entering into a new lease by Bank.
13. There are no actions, whether voluntary or otherwise, pending against Lessor under any
insolvency, bankruptcy or other debtor relief laws of the United States or any state. Lessor has
not received written notice of any pending eminent domain proceedings or other governmental
actions or any judicial actions of any kind against Lessor's interest in the Premises. Lessor has
not received written notice that it or Lessee is in violation of any governmental law or regulation
applicable to the Premises, the interests therein or the operation thereon, including, without
limitation, any environmental laws or the Americans with Disabilities Act, and has no reason to
believe that there are grounds for any claim of any such violation.
14. To Lessor's knowledge, the Premises have not been used for any activities which,
directly or indirectly, involve the use, generation, treatment, storage, transportation or disposal of
any petroleum product or any toxic or hazardous chemical, material, substance, pollutant or
waste in violation of applicable law. Lessor has not received any notice, written or oral, of (a)
any violation of any applicable federal, state, county or local statute, law, rule or regulation of
any governmental authority relating to environmental, health or safety matters on or about the
Premises; (b) any allegation which, if true, would contradict any statement contained in this
Estoppel Certificate; or (c) the existence of any writ, injunction, decree, order, judgment, lawsuit,
claim, proceeding or investigation, pending or threatened, relating to the use, maintenance or
operation of the Premises (nor is Lessor aware of a basis for any such notice under (a), (b) or (c)
above).
15. Lessor confirms that any lien rights it may have under the Lease are subordinate to the
lien of the Deed of Trust and the Bank's other security interests.
16. Bank may be named as additional insured and loss payee under insurance coverages
carried by Lessee and may participate in any settlement of proceeds therefrom. In the event of
reconstruction of improvements on the Premises following damage or destruction, Lessor shall
not terminate the Lease on account of such damage or destruction and Lessor agrees that Bank
shall act as disbursing agent for any insurance or condemnation proceeds used for reconstruction,
employing such safeguards as Bank would generally apply in its disbursement of construction
loan proceeds.
17. Lessor has approved the plans and specifications for the development of the Project
pursuant to Section 6.1 of the Lease.
18. Lessor represents and warrants that: (i) Lessor is duly organized and existing; (ii) the
persons executing this Estoppel Certificate are duly authorized to execute and deliver the same
on behalf of Lessor; (iii) Lessor has taken such formal action of its governing body as may be
required by law to bind Lessor, if any, and that Lessor is formally bound to the provisions of this
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1144816
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Estoppel Certificate; and (iv) entering into this Estoppel Certificate does not violate any
provision of any other agreement to which Lessor is bound.
19. Lessor agrees to deliver to Bank copies of all notices which Lessor delivers to Lessee
substantially concurrently with the giving of such notice to the Lessee and this Estoppel
Certificate constitutes written request by Lessee to Lessor to deliver to Bank copies of all such
notices at the following addresses for Bank:
383/014742 -0577
1144816
UNION BANK, N.A.
Commercial Real Estate Loan Administration
18300 Von Karman Avenue, Suite 200
Irvine, CA 92612
Facsimile: (949) 553 -7123
Attn: Manager
With a Copy to:
UNION BANK, N.A.
Community Development Finance Department
200 Pringle Avenue, Suite 355
Walnut Creek, CA 94596
Facsimile: (925) 947 -2455
Attn: Manager
20. This Estoppel Certificate shall inure to the benefit of the successors and assigns of Bank.
21. Lessor has executed this Estoppel Certificate for the benefit and protection of Bank with
full knowledge that Bank is relying on this Estoppel Certificate in making the Loan to Lessee.
Upon the request of Bank, but no more often than twice in any calendar year, Lessor and Lessee
agree to execute and deliver to Bank an estoppel certificate setting forth the substance of the
provisions set forth in this Estoppel Certificate. In addition, Lessor hereby agrees to consent to
the encumbrance of the Premises and to execute estoppel certificates substantially similar to this
Estoppel Certificate in favor of any other lender whose loan is secured by a mortgage or deed of
trust encumbering the Premises.
22. This Estoppel Certificate constitutes, as against Lessor and for the benefit of Bank and its
successors and assigns, an estoppel as to the information contained herein and a waiver of any
right of Lessor to disaffirm or contest the accuracy of such information. To the extent
inconsistent with the Lease, this Estoppel Certificate shall constitute an amendment to the Lease.
[Signature Page Follows]
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IN WITNESS WHEREOF, Lessor has executed this Estoppel Certificate as of
, 2011.
ATTEST:
Agency Secretary
APPROVED AS TO FORM
Agency Counsel
383/014742 -0577
1144816
LESSOR:
REDEVELOPMENT AGENCY OF THE CITY OF
SOUTH SAN FRANCISCO, a public body,
corporate and politic
By:
Name:
Its:
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN MATEO, COMMONLY KNOWN AS 636 EL CAMINO; AND IS
DESCRIBED AS FOLLOWS:
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1144816
A -1
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1144816
EXHIBIT "B"
GROUND LEASE
[See Attached]
B -1
FREE RECORDING REQUESTED
PURSUANT TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
Recording requested by
and when recorded mail to:
CALIFORNIA HOUSING FINANCE
AGENCY
Office of General Counsel
P.O. Box 4034
Sacramento, CA 95812 -4034
LEASE RIDER AGREEMENT
(Ground Lease)
This Lease Rider Agreement (the "Agreement ") effective as of , 2011 (the
"Effective Date "), is made and entered into by and among the Redevelopment Agency of the City of
South San Francisco, a public body corporate and politic ( "Landlord "), MP South City, L.P., a
California limited partnership ( "Tenant "), and the California Housing Finance Agency (the "Agency "),
a public instrumentality and a political subdivision of the State of California created by the Zenovich
Moscone Chacon Housing and Home Finance Act (the "Act "), Division 31 of the California Health
and Safety Code, in consideration of the following facts and circumstances:
CaIHFA.MHSA LEASEHOLD RIDER.
EL Camino Project A, Ca1HFA No. 10 -026 -M
01/27/2011 . SK/jaf- #204019v3
RECITALS
A. Landlord is the fee simple owner of that certain real property described in Exhibit A
attached hereto and incorporated herein (the "Property ");
B. Tenant is the owner of the leasehold interest in the Property, pursuant to that certain
Ground Lease (636 El Camino — Phase 1) by and between by Landlord and Tenant dated
(the "Lease ") as evidenced by the Memorandum of (the "Memorandum of Lease ")
recorded against the Property in the Official Records currently herewith. Unless
otherwise noted, references to instruments recorded in "Official Records" refer to instruments
recorded in the Office of the County Recorder of the County of San Mateo.
C. Pursuant to and subject to paragraph 8.1.1 of the Lease, Tenant is the owner of the fee
interest in all of those certain "Improvements" as defined in the Lease including buildings,
improvements and fixtures now or hereafter erected thereon, and all appurtenances, easements, and
articles of property now or hereafter affixed to, placed upon or used in connection with such real
property and owned by Tenant or in which Tenant has an interest, together with all additions to,
substitutions for, changes in or replacements of the whole or any part of said articles of property
(collectively, the "Improvements "). Collectively, the Property and the Improvements are hereinafter
sometimes referred to as the "Development ";
D. Tenant has agreed to develop, own and operate a rental housing development on the
Development consisting of not less than Sixty -Two (62) residential rental units, Ten (10) of which are
Mental Health Services Act ( "MHSA ") Housing Units ( "MHSA Housing Units "), and related
improvements;
E. Tenant has applied to the Agency for a loan in the amount of One Million Eighty -One
Thousand Six Hundred and No /100 Dollars ($1,081,600.00) (the "MHSA Permanent Loan ") to
finance the Development;
F. Tenant and Landlord have requested that the Agency accept the Leasehold (as defined
below) as security for the MHSA Permanent Loan;
G. The MHSA Permanent Loan is subject to numerous terms and conditions and will be
evidenced by that certain promissory note entitled "California Housing Finance Agency, MHSA
Promissory Note, Ca1HFA Development No. 10 -026 -M (Permanent Financing/Residual Receipts)" (the
"MHSA Promissory Note "), and secured by that certain deed of trust entitled "California Housing
Finance Agency, MHSA Deed of Trust with Assignment of Rents, Security Agreement and Fixture
Filing, Ca1HFA Development No. 10 -026 -M " (the "MHSA Deed of Trust ") covering all of Tenant's
interests in the Lease and the Development;
H. The Development will be financed in part by the MHSA Permanent Loan, and
Landlord's Property will directly benefit from the MHSA Permanent Loan;
I. As an inducement to the Agency to make the MHSA Permanent Loan, Landlord and
Tenant have consented to have the Development regulated and restricted by the Agency as provided in
that certain document entitled "California Housing Finance Agency, MHSA Regulatory Agreement,
(Mental Health Services Act Housing Program) Ca1HFA Development No. 10- 026 -M" (the "MHSA
Regulatory Agreement "), the MHSA Promissory Note, and the MHSA Deed of Trust (collectively, the
MHSA Regulatory Agreement, the MHSA Promissory Note and the MHSA Deed of Trust are
sometimes hereinafter referred to as the "MHSA Permanent Loan Documents "); and
J. In order to induce the Agency to make the MHSA Permanent Loan, Landlord and
Tenant have agreed to enter into and record this Agreement in the Official Records for the benefit of
the Agency, its successors, and assigns.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants
hereinafter contained, the Agency, Tenant and Landlord hereby agree as follows:
CaIHFA.MHSA LEASEHOLD RIDER.
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AGREEMENT
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1. Leasehold. As used herein, "Leasehold" means all of Tenant's interest in the
Development and all options contained in the Lease or granted in connection with the Lease, and all
other rights of Tenant under the Lease, and all subleases (with the exception of that certain sublease of
the Retail /Commercial Component (as defined in the Lease) to be entered into by and between
Landlord and Tenant (the "Retail/Commercial Sublease ")) entered into in connection with the Lease
(the "Subleases ").
2. Representations and Warranties of Landlord. Landlord hereby represents and warrants
to the Agency that as of the Effective Date:
(a) Free and Clear. The Property is free and clear of all mortgage liens other than
those expressly agreed to in accordance with this Agreement.
(b) Priority. The Lease is superior to any and all mortgage liens on the Property.
(c) No Transfer by Landlord. Landlord has not assigned, mortgaged, or otherwise
hypothecated or transferred its interest in the Development, in whole or in part.
(d) Status of Lease.
(i) Landlord is the current landlord under the Lease.
(ii) The Lease is in full force and effect.
(iii) The Lease is not void or voidable at the option of any party thereto or of
any other person or entity claiming an interest in or to such Lease or the Development.
(iv) There has been no default under the Lease by Tenant, and Landlord has
no knowledge of any fact or circumstance that places, or with the passage of time would place, the
Tenant in default under the Lease.
(v) There exist no defenses or offsets to enforcement of the Lease by Tenant.
(vi) Any consent or approval by any third party (including any lender), if
required to deliver this Agreement, has been obtained.
(vii) No alterations, improvements or additions now exist on the Property that
have not been approved by the Landlord.
(e) Other Agreements.
(i) All terms and conditions of the Lease are set forth in the Lease, and there
have been no further agreements, supplements, amendments, modifications or extensions thereof,
except as previously submitted to and approved in writing by the Agency.
CaIHFA.MHSA LEASEHOLD RIDER.
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(ii) Pursuant to the requirements of the Agency, Tenant and the Agency have
entered into the MHSA Regulatory Agreement governing the use, occupancy, operation, management
and ownership of the Development.
(iii) In the event of a conflict between any provisions in the Lease that
conflicts with the MHSA Permanent Loan Documents, Landlord and Tenant agree that the terms and
provisions of the MHSA Permanent Loan Documents shall prevail, but only to the extent necessary
where compliance or performance of such Lease provision would cause a violation or breach of the
MHSA Permanent Loan Documents.
(f) Lease Term. The date of the commencement of the Lease term is
2011 and will end on , 2086. All conditions precedent to the effectiveness of the Lease
or the exercise of any of Tenant's rights thereunder have been fully satisfied.
(g) Development. The Development complies with all requirements affecting the
design, use or characteristics of such Development imposed by Landlord under the Lease or otherwise,
and to the Landlord's knowledge with any and all applicable provisions of federal, state and local laws,
and all agreements with any public entities concerning the Development, as amended from time to
time.
3. Termination, Transfer of Interest.
(a) No Modification or Termination without the Agency's Consent. Except for
termination as a result of a default subject to the notice and cure provisions in Section 5 below and
elsewhere in the Lease, the Lease shall not be modified, terminated, subordinated, cancelled or
surrendered in any manner other than by an agreement in writing signed by all of the parties to the
Lease or their respective successors -in- interest, and no such modification, termination, subordination,
cancellation or surrender shall be valid or effective without the prior written consent of the Agency,
which consent shall be in the Agency's sole and absolute discretion, and may be conditioned upon the
satisfaction of such terms and conditions as the Agency may prescribe.
(b) No Transfer or Encumbrance without the Agency's Consent. Landlord agrees
that it shall not transfer, convey, sell, hypothecate, assign, mortgage, pledge, encumber, or permit any
liens against its interest, or any portion thereof, in the Development without the prior written approval
of the Agency, which consent shall be in the Agency's sole and absolute discretion, and may be
conditioned upon the satisfaction of such terms and conditions as the Agency may prescribe.
Notwithstanding the foregoing, if Landlord transfers, conveys, sells, hypothecates, assigns or otherwise
encumbers its interest, or any portion thereof, in the Development, Landlord will require that any
purchaser, assignee or transferee expressly assume all of the obligations of Landlord under the Lease
and this Agreement by a written instrument recordable in the Official Records. Landlord will not
renew, modify, consolidate, replace or extend any document securing or creating any such transfer,
conveyance, sale, assignment, or other encumbrance without the prior written approval of the Agency,
which approval shall be in the Agency's sole and absolute discretion, and may be conditioned upon the
satisfaction of such terms and conditions as the Agency may prescribe. The provisions of this
paragraph shall not apply to the Retail /Commercial Component or the Retail /Commercial Sublease
CaIHFA.MHSA LEASEHOLD RIDER.
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(c) No Merger. There shall be no merger of the Lease or any interest in the Lease,
nor of the Leasehold interest, with the fee estate in the Property if the Lease or such interest therein, or
such Leasehold estate may be directly or indirectly held by or for the account of any person who shall
hold the fee estate in the Property, or any interest in such fee estate, nor shall there be such a merger by
reason of the fact that all or any part of the Leasehold estate created thereby may be conveyed or
mortgaged in a leasehold mortgage, deed of trust, or other security instrument to a leasehold mortgagee
that shall hold the fee estate in the Development or any interest of the Landlord under the Lease.
4. Possession and Transfer of Lease.
(a) Landlord's Consent and Approval. Landlord hereby consents to and approves
the following to the extent such consents or approvals are required under the Lease:
(i) Tenant encumbering the Development with the MHSA Deed of Trust
and the MHSA Regulatory Agreement;
(ii) Possession of the Lease and the Development by the Agency, its
designee, or by a receiver under the MHSA Deed of Trust;
(iii) Assignment to the Agency or its designee of any Sublease (with the
exception of the Retail /Commercial Sublease) and any and all rents from such Sublease; and
(iv) Sale or assignment of all or any portion of the Leasehold to a purchaser
or assignee pursuant to a foreclosure sale under the MHSA Deed of Trust or to any transferee of a deed
in lieu of foreclosure (any such purchaser or transferee, including the Agency, is collectively referred
to as a "Transferee "), and to any subsequent transfer without restriction (all such assignments,
transfers, and subsequent transfers referred to in this Agreement as a "Transfer "). Any Transferee,
upon the Transfer of all of its interest in the Leasehold, shall be relieved of all liability under the Lease
accruing after the date of such Transfer.
5. Notice of Defaults; Termination Notice.
(a) Notice and Cure. As a precondition to pursuing any remedy for an alleged
default by Tenant under the Lease, Landlord shall give the Agency written notice of any and all
defaults or potential defaults by Tenant under the Lease (whether or not notice thereof is required
under the Lease), and shall provide simultaneously to the Agency a written copy of all notices and
demands which Landlord gives to Tenant. Landlord acknowledges and agrees that no notice or
demand under the Lease shall be effective against the Agency unless and until notice is given to the
Agency. Any notice of default given under the Lease or this Agreement shall describe the nature of
the default(s) in reasonable detail. The Agency shall have the right, but not the obligation, to cure any
such default; provided that, if such notice to the Agency is not given or is delayed for any reason, the
period of time within which the Agency may cure any such breach or default shall commence upon
receipt by the Agency of such notice. Landlord and Tenant authorize the Agency to enter the
Ca1HFA.MHSA LEASEHOLD RIDER.
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Development for the purpose of preventing defaults or exercising its right to cure and any other powers
given the Agency under the MHSA Permanent Loan Documents, this Agreement, or the Lease.
(b) Termination Notice. After the expiration of any applicable grace period given
Tenant under the Lease to cure a default, Landlord shall not terminate the Lease but shall give the
Agency a written notice (a "Termination Notice ") that Tenant has failed to cure the default within the
grace period and that, on account thereof, Landlord intends to terminate the Lease, which Termination
Notice shall set a termination date not earlier than sixty (60) days after the Agency's receipt of the
Termination Notice; provided that Landlord agrees to extend such termination date if the Agency
reasonably requires additional time to accommodate the Agency's taking possession of the
Development where possession is necessary to cure Tenant's default. No Termination Notice shall be
effective to terminate the Lease if:
(i) Except as provided in section 5(c), within sixty (60) days after receipt of
the Termination Notice, the Agency cures any default which can be cured by payment or expenditure
of money without possession of the Development, or provides reasonable assurance and undertakings
for the cure of such default. To effect a cure of Tenant's default, the Agency may make any repair or
improvement, do any other act or thing required of Tenant under the Lease, or do any act or thing
which may be necessary or proper to prevent termination of the Lease. The Agency and its agents and
contractors will have full access to the Development for purposes of accomplishing the curing of
defaults under the Lease. Any of the foregoing done by the Agency shall be as effective to prevent a
termination of the Lease as the same would have been if done by Tenant; or
(ii) The Agency commences and diligently pursues to completion
proceedings for judicial or nonjudicial foreclosure and sale under the MHSA Deed of Trust or
assignment, transfer or deed in lieu of foreclosure collectively, a "deed in lieu of foreclosure ").
(c) Defaults Not Capable of Cure by the Agency. The Agency shall not be required
to perform any act which, by its nature, is not capable of being performed.
(d) Landlord's Payment of MHSA Permanent Loan Payments. Landlord agrees that
if Landlord cures Tenant's failure to make any payment due under the MHSA Permanent Loan,
Landlord shall seek reimbursement of amounts so paid solely from Tenant, and the Agency shall have
no obligation to pay such amounts to Landlord if the Agency exercises its rights hereunder or under the
Lease to cure Tenant's default of the Lease.
(e) Waiver of Breach or Default. On Transfer of the Leasehold at any foreclosure
sale under the MHSA Deed of Trust or by acceptance of a deed in lieu of foreclosure, all monetary
violations, monetary defaults and monetary breaches by Tenant under the Lease, including, without
limitation, nonpayment of rent or other amounts payable under the Lease, shall be deemed cured, and
the Agency or other Transferee shall be entitled to the New Lease and /or the New MHSA Regulatory
Agreement, as both described in section 6 below, without incurring or assuming any liability or
obligation of, or claim for, monetary defaults against Tenant under the Lease. Nothing in this section
shall be deemed a waiver of any claim by Landlord against Tenant under the Lease.
CaIHFA.MHSA LEASEHOLD RIDER.
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(f) Enforcement Not a Breach. No action taken by the Agency to enforce its rights
under any of the MHSA Permanent Loan Documents against either the Landlord or the Tenant, or
both, including, without limitation, any actions taken to collect any amounts due and owing to the
Agency or any action to appoint a receiver for the Development, to foreclose on the Agency's security
or to otherwise protect the security of the MHSA Permanent Loan, shall constitute or result in a breach
or violation of the Lease.
(g) Status Quo Ante. Any default by Tenant shall not prejudice the Agency if the
Agency chooses to cure such default within the applicable grace period, and Landlord acknowledges
and agrees that upon the Agency's cure of any such default, the Lease shall be restored status quo ante.
6. New Lease; New MHSA Regulatory Agreement.
(a) Conditions. Section 5 hereof notwithstanding, Landlord agrees to comply with
the requirements of section 6(b) if the following conditions apply:
(i) The Lease is terminated for any reason whatsoever or if the Agency
acquires the Leasehold by judicial or nonjudicial foreclosure under the MHSA Deed of Trust or deed
in lieu of foreclosure; and
(ii) The Agency, or other Transferee, requests in writing that Landlord enter
into a New Lease and /or acknowledge a New MHSA Regulatory Agreement within ninety (90) days
after: (a) the Agency completes a foreclosure under the MHSA Deed of Trust; or (b) the Agency
accepts a deed in lieu of foreclosure; or (c) the end of the cure period provided to the Agency in the
Termination Notice.
(b) Obligations. If the conditions specified in section 6(a) have been satisfied,
Landlord shall:
(i) Upon receipt of the request for a New Lease described in subsection
6(a)(ii) above, Landlord shall enter into a New Lease (the "New Lease ") of the Property with the
Agency, its nominee, or its successor -in- interest, or other Transferee, for the remainder of the term of
the terminated or foreclosed Lease, effective as of the date of the termination or conveyance pursuant
to a foreclosure sale or a deed in lieu of foreclosure. The New Lease shall be at the rent of, and
consistent with the terms, provisions, covenants, options and agreements contained in the terminated or
foreclosed Lease, or granted by the Landlord in connection with the Lease, all as modified or
supplemented by this Agreement.
(ii) Upon receipt of the request for a New MHSA Regulatory Agreement
described in subsection 6(a)(ii) above, and simultaneously with entering into the New Lease, Landlord
shall enter into a New MHSA Regulatory Agreement (the "New MHSA Regulatory Agreement ") with
the Agency, its nominee, or its successor -in- interest, effective as of the date of the termination or
conveyance pursuant to a foreclosure sale or a deed in lieu of foreclosure. The New MHSA
Regulatory Agreement shall be recorded in the Official Records and shall regulate and restrict the
Development and shall be consistent with the terms, and with the provisions, covenants, and
CaIHFA.MHSA LEASEHOLD RIDER.
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agreements contained in the terminated MHSA Regulatory Agreement, all as modified or
supplemented by this Agreement.
(c) Priority. The New Lease and New MHSA Regulatory Agreement granted to the
Agency, its nominee or its successor -in- interest, under this section 6 shall be prior to any mortgage or
other lien, charge or encumbrance on the Development or on the fee interest of Landlord, except as
previously approved in writing by the Agency.
7. Successors to the Agency. Subject to section 4 hereof, if the Leasehold is transferred by
a foreclosure sale under the MHSA Deed of Trust or by a deed in lieu of foreclosure, Landlord shall
recognize the Transferee as the tenant under the Lease. Anything in the Lease notwithstanding, the
rights and benefits of the Agency under this Agreement shall benefit and may be exercised by any
Transferee or by the holder of any mortgage or MHSA Deed of Trust which may be given to secure a
portion of the purchase price in any sale by the Agency or its successor(s) after the Agency acquires
the Leasehold or enters into a new Lease and /or New MHSA Regulatory Agreement under this
Agreement.
8. Diligence of the Agency. So long as the Agency is prevented by any process or
injunction issued by any court or by any statutory stay, or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceeding involving Landlord or Tenant, from
commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the
Agency shall not be deemed for that reason to have failed to commence such proceedings or to have
failed to prosecute diligently such proceedings, provided, however, that the Agency shall use
reasonable efforts to contest and appeal the issuance or continuance of any such process, stay or
injunction.
9. Condemnation and Insurance Proceeds.
(a) Anything in the Lease notwithstanding, at the written request of the Agency, all
fire and other hazard or casualty insurance proceeds shall be paid to the Agency to the extent required
by the MHSA Permanent Loan Documents, subject to the rights of any senior lienholders. In the event
of any condemnation or partial condemnation, all condemnation award proceeds payable on account of
such condemnation or partial condemnation of the Leasehold, at the written request of the Agency
shall be paid to the Agency to the extent required by the MHSA Permanent Loan Documents, subject
to the rights of any senior lienholders.
(b) During the term of the MHSA Permanent Loan, the Agency shall have the right
(but not the obligation) to participate in any condemnation proceeding or negotiation and in any
settlement or stipulation of judgment with respect to any condemnation proceeding entered into with
the condemnation authority affecting all or any portion of the Development or any agreement to sell all
or any portion of the Development in lieu of condemnation, and no such settlement, stipulation or
agreement shall be made or entered into without the Agency's prior written consent, which consent
shall be in the Agency's sole and absolute discretion, and may be conditioned upon the satisfaction of
such terms and conditions as the Agency may prescribe. The Agency shall also have the right (but not
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the obligation) to participate in any settlement, discussion, and /or arbitration proceeding between
Landlord and Tenant with respect to the apportionment or application of any condemnation award.
10. Estoppel Certificate. Within fifteen (15) calendar days after written request by the
Agency, Landlord shall execute and deliver to the Agency or to any proposed purchaser or
encumbrancer of Tenant's estate a certificate declaring: (i) that the Lease, or New Lease as the case
may be, and any amendments thereto, remains in full force and effect; (ii) that all conditions under the
Lease, or New Lease, have been satisfied, and that there are no defaults under the Lease or New Lease,
or if there has been a default under the Lease or New Lease, a description of the nature of such default;
(iii) the amount and timing of any rent and other payments due under the Lease or New Lease; (iv) any
other information relating to the Lease or the Development reasonably requested; and (v) that Landlord
understands the recipient will rely on the certificate, and describing in reasonable detail any exceptions
to the foregoing statements. Within fifteen (15) calendar days after a written request by the Landlord
Agency shall use its best efforts to execute and deliver to Landlord an Estoppel Certificate or
equivalent declaring (i) that the MHSA Permanent Loan Documents, and any amendments thereto,
remains in full force and effect; (ii) that all conditions under the MHSA Permanent Loan Documents,
have been satisfied, and that there are no defaults under the MHSA Permanent Loan Documents, or if
there has been a default under the MHSA Permanent Loan Documents, a description of the nature of
such default; (iii) the amount and timing of any rent and other payments due under the MHSA
Permanent Loan Documents; (iv) any other information relating to the Lease or the Development
reasonably requested.
11. Notices. Notices and other communications required by this Agreement shall be
delivered by messenger to the addresses provided below or sent by U.S Postal Service certified mail,
return receipt requested, postage prepaid, addressed as follows:
To Agency: Office of the General Counsel
California Housing Finance Agency
500 Capitol Mall, Suite 1400
Sacramento, California 95814
To Landlord:
To Tenant:
Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Executive Director
MP South City, L.P., a California limited partnership
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn:
These addresses may be changed by a notice given in the same manner; provided that Landlord
acknowledges and agrees that it shall have a duty to verify the address provided herein with the
Agency's Office of General Counsel. Notices shall be effective on receipt. For notices other than to
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Tenant and Landlord, Agency shall use its best efforts, and no legal consequences shall arise by reason of
Agency's failure to give notice to any other person.
12. The Agency's Rights Against Tenant. Nothing in this Agreement shall limit or restrict
Agency's rights and remedies under the MHSA Permanent Loan Documents, or any other agreement
between the Agency and Tenant.
13. Successors and Assigns. This Agreement shall inure to the benefit of and bind the
successors and assigns of the Agency, Landlord and Tenant.
14. Uninsured Hazard. Landlord agrees that neither the Agency nor any person acquiring
the Leasehold or a portion of the Leasehold pursuant to a foreclosure under the MHSA Deed of Trust,
or deed in lieu of foreclosure, nor the tenant under a New Lease pursuant to section 6 hereof, nor any
successive owner of the Leasehold or a portion thereof after such foreclosure or new Lease shall have
any obligation hereunder or under the Lease or new Lease to repair or reconstruct any damage or loss
to the Development which is due to a hazard not covered by insurance under the Lease.
15. Options. Landlord and Tenant agree that the Agency may exercise any option to extend
the term of the Lease or to purchase any interest in the Property which is granted to Tenant under or in
connection with the Lease.
16. Limitation on Liability. If the Agency agrees to be bound by the terms of the Lease, or
in the event of any Transfer to a Transferee, neither the Agency nor any Transferee shall have any
obligation under the Lease with respect to any liabilities, obligations, losses, damages, fines, penalties,
claims, demands, suits, actions, causes of actions, charges, judgments, costs, and expenses (including
architects' and attorneys' fees and court costs) arising out of or resulting from acts, omissions,
circumstances or events occurring before or existing at the time of such Transfer or the Agency's
agreement to be bound by the Lease. Nothing in this Agreement, the MHSA Permanent Loan
Documents, or in the Lease shall impose on the Agency any liability to perform the obligations of
Tenant under the Lease or require the Agency to assume the Lease unless and until the Agency
acquires Tenant's rights by foreclosure or deed in lieu of foreclose. After acquiring Tenant's rights by
foreclosure or deed in lieu of foreclosure, the Agency shall be liable to perform Tenant's obligations
only until the Agency assigns or transfers the Leasehold. The Agency shall not, however, be required
to cure Tenant's defaults occurring before the Agency's acquisition of Tenant's rights by foreclosure.
17. Conflict with Lease. The provisions herein are intended to be supplementary to, and not
in derogation of, the parties' rights and obligations contained in the Lease (including all of the
Agency's rights under the Lease as a leasehold mortgagee), but in the event of any conflict or
inconsistency between the terms of the Lease and the terms of this Agreement, the terms of this
Agreement shall govern and control, and the Lease shall be deemed to be modified hereby.
18. Attorney Fees, Costs. In any action to enforce or relating to any provision of this
Agreement, the prevailing party shall be entitled to recover from the other party, its costs and
expenses. The term "costs and expenses" as used herein shall include all costs and expenses actually
CaIHFA.MHSA LEASEHOLD RIDER.
EL Camino Project A, Ca1HFA No. 10 - 026 - M
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and reasonably incurred, including but not limited to attorneys' fees; filing, motion, and jury fees; juror
food and lodging; taping, videotaping, and transcribing depositions and travel expenses to attend
depositions; service of process by a public officer, registered process server, or other means; expenses
of attachment including keeper's fees; premiums on surety bonds; ordinary witness fees pursuant to
Section 68093 of the California Government Code; fees of expert witnesses whether or not ordered by
the court; transcripts of court proceedings whether or not ordered by the court; court reporters fees as
established by statute; investigation expenses in preparing the case for trial; postage telephone, and
photocopying charges; costs in investigation of jurors or in preparation for voir dire; models, blowups
and photocopies of exhibits, and any other item that is required to be awarded to the prevailing party
pursuant to statute as an incident to prevailing in the action at trial or on appeal. Such costs and
expenses shall be recoverable whether the services were rendered by a salaried employee of the party
or by an independent contractor.
19. Landlord's Notice and Cure Rights under MHSA Permanent Loan Documents. The
Agency agrees that it shall use its best efforts to provide Landlord with a copy of all initial notices of
default provided to Tenant under the MHSA Permanent Loan Documents, provided, the Agency shall
have no liability to Landlord and /or Tenant for its failure to do so, nor shall failure to do so constitute
grounds for any restraining order, injunction, or other prohibition against or delay in the Agency's
exercise of its remedies under the MHSA Permanent Loan Documents. The Agency shall not record a
Notice of Default related to such initial notice during the period ninety (90) days after the date of such
initial notice if such notice relates to a nonmonetary default or defaults under the MHSA Permanent
Loan Documents. During the term of such period Landlord shall have the right, but not the obligation,
to cure any nonmonetary default under such initial notice. Notwithstanding the foregoing, if at any
time following the date of the initial notice, there shall occur or be continuing a default in the payment
of any amount due to the Agency under the MHSA Permanent Loan Documents, the Agency shall
have the right to, and in its sole discretion may, record a Notice of Default and proceed to foreclosure
based upon any such nonpayment regardless of any extended cure period with respect to nonmonetary
defaults.
20. Nondisturbance. Agency acknowledges that Landlord has certain rights to enter into
the Retail /Commercial Sublease. Agency agrees that if Agency succeeds to the interest of Tenant
under the Lease pursuant to a judicial foreclosure, non - judicial foreclosure or deed in lieu of
foreclosure, for so long as Landlord pays all rent and other charges as specified in the Sublease and is
not otherwise in default under the Sublease, Agency agrees that Landlord's rights under the Sublease
and Landlord's possession, use or quiet enjoyment of the premises of the Retail /Commercial
Component will not be disturbed during the term of the Sublease.
Landlord and Tenant acknowledge that the Agency is relying on the foregoing representations,
warranties, covenants and agreements of the undersigned in making the MHSA Permanent Loan to
Tenant, and warrants and affirms to and for the benefit of the Agency that each of those representations
is true, correct and complete as of the Effective Date.
LANDLORD:
AGENCY:
CaIHFA.MHSA LEASEHOLD RIDER.
EL Camino Project A, CaIHFA No. 10 -026 -M
01 /27/2011.SK/jaf- #204019v3
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN
FRANCISCO, a public body corporate and
politic
By:
CALIFORNIA HOUSING FINANCE
AGENCY, a
public instrumentality and political subdivision of
the State of California
By:
ATTEST:
By:
Name:
Agency Secretary
APPROVED AS TO FORM:
By:
Title:
Agency Counsel
TENANT:
MP SOUTH CITY, L.P.,
a California Limited Partnership
By: Mid - Peninsula Greenridge, Inc.,
a California nonprofit public benefit
corporation
Its: General Partner
By:
Its:
CaIHFA.MHSA LEASEHOLD RIDER.
EL Camino Project A, CaIHFA No. 10 -026 -M
01/27/2011 . SK/j of -# 2040 I 9v3
ACKNOWLEDGEMENTS
-12-
CaIHFA.MHSA LEASEHOLD RIDER.
EL Camino Project A, Ca1HFA No. 10 -026 -M
01 /27/2011.SK/jaf- #2040I9v3
EXHIBIT A
-13-
RECORDING REQUESTED BY
UNION BANK, N.A.
AND WHEN RECORDED MAIL TO:
UNION BANK, N.A.
Commercial Real Estate
Loan Administration
Attn: Manager
18300 Von Karman Avenue, Suite 200
Irvine, California 92612
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement ") is
made as of February 1, 2011 [CHECK] by and between Union Bank, N.A. ( "Bank ") and Redevelopment
Agency of the City of South San Francisco, a public body, corporate and politic ( "Tenant ").
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RECITALS:
Space above this line for Recorder's use.
A. Bank has made or has agreed to make a loan (the "Loan ") to MP South City, L.P., a California limited
partnership ( "Borrower ") evidenced by, among other things, debt instruments executed or to be executed by
Borrower in favor of Bank in the principal amount of the Loan (as amended from time to time, collectively, the
"Note ").
B. The Note and certain other obligations of Borrower under the Loan are or will be secured by, among
other things, a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (as amended from
time to time, the "Deed of Trust "). The Deed of Trust, executed or to be executed by Borrower in favor of
Bank, and previously recorded or to be recorded concurrently herewith, encumbers the estate of Borrower in
certain real property and improvements commonly known as 636 El Camino, South San Francisco, California
94080, and more particularly described on Exhibit A attached hereto (the "Property ").
C. Borrower has leased a portion of the Property to Tenant subject to the terms and conditions of that
certain Master Lease Agreement dated «Month Day, Year» [CHECK] and that certain Memorandum of
Lease dated «Month Day, Year» [CHECK] (together with any amendments executed prior to the date
hereof, collectively, the "Lease ").
D. As a condition to making the Loan, Bank requires that Tenant subordinate the Lease to the Deed of
Trust and the lien thereof and attorn to Bank as provided below. Tenant is willing to provide such
subordination and attornment provided Bank agrees not to disturb Tenant's right to possession under the
Lease as provided below.
cre_docs \tenant \sndatenant.doc
AGREEMENT:
For good and valuable consideration, Tenant and Bank agree as follows:
1. SUBORDINATION. Tenant hereby subordinates the Lease and all rights, remedies and options of
Tenant thereunder, including without limitation any option to purchase or right of first refusal to purchase the
Property or any part thereof or interest therein, to the Deed of Trust and to the lien thereof and to all sums
secured thereby and advances made thereunder with the same force and effect as if the Deed of Trust had
been executed, delivered and recorded prior to the execution and delivery of the Lease.
2. NON DISTURBANCE. Bank will not join Tenant as a party in any Foreclosure unless the joinder is
necessary or desirable to pursue its remedies under the Deed of Trust, and provided that such joinder shall
not result in the termination of the Lease or disturb Tenant's possession of the Premises. In the event of a
Foreclosure (defined below), Bank agrees that the leasehold interest of Tenant under the Lease shall not be
terminated by reason of the Foreclosure, but rather the Lease shall continue in full force and effect and Bank
shall recognize and accept Tenant as tenant under the Lease subject to the provisions of the Lease except as
otherwise provided below; provided that, if Tenant shall then be in default under the Lease beyond any notice,
grace or cure period, at Bank's option the Lease shall be terminated by reason of the Foreclosure and Bank
shall have no obligation to Tenant under the Lease. As used in this Agreement, "Foreclosure" means any
non - judicial or judicial foreclosure or other enforcement of the remedies of the Deed of Trust, or any deed or
other transfer in lieu thereof.
3. ATTORNMENT. In the event of a transfer of Borrower's interest in the Property to a Purchaser
(defined below), Tenant agrees that the Lease shall continue in full force and effect and Tenant agrees to
attorn to the Purchaser as its landlord under the Lease and to be bound by all of the provisions of the Lease
for the balance of the term thereof; provided that, the Purchaser shall not be:
3.1 Liable for any act or omission of any Prior Landlord (defined below) or subject to any offsets or
defenses which Tenant might have against any Prior Landlord;
3.2 Liable for the return of any rental security deposit, or bound by any payment of rents, additional rents
or other sums which Tenant may have paid more than one month in advance to any Prior Landlord, except to
the extent such sums are actually received by Purchaser;
3.3 Bound by any amendment to the Lease, made without Bank's prior written consent;
3.4 Liable for obligations under the Lease the cost of which exceed the value of its interest in the Property
or for obligations which accrue after Purchaser has sold or otherwise transferred its interest in the Property;
3.5 Bound to install, construct or pay for any improvements on the Property, or bound to restore the
Property after a casualty for a cost in excess of proceeds recovered under any insurance required to be
carried under the Lease, or bound to restore the Property after a taking for a cost in excess of any
condemnation award;
3.6 Bound by any restriction on competition beyond the Property;
3.7 Bound by any notice of termination, cancellation or surrender of the Lease made without Bank's prior
written consent;
3.8 Bound by any environmental representation, warranty, covenant or indemnity contained in the Lease;
3.9 Bound by any option to purchase or right of first refusal with respect to the Property or any portion
thereof; and
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3.10 Bound by any representation or warranty contained in the Lease.
This attornment shall be immediately effective and self operative, without the execution of any further
instrument, upon Purchaser's acquisition of Borrower's interest in the Property. As used in this Agreement,
"Purchaser" means any transferee, including Bank, of Borrower's interest in the Property pursuant to a
Foreclosure, and the successors and assigns of such transferee, and "Prior Landlord" means any landlord,
including Borrower, under the Lease prior in time to Purchaser.
4. NOTICE TO TENANT. After written notice is given to Tenant by Bank that Borrower is in default
under the Loan and that the rentals under the Lease should be paid to Bank pursuant to the terms of the Deed
of Trust, Tenant shall thereafter pay to Bank all rent and all other sums due Borrower under the Lease.
5. NOTICE TO LENDER AND RIGHT TO CURE. Tenant shall provide written notice to Bank of any
default by Borrower under the Lease and Tenant agrees that no notice of termination of the Lease or of an
abatement of rent shall be effective unless Bank shall have received written notice of default giving rise to
such termination or abatement and shall have failed within 60 days after receipt of such notice to cure such
default, or if such default cannot be cured within 60 days, shall have failed within 60 days after receipt of such
notice to commence and thereafter diligently pursue any action necessary to cure such default, including
without limitation any action to obtain possession of the Property. Notwithstanding the foregoing, Bank shall
have no obligation to cure any such default.
6. MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit of Bank and
Tenant and their respective successors and assigns. This Agreement shall be governed and interpreted
under the laws of the state where the Property is located. This Agreement is the entire agreement of the
parties and supersedes any prior agreement with respect to its subject matter, and no provision of this
Agreement may be waived or modified except in a writing signed by all parties. If any lawsuit, arbitration or
other proceeding is brought under this Agreement, the prevailing party shall be entitled to recover the
reasonable fees and costs of its attorneys in such proceeding. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, this Agreement shall be construed without such provision. This
Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same document. Tenant represents and warrants to Bank
that this Agreement is a valid and binding agreement of Tenant and the person(s) executing this Agreement
on behalf of Tenant have the authority to do so.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Bank and Tenant have duly executed this Agreement as of the date first above
written.
ATTEST:
Agency Secretary
APPROVED AS TO FORM
Agency Counsel
UNION BANK, N.A.
By:
Name:
Title:
TENANT:
REDEVELOPMENT AGENCY OF THE CITY OF
SOUTH SAN FRANCISCO,
a public body, corporate and politic
By:
Name:
Its:
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
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State of California
County of
State of California
County of
WITNESS my hand and official seal.
WITNESS my hand and official seal.
NOTARY ACKNOWLEDGMENT
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to
the within instrument, and acknowledged to me that he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
Signature
Signature
(seal)
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to
the within instrument, and acknowledged to me that he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
(seal)
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