Attachments 5a - 5fRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Town of Los Gatos
10 E. Main Street
Los Gatos, CA 95030
Attn: Town Clerk
NO FEE FOR RECORDING PURSUANT TO
GOVERNMENT CODE SECTION 27383 AND
6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSIGNMENT AND ASSUMPTION AGREEMENT AND
MODIFICATION AGREEMENT BETWEEN SENIOR HOUSING
SOLUTIONS, TOWN OF LOS GATOS AND LOS GATOS SENIOR
HOMES LLC
($388,801 Redevelopment Low and Moderate Income Housing Funds and CDBG
Funds)
This Assignment and Assumption Agreement (the "Agreement ") is dated for reference
purposes only 2014, and is by and among the TOWN OF LOS GATOS, successor
agency to the REDEVELOPMENT AGENCY OF THE TOWN OF LOS GATOS (the "Town "),
SENIOR HOUSING SOLUTIONS, formerly known as PROJECT MATCH, INC., a California
nonprofit public benefit corporation (the "Assignor'), and LOS GATOS SENIOR HOMES LLC,
a California limited liability company (the "Assignee "). The Town, Assignor, and Assignee shall
collectively be referred to as the "Parties ".
RECITALS
A. The Redevelopment Agency of the Town of Los Gatos (the "A enc ') provided a
loan of Redevelopment Low and Moderate Income Housing Funds and Community
Development Block Grant program funds in the aggregate principal amount of Three Hundred
Eighty-Eight Thousand Eight Hundred One Dollars ($388,801) (the "Loan") to Assignor in the
acquisition of the real property located at 14390 Blossom Hill Road, Los Gatos, California, as
more particularly described in Exhibit A attached hereto (the "Pro ').
B. The Loan is evidenced by:
1. A Loan Agreement dated July 7, 2003 executed by the Agency and the
Assignor (the "Loan Agreement ");
2. A Promissory Note dated July 7, 2003 executed by the Assignor in favor
of the Agency (the "Nnte'�;
3. A Deed of Trust with Assignment of Rents and Security Agreement,
executed by the Assignor, as Trustor, dated July 7, 2003 and recorded on July 18, 2003, in the
Assign -Toav forma Agency Loan Blossom Ilill Road 12.5.14clean.doex A1TAC@ffiff 5a
Official Records of Santa Clara County ( "Official Records ") as Instrument No. 17194118 (the
"Deed of Trust "); and
3. A Regulatory Agreement and Declaration of Restrictive Covenants
executed by the Assignor and the Agency, dated July 7, 2003 and recorded on August 20, 2003,
in the Official Records as Instrument No. 17284932 (the "Regulatory Agreement ").
The Loan Agreement, the Note, the Deed of Trust, the Regulatory Agreement and any other
documents evidencing or securing the Loan are collectively referred to as the "Loan
Documents ".
C. AB IX 26 (Stats. 2011, chap. 5) enacted in June 2011, as upheld by the California
Supreme Court in a decision filed on December 29, 2011, among other things, provided for
dissolution of all redevelopment agencies in California on February 1, 2012, and, with respect to
the Agency, election by the Town to serve as the successor agency to the Agency pursuant to AB
1X 26. Pursuant to Town of Los Gatos Resolution No. 2012 -001 adopted on January 9,
2012, the Town elected to serve as the successor agency to the Agency.
D. Assignor owns a fee interest in the Property. Concurrently with the recordation of
this Agreement in the Official Records, the Assignor has, or will, convey its fee interest in the
Property to the Assignee. In accordance with the Loan Documents, the Assignor desires to
assign all of the Assignor's rights, title and obligations under the Loan Documents to the
Assignee, the Assignee desires to assume all of the Assignor's rights, title and obligations under
the Loan Documents from the Assignor, and the Town desires to consent to such assignment and
assumption of the Loan Documents and to consent to the transfer of the Property from the
Assignor to the Assignee.
E. Town and Assigned have agreed to modify the terms of the Redevelopment Low
and Moderated Income Housing Funds and CDBG Funds Documents with the following
modifications to the terms of the original Redevelopment Low and Moderated Income Housing
Funds and CDBG Funds Documents:
clarify that the minimum age for occupancy of the Property is sixty-two (62)
years old;
2. set the term of the Redevelopment Low and Moderated Income Housing Funds
and CDBG Funds Note to a date that is fifty -five (55) years from the date on which Assignee
takes title to the Property through recording of this Agreement (the "Amended Term ").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
herein by this reference, the mutual promises of the Parties hereto, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties mutually agree as follows:
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Assign -Town former Agency Loan Blossom Hill Road 12.5.14clm.docx
1. Assignment of Loan Documents by Assignor. Assignor hereby assigns and
delegates to Assignee all of the Assignor's continuing rights, title, and interest in and obligations
under the Loan Documents.
2. Amendment of Loan Documents. Town and Assignee mutually agree that the
Redevelopment Low and Moderated Income Housing Funds and CDBG Funds Documents shall
be amended and restated to include the modifications described in Recital E above.
3. Acceptance of Assignment and Assumption of Loan Documents by the Assignee.
The Assignee accepts the above assignment of the Assignor's right, title and interest in, and
assumes all of Assignor's obligations under the Loan Documents, including the Amendments
described in Recital E and agrees to perform all of Assignor's obligations and covenants under
the Loan Documents as if the Assignee were the original signatory thereto. All references in the
Loan Documents to the Assignor shall be deemed to be references to the Assignee.
4. Representations.
a. The Assignor represents and warrants that it has not previously assigned,
pledged, hypothecated or otherwise transferred any of its rights under the Loan Documents.
b. Each Party represents and warrants that it is duly formed, validly existing,
and in good standing under the laws of the State of California, and has the power and authority to
execute this Agreement and perform its respective obligations under this Agreement.
5. Consent of the Town. The Town hereby consents to the assignment to, and
assumption of, the Assignor's rights, duties, and obligations under the Loan Documents by the
Assignee and hereby releases the Assignor from the rights, duties, and obligations set forth in the
Loan Documents. The Town further consents to the transfer of the Property from Assignor to
Assignee.
6. Effective Date. This Agreement shall be effective as of the date this Agreement is
recorded in the Official Records (the "Effective Date ").
7. California Law. This Agreement shall be governed by and interpreted in
accordance with laws of the State of California.
8. Invalidi Any provision of this Agreement which is determined by a court to be
invalid or unenforceable shall be deemed severed herefrom, and the remaining provisions shall
remain in full force and effect as if the invalid or unenforceable provision had not been a part
hereof.
9. Headings. The headings used in this Agreement are for convenience only and
shall be disregarded in interpreting the substantive provisions of this Agreement.
10. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute one instrument.
[Remainder of Page Left Intentionally Blank]
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Assign -Town forma Agency Loan Blossom Hill Road 12.5.14clean.dmx
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Assign -Town former Agency Loan Blossom Hill Road 12.5.14clean.docx
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
ASSIGNOR:
SENIOR HOUSING SOLUTIONS, formerly
known as PROJECT MATCH, INC., a
California nonprofit public benefit corporation
0
Dolly Sandoval
Chair, Board of Directors
ASSIGNEE:
LOS GATOS SENIOR HOMES LLC,
a California limited liability company
By: Charities Housing Development
Corporation of Santa Clara County, a
California nonprofit public benefit
corporation, its sole member /manager
Daniel Wu
Executive Director
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Assign -Town former Agency Loan Blossom Hill Road 12.5.14clean.docx
TOWN:
TOWN OF LOS GATOS, a municipal
corporation
By:
Its:
APPROVED AS TO FORM:
LM
Its:
Assign -Town former Agency Loan Blossom Hill Road 12.5.14clean.docx
STATE OF CALIFORNIA
COUNTY OF
On before me, . Notary
Public, 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.
Name:
Notary Public
STATE OF CALIFORNIA
COUNTY OF
On , before me, I Notary
Public, 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.
Name:
Notary Public
STATE OF CALIFORNIA )
COUNTY OF )
On . before me, Notary
Public, 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.
Name:
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
The land referred to is situated in the County of Santa Clara, City of Los Gatos, State of
California, and is described as follows:
Lot 1, as shown on that certain map of Tract No. 3304, filed December 5, 1962, in Book 155 of
Maps, Pages 4 and 5, Santa Clara County Records.
EXCEPTING THEREFROM the underground water or rights thereto, with no rights of surface
entry, as granted to San Jose Water Works, a California corporation by Instrument recorded
February 20, 1963 in Book 5912, Page 667, Official Records.
APN: 527 -31 -013
A -1
LOAN AGREEMENT
(Town of Los Gatos)
Los Gatos Senior Homes LLC
This Affordable Housing Fund (Below Market Price In -Lieu Fee Fund) Loan Agreement
is entered into as of , 2014 by and between the Town of Los Gatos (the "Town "),
and Los Gatos Senior Homes LLC, a California limited liability company ( "Borrower "), with
reference to the following facts:
A. Defined terms used but not defined in these recitals are as defined in Article 1 of this
Agreement.
B. The Town has received funds for the Below Market Price (BMP) Housing Program as
In -Lieu Fees for the preservation and production of affordable housing. Such funds must
be used by the Town in accordance with the Town's adopted Below Market Price
Housing Program Guidelines.
C. The Borrower intends to acquire and rehabilitate the Property located at 14390
Blossom Hill Road, Los Gatos (the "Project "), located on certain real property as
described in Exhibit A (the "Property ").
D. Borrower wishes to borrow from the Town and the Town wishes to extend to
Borrower a loan of One Hundred, Five Thousand Dollars ($105,000) (the "Loan"). The
Loan will be evidenced by a promissory note executed by Borrower in favor of Town and
secured by a deed of trust.
E. The Loan is being made to finance acquisition and rehabilitation costs associated with
the Project in order to help improve the supply of affordable housing in the Town.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 Definitions
The following capitalized terms have the meanings set forth in this Section l .1 wherever
used in this Agreement, unless otherwise provided:
Agreement.
(a) "Agreement" means this AFFORDABLE HOUSING FUND Loan
ATTACMEW 5b
(b) "Approved Project Budget" means the proforma Project budget, including
sources and uses of funds, as approved by the Town, and attached hereto and incorporated herein
as Exhibit B.
Agreement.
(c) "Borrower" has the meaning set forth in the first paragraph of this
(d) "Funds" has the meaning set forth in Recital B.
(e) "Town" has the meaning set forth in the first paragraph of this Agreement.
(f) "Deed of Trust" means the deed of trust dated of even date herewith
among Borrower, as Trustor, and the Town, as beneficiary, that will encumber the Project to
secure repayment of the Loan and performance of the covenants of the Loan Documents. The
form of the Deed of Trust will be provided by the Town.
(g) "Default" has the meaning set forth in Section 6.1 below.
(h) "Default Rate" has the meaning set forth in Section 6.2(c).
(i) "Project" has the meaning set forth in Recital C above.
6) "Hazardous Materials" has the meaning set forth in Section 4.9 below.
(k) "Hazardous Materials Claim" has the meaning set forth in Section 4.9
below.
0) "Hazardous Materials Law" has the meaning set forth in Section 4.9
below.
(m) "Loan" means the Town's loan to Borrower pursuant to this Agreement in
the total principal amount of Fifty Four Thousand Dollars ($54,000) consisting of Affordable
Housing Loan Funds.
(n) "Loan Documents" means this Agreement, the Note, the Deed of Trust,
and any other document or agreement evidencing the Loan.
(o) "Note" means the promissory note dated of even date herewith, executed
by Borrower, evidencing Borrower's obligation to repay the Loan. The form of the Note will be
provided by the Town.
(p) "Parties" mean the Town and Borrower.
(q) "Project" has the meaning set forth in Recital C.
(r) "Property" has the meaning set forth in Recital C.
(s) "Retention Amount" means Ten Percent (10 %) of the Loan, used for
rehabilitation and subject to the disbursement conditions set forth in Section 2.6 below.
(t) "Term" means the term of this Agreement and the Loan which commences
as of the date of this Agreement and ends on December 31, 2069, or such earlier date on which
the Loan amount is forgiven pursuant to Section 2.8(c).
(u) "Transfer" has the meaning set forth in Section 4.15 below.
Section 1.2 Exhibits
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Approved Project Budget
Exhibit C: Additional Insurance Requirements
ARTICLE 2 LOAN PROVISIONS
Section 2.1 Loan.
The Town shall loan to the Borrower the Loan for the purposes set forth in Section 2.3 of
this Agreement. The obligation to repay the Loan is evidenced by the Note in the form provided
by the Town.
Section 2.2 Interest.
(a) Subject to the provisions of Section 2.2(b) below, the outstanding
principal balance of the Loan will not accrue interest.
(b) In the event of a Default, interest on the Loan shall begin to accrue, as of
the date of Default and continuing until such time as the Loan is repaid in full or the Default is
cured, at the default rate of the lesser of ten percent (10 %), compounded annually, and the highest
rate permitted by law.
Section 2.3 Use of Loan Funds.
(a) The Borrower shall use the proceeds of the Loan to fund the acquisition
and rehabilitation of the Project, consistent with the Approved Project Budget.
(b) The Borrower shall not use the Loan for any other purposes without the
prior written consent of the Town.
- - -Section 2A _ -S-runty - - - - - - - -- - - - -- - - - - - -
Borrower shall secure its obligation to repay the Loan, as evidenced by the Note, by
executing the Deed of Trust, and recording it as a lien against the Property.
Section 2.5 Conditions Precedent to Disbursement of Loan Funds.
The maximum amount of funds to be disbursed pursuant to this Section 2.5 shall not
exceed the amount of the Loan less the Retention Amount. The Town shall not be obligated to
make any disbursements of Loan funds for rehabilitation of the Project or take any other action
under the Loan Documents unless the following conditions precedent are satisfied prior to each
such disbursement of Loan funds:
(a) There exists no Default nor any act, failure, omission or condition that
would constitute an event of Default under this Agreement;
(b) The Borrower holds title to the Property or is acquiring title
simultaneously with the disbursement of the Loan proceeds;
(c) Borrower has delivered to the Town a copy of a corporate resolution
authorizing Borrower's execution of the Loan Documents;
(d) The Borrower has furnished the Town with evidence of the insurance
coverage meeting the requirements of Section 4.16 below;
(e) Borrower has caused to be executed and delivered to the Town all Loan
Documents and any other instruments, and policies required under the Loan Documents;
(f) The Deed of Trust has been recorded against the Property in the Office of
the Recorder of the Santa Clara County;
(g) A title insurer reasonably acceptable to the Town is unconditionally and
irrevocably committed to issuing an LP -10 2006 ALTA Lender's Policy of title insurance insuring
the priority of the Deed of Trust in the amount of the Loan, subject only to such exceptions and
exclusions as may be reasonably acceptable to the Town, and containing such endorsements as
the Town may reasonably require;
(h) Borrower has obtained all permits and approvals necessary for the
rehabilitation of the Project, as required by Section 3. 1, and Town has received a copy of the
building permits, if required to rehabilitate the Project (required for disbursements for hard costs
only);
(i) The Town has received and approved the final plans and specifications for
the Project, as required pursuant to Section 3.2 below;
0) The Town has received a written draw request from the Borrower,
including certification setting forth the proposed uses of funds consistent with the Approved
Project Budget, the amount of funds needed, and, where applicable, a copy of the bill or invoice
covering a cost incurred or to be incurred.
Section 2.6 Conditions Precedent to Disbursement of Retention.
The Town shall not be obligated to disburse the Retention Amount unless the following
conditions precedent are satisfied:
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(a) The Town has received from the Borrower copies of the final certificate of
occupancy for the Project, if required.
(b) The Town has received for the Borrower current evidence of the insurance
coverage meeting the requirements of Section 4.16 below.
(c) The Town has received from Borrower all relevant contract activity
information.
(d) The Town has received a written draw request from the Borrower,
including certification setting forth the proposed uses of funds consistent with the Approved
Project Budget, and, where applicable, a copy of the bill or invoice covering a cost incurred or to
be incurred.
Section 2.7 Repayment Schedule.
The Loan shall be repaid as follows:
(a) Deferred. Repayment of principal and interest on the Loan shall be
deferred for the Term of the Loan.
(b) Payment in Full. All principal and accrued interest on the Loan is due in
full in on lump sum on the earlier to occur of (i) the date of any Transfer not authorized by the
Town, and (ii) the date of any Default.
(c) Forgiveness. eness. Provided Borrower has complied with its obligations under
the Loan Documents for fifty five (55) years, the Town shall forgive the Borrower's obligation to
repay the Loan, and the Deed of Trust shall be reconveyed as alien on the Property, and neither
Party shall have any further rights or obligations hereunder, except for those obligations which
expressly survive the termination of this Agreement.
(d) Prepa ur�nent. The Borrower shall have the right to prepay the Loan at any
time without premium or penalty.
Section 2.8 Non - Recourse.
Except as provided below, neither the Borrower, nor any general or limited partner of the
Borrower, shall have any direct or indirect personal liability for payment of the principal of, and
intereston, the Loan or the performance of the covenants of the Borrower under the Deed of
Trust. Following recordation of the Deed of Trust, the sole recourse of the Town with respect to
the principal of, and interest on, the Note and defaults by Borrower in the performance of its
covenants under the Deed of Trust shall be to the property described in the Deed of Trust;
-provided, however, -that nothing -- contained in-the- for- egoing limitation of-liability shall (i) limit -or
impair the enforcement against all such security for the Note of all the rights and remedies of the
Town thereunder, or (ii) be deemed in any way to impair the right of the Town to assert the
unpaid principal amount of the Note as demand for money within the meaning and intendment of
Section 431.70 of the California Code of Civil Procedure or any successor provision thereto.
The foregoing limitation of liability is intended to apply only to the obligation for the repayment
of the principal of, and payment of interest on the Note and the performance of the Borrower's
obligations under the Deed of Trust, except as hereafter set forth; nothing contained herein is
intended to relieve the Borrower of its obligation to indemnify the Town under Sections 3.7,
4.8(b)(vi), 4.9(c) and 7.4 of this Agreement, or liability for (i) fraud or willful misrepresentation;
(ii) the failure to pay taxes, assessments or other charges which may create liens on the Property
that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent
of such taxes, assessments or other charges); (iii) the fair market value of any personal property
or fixtures removed or disposed of by Borrower other than in accordance with the Deed of Trust;
and (iv) the misappropriation of any proceeds under any insurance policies or awards 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 Property.
ARTICLE 3 REHABILITATION OF THE PROJECT
Section 3.1 Permits and Approvals.
All permits and approvals necessary for the rehabilitation of the Project have been
received.
Section 3.2 Commencement of Rehabilitation.
Borrower shall cause the commencement of rehabilitation of the Project no later than
June 2015 or such later date that the Town may approve.
Section 3.3 Completion of Rehabilitation.
Borrower shall diligently prosecute rehabilitation of the Project to completion, and shall
cause the completion of the rehabilitation of the Project no later than September, 2015, or such
later date that the Town may approve.
Section 3.4 Rehabilitation Pursuant to Plans and Laws, Prevailing Wages.
(a) Borrower shall rehabilitate the Project in conformance with the plans and
specifications approved by the Town building department, if required.
(b) Borrower shall cause all work performed in connection with the Project to
be performed in compliance with (i) all applicable laws, ordinances, rules and regulations of
federal, state, Town or municipal governments or agencies now in force or that may be enacted
hereafter, including without limitation and to the extent applicable, (ii) all directions, rules and
regulations of any fire marshal, health officer, building inspector, or other officer of every
governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed
only after procurement of each permit, license, or other authorization that may be required by any
governmental agency having jurisdiction, and Borrower shall be responsible to the Town for the
procurement and maintenance thereof, as may be required of Borrower and all entities engaged in
work on the Project. ,
Section 3.5 Equal Opportunity.
During the rehabilitation of the Project there shall be no discrimination on the basis of
race, color, creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry,
or disability in the hiring, firing, promoting, or demoting of any person engaged in the
rehabilitation work.
Section 3.6 Progress Reports.
Until such time as Borrower has received a certificate of occupancy from the Town for
the Project, Borrower shall provide the Town with quarterly progress reports regarding the status
of the rehabilitation of the Project, including a certification that the actual rehabilitation costs to
date conform to the Approved Project Budget, as it may be amended from time to time pursuant.
Section 3.7 Rehabilitation Responsibilities.
(a) It shall be the responsibility of Borrower to coordinate and schedule the
work to be performed so that commencement and completion of the rehabilitation of the Project
will take place in accordance with this Agreement.
(b) Borrower shall be solely responsible for all aspects of Borrower's conduct
in connection with the Project, including (but not limited to) the quality and suitability of the
plans and specifications, the supervision of construction work, and the qualifications, financial
condition, and performance of all architects, engineers, contractors, subcontractors, suppliers,
consultants, and property managers. Any review or inspection undertaken by the Town with
reference to the Project is solely for the purpose of determining whether Borrower is properly
discharging its obligations to the Town, and should not be relied upon by Borrower or by any
third parties as a warranty or representation by the Town as to the quality of the design or
rehabilitation of the Project.
Section 3.8 Mechanics Liens, Stop Notices, and Notices of Completion.
(a) If any claim of lien is filed against the Property or a stop notice affecting
the Loan is served on the Town or any other lender or other third party in connection with the
Project, then Borrower shall, within twenty (20) days after such filing or service, either pay and
fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to
the Town a surety bond in sufficient form and amount, or provide the Town with other assurance
satisfactory to the Town that the claim of lien or stop notice will be paid or discharged.
(b) If Borrower fails to discharge any lien, encumbrance, charge, or claim in
the manner required in this Section, then in addition to any other right or remedy, the Town may
(but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at
Borrower's expense. Alternately, the Town may require Borrower to immediately deposit with
the Town the amount necessary to satisfy such lien or claim and any costs, pending resolution
thereof. The Town may use such deposit to satisfy any claim or lien that is adversely. determined_
against Borrower. - - — -
(c) Borrower shall file a valid notice of cessation or notice of completion
upon cessation of construction on the Project for a continuous period of thirty (30) days or more,
and take all other reasonable steps to forestall the assertion of claims of lien against the Property.
Borrower authorizes the Town, but without any obligation, to record any notices of completion or
cessation of labor, or any other notice that the Town deems necessary or desirable to protect its
interest in the Project and Property.
Section 3.9 Inspections.
Borrower shall permit and facilitate, and shall require its contractors to permit and
facilitate, observation and inspection at the Project by the Town and by public authorities during
reasonable business hours for the purposes of determining compliance with this Agreement.
Section 3.10 Approved Project Budget. Revisions to Budget.
As of the date of this Agreement, the Town has approved the Approved Project Budget.
Borrower shall submit any required amendments to the Approved Project Budget to the Town for
approval within five (5) days of the date Borrower receives information indicating that actual
costs of the Project vary or will vary materially from the costs shown on the Approved Project
Budget. Written consent of the Town shall be required to materially amend the Approved
Project Budget.
ARTICLE 4 LOAN REQUIREMENTS
Section 4.8 Financial Accountings and Post - Completion Audits.
No later than sixty (60) days following completion of rehabilitation of the Project,
Borrower shall provide to Town a financial accounting of all sources and uses of funds for the
rehabilitation of the Project.
Section 4.9 Annual Operating Budget.
At least sixty (60) days prior to the end of each year of the Term, Borrower shall provide
to the Town an annual budget for the operation of the Project. Unless rejected by the Town in
writing within fifteen (15) days after receipt of the budget, said budget shall be deemed accepted.
If rejected by the Town in whole or in part, Borrower shall submit a new or corrected budget
within thirty (30) calendar days of notification of the Town's rejection and the reasons therefor.
The provisions of this Section relating to time periods for resubmission of new or corrected
budgets shall continue to apply until such budget has been approved by the Town.
Section 4.10 Information.
Borrower shall provide any information reasonably requested by the Town in connection
with the Project.
Section 4.11 Records.
(a) The Borrower shall keep and maintain at the Project, or elsewhere with the
Town's written consent, full, complete and appropriate books, record and accounts relating to the
Project, including all such books, records and accounts necessary or prudent to evidence and
substantiate'in full detail Borrower's compliance with the terms and provisions of this Agreement.
Books, records and accounts relating to Borrower's compliance with the terms, provisions,
covenants and conditions of this Agreement shall be kept and maintained in accordance with
generally accepted accounting principles consistently applied, and shall be consistent with
requirements of this Agreement. All such books, records, and accounts shall be open to and
available for inspection and copying by the Town, its auditors or other authorized representatives
at reasonable intervals during normal business hours. Copies of all tax returns and other reports
that Borrower may be required to fimrish to any governmental agency shall at all reasonable times
be open for inspection by the Town at the place that the books, records and accounts of the
Borrower are kept. The Borrower shall preserve such records for a period of not less than five (5)
years after the creation of such records in compliance with all accounting requirements. If any
litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to
the use of the Loan is pending at the end of the record retention period stated herein, then the
Borrower shall retain such records until such action and all related issues are resolved. Such
records shall include all invoices, receipts, and other documents related to expenditures from the
Loan funds. Records must be kept accurate and current and in such a form as to allow the Town
to comply with its recordkeeping requirements. Such records shall include but not be limited to:
(i) Records providing a full description of the activities undertaken with the use of
the Loan funds;
(ii) Records demonstrating compliance with the income requirements for
occupants;
(iii) Records documenting compliance with the fair housing, equal opportunity,
and affirmative fair marketing requirements;
(iv) Records demonstrating compliance with applicable relocation requirements
which must be retained for at least five (5) years after the date by which persons
displaced from the property have received final payments if applicable;
(v)Financial records as required by the Town.
(b) The Town shall notify Borrower of any records it deems insufficient.
Borrower shall have fifteen (15) calendar days after the receipt of such a notice to correct any
deficiency in the records specified by the Town in such notice, or if a period longer than fifteen
(15) days is reasonably necessary to correct the deficiency, then Borrower shall begin to correct
the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.
Section 4.12 Confidentiality. The parties_ acknowledge the need to maintain_ the_ _
confidentiality of the location of the Project and the identities of occupants of the Project.
Therefore, except as expressly required under the Loan Documents or as expressly required
under applicable laws, the parties shall not disclose any information regarding the Project or its
occupants to any third parties. The parties may, however, disclose such information to their
boards or to any lenders consultants or governmental entities to the extent necessary to obtain
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any required approvals of financing for the Project, but only if such third parties agree to
maintain the confidentiality of such information as provided in the preceding sentence.
Section 4.13 Town Audits.
Each year, Borrower shall provide the Town with a copy of Borrower's annual audit,
which shall include information on all of Borrower's activities. In addition, the Town or any
designated agent or employee of the Town at any time shall be entitled to audit all of Borrower's
books, records, and accounts pertaining thereto. Such audit shall be conducted during normal
business hours at the principal place of business of Borrower and other places where records are
kept. Immediately after the completion of an audit, the Town shall deliver a copy of the results
of such audit to Borrower. - - -
Section 4.14 Hazardous Materials.
(a) Borrower shall keep and maintain the Property in compliance with, and
shall not cause or permit the Property to be in violation of any federal, state or local laws,
ordinances or regulations relating to industrial hygiene or to the environmental conditions on,
under or about the Property including, but not limited to, soil and ground water conditions.
Borrower shall not use, generate, manufacture, store or dispose of on, under, or about the Property
or transport to or from the Property any flammable explosives, radioactive materials, hazardous
wastes, toxic substances or related materials, including without limitation, any substances defined
as or included in the definition of "hazardous substances ", " hazardous wastes ", "hazardous
materials ", or "toxic substances" under any applicable federal or state laws or regulations
(collectively referred to hereinafter as "Hazardous Materials ") except such of the foregoing as
maybe customarily used in the rehabilitation of projects like the Project or kept and used in and
about residential property of this type.
(b) Borrower shall immediately advise the Town in writing if at any time it
receives written notice of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against Borrower or the Property pursuant
to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous
Materials, ( "Hazardous Materials Law "); (ii) all claims made or threatened by any third party
against Borrower or the Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii)
above are hereinafter referred to as "Hazardous Materials Claims "); and (iii) Borrower's discovery
of any occurrence or condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be classified as "border -zone property" (as
defined in California Health and Safety Code Section 25117.4) under the provision of California
Health and Safety Code, Sections 25220 et §M., or any regulation adopted in accordance
therewith, or to be otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Hazardous Materials Law.
(c) The Town 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
Claims and to have its reasonable attorneys' fees in connection therewith paid by Borrower.
Borrower shall indemnify and hold harmless the Town and its board members, supervisors,
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directors, officers, employees, agents, successors and assigns from and against any loss, damage,
cost, expense or liability directly or indirectly arising out of or attributable to the use, generation,
storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on,
under, or about the Property including without limitation: (i) all foreseeable consequential
damages; (ii) the costs of any required or necessary repair, cleanup or detoxification of the
Property and the preparation and implementation of any closure, remedial or other required plans;
and (iii) all reasonable costs and expenses incurred by the Town in connection with clauses (i)
and (ii), including but not limited to reasonable attomeys' fees and consultant's fees. This
indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision
include, but are not limited to: (1) losses attributable to diminution in the value of the Property;
(2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing
of any rental space on the Property: and (4) penalties and fines levied by, and remedial or
enforcement actions of any kind issued by any regulatory agency (including but not limited to the
costs of any required testing, remediation, repair, removal, cleanup or detoxification of the
Property and surrounding properties). This obligation to indemnify shall survive termination of
this Agreement.
(d) Without the Town's prior written consent, which shall not be unreasonably
withheld, Borrower shall not take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Property, nor enter into any settlement agreement,
consent decree, or other compromise in respect to any Hazardous Material Claims, which
remedial action, settlement, consent decree or compromise might, in the Town's reasonable
judgment, impair the value of the Town's security hereunder; provided, however, that the Town's
prior consent shall not be necessary in the event that the presence of Hazardous Materials on,
under, or about the Property either poses an immediate threat to the health, safety or welfare of
any individual or is of such a nature that an immediate remedial response is necessary and it is not
reasonably possible to obtain the Town's consent before taking such action, provided that in such
event Borrower shall notify the Town as soon as practicable of any action so taken. The Town
agrees not to withhold its consent, where such consent is required hereunder, if (i) a particular
remedial action is ordered by a court of competent jurisdiction, (ii) Borrower will or may be
subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii)
Borrower establishes to the reasonable satisfaction of the Town that there is no reasonable
alterative to such remedial action which would result in less impairment of the Town's security
hereunder; or (iv) the action has been agreed to by the Town.
(e) Borrower hereby acknowledges and agrees that (i) this Section is intended
as the Town's written request for information (and Borrower's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warranty in this Agreement (together with any
indemnity obligation applicable to a breach of any such representation and warranty) with respect
to the environmental condition of the Property is intended by the Parties to be an "environmental
- provision" for - purposes -of- California Code -bf-Civil Procedure -Section 736.
(f) In the event that any portion of the Property is determined to be
"environmentally impaired" (as that term is defined in California Code of Civil Procedure Section
726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil
11
Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the
Town's or the trustee's rights and remedies under the Deed of Trust, the Town may elect to
exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien
on such environmentally impaired or affected portion of the Property and (2) exercise (i) the
rights and remedies of an unsecured creditor, including reduction of its claim against the borrower
to judgment, and (ii) any other rights and remedies permitted by law. For purposes of determining
the Town's right to proceed as an unsecured creditor under California Code of Civil Procedure
Section 726.5(a), the Borrower shall be deemed to have willfully permitted or acquiesced in a
release or threatened release of Hazardous Materials, within the meaning of California Code of
Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials
was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any
portion of the Property and the Borrower knew or should have known of the activity by such
lessee, occupant, or user which caused or contributed to the release or threatened release. All
costs and expenses, including (but not limited to) attorneys' fees, incurred by the Town in
connection with any action commenced under this paragraph, including any action required by
California Code of Civil Procedure Section 726.5(b) to determine the degree to which the
Property is environmentally impaired, plus interest thereon at the lesser of ten percent (10 %) and
the maximum rate permitted by law, until paid, shall be added to the indebtedness secured by the
Deed of Trust and shall be due and payable to the Town upon its demand made at any time
following the conclusion of such action.
Section 4.15 Maintenance and Damage.
(a) During the course of both rehabilitation and operation of the Project,
Borrower shall maintain the Property and the Project in good repair and in a neat, clean and
orderly condition. If there arises a condition in contravention of this requirement, and if Borrower
has not cured such condition within thirty (30) days after receiving a Town notice of such a
condition, then in addition to any other rights available to the Town, the Town shall have the right
to perform all acts necessary to cure such condition, and to establish or enforce a lien or other
encumbrance against the Property.
(b) Subject to the requirements of Senior Lenders, and if economically
feasible in the Town's reasonable judgment after consultation with the Borrower, if any
improvement now or in the future on the Property is damaged or destroyed, then Borrower shall,
at its cost and expense, diligently undertake to repair or restore such improvement consistent with
the plans and specifications approved by the Town with such changes as have been approved by
the Town. Such work or repair shall be commenced no later than the later of one hundred twenty
(120) days, or such longer period approved by the Town in writing, after the damage or loss
occurs or thirty (30) days following receipt of the insurance proceeds, and shall be complete
within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction
shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be
insufficient for such purpose, then Borrower shall make up the deficiency. If Borrower does not
make repairs, then any insurance proceeds collected for such damage or destruction shall be
retained for repayment to Lender, if repayment of the Loan is required under this Agreement,
subject to the rights of the Senior Lenders.
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Section 4.16 Fees and Taxes.
Borrower shall be solely responsible for payment of all fees, assessments, taxes, charges,
and levies imposed by any public authority or utility company with respect to the Property or the
Project to the extent owned by Borrower, and shall pay such charges prior to delinquency.
However, Borrower shall not be required to pay and discharge any such charge so long as (a) the
legality thereof is being contested diligently and in good faith and by appropriate proceedings,
and (b) if requested by the Town, Borrower deposits with the Town any funds or other forms of
assurance that the Town in good faith from time to time determines appropriate to protect the
Town from the consequences of the contest being unsuccessful.
Section 4.17 Notice of Litigation.
Borrower shall promptly notify the Town in writing of any litigation which has the
potential to materially affect Borrower or the Property and of any claims or disputes that involve
a material risk of such litigation.
Section 4.18 Operation of Project as Affordable Housing.
(a) Borrower shall operate the Project (i) as affordable housing for seniors
earning no more than 50% of area median income for Santa Clara County as determined by HUD.
(b) The Borrower must determine the income eligibility of each tenant
household pursuant to the Town's approved tenant certification procedures prior to the
household's expected occupancy of the Project. The Borrower shall certify each tenant
household's income on an annual basis.
Section 4.19 Nondiscrimination.
(a) The Borrower covenants by and for itself and its successors and assigns
that, except as legally permitted, there shall be no discrimination against or segregation of a
person or of a group of persons on account of race, color, religion, creed, age, disability, sex,
sexual orientation, marital status, source of income, ancestry or national origin in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Borrower or
any person claiming under or through the Borrower establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property. The foregoing
covenant shall run with the land. If the Project is assisted with Section 8 Project -based vouchers,
the Borrower may apply such tenant selection standards as are permitted under the Section 8
Project -based voucher program regulations.
Section 4.20 Transfer.
-- - - - --fa)— — Forpurpases- of-this-Agreememt, "Tr-aft&fer" shall mean any sale, - -- — — -
assignment, or transfer, whether voluntary or involuntary, of (i) any rights and /or duties under this
Agreement, and/or (ii) any interest in the Project, including (but not limited to) a fee simple
interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security
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interest, or an interest evidenced by a land contract by which possession of the Project is
transferred and Borrower retains title.
(b) No Transfer shall be permitted without the prior written consent of the
Town, which the Town may withhold in its sole discretion. The Loan shall automatically
accelerate and be due in full upon any Transfer made without the prior written consent of the
Town.
Section 4.21 Insurance Requirements.
The Borrower shall maintain the insurance set forth in Exhibit C and the following
insurance coverage throughout the Term of the Loan:
(a) Worker's Compensation insurance to the extent required by law, including
Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each
accident.
(b) Comprehensive General Liability insurance with limits not less than One
Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and
Property Damage, including coverages for Contractual Liability, Personal Injury, Broad form
Property Damage, Products and Completed Operations.
(c) Comprehensive Automobile Liability insurance with limits not less than
One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and
Property Damage, including coverages for owned, non -owned and hired vehicles, as applicable.
(d) Upon completion of rehabilitation, property insurance covering the
Project, in form appropriate for the nature of such property, covering all risks of loss, excluding
earthquake, for one hundred percent (100 %) of the replacement value, with deductible, if any,
acceptable to the Town, naming the Town as a Loss Payee, as its interests may appear.
(e) Blanket Fidelity Bond covering all officers and employees, for loss of
Loan proceeds caused by dishonesty, in an amount not less than the amount of the Loan, naming
the Town as a Loss Payee, as its interests may appear.
(f) The Borrower shall cause any general contractor, agent, or subcontractor
working on the Project under direct contract with the Borrower or subcontract to maintain
insurance of the types and in at least the minimum amounts described in subsections (a), (b), and
(c) above, except that the limit of liability for comprehensive general liability insurance for
subcontractors shall be One Million Dollars ($1,000,000), and shall require that such insurance
shall meet all of the general requirements of subsections (g), (h), and (i) below.
(g) The required insurance shall be provided under an occurrence form, and
Borrower shall maintain the coverage described in subsections (a) through (d) continuously
throughout the Term. Should any of the required insurance be provided under a form of coverage
that includes an annual aggregate limit or provides that claims investigation or legal defense costs
be included in such annual aggregate limit, such annual aggregate limit shall be three times the
occurrence limits specified above.
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(h) Comprehensive and General Liability and Comprehensive Automobile
Liability insurance policies shall be endorsed to name as an additional insured the Town and its
officers, agents, employees and members of the Town Board of Supervisors.
(i) All policies and bonds shall contain (i) an agreement that such policies are
Primary and non - contributing with any insurance that may be carried by the Town; (ii) a provision
that no act or omission of the Borrower shall affect or limit the obligation of the insurance carrier
to pay the amount of any loss sustained; and (iii) a waiver by the insurer of all rights of
subrogation against the Town and its authorized parties in connection with any loss or damage
thereby insured against.
Section 4.22 Payment of Other Indebtedness: Notice of Defaults.
(a) Borrower shall promptly pay the principal and interest when due on any
other indebtedness related to the Project.
(b) Borrower shall promptly notify the Town in writing of any defaults
declared under any other financing for the Project by the lender of such financing.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 5.1 Representations and Warranties.
Borrower hereby represents and warrants to the Town as follows:
(a) Organization. Borrower is a duly organized California limited liability
company, validly existing and in good standing under the laws of the State of California and has
the power and authority to own its property and carry on its business as now being conducted.
(b) Authority of Borrower. Borrower has full power and authority to execute
and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to
execute and deliver the Loan Documents and all other documents or instruments executed and
delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and
observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and the
Loan Documents and all other documents or instruments executed and delivered, or to be
executed and delivered, pursuant to this Agreement have been executed and delivered by persons
who are duly authorized to execute and deliver the same for and on behalf of Borrower, and all
actions required under Borrower's organizational documents and applicable governing law for the
authorization, execution, delivery and performance of this Agreement and the Loan Documents
and all - other-documents - or-instroments- executed and delivered, -or to be executed and delivered, -
pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. This Agreement and the Loan Documents and
all other documents or instruments which have been executed and delivered pursuant to or in
15
connection with this Agreement constitute or, if not yet executed or delivered, will when so
executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable
against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement and the Loan Documents or of any other documents or instruments executed and
delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any
provision, condition, covenant or other term hereof or thereof, will conflict with or result in a
breach of any statute, rule or regulation, or any judgment, decree or order of any court, board,
commission or agency whatsoever binding on Borrower, or any provision of the organizational
documents of Borrower, or will conflict with or constitute a breach of or a default under any
agreement to which Borrower is a party, or will result in the creation or imposition of any lien
upon any assets or property of Borrower, other than liens established pursuant hereto.
(f) Compliance With Laws, and Approvals. The rehabilitation of
the Project will comply with all applicable laws, ordinances, rules and regulations of federal, state
and local governments and agencies and with all applicable directions, rules and regulations of the
fire marshal, health officer, building inspector and other officers of any such government or
agency.
(g) Pending Proceedings. Borrower is not in default under any law or
regulation or under any order of any court, board, commission or agency whatsoever, and there
are no claims, actions, suits or proceedings pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or the Property, at law or in equity, before or by any court, board,
commission or agency whatsoever which might, if determined adversely to Borrower, materially
affect Borrower's ability to repay the Loan or impair the security to be given to the Town pursuant
hereto.
(h) Title to Land. At the time of recordation of the Deed of Trust, Borrower
will have good and marketable fee title to the Project and there will exist thereon or with respect
thereto, and except for the loan from Housing Trust of Santa Clara County a California nonprofit
public benefit corporation, successor by assignment to Opportunity Fund Northern California,
formerly known as Lenders for Community Development in the amount of $60,000
and the County of Santa Clara loans in the principal amounts of $169,150 (Loan RRP- 527 -31-
013) and $90,493 (Loan HO- 04 -04) and $72, 359 (Loan NC- 04 -11) 1 no mortgage, lien, pledge or
other encumbrance of any character whatsoever other than liens for current real property taxes
and liens in favor of the Town
(i) Financial Statements. The financial statements of Borrower and other
financial data and information furnished by Borrower to the Town fairly and accurately present
the information contained therein. As of the date of this Agreement, there has not been any
adverse, material change in the financial condition of Borrower. from that shown by such financial
statements and other data and information.
0) Sufficient Funds. Borrower holds sufficient funds and/or binding
commitments for sufficient funds to complete the acquisition of the Property and the
rehabilitation of the Project in accordance with the plans and specifications approved by the
Town.
Fro
AA Taxes. Borrower and its subsidiaries have filed all federal and other
material tax returns and reports required to be filed, and have paid all federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
income or the Property otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with generally accepted accounting principles. There is no proposed tax assessment
against Borrower or any of its subsidiaries that could, if made, be reasonably expected to have a
material adverse effect upon the Property, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Borrower and its subsidiaries, taken as a whole, which
would be expected to result in a material impairment of the ability of Borrower to perform under
any Loan Document to which it is a party, or a material adverse effect upon the legality, validity,
binding effect or enforceability against Borrower of any Loan Document.
ARTICLE 6 DEFAULT AND REMEDIES
Section 6.1 Events of Default.
Each of the following shall constitute a "Default" by Borrower under this Agreement:
(a) Failure to Construct. Failure of Borrower to commence and complete
rehabilitation of the Project within the times set forth in Article 3 above;
(b) Failure to Make Payment. Failure to repay the principal and any interest
on the Loan within ten (10) days after receipt of written notice from the Town that such payment
is due pursuant to the Loan Documents.
(c) Breach of Covenants. Failure by Borrower to duly perform, comply with,
or observe any of the conditions, terms, or covenants of any of the Loan Documents, and such
failure having continued uncured for thirty (30) days after receipt of written notice thereof from
the Town to the Borrower or, if the breach cannot be cured within thirty (30) days, the Borrower
shall not be in breach so long as Borrower is diligently undertaking to cure such breach and such
breach is cured within ninety (90) days; provided, however, that if a different period or notice
requirement is specified under any other section of this Article 6, the specific provisions shall
control
(d) Default Under Other Loans. A default is declared under any other
financing for the Project by the lender of such financing.
(e) Insolvencv. A court having jurisdiction shall have made or entered any
decree or order (i) adjudging Borrower or Borrower's general partner, if Borrower is a
partnership, or Borrower's managing member, if Borrower is a limited liability company, to be
bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of
Borrower or Borrower's generaal partner, if Borrower is a partnership, or Borrower's managing
member, if Borrower is a limited liability company, or seeking any arrangement for Borrower or
Borrower's general partner, if Borrower is a partnership, or Borrower's managing member, if
Borrower is a limited liability company, under the bankruptcy law or any other applicable debtor's
relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a
17
receiver, trustee, liquidator, or assignee of Borrower or Borrower's general partner, if Borrower is
a partnership, or Borrower's managing member, if Borrower is a limited liability company, in
bankruptcy or insolvency or for any of their properties, (iv) directing the winding up or
liquidation of Borrower or Borrower's general partner, if Borrower is a partnership, or Borrower's
managing member, if Borrower is a limited liability company, if any such decree or order
described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a
period of ninety (90) calendar days; or (v) Borrower or Borrower's general partner, if Borrower is
a partnership, or Borrower's managing member, if Borrower is a limited liability company, shall
have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily
submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to
(iv), inclusive. The occurrence of any of the events of Default in this paragraph shall act to
accelerate automatically, without the need for any action by the Town, the indebtedness
evidenced by the Note.
(f) Assignment; Attachment. Borrower or Borrower's general partner, if
Borrower is a partnership, or Borrower's managing member, if Borrower is a limited liability
company, shall have assigned its assets for the benefit of its creditors 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) calendar days after such event or, if sooner, prior to sale pursuant to such
sequestration, attachment, or execution. The occurrence of any of the events of default in this
paragraph shall act to accelerate automatically, without the need for any action by the Town, the
indebtedness evidenced by the Note.
(g) Suspension; Termination. Borrower or Borrower's general partner, if
Borrower is a partnership, or Borrower's managing member, if Borrower is a limited liability
company, shall have voluntarily suspended its business or, if Borrower is a partnership, the
partnership shall have been dissolved or terminated, other than a technical termination of the
partnership for tax purposes.
(h) Liens on Property and the Proiect. There shall be filed any claim of lien
(other than liens approved in writing by the Town) against the Project or any part thereof, or any
interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the
Loan and the continued maintenance of said claim of lien or notice to withhold for a period of
twenty (20) days, without discharge or satisfaction thereof or provision therefor (including,
without limitation, the posting of bonds) satisfactory to the Town.
(i) Condemnation. The condemnation, seizure, or appropriation of all or the
substantial part of the Property and the Project.
0) Unauthorized Transfer. Any Transfer other than as permitted by
Section 4.21.
(k) Representation or Warranty Incorrect. Any Borrower representation or
warranty contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the Town in connection with any of the Loan Documents, proving to have
been incorrect in any material respect when made. After issuance of the certificates of occupancy
m
for the Project, Default may be declared under this subsection only if the failure of representation
or warranty also has a material adverse effect on the operation of the Project.
Section 6.2 Remedies.
The occurrence of any Default hereunder following the expiration of all applicable notice
and cure periods will, either at the option of the Town or automatically where so specified,
relieve the Town of any obligation to make or continue the Loan and shall give the Town the
right to proceed with any and all remedies set forth in this Agreement and the Loan Documents,
including but not limited to the following:
(a) Acceleration of Note. The Town shall have the right to cause all
indebtedness of the Borrower to the Town under this Agreement and the Note, together with any
accrued interest thereon, to become immediately due and payable. The Borrower waives all right
to presentment, demand, protest or notice of protest or dishonor. The Town may proceed to
enforce payment of the indebtedness and to exercise any or all rights afforded to the Town as a
creditor and secured party under the law including the Uniform Commercial Code, including
foreclosure under the Deed of Trust. The Borrower shall be liable to pay the Town on demand all
reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees and
expenses) paid or incurred by the Town in connection with the collection of the Loan and the
preservation, maintenance, protection, sale, or other disposition of the security given for the Loan.
(b) Specific Performance. The Town shall have the right to mandamus or
other suit, action or proceeding at law or in equity to require Borrower to perform its obligations
and covenants under the Loan Documents or to enjoin acts on things which may be unlawful or in
violation of the provisions of the Loan Documents.
(c) Right to Cure at Borrower's Exnense. The Town shall have the right (but
not the obligation) to cure any monetary default by Borrower under a loan other than the Loan.
The Borrower agrees to reimburse the Town for any funds advanced by the Town to cure a
monetary default by Borrower upon demand therefor, together with interest thereon at the lesser
of the maximum rate permitted by law and ten percent (10 1/6) per annum (the "Default Rate ")
from the date of expenditure until the date of reimbursement.
Section 6.3 Right of Contest.
Borrower shall have the right to contest in good faith any claim, demand, levy, or
assessment the assertion of which would constitute a Default hereunder. Any such contest shall
be prosecuted diligently and in a manner unprejudicial to the Town or the rights of the Town
hereunder.
Section 6.4 Remedies Cumulative.
No rig —lit, power, or remedy given to the Town by the terms of this Agreement or the
Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and
every such right, power, or remedy shall be cumulative and in addition to every other right,
power, or remedy given to the Town by the terms of any such instrument, or by any statute or
otherwise against Borrower and any other person. Neither the failure nor any delay on the part
19
of the Town to exercise any such rights and remedies shall operate as a waiver thereof, nor shall
any single or partial exercise by the Town of any such right or remedy preclude any other or
further exercise of such right or remedy, or any other right or remedy.
ARTICLE 7 GENERAL PROVISIONS
Section 7.1 Relationship of Parties.
Nothing contained in this Agreement shall be interpreted or understood by any of the
Parties, or by any third persons, as creating the relationship of employer and employee, principal
and agent, limited or general partnership, or joint venture between the Town and Borrower or its
agents, employees or contractors, and Borrower shall at all times be deemed an independent
contractor and shall be wholly responsible for the manner in which it or its agents, or both,
perform the services required of it by the terms of this Agreement. Borrower has and retains the
right to exercise full control of employment, direction, compensation, and discharge of all
persons assisting in the performance of services under the Agreement. In regards to the
rehabilitation and operation of the Project, Borrower shall be solely responsible for all matters
relating to payment of its employees, including compliance with Social Security, withholding,
and all other laws and regulations governing such matters, and shall include requirements in each
contract that contractors shall be solely responsible for similar matters relating to their
employees. Borrower shall be solely responsible for its own acts and those of its agents and
employees.
Section 7.2 No Claims.
Nothing contained in this Agreement shall create or justify any claim against the Town
by any person that Borrower may have employed or with whom Borrower may have contracted
relative to the purchase of materials, supplies or equipment, or the furnishing or the performance
of any work or services with respect to the purchase of the Property, the construction or
operation of the Project, and Borrower shall include similar requirements in any contracts
entered into for the construction or operation of the Project.
Section 7.3 Amendments.
No alteration or variation of the terms of this Agreement shall be valid unless made in
writing by the Parties. Town Manager or other designee is authorized to execute on behalf of the
Town amendments to the Loan Documents or amended and restated Loan Documents as long as
any material change in the amount or terms of this Agreement is approved by the Town.
Section 7.4 Indemnification.
The Borrower shall indemnify, defend and hold the Town harmless against any and all
claims, suits, actions, losses and liability of every kind, nature and description made against it
and expenses (including reasonable attorneys' fees) which arise out of or in connection with this
Agreement, including but not limited to the purchase of the Property, Project, construction,
marketing and operation of the Project, except to the extent such claim arises from the grossly
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negligent or willful misconduct of the Town, its agents, and its employees. The provisions of
this Section shall survive the expiration of the Term and the reconveyance of the Deed of Trust.
Section 7.5 Non - Liability of Town Officials Employees and Agents.
No member, official, employee or agent of the Town shall be personally liable to
Borrower in the event of any default or breach by the Town or for any amount which may
become due to Borrower or its successor or on any obligation under the terms of this Agreement.
Section 7.6 No Third Party Beneficiaries.
There shall be no third party beneficiaries to this Agreement.
Section 7.7 Discretion Retained By Town.
The Town's execution of this Agreement in no way limits the discretion of the Town in
the permit and approval process in connection with Project of the Project.
Section 7.8 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in Section 7.8(b) below who exercises or has exercised any functions or responsibilities
with respect to the activities funded pursuant to this Agreement or who is in a position to
participate in a decision - making process or gain inside information with regard to such activities,
may obtain a personal or financial interest or benefit from the activity, or have an interest in any
contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for
themselves or those with whom they have family or business ties, during, or at any time after,
such person's tenure. Borrower shall exercise due diligence to ensure that the prohibition in this
Section 7.8(a) is followed.
(b) The conflict of interest provisions of Section 7.8(a) above apply to any
person who is an employee, agent, consultant, officer, or any immediate family member of such
person, or any elected or appointed official of the Town, or any person related within the third
(3rd) degree of such person.
(c) In accordance with Government Code Section 1090 and the Political
Reform Act, Government Code section 87100 et sec ., no person who is a director, officer, partner,
trustee or employee or consultant of the Borrower, or immediate family member of any of the
preceding, shall make or participate in a decision, made by the Town or a Town board,
commission or committee, if it is reasonably foreseeable that the decision will have a material
effect on any source of income, investment or interest in real property of that person or Borrower.
Interpretation of this section shall be governed by the definitions and provisions used in the
Political Reform Act, Government Code Section 87100 et s its implementing regulations — - -
manual and codes, and Government Code Section 1090.
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Section 7.9 Notices, Demands and Communications.
Formal notices, demands, and communications between the Parties shall be sufficiently
given if and shall not be deemed given unless dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered by express delivery service, return receipt
requested, or delivered personally, to the principal office of the Parties as follows:
Town: Town of Los Gatos
110 E Main Street
Los Gatos, CA 95030
Attn: Town Clerk
Borrower: Los Gatos Senior Homes LLC
c/o Charities Housing Project Corporation
1400 Parkmoor Avenue, Suite 190
San Jose, CA 95126
Attn: Executive Director
Such written notices, demands and communications may be sent in the same manner to such
other addresses as the affected Party may from time to time designate by mail as provided in this
Section. Receipt shall be deemed to have occurred on the date shown on a written receipt as the
date of delivery or refusal of delivery (or attempted delivery if undeliverable).
Section 7.10 Applicable Law.
This Agreement shall be governed by and construed in accordance with California law.
Section 7.11 Parties Bound.
Except as otherwise limited herein, the provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal
representatives, successors, and assigns. This Agreement is intended to run with the land and
shall bind Borrower and its successors and assigns in the Property and the Project for the entire
Term, and the benefit hereof shall inure to the benefit of the Town and its successors and assigns.
Section 7.12 Attome, sy Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing
Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other
Party.
Section 7.13 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
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Section 7.14 Force Maieure.
In addition to specific provisions of this Agreement, performance by either Party shall not
be deemed to be in Default where delays or defaults are due to war, insurrection, strikes, lock-
outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of
transportation, or court order. An extension of time for any cause will be deemed granted if
notice by the Party claiming such extension is sent to the other within ten (10) days from the
commencement of the cause and such extension of time is not rejected in writing by the other
Party within ten (10) days of receipt of the notice.
Section 7.15 Town Approval.
The Town has authorized Town Manager to execute the Loan Documents and deliver
such approvals or consents as are required by this Agreement, and to execute estoppel
certificates concerning the status of the Loan and the existence of Borrower defaults under the
Loan Documents. Any consents or approvals required under this Agreement shall not be
unreasonably withheld or made, except where it is specifically provided that a sole discretion
standard applies. The Town shall not unreasonably delay in reviewing and approving or
disapproving any proposal by Borrower made in connection with this Agreement.
Section 7.16 Waivers.
Any waiver by the Town of any obligation or condition in this Agreement must be in
writing. No waiver will be implied from any delay or failure by the Town to take action on any
breach or default of Borrower or to pursue any remedy allowed under this Agreement or
applicable law. Any extension of time granted to Borrower to perform any obligation under this
Agreement shall not operate as a waiver or release from any of its obligations under this
Agreement. Consent by the Town to any act or omission by Borrower shall not be construed to
be a consent to any other or subsequent act or omission or to waive the requirement for the
Town's written consent to future waivers.
Section 7.17 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of
reference only and shall be disregarded in interpreting any part of the Agreement's provisions.
Section 7.18 Entire Understanding of the Parties
This Agreement constitutes the entire understanding and agreement of the Parties with
respect to the Loan.
Section 7.19 Multiple Originals, Counteroart.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
041
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WHEREAS, this Agreement has been entered into by the undersigned as of the date first
above written.
TOWN:
TOWN OF LOS GATOS
By:
Name:
Its:
BORROWER:
LOS GATOS SENIOR HOMES LLC,
a California limited liability company
By: Charities Housing Development Corporation of
Santa Clara County, its sole member /manager
LN
Name: Dan Wu
Title: Executive Director
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land is situated in the State of California, County of Santa Clara, Town of Los Gatos,
and is described as follows:
A -1
APPROVED PROJECT BUDGET
EXHIBIT C
ADDITIONAL INSURANCE REQUIREMENTS
Without limiting any other obligation or liability under this Agreement, the Borrower, at its sole cost and expense, shall secure
and keep in force during the entire term of the Agreement or longer, as may be specified below, the following insurance
coverage, limits and endorsements:
TYPE OF INSURANCE COVERAGES
MINIMUM LIMITS
A
Commercial General Liability
$1,000,000 per occurrence (CSL)
Premises Liability; Products and Completed Operations; Contractual Liability; Personal
Bodily Injury and Property Damage
Injury and Advertising Liability
B
Commercial or Business Automobile Liability
$1,000,000 per occurrence (CSL)
All owned vehicles, hired or leased vehicles, non - owned, borrowed and permissive uses.
Any Auto
Bodily Injury and Property Damage
C
Workers' Compensation (WC) and Employers Liability (EL)
WC: Statutory Limits
Required for all contractors with employees
EL: $100,000 per accident for bodily injury or disease
D
Course of Construction lBuildees Risk All Risk
$ Value of Completed project or materials
E
Endorsements and Conditions:
1. ADDITIONAL INSURED: General Liability and Automobile Liability Policies shall be endorsed to name as additional Insured: Town of Los Gatos,
and all Town officers, agents, employees and volunteers.
2. DURATION OF COVERAGE: All required insurance shall be maintained during the entire term of the Agreement with the following exception: Insurance
policies and coverage(s) written on a claims -made basis shall be maintained during the entire term of the Agreement and until 3 year; following termination
and acceptance of all work provided under the Agreement, with the retroactive date of said insurance (as may be applicable) concurrent with the
commencement of activities pursuant to this Agreement.
3. REDUCTION OR LIMIT OF OBLIGATION: All insurance policies shall be primary insurance to any insurance available to the Indemnified Parties and
Additional Insured(s). Pursuant to the provisions of this Agreement, insurance effected or procured by the Contractor shall not reduce or limit Contractors
contractual obligation to indemnify and defend the Indemnified Parties.
4. INSURER FINANCIAL RATING: Insurance shall be maintained through an insurer with a A.M. Best Rating of no less than A:VII or equivalent, shall be
admttted to the State of California unless otherwise waived by Risk Management, and with deductible amounts acceptable to the Town. Acceptance of
Contractors insurance by Town shall not relieve or decrease the liability of Contractor hereunder. Any deductible or seff4nsured retention amount or other
similar obligation under the policies shall be the sole responsibility of the Contractor.
5. SUBCONTRACTORS: Contractor shall include all subcontractors as an insured (covered party) under its policies or shall furnish separate certificates and
endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements staled herein.
6. JOINT VENTURES: If Contractor is an association, partnership or other joint business venture, required insurance shall be provided by any one of the
following methods:
— Separate insurance policies issued for each individual entity, with each entity included as a'Named Insured (covered party), or at minimum named as
an 'Additional Insured' on the others policies.
— Joint insurance program with the association, partnership or other joint business venture included as a'Named Insured.
7. CANCELLATION OF INSURANCE: All required insurance shall be endorsed to provide thirty (30) days advance written notice to the Town of cancellation.
8. CERTIFICATE OF INSURANCE: Before commencing operations under this Agreement, Contractor shall provide Certificate(s) of Insurance and applicable
insurance endorsements, in form and satisfactory to Town, evidencing that all required insurance coverage is in effect. The Town reserves the rights to
require the Contractor to provide complete, certified copies of all required insurance policies. The require certificate(s) and endorsements must be sent to:
- DepartmenUAgency issuing the contract
- With a copy to Town
A -ii
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OFFICIAL BUSINESS.
Document entitled to free
recording per Government
Code Section 6103.
Recording Requested by and
When Recorded Mail to:
TOWN OF LOS GATOS
110 E Main Street
Los Gatos, CA 95030
Attn: Town Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SUBORDINATION AND INTERCREDITOR AGREEMENT
NOTICE: THIS SUBORDINATION AND INTERCREDITOR AGREEMENT
RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY
BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN
THE LIEN(S) OF SOME OTHER OR LATER SECURITY
INSTRUMENT.
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT
("Agreement") is made as of . 2014, by and among LOS GATOS
SENIOR HOMES LLC, a California limited liability company ("Borrower "), TOWN OF
LOS GATOS (the "Town "), TOWN OF LOS GATOS, successor agency to the
REDEVELOPMENT AGENCY OF THE TOWN OF LOS GATOS (the "Former
Agency "), HOUSING TRUST SILICON VALLEY, formerly known as HOUSING
TRUST OF SANTA CLARA COUNTY, a California nonprofit public benefit
corporation (the "Housing Trust "), and the COUNTY OF SANTA CLARA, a political
subdivision of the State of California (the "County").
RECITALS
A. Concurrently herewith, the Borrower is acquiring from Senior Housing
Solutions, a California nonprofit public benefit corporation ( "SHS ") the real property and
improvements thereon located at 14390 Blossom Hill Road, Los Gatos, California
("Blossom Hill Road "), which is more particularly described in the attached Exhibit A.
B. Blossom Hill is currently encumbered by the following liens and
encumbrances:
ATTACm4M 5c
(i) a loan to SHS, formerly known as Project Match, Inc., in the
original amount of $388,000 from the Former Agency which is secured by a deed
of trust recorded in the Official Records on July 18, 2003, as Instrument No.
17194118 and a regulatory agreement and declaration of restrictive covenants
recorded in the Official Records on August 20, 2003, as Instrument 17284932
(collectively, the "Former Agency Blossom Hill Loan Documents ");
(ii) a loan to SHS, formerly known as Project Match, Inc., in the
original amount of $60,000 from the Housing Trust, successor by assignment to
Lenders for Community Development, secured by a deed of trust recorded in the
Official Records on July 18, 2003, as Instrument No. 17194119, an assignment of
rents recorded in the Official Records on July 18, 2003, as Instrument No.
17194120, a hazardous substances certificate and indemnity agreement recorded
in the Official Records on July 23, 2003, as histrument No. 17211287 and a
hazardous substances certificate and indemnity agreement recorded in the Official
Records on July 23, 2003, as Instrument No. 17211288 (collectively, the
"Housing Trust Blossom Hill Loan Documents "); and
(iii) a loan to SHS, formerly known as Project Match, Inc., in the
amount of $169,150 from the County secured by a deed of trust recorded in the
Official Records on August 5, 2005, as Instrument No. 18511969, a loan to SHS,
formerly known as Project Match, Inc., in the amount of $90,493 from the County
secured by a deed of trust recorded in the Official Records on August 5, 2005, as
Instrument No. 18511970 and a loan to SHS, formerly known as Project Match,
Inc., in the amount of $72,359 from the County secured by a deed of trust
recorded in the Official Records on August 5, 2005, as Instrument No. 18511971
(collectively, the "County Blossom Hill Loan Documents ").
C. Concurrently herewith, SHS will be assigning to the Borrower and
Borrower will be assuming SHS's obligations under each of the Former Agency Blossom
Hill Loan Documents, the Housing Trust Blossom Hill Loan Documents and the County
Blossom Hill Loan Documents.
D. Concurrently herewith, the Town is providing a forgivable loan to the
Borrower in the amount of $105,000 (the "Town Senior Loan"). The Town Senior Loan
is evidenced by a Loan Agreement dated as of ' 2014 (the "Town
Senior Loan Agreement"), between the Town and the Borrower and a Promissory Note in
the amount of $105,000 (the "Town Senior Note "), and is secured by, among other
things, a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of , 2014, recording concurrently herewith in the Official
Records on Blossom Hill (the "Town Senior Deed of Trust"), and a Regulatory
Agreement and Declaration of Restrictive Covenants, dated as of
2014, recording concurrently herewith in the Official Records on Blossom Hill (the
"Town Senior Regulatory Agreement ") and all other agreements, instruments and
documents (together with all amendments thereto and modifications and replacements
thereof) now or hereafter executed by Borrower, which evidence, secure or otherwise
2
support Borrower's obligations under or with respect to the Town Senior Loan
(collectively, the "Town Senior Loan Documents ").
E. Subject to the provisions of this Agreement, the Borrower, the Town, the
Former Agency, the Housing Trust, and the County acknowledge and agree as a
condition of the Town making the Town Senior Loan that the order of priority of their
respective liens on Blossom Hill, respectively, be as follows:
(1) the Town Senior Loan Documents;
(2) the Former Agency Blossom Hill Loan Documents;
(3) the Housing Trust Blossom Hill Loan Documents; and
(4) the County Blossom Hill Loan Documents.
F. The parties agree that it is to their mutual benefit that the Town makes the
Town Senior Loan to the Borrower and each of the parties is willing to specifically and
unconditionally subordinate its respective grant and loan documents to achieve and
maintain the order of priority listed in Recital E.
THEREFORE, in consideration of the mutual benefits accruing to the parties and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Town, the Former Agency, the Housing Trust, OFNC
and the County hereby agree as follows:
1. Seniority of Town Senior Loan. The Town Senior Loan and the Town Senior
Loan Documents, together with any advances by the Town, shall at all times be prior and
superior to the liens or charges of (a) the Former Agency Blossom Hill Loan Documents;
(b) the Housing Trust Blossom Hill Loan Documents; and (d) the County Blossom Hill
Loan Documents.
2. Seniority of Former Agency Grant and Loan. The Former Agency Blossom Hill
Loan Documents shall at all times be prior and superior to the liens or charges of (a) the
Housing Trust Blossom Hill Loan Documents; and (c) the County Blossom Hill Loan
Documents.
3. Seniority of Housing Trust Loan. The Housing Trust Blossom Hill Loan
Documents shall at all times be prior and superior to the liens or charges of the County
Blossom Hill Loan Documents.
4. Necessity For Subordination Agreement. The Town would not make the Town
Senior Loan described in this Agreement without this Subordination Agreement.
5. Entire Agreement. This Agreement shall be the whole and only agreement with
regard to the priority and seniority of the Borrower, the Town, the Former Agency, the
Housing Trust and the County Senior, Lender Loan, and shall supersede and cancel, but
only insofar as would affect the priority among the loans and documents referred to
hereinabove, any prior agreements as to such subordination including, but not limited to,
Q
those provisions, if any, contained in any of such loans and documents which provide for
the subordination of the lien or charge thereof to another loan or loans, document or
documents, deed or deeds of trust or to a mortgage or mortgages.
6. Notices of Default: No Right to Gtiue. The parties hereto hereby agree as follows:
a. Except as referred to in Paragraph 6.b below, prior to exercising
rights and remedies under their respective grant or loan documents, each lender shall give
the other lenders a notice of default by Borrower (which notice shall be given
concurrently with the delivery of such notice to Borrower) under the respective grant or
loan documents, and shall give each other an opportunity to cure such default as set forth
in Paragraph 6.b.
b. With respect to any notice referred to in Paragraph 6.a above, each
lender shall have the right (but not the obligation) to cure any such default which is
capable of being cured by the lender, and the lender in default shall accept performance
by the lender curing the default as if such performance were tendered by Borrower, so
long as the lender cures (i) any such monetary default within ten (10) days after receipt of
written notice thereof, or (ii) any such nommonetary default within thirty (30) days after
receipt of written notice thereof; provided however, that (x) if such nonmonetary default
cannot reasonably be cured within such thirty (30) day period but is curable by the lender,
such period shall be extended so long as the lender commences td cure such default
within such 30 -day period and thereafter diligently proceeds to cure such default until
completion, provided that in no event shall such cure period exceed a total of sixty (60)
days after the lender's receipt of written notice of default. Nothing in this Paragraph 7.b
shall preclude demand for payment and acceleration by the lender whose loan is in
default and commencement by such lender of any foreclosure actions (so long as such
actions are not consummated before a lender has had opportunity to cure as set forth
herein) or exercise of interim remedies by the lender, including tatting possession and/or
control of the Property (through receiver or otherwise).
7. Counterparts. This Agreement may be executed in counterparts, each of which,
when taken together, shall constitute one original Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BORROWER:
LOS GATOS SENIOR HOMES LLC,
a California limited liability company
By: Charities Housing Development Corporation
of Santa Clara County, a California
nonprofit public benefit corporation,
its sole member /manager
By:
Daniel Wu
Executive Director
STATE OF CALIFORNIA
COUNTY OF
On before me, , Notary
Public, 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.
Name:
Notary Public
5
TOWN:
TOWN OF LOS GATOS,
a
FORMER AGENCY:
TOWN OF LOS GATOS, successor agency to the REDEVELOPMENT
AGENCY OF THE TOWN OF LOS GATOS
0
APPROVED AT TO FORM:
TOWN COUNSEL
STATE OF CALIFORNIA
COUNTY OF
On , before me, , Notary
Public, 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.
Name: _
Notary Public
rl
OFNC:
OPPORTUNITY FUND NORTHERN CALIFORNIA,
formerly known as LENDERS FOR COMMUNITY DEVELOPMENT,
a California nonprofit public benefit corporation
Name:
STATE OF CALIFORNIA
COUNTY OF
On , before me, , Notary
Public, 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.
Name:
Notary Public
7
COUNTY:
COUNTY OF SANTA CLARA,
a political subdivision of the State of California
STATE OF CALIFORNIA
COUNTY OF
On before me, , Notary
Public, 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.
Name:
Notary Public
Exhibit "A"
LEGAL DESCRIPTION
The land referred to is situated in the County of Santa Clara, City of Los Gatos, State of
California, and is described as follows:
Lot 1, as shown on that certain map of Tract No. 3304, filed December 5, 1962, in Book
155 of Maps, Pages 4 and 5, Santa Clara County Records.
EXCEPTING THEREFROM the underground water or rights thereto, with no rights of
surface entry, as granted to San Jose Water Works, a California corporation by
Instrument recorded February 20, 1963 in Book 5912, Page 667, Official Records.
APN: 527 -31 -013
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PROMISSORY NOTE
$105,000 Los Gatos, California
,2014
FOR VALUE RECEIVED, the undersigned, Los Gatos Senior Homes LLC, a California
nonprofit public benefit corporation, (the 'Borrower ") promises to pay to the Town of Los
Gatos (the "Town "), or order, the principal sum of One Hundred Five Thousand Dollars
($105,000), or such less amount actually disbursed from the Town to Borrower (the "Loan"),
upon the terms and conditions set forth below.
1. Pumose. The proceeds of the Loan evidenced by this Note shall be used by
Borrower in the rehabilitation of 14390 Blossom Hill Road, Los Gatos, California, more
particularly described in Exhibit A, attached hereto.
2. Terms of Payment.
A. This Note shall not pay interest.
B. If a Default occurs, interest will accrue on all amounts due under this Note at the
Default Rate until such Default is cured by Borrower or waived by Holder.
C. The unpaid principal balance hereunder, together with accrued interest thereon,
is due and payable no later than December 31, 2069, unless forgiven in accordance with
Section 2.7 of the Loan Agreement.
D. This Note is not assumable by the successors and assigns of Borrower without
the prior written consent of Holder, except as provided in the Loan Agreement.
E. This Note is secured by the Deed of Trust wherein the Borrower is the Truster
and the Holder is the Beneficiary.
F. All payments made under this Note shall be paid in lawful money of the United
States of America at the offices of the Town at 110 E. Main Street, Los Gatos, California
95030, or at such other place as the Town may from time to time designate in writing.
G. The maturity date of this Note shall be the earliest of the following dates or
events to occur: (i) the date of any Transfer (as defined in the Loan Agreement) not
authorized by the Town, and (ii) the date of any Default.
ATTACHMENT 5d
3. Securi . Payment of this Note is secured by a deed of trust (the "Deed of Trust ")
from Borrower for the benefit of the Town and by a Regulatory Agreement.
4. No Prepayment Penaltv. Borrower shall be entitled to prepay all or a part of the
indebtedness evidenced by this Note at any time prior to the date or dates due without any
prepayment fee or penalty.
5. Default. The occurrence of any of the following shall constitute an event of default
under this Note: (i) Borrower fails to pay any amount due hereunder within ten (10) days of its
due date; or (ii) any default under the Deed of Trust after the expiration of applicable cure
periods; or (iii) any default by Borrower after the expiration of applicable cure periods which
have been declared by any holder under any promissory note given by Borrower to any party
lending Borrower funds secured by a deed of trust on the Property.
6. Town's Remedies for Default.
A. Upon the occurrence of any event of default, or at any time thereafter, at the option of
the Town and with thirty (30) days' written notice, the entire unpaid principal and
interest, if any, owing on this Note shall become immediately due and payable. This
option may be exercised at any time following any such event, and the acceptance of
one or more installments thereafter shall not constitute a waiver of the Town's option.
The Town's failure to exercise such option shall not constitute a waiver of such option
with respect to any subsequent event. The Town's failure in the exercise of any other
right or remedy hereunder or under any agreement which secures the indebtedness or is
related thereto shall not affect any right or remedy and no single or partial exercise of
any such right or remedy shall preclude any further exercise thereof.
B.. At all times when Borrower is in default hereunder by reason of Borrower's failure to
pay any principal due under this Note or any amounts due under the Deed of Trust or
any other loan document, the interest rate on the sums as to which Borrower is in default
(including principal, if the Town has elected to declare it immediately due and payable),
shall be the lower of the highest rate then allowed by law or three percent (3 %) over the
prime interest rate announced by the Federal Reserve Bank as its prime rate of interest at
its main office in San Francisco, as of the date of the default.
C. Borrower and any endorser hereof and all others who may become liable for all or any
part of this obligation, severally waive presentment for payment, demand and protest
and notice of protest, and of dishonor and nonpayment of this Note, and expressly
consent to any extension of the time of payment or of any installment, and to the release
of any party liable for this obligation. Any such extension or release may be made
without notice to any of said parties and without in any way affecting or discharging this
liability. The right to plead any and all statutes of limitations as a defense to any
demand on this Note, to any guaranty hereof, to any agreement to pay the same, or to
any demand secured by the Deed of Trust is expressly waived by each and every maker,
endorser, guarantor, or surety.
7. Attorney's Fees and Costs. Borrower agrees to pay immediately upon demand all
costs and expenses of Town, including reasonable attorneys' fees, (i) if after default an
attorney or attorneys are hired in connection with the collection of this Note, (ii) if after
a default hereunder or under the Deed of Trust after the expiration of applicable cure
periods, the Town finds it necessary or desirable to secure the services or advice of one
or more attorneys with regard to collection of this Note against Borrower or any other
party liable therefor or to the protection of its rights under this Note, the Deed of Trust,
the Regulatory Agreement or other loan document, or (iii) if the Town seeks to have the
Property abandoned by or reclaimed from any estate in bankruptcy, or attempts to have
any stay or injunction prohibiting the enforcement or collection of the Note or
prohibiting the enforcement of the Deed of Trust or any other agreement evidencing or
securing this Note lifted by any bankruptcy or other court.
8. Notice. Any notices provided for in this Note shall be given by mailing such
notice by certified mail, return receipt requested at the address stated below or at such
other address as either party may designate by written notice.
Town of Los Gatos
110 E Main Street
Los Gatos, CA 95030
Attn: Town Clerk
Los Gatos Senior Homes LLC
1400 Parkmoor Avenue, Suite 190
San Jose, CA 95126
Attn: Executive Director
9. Bindine. This Note shall be binding upon Borrower and its permitted successors and
assigns in connection with a permitted Transfer of the Property. If the Town's consent is
required and the Town consents to an assignment, an assumption agreement prepared or
approved by the Town shall be executed by the assignor and assignee prior to the assignment.
10. Nonrecourse. Notwithstanding anything to the contrary in this Note, in the Deed of
Trust or in any other instrument evidencing or securing the obligations of Borrower under this
Note, the holder hereof expressly agrees that Borrower's liability under this Note shall be
nonrecourse.
11. Governing Law. This Note shall be governed by and construed in accordance with
the laws of the State of California. If any provision of this Note shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired. Time is of the essence with respect to every provision of this
Note.
12. Modifications. This Note may not be changed orally. Any waiver, change,
modification, or discharge of this Note may be made only by the written consent of both parties.
Executed as of the date first written above.
LOS GATOS SENIOR HOMES LLC,
a California limited liability company
By: Charities Housing Development Corporation of Santa Clara
County, its sole member /manager
to
Name: Dan Wu
Title: Executive Director
Exhibit A
Legal Description
The land referred to is situated in the Town of Los Gatos, County of Santa Clara, State of
California, and is described as follows:
COMPLIMENTARY RECORDING
REQUESTED PURSUANT TO
GOVERNMENT CODE SECTION 27383
RECORDING REQUESTED BY &
WHEN RECORDED MAIL TO:
Town of Los Gatos
110 E Main Street
Los Gatos, CA 95030
Attn: Town Clerk
TOWN OF LOS GATOS
DEED OF TRUST, ASSIGNMENT OF RENTS
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST is made as of 12014, among Los Gatos Senior
Homes LLC, a California limited liability company (the "Trustor "), Old Republic Title Company
(the "Trustee "), and the Town of Los Gatos (the "Beneficiary"), whose address is shown above.
Trustor, in consideration of the indebtedness herein recited and the trust herein created,
irrevocably grants and conveys to Trustee, in trust, with power of sale, Trustor's interest in all
that certain real property located at 14390 Blossom Hill Road, Los Gatos, County of Santa Clara,
State of California, and more particularly described in Exhibit A, attached hereto and made a part
hereof.
Together with Trustor's interest in all the improvements now or hereafter erected on the
property, and all easements, rights, appurtenances, rents (subject, however, to the rights and
authorities given herein to Beneficiary to collect and apply such rents), royalties, mineral, oil and
gas rights and profits, water, water rights, and water stock, and all fixtures, including, but not
limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces,
heating equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bathtubs,
sinks, water closets, basins, pipes, faucets and other plumbing and heating equipment, cabinets,
mantels, refrigerating plant and refrigerators, whether mechanical or otherwise, cooking
apparatus and appurtenances, fiuniture, shades, awnings, screens, Venetian blinds and other
furnishings, now or hereafter attached to the real property, all of which, including replacements
and additions thereto, shall be deemed to be and remain a part of the property covered by this
Deed of Trust, anCalI of the foregoing together-
ogether with the real property are herein referred to as the
"Property";
ATTACHMENT 5e
To secure to Beneficiary (a) the repayment of the indebtedness evidenced by Trustor's
promissory note ("Note ") dated of even date herewith in the principal sum of One Hundred, Five
Thousand Dollars ($105,000) or such other amount as shall equal the aggregate amount
disbursed to Trustor by Beneficiary with interest thereon, if any; and (b) the performance of the
covenants and agreements of Trustor herein contained, or contained in the Note.
Trustor covenants that Trustor has lawfully leased or owns the estate hereby conveyed
and has the right to grant and convey the Property and that Trustor will warrant and defend
generally the title of the Property against all claims and demands, subject to its lease and any
declarations, easements, prior liens or restrictions listed in a schedule of exceptions to coverage
in any title insurance policy insuring Beneficiary's interest in the Property.
Trustor and Beneficiary covenant and agree as follows:
1. Payment of Principal and Interest. Trustor shall promptly pay when due the
principal and interest, if any, on the indebtedness evidenced by the Note.
2. Charges: Liens. Trustor shall pay all taxes, assessments and other charges, fines
and impositions attributable to the Property and leasehold payments or ground rents, if any, by
Trustor making payment when due directly to the payee thereof. Trustor shall promptly famish
to Beneficiary all notices of amounts due under this paragraph, and in the event Trustor or some
party other than Trustor shall make payment directly, Trustor shall promptly famish to
Beneficiary receipts evidencing such payments. Trustor shall pay when due all encumbrances,
charges and liens, with interest in accordance with the terms thereof on the Property or any
portion which are inferior or superior to this Deed of Trust.
3. Hazard Insurance. Trustor shall keep the improvements now existing or hereafter
erected on the Property insured against loss of fire or hazards under a policy approved by
Beneficiary and which provides "special form" coverage in an amount at least equal to the
replacement value of the structures. In addition, Trustor shall insure against loss of all firmiture,
equipment and other personal property owned by Trustor related to the operation of the Property
as a residential facility.
The insurance carrier providing the insurance shall be chosen by Trustor subject to
approval by Beneficiary; provided, that such approval shall not be unreasonably withheld. All
premiums on insurance policies shall be paid by Trustor making payment when due directly to
the insurance carrier, or in a manner agreed to by the Beneficiary.
All insurance policies and renewals thereof shall be with loss payable to the
Beneficiary. Beneficiary shall have the right to hold the policies and renewals thereof, subject to
the rights of senior lienholders, and Trustor shall promptly furnish to Beneficiary all renewal
notices and all receipts of paid premiums. In the event of loss, Trustor shall give prompt notice
to the insurance carrier and Beneficiary. Beneficiary may make proof of loss if not made
promptly by Trustor.
Unless Beneficiary and Trustor otherwise agree in writing, subject to the rights of
prior lienholders, insurance proceeds shall be applied to restoration or repair of the Property
damaged, provided such restoration or repair is economically feasible and the security of this
Deed of Trust is not impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, subject to the rights of senior lienholders, if
any, the insurance proceeds shall be applied to the sums secured by this Deed of Trust with the
excess, if any, paid to Trustor. If the Property is abandoned by Trustor, or if Trustor fails to
respond to Beneficiary within thirty (30) days from the date notice is mailed by Beneficiary to
Trustor that the insurance carrier offers to settle a claim for insurance benefits, Beneficiary is
authorized to collect and apply the insurance proceeds at Beneficiary's option either to restoration
or repair of the Property or to the sums secured by this Deed of Trust subject to the rights of prior
lienholders.
Unless Beneficiary and Trustor otherwise agree in writing, any such application of
proceeds to principal shall not extend or postpone the due date of any payment. If under
paragraph 17 hereof the Property is acquired by Beneficiary, all right, title and interest of Trustor
in and to any insurance policies and in and to the proceeds thereof resulting from damage to the
Property prior to the sale or acquisition shall pass to Beneficiary to the extent of the sums secured
by this Deed of Trust immediately prior to such sale or acquisition.
In the event the Trustor fails to maintain insurance coverage, Beneficiary may
purchase insurance in such amounts and with such coverage as it may elect and all amounts paid
therefor shall become part of the principal of the loan and shall be secured by this Deed of Trust.
Purchase of insurance by the Beneficiary shall not be considered a waiver of any right to
appropriate remedies under this Deed of Trust.
4. Liability Insurance. Trustor shall keep commercial general liability insurance for
the Property. Coverage shall be in an amount not less than $1,000,000 per occurrence. The
insurance carrier shall be chosen by the Trustor subject to approval by the Beneficiary; provided,
that such approval shall not be unreasonably withheld. All premiums shall be paid by Trustor.
Beneficiary shall be named as an additional insured.
5. Preservation and Maintenance of Property. Trustor shall keep the Property in
good condition, order and repair and shall not commit waste or permit impairment, demolition or
deterioration of the Property.
6. Protection of Beneficiary s Security. Trustor shall appear and defend any action or
proceeding purporting to affect the security hereof or the rights of the Beneficiary. If Trustor
fails to perform the covenants and agreements contained in this Deed of Trust or if any action or
proceeding is commenced which materially affects Beneficiary s interest in the Property,_
including, but not limited to, foreclosure, involuntary sale, eminent domain, code enforcement, or
arrangements or proceedings involving bankruptcy or insolvency, then Beneficiary at
Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums
and take such action as is necessary to protect Beneficiary's interest, including, but not limited to,
disbursement of reasonable attorneys' fees and entry upon the Property to make repairs; provided,
however, that Beneficiary shall not have the right to reasonable attorney's fees under this section
in any condemnation or eminent domain action filed by the Beneficiary or by the County of
Alameda.
Any amounts disbursed by Beneficiary pursuant to this paragraph 6 with interest
thereon, shall become additional indebtedness of Trustor secured by this Deed of Trust. Unless
Trustor and Beneficiary agree to other terms of payment, such amounts shall be payable upon
notice from Beneficiary to Trustor requesting payment thereof and shall bear interest from the
date of disbursement at the lower of (i) ten percent (10 %) per annum, or (ii) the highest rate
permissible under applicable law. Nothing contained in this paragraph 6 shall require
Beneficiary to incur any expense or take any action hereunder.
7. hisnection. Beneficiary may make or cause to be made reasonable entries upon
and inspections of the Property, provided that Beneficiary shall give Trustor and all effected
occupants notice prior to any such inspection.
8. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, in connection with any condemnation or other taking of the Property, or part
thereof, or for conveyance in lieu of condemnation, are hereby reserved for payment to
Beneficiary, subject to the provisions for forgiveness of the Loan in Section 2.8 of the Loan
Agreement, and further subject to the rights of senior lienholders, if any. Notwithstanding any
provision to the contrary contained herein, for a period of fifteen (15) years following the
completion of construction as evidenced by the issuance of a certificate of occupancy, subject to
the rights of prior lienholders, condemnation proceeds shall be applied to restoration or repair of
the Property to the extent permitted by law. Thereafter, in the event of a partial taking of the
Property, unless Trustor and Beneficiary otherwise agree in writing and subject to any claims of
prior lienholders, there shall be applied to the sums secured by this Deed of Trust such proportion
of the proceeds as is equal to that proportion which the amount of the sums secured by this Deed
of Trust immediately prior to the date of taking bears to the fair market value of the Property
immediately prior to the date of taking with the balance of the proceeds paid to Trustor.
If the Property is abandoned by Trustor or if after notice by Beneficiary to Trustor
that the condemner offers to make an award or settle a claim of damages Trustor fails to respond
to Beneficiary within thirty (30) days after the date such notice is mailed, subject to the rights of
prior lienholders, Beneficiary is authorized to collect and apply the proceeds at Beneficiary's
option either to restoration or repair of the Property or to the sums secured by this Deed of Trust.
Unless Beneficiary and Trustor otherwise agree in writing, any such application of
proceeds to principal shall not extend or postpone the due date of any payment or change the
amount of such payment.
9. Extension Not a Release. Extension of the time for payment of the sums secured
by this Deed of Trust granted by Beneficiary to Trustor shall not operate to release in any manner
the Trustor.
10. Forbearance by Beneficiary not a Waiver. Any forbearance by Beneficiary in
exercising any right or remedy hereunder or otherwise afforded by applicable law shall not be a
waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or
the payment of taxes or other liens or charges by Beneficiary shall not be a waiver of
Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or affordable by law or
equity and may be exercised concurrently, independently or successively.
12. Successors and Assigns Bound: Joint and Several Liability Cannons. The
covenants and agreements herein contained shall bind and the rights hereunder shall inure to the
respective successors and assigns of Beneficiary and Trustor subject to the provisions of
paragraph 16 hereof. All covenants and agreements of Trustor shall be joint and several in the
event there are more than one trustor. The caption and headings of the paragraphs of this Deed
of Trust are for convenience only and are not to be used to interpret or define the provisions
hereof.
13. Notice. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Trustor provided for in this Deed of Trust shall be given by
mailing such notice by certified mail addressed to Trustor at the address found hereunder or at
such other address as Trustor may designate by notice to Beneficiary as provided herein, and (b)
any notice to Beneficiary shall be given by certified mail, return receipt requested, to
Beneficiary's address stated herein or to such other address as Beneficiary may designate by
notice to Trustor as provided herein. Any notice provided for in this Deed of Trust shall be
deemed to have been given to Trustor or Beneficiary when given in the manner designated
herein.
14. Governing Law, Severability. This Deed of Trust shall be governed by the laws
of the State of California. In the event that any provision or clause of this Deed of Trust or the
Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed of
Trust or the Note which can be given effect without the conflicting provision, except as set forth
in the Note and to this end the provisions of the Deed of Trust and the Note are declared to be
severable.
15. Trustor's Copv. Trustor shall be furnished a conformed copy of the Note and of
this Deed of Trust at the time of execution or after recordation hereof
16. Transfer of the Properly Assumption. Trustor shall not sell, transfer or further
encumber all or any part of Property without Beneficiary's prior written consent, except as
permitted under the Loan Agreement. If all or part of the Property or an interest therein is sold,
transferred or further encumbered by Trustor without Beneficiary's prior written consent
(excluding exceptions set forth in the Loan Agreement, if any) Beneficiary may, at Beneficiary's
option, declare all the sums secured by this Deed of Trust to be immediately due and payable.
Beneficiary shall have waived such option to accelerate if and only if prior to the sale or transfer,
Beneficiary and the person to whom the Property is to be sold or transferred reach agreement in
writing that the indebtedness secured hereby may be assumed. Beneficiary, however, is under no
obligation to agree to allow the loan to be assumed by any successor to Trustor. If Beneficiary
has waived the option to accelerate provided in this paragraph and if Trustor's successor in
interest has executed a written assumption agreement accepted in writing by Beneficiary,
Beneficiary shall release Trustor from all obligations under this Deed of Trust and the Note.
If Beneficiary exercises such option to accelerate, Beneficiary shall mail Trustor
notice of acceleration in accordance with paragraph 13 hereof. Such notice shall provide a period
of not less than thirty (30) days from the date the notice is mailed within which Trustor may pay
the sums declared due. If Trustor fails to pay such sums prior to the expiration of such period,
Beneficiary may without further notice or demand on Trustor invoke any remedies permitted by
Paragraph 17 hereof.
.Failure of Beneficiary to exercise an option to accelerate the debt in the event of a
sale, transfer, assignment or further encumbrance shall not constitute waiver of the right to
exercise this option in the event of a subsequent sale, transfer, assignment or further
encumbrance.
17. Acceleration: Remedies. Except as provided in paragraph 16 hereof, upon
Trustorss breach of any covenant or agreement of Trustor in this Deed of Trust, the Note,
including the covenants to pay when due any sums secured by this Deed of Trust, Beneficiary
shall mail notice to Trustor as provided in paragraph 13 hereof specifying: (a) the breach; (b) the
action required to cure such breach; (c) a date, no less than thirty (30) days from the date the
notice is mailed to Trustor by which such breach must be cured; provided, however, that if the
nature of Trustor's default if such that more than thirty (30) days are reasonably required for its
cure, then Trustor shall not be deemed to be in default if Trustor commenced such cure within
the 30 -day period and thereafter diligently prosecutes such cure to completion; and (d) that
failure to cure such breach on or before the date specified in the notice may result in acceleration
of the sums secured by this Deed of Trust and sale of the Property. The notice shall further
inform Trustor of the right to reinstate after acceleration and the right to bring a court action to
assert the nonexistence of a default or any other defense of Trustor to acceleration and sale. If
the Trustor fails to take corrective action or to cure the default within such specified time, the
Beneficiary shall give the Trustor's limited partner written notice thereof, whereupon Trustor's
limited partner may remove and replace the general partner with a substitute general partner who
shall effect a cure within a reasonable time thereafter in accordance with the foregoing
provisions. The Beneficiary agrees to accept cures offered by Trustor's limited partner within the
cure periods provided to the Borrower in the Loan Documents or within the time periods
provided in Civil Code Section 2924c, whichever are longer. Additionally, in the event Trustor's
limited partner is precluded from curing a default due to an inability to remove the general
partner as a result of a bankruptcy, injunction, or similar proceeding by or against the Borrower
or general partner, Beneficiary agrees to forbear from completing a foreclosure (whether judicial
or nonjudicial) while Trustor's limited partner is so precluded from acting, provided that Trustor's
limited partner is otherwise acting in compliance with the foregoing provisions. If the breach is
not cured on or before the date specified in the notice, Beneficiary at Beneficiary's option may
declare all of the sums secured by this Deed of Trust to be immediately due and payable without
finiher demand and may invoke the power of sale and any other remedies permitted by applicable
law. Beneficiary shall be entitled to collect from the Trustor or sale proceeds, if any, all
reasonable costs and expense incurred in pursuing the remedies provided in this paragraph,
including, but not limited to, reasonable attorneys' fees.
If Beneficiary invokes the power of sale, Beneficiary shall execute or cause
Trustee to execute a written notice of the occurrence of an event of default and of Beneficiary's
election to cause the Property to be sold and shall cause such notice to be recorded in each county
in which the Property or some part thereof is located. Beneficiary or Trustee shall mail copies of
such notice in the manner prescribed by applicable law to Trustor and to the other persons
prescribed by applicable law. Trustee shall give public notice of sale to the persons and in the
manner prescribed by applicable law. After the lapse of such time as may be required by
applicable law, Trustee without demand on Trustor shall sell the Property at public auction to the
highest bidder at the time and place and under the terms designated in the notice of sale in one or
more parcels and in such order as Trustee may determine. Trustee may postpone sale of all or
any parcel of the Property by public announcement at the time and place of any previously
scheduled sale. Beneficiary or Beneficiary's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so
sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed
shall be prima facie evidence of the truth of the statements made therein. Trustee shall apply the
proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale,
including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence;
(b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons
legally entitled thereto.
18. Assierunent of Rents: Appointment of Receiver, in Possession.
Trustor hereby assigns to Beneficiary the rents of the Property, provided that Trustor shall prior
to acceleration under paragraph 17 hereof or abandonment of the Property have the right to
collect and use such rents as they become due. This Assignment shall be an absolute assignment
from Trustor to Beneficiary and not merely the passing of a security interest. The rents, issues
and profits are hereby absolutely assigned by Trustor to Beneficiary contingent only upon the
occurrence of an event of default under any of the loan documents.
Upon acceleration under paragraph 17 hereof or abandonment of the Property,
Beneficiary, in person, by agent or by judicially appointed receiver shall be entitled to enter upon,
take possession of and mange the Property and to collect the rents of the Property including those
7
past due. All rents collected by Beneficiary or the receiver shall be applied first to payment of
the costs of management of the Property and collection of rents including, but not limited to,
receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and then to the sums
secured by this Deed of Trust. Beneficiary and the receiver shall be liable to account only for
those rents actually received. The provisions of this paragraph and paragraph 17 shall operate
subject to the claims of Trustor's ground lease and prior lienholders, if any.
19. Reconveyance. Upon payment of all sums secured by this Deed of Trust,
Beneficiary shall request Trustee to reconvey the Property and shall surrender this Deed of Trust
and all notes evidencing the indebtedness secured by this Deed of Trust to Trustee. Trustee shall
reconvey the Property without warranty and without charge to the person or persons legally
entitled thereto. Such person or persons shall pay all costs of recordation, if any. The recitals in
the reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
20. Substitute Trustee. Beneficiary, at Beneficiary's option, may from time to time
remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. Without
conveyance of the Property, the successor trustee shall succeed to all the title, power and duties
conferred upon the Trustee herein and by applicable law.
21. Reouest for Notice. Trustor requests that copies of the notice of default and
notice of sale be sent to Trustor's address.
22. Use of Property. Trustor shall not permit or suffer the use of any of the Property
for any purpose other than the use for which the same was intended at the time this Deed of Trust
was executed.
23. Grant of Security Interest. To the extent that any Property or rents may be or be
determined to be personal property, Trustor as debtor hereby grants Beneficiary as secured party
a security interest in all such Property and rents to secure payment and performance of the
obligations of Trustor contained in any of the loan documents or this Deed of Trust. This Deed
of Trust constitutes a security agreement under the California Uniform Commercial Code,
covering all such property and rents.
Trustor shall execute one or more financing statements and such other documents
as Beneficiary may from time to time require to perfect or continue the perfection of
Beneficiary's security interest in any property or rents. 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. In case Trustor fails to execute any financing
statements or other documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney -in -fact to execute any such documents
on its behalf. If any financing statement or other document is filed in the records normally
pertaining to personal property, that filing shall never be construed as in any way derogating from
or impairing this Deed of Trust or the rights or obligations of the parties under it.
24. Fixture Filing. This Deed of Trust constitutes a financing statement filed as a
fixture filing under Section 9402(6) of the California Uniform Commercial Code, as amended or
recodified from time to time, covering any property which now is or later may become fixtures
attached to the land or improvements.
25. Nonrecourse. Notwithstanding anything to the contrary in the Note, in this Deed
of Trust or in any other instrument evidencing or securing the obligations of maker under the
Note, Beneficiary expressly agrees that there shall be no personal liability of Trustor or its
partners, officers or directors under the Note (except as provided below), under this Deed of
Trust and under any other instrument given to evidence or secure the obligations of Trustor. The
liability of Trustor and its officers and directors shall be limited to the Property securing the Note
and rents, profits, issues, products and proceeds from the Property. The foregoing shall not limit
in any way the right of holders in the enforcement of any and al] of its remedies against the
Property, the rents, issues, profits and income therefrom and any other security given to secure
the indebtedness evidenced by the Note.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust.
LOS GATOS SENIOR HOMES LLC,
a California limited liability company
By: Charities Housing Development Corporation
of Santa Clara County, its sole member /manager
LE
Name: Dan Wu
Title: Executive Director
10
Exhibit A
Legal Description
The land referred to is situated in the Town of Los Gatos, County of Santa Clara, State of
California, and is described as follows:
I
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Including Affordable Housing Restrictions)
OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 6103
Recording Requested By and
When Recorded Mail To:
TOWN OF LOS GATOS
Town Clerk
110 E. Main Street
Los Gatos, California 95030
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS
(Including Affordable Housing Restrictions)
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS, including Affordable Housing Restrictions ("Agreement ") is made as of the
day of December, 2014, by and between LOS GATOS SENIOR HOMES, LLC, a
California limited liability corporation ( "Owner"), and THE TOWN OF LOS GATOS ( "Town "),
with reference to the following facts:
RECITALS
A. Los Gatos Senior Homes, LLC, is acquiring the real property located at 14390 Blossom Hill
Road, Los Gatos, California ( "Property"), and as depicted in Exhibit A, from Senior Housing
Solutions, a California nonprofit public benefit corporation, ( "SHS ").
N:\DEV\Senior Housing Solutions\Charitim Dev Info\BH Reg Agreement & Declaration of Restrictive Covenants - Attachment to Intmo ditor
12.5.14.docx
ATTAC@fENT Sf
B. The Owner will assume all of the obligations under each of the former Town Blossom Hill
Loan Documents, the Housing Trust of Santa Clara County Blossom Hill Loan Documents
( "Trust ") and the County of Santa Clara Blossom Hill Loan Documents ( "County"), and
additionally the Town will provide an additional loan of $105,000 for new rehabilitation
work (Town Rehabilitation Loan") ( "Loans ") with the transfer of the Property-to the Owner.
C. Town Council approved the transfer of this Property on December 2014.
D. It is the intention of the Town, Trust, County and Owner to set forth the covenants,
conditions and restrictions ensure that the terms of the Loans are consistent and to satisfy the
condition of approval of the transfer of the Property.
NOW, THEREFORE, in consideration of the approval by Town allowing transfer of the
Property, the following covenants and conditions which shall run with the land, and be binding
on all parties having any right, title or interest in the Property, their respective heirs, legatees,
devisees, administrators, executors, successors and assigns, and shall inure to the benefit of the
Town and their respective successors and assigns.
1. Definitions
In addition to terms that are otherwise defined herein, the following terms shall have the
following respective meanings:
"Affordable Housing Cost" shall mean the monthly rent established by the Housing
Authority of Santa Clara County through a Section 8 Project -Based Voucher (PBV) Housing
Assistance Payment Contract (HAP Contract) between the Housing Authority of the County
of Santa Clara and the Owner.
"Affordability Period: shall mean the length of time that this recorded Agreement and
tenant incomes and rents are limited, as described below. This period shall be for fifty -five
(55) years from the date of execution of this document.
"Affordable Housing Unit" shall mean one of the five (5) bedrooms located in the
Property.
"Age Restriction" shall mean senior citizens age 62 years and older.
"Annual Income" shall mean the annual income as defined under Section 8 Housing
Assistance Payments Program (24 CFR 5.609).
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"Town" shall mean the Town of Los Gatos, California.
"County Median Income" shall mean the Median Income adjusted by actual household
size as published annually by the HUD for the County of Santa Clara, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by HUD.
"Household" shall mean one person occupying each bedroom.
"HUD" shall mean the United States Department of Housing and Urban Development.
"Income alified Household" shall mean an individual with an income that does not
exceed fifty percent (50 %) of Area Median Income as established by the Housing
Authority of Santa Clara County
"14390 Blossom Hill Road" shall mean the Property.
"Household Portion of Monthly Rent" shall mean that portion of the Affordable Housing
Cost that is the responsibility of the Household, which percentage of the Household's
income payable as monthly rent, is dictated by the regulations established by the Housing
Authority of Santa Clara County.
"Unit" shall mean one of the 5 bedrooms existing on the Property.
2. Uses
a. General. The Owner covenants and agrees for itself, its successors, its assigns and every
successor in interest to the Property or any part thereof, that the Owner shall use the
Property only for the residential operation pursuant to all of the terms and conditions of
this Agreement
b. Affordability Covenants. The Owner covenants and agrees for itself, its successors, its
assigns and every successor in interest to the Property or any part thereof, for fifty -five
(55) years, these five (5) Affordable Housing Units shall be rented to or held available for
rental or occupancy by Income - Qualified Households pursuant to the terms of
c. Age Restriction. The Owner covenants and agrees for itself, its successors, its assigns
and every successor in interest to the Property or any part thereof, that the Owner shall rent
the Affordable Housing Units to households whose minimum age is 62 years of age.
(1) Affordable Housing Units.
(a) Five (5) of the rental Units at the Property shall be designated as Affordable
Housing Units and shall be occupied or held available for occupancy by Income-
Qualified Individuals on a continuous basis for the Affordability Period.
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(b) An Affordable Housing Unit occupied by an Income- Qualified Household, shall
be deemed, upon termination of occupancy by such tenant (whether voluntarily or
involuntarily), to be continuously occupied by an Income Qualified Household
until re- occupied by another Income Qualified Household.
(2) Affordable Housing Unit Rents.
(a) Owner agrees it shall not charge or collect from any tenant of an Affordable
Housing Unit a monthly amount in exchange for occupancy of the Affordable
Housing Unit that exceeds the Monthly Rent applicable to the Affordable
Housing Unit.
(b) The Monthly Rent for the Affordable Housing Units shall be based upon Rent
determined by the Housing Authority of the County of Santa Clara in
conformance with the Project Based Section 8 contract currently in existence and
in future contracts
(c) Rent increases, which may occur not more frequently than annually, shall be
determined by the Housing Authority of the County of Santa Clara. The Town or
its designee shall receive a copy of all rent increase notices for the designated
Affordable Housing Units at least 30 days prior to the new rents taking effect.
Rent increases may only be implemented in compliance with applicable law.
(3) Income Qualification of Affordable Housing Unit Tenants
(a) Owner shall establish and maintain a file for each tenant residing in the
Affordable Housing Units. Owner shall make a good faith effort to verify that the
income provided by an applicant in an income certification is accurate using
standard business practices.
(b) Annually, Owner (or Owner's agent) shall determine the income of all tenants
residing in the Affordable Housing Units and shall submit independently to the
Town or its designee if requested.
(4) Over - Income Tenants in Affordable Housing Units
(a) Affordable Housing Unit tenants whose income exceeds the maximum for an
Income- Qualified Household, will be disqualified from receiving a subsidy from
the Housing Authority and will be required to pay the equivalent of the Housing
Authority rent established for the Affordable Housing Unit.
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(5) Lease Provisions
(a) The lease may not contain any terms prohibited by applicable law.
(b) The provisions relating to certification and re- certification of income in the form
of lease used by the Owner, for the lease or rental of the Affordable Housing
Units, may be subject to prior review and approval by the Town, the approval of
which shall not be unreasonably withheld or delayed.
3. Monitoring/Annual Report
The Owner for itself, its successors, its assigns and every successor in interest to the Property
or any part thereof, covenants and agrees to cooperate in good faith with the annual
monitoring efforts conducted by the Town or designee to verify compliance with the
Agreement. With at least 10 days notice, the Town shall have the right to examine and make
copies of all books, records or other documents maintained by Owner or by any of Owner's
agents that pertain to any Affordable Housing Unit and/or this Agreement.
4. Enforcement
The Town of Los Gatos is deemed to be the beneficiary of the terms and provisions of this
Agreement and the covenants herein, both for and in its own right and for the purposes of
protecting the interests of the community and other parties, public or private, for whose
benefit this Agreement and the covenants running with the land have been provided. The
Town shall have the right if any covenants set forth in this Agreement are breached, to
exercise all available rights and remedies, and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such breaches to which it is
entitled. No remedy herein conferred upon or reserved by the Town is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this Agreement or
now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of such right or power, but any such right or power may be
exercised from time to time and as often as Town may deem expedient. In order to entitle
the Town to exercise any remedy reserved to it in this Agreement, it shall not be necessary to
give any notice, other than such notice as may be herein expressly required or required by
law to be given.
Owner agrees that, in the event of Owner's breach of the requirements of this Agreement,
potential monetary damages to Town, as well as prospective tenants would be difficult, if not
impossible, to evaluate and quantify. Therefore, in addition to any other relief to which the
Town may be entitled as a consequence of the breams hereof, Owner agrees to the imposition
of the remedy of specific performance against it in the case of any event of default by Owner
in complying with the allowable rent, occupancy restrictions or any other provision of this
Agreement.
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5. Defaults
Failure or delay by Owner to perform any material obligation set forth in any term or
provision of this Agreement constitutes a default.
a. The Town shall give written notice of default to the Owner, specifying the default. Delay
in giving such notice shall not constitute a waiver of any default nor shall it change the
time of default.
b. Any failures or delays by the Town in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies.
Delays by the Town in asserting any of its rights and remedies shall not deprive the Town
of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert, or enforce any such rights or remedies.
c. If a non - monetary event of default occurs, prior to exercising any remedies hereunder,
Town shall give Owner notice of such default. If the default is reasonably capable of
being cured within thirty (30) days, Owner shall have such period to effect a cure prior to
exercise of remedies by the Town. If the default is such that it is not reasonably capable
of being cured within thirty (30) days, and Owner (1) initiates corrective action within
said period, and (2) diligently and in good faith works to effect a cure as soon as possible,
then Owner shall have such additional time as is reasonably necessary to cure the default
prior to exercise of any remedies by Town. In no event shall Town be precluded from
exercising remedies if its security becomes or is about to become materially jeopardized
by any failure to cure a default or the default is not cured within ninety (90) days after the
notice of default is first given.
d. If any material event of default occurs, Town may employ an attorney or attorneys to
protect its rights hereunder. Mediation for the purposes of dispute resolution under this
Section is a condition precedent to filing an action in any court. In the event of litigation
or mediation which arises out of any dispute related to this Agreement, the parties shall
each pay their respective attorney's fees, expert witness costs and cost of suit, regardless
of the outcome of the litigation.
e. No liability can be accepted by the Owner where the contract is affected by force
majeure. In the context of these terms and conditions, "force majeure" is any event that
the Owner could not, even with due care, foresee or avoid. These events include but are
not limited to war, threat of war, riot, civil commotion or strife, hostilities, industrial
dispute, natural disaster, fire, acts of god, terrorist activity, nuclear disaster, adverse
weather, government action, technical problems with transportation or other events
outside the Owner's control.
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6. Indemnification
The Owner shall indemnify, hold harmless and defend the Town, and its officers, officials,
appointees, employees and agents from and against (a) any and all claims by or on behalf of
any person arising from any cause whatsoever in connection with this Agreement and the
administration hereof; (b) any and all loss, costs, damages, actions and liabilities of whatever
nature directly or indirectly resulting from or arising out of the design, construction,
occupancy or ownership of Property or any written statement or representation provided to
the Town, or to prospective or actual tenants or purchasers of Property with respect to the
Owner's performance hereunder. If any such claim is asserted, or any such impositions or
charges are sought to be imposed, the Town shall give prompt noti ce to Owner and Owner
shall have the sole right and duty to assume, and will assume, the defense thereof, with full
power to litigate, compromise and settle the same in its sole discretion, provided that the
Town shall have the right to review and reasonably approve or disapprove any such
settlement or compromise. In addition, Owner shall pay upon demand all of the expenses
paid or incurred by Town in enforcing the provisions hereof.
7. General Provisions
a. Town as Beneficiaries
(1) All covenants and conditions contained in this Agreement shall be covenants running
with the land, and shall, in any event, and without regard to technical classification or
designation, legal or otherwise, be, to the fullest extent permitted by law and equity,
binding for the benefit and in favor of, and enforceable by the Town, and their
respective successors and assigns, against the Owner and its heirs, legatees, devisees,
administrators, executors, successors and assigns.
(2) In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that the Town shall be deemed beneficiary of the covenants
provided for in this Agreement, both for and in its own right and also for the purposes
of protecting the interests of the community. All covenants set forth herein without
regard to technical classification or designation, shall be binding for the benefit of the
Town, and such covenants shall run in favor of the Town for the entire period during
which such covenants shall be in force and effect, without regard to whether the
Town is or remains an owner of any land or interest therein to which such covenants
relate. Town shall have the right, in the event of any material breach of any such
covenant or condition, to exercise all the rights and remedies, and to maintain any
actions at law or suit in equity or other proper proceedings to enforce the curing of
such breach of covenant or condition.
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b. Irrevocability; Term of Agreement
This Agreement and the lien created hereby shall be irrevocable by the Owner, its
successors and assigns to the Property or any portion thereof. All other covenants
contained in this Agreement shall remain in effect for the Affordability Period.
C. Amendment of Agreement
Only the Town, its successors and assigns, and the Owner, and the heirs, legatees,
devisees, administrators, executors, successors and assigns of the Owner in and to the fee
title to Property (or portion thereof) shall have the right to consent and agree to changes
in, or to eliminate in whole or in part, any of the covenants or conditions contained in this
Agreement, or to subject the Property or any Affordable Housing Unit to additional
covenants or conditions, without the consent of any renter, lessee, easement holder,
licensee, or any other person or entity having an interest less than a fee in Property (or
portion thereof) or any Affordable Housing Unit.
d. Severability
The provisions of this Agreement shall be deemed independent and severable, and the
invalidity or partial invalidity or unenforceability of any one provision shall not affect the
validity or enforceability of any other provision.
e. Interpretation
The provisions of this Agreement shall be liberally construed and interpreted to effectuate
its purposes. Failure to enforce any provision hereof shall not constitute a waiver of the
right to enforce said provision or any other provision hereof.
f Annlicable Law
This Agreement and the lien created hereby shall be governed by and construed
according to the laws of the State of California.
g. Number, Gender and Headings
As used in this Agreement, the singular shall include the plural and the masculine shall
include the feminine and the neuter, unless the context requires the contrary. All headings
are not a part hereof, and shall not affect the interpretation of any provision.
h. Notices
Formal notices, demands and communications between the Town and the Owner shall be
sufficiently given if dispatched by first class mail, registered or certified mail, postage
prepaid, return receipt requested, or by electronic facsimile transmission followed by
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delivery of a "hard" copy, or by personal delivery (including by means of professional
messenger service, courier service such as United Parcel Service or Federal Express, or
by U.S. Postal Service) to the principal offices of the Town and the Developer, as
follows:
TO TOWN: Town of Los Gatos
Community Development Department
110 E. Main Street
Los Gatos, California 95030
Attn: Housing
TO OWNER: Los Gatos Senior Homes, LLC
c/o Chanties Housing
1400 Park moor Ave., Suite 190
San Jose, CA 95126
Attn: Executive Director
Such written notices, demands and communications may be sent in the same manner to
such other addresses as either party may from time to time designate by mail as provided
in this Section.
i. Rights and Remedies Are Cumulative
The rights and remedies of the Town with respect to the enforcement of the obligations
contained in this Agreement are cumulative, and the exercise by the Town of one or more
of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default hereunder.
j. Dispute Resolution
(1) Any controversies between the Town and Owner regarding the construction or
application of this Agreement, and claims arising out of this Agreement or its breach,
shall be submitted to mediation within thirty (30) days of the written request of one
party after the service of that request on the other party.
(2) The parties may agree on one mediator. If they cannot agree on one mediator, the
party demanding mediation shall request the Superior Court of Santa Clara County to
appoint a mediator. The mediation meeting shall not exceed one day (eight (8)
hours). The parties may agree to extend the time allowed for mediation under this
Agreement.
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(3) The costs of mediation shall be borne by the parties equally.
(4) Mediation under this Section is a condition precedent to filing an action in any court.
In the event of litigation or mediation which arises out of any dispute related to this
Agreement, the parties shall each pay their respective attorney's fees, expert witness
costs and cost of suit, regardless of the outcome the litigation.
k. Counterparts
This instrument may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages of one or more counterpart copies may be removed from
such counterpart copies and all attached to the same copy of this Agreement, which, with
all attached signature pages, shall be deemed to be an original Agreement.
[Signatures appear on next page]
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by
the following signatures of their duly authorized representatives. It is the intent of the Parties that
this Agreement shall become operative on the Effective Date first set forth above.
TOWN OF LOS GATOS, CALIFORNIA,
a California municipal corporation
APPROVED AS TO FORM:
Robert Schultz Greg Larson
Town Attorney Town Manager
ATTEST: 110 E. Main Street
Los Gatos, CA 95030
Telephone: (408)
Fax Number: (408) 241 -6771
Town Clerk
"TOWN"
Los Gatos Senior Homes, LLC
a California limited liability company
By: Charities Housing Development
Corporation, of Santa Clara County
a California nonprofit public benefit
corporation
Its: Sole Member
By:
Daniel Wu
Its: Executive Director
- Date: -
"OWNER"
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STATE OF CALIFORNIA )
)ss
COUNTY OF )
Ce71
before me,
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 capaTown(ies), and that by his/her /their signatures} on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
Notary's Signature
EXHIBIT A
LEGAL DESCRIPTION
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