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REDEVELOPMENT AGENDA ITEM NO. 3

Meeting Date: January 25, 2005

Subject/Title: Approve a Resolution approving and authorizing the execution of a Participation and Loan Agreement by and between the Redevelopment Agency of the City of Brentwood, City of Brentwood and Eden Housing, Inc. and approving a loan in the amount of $100,000.00 to assist in the construction of Brentwood Senior Commons, an 80-unit senior apartment complex located on Oak Street

Prepared by: Ellen Bonneville, Housing Manager

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Approve the Resolution and authorize the City Manager to execute a Participation and Loan Agreement by and between the Redevelopment Agency, the City and Eden Housing, Inc. for the development of Brentwood City Commons, an 80-unit senior apartment project located on Oak Street in an amount not to exceed $100,000.

PREVIOUS ACTION
Ordinance 756 was adopted by the City Council on September 9, 2003 creating the City of Brentwood Affordable Housing Program. The program was set up to support the availability of housing opportunities for low and moderate income residents within the community. The Ordinance created a “Housing Trust Fund” through the payment of “in-lieu” fees by developers.

The Brentwood Senior Commons project (Terra Nova Development Co.) received a Conditional Use Permit from the City of Brentwood Planning Commission and Design Review approval for the project on February 18, 2003 for an 80 unit senior housing project and in February of 2004, received a one-year extension of the Design Review approval to February 18, 2005.

On October 18, 2004 the Housing Subcommittee recommended that staff request the reservation of Housing Trust Funds in an amount not to exceed $1,000,000 for Eden Housing, Inc. as matching funds for the development of the Brentwood Senior Commons project.

On November 9, 2004 the City Council approved the reservation of $1,000,000 in Housing Trust Funds for this project.

BACKGROUND
The project, owned by Terra Nova Development, was originally approved by the Planning Commission in February of 2003 for the development of an 80-unit senior housing complex on Oak Street across from the Post Office. The project received a density bonus and parking reduction and was, therefore, required to restrict at least 20% of the units as affordable housing for low income seniors and the remaining 80% as affordable housing for moderate income seniors.
Terra Nova has decided to sell the property and received bids from several interested for-profit and non-profit housing developers. They chose Eden Housing, Inc. as the best offer. Eden Housing, Inc. is a non-profit developer located in Hayward, California and has been in business for 36 years. They currently own and operate 4,200 housing units throughout the Bay Area.

The entitlements for the project expire on February 18, 2005 but the prospective new owner, Eden Housing, Inc. has requested an additional one year extension and that request will go forward to the Planning Commission on February 7, 2005.

Eden Housing, Inc. has an option to purchase the property and they must close on or before February 19, 2005.

Eden Housing, Inc. is requesting a loan from the City in an amount not to exceed $900,000 from the City’s Housing Trust Fund and in an amount not to exceed $100,000 from the City of Brentwood Redevelopment Agency for a total loan amount of $1,000,000 towards a portion of the construction, pre-development and closing costs for the project. The $100,000 loan from the Redevelopment Agency rather than the City’s Housing Trust Fund will assist the Agency in meeting its housing production goals.

The terms of both of the Promissory Notes for the City and the Agency are the same:

Term: 55 years

Interest: 3% simple interest per annum from the date of disbursement

Security: Deed of Trust, assignment of rents and a security agreement and fixture filing

Repayment: So long as the Eden Housing, Inc. owns and operates the project in compliance with the affordable housing covenants and the Agreement is not in default, the entire principal and interest of the Note shall by due and payable in full upon the 55th anniversary of both Notes.


Eden Housing, Inc. received an approval for $2,800,000 in CDBG funds from the County’s Finance Committee in late October to fund the purchase of the property. They anticipate requesting approximately $11,000,000 in funds from the 9% Tax Credit Allocation Committee from the State of California in April of 2005 for the remainder of construction costs for the project.

Eden Housing intends to increase the affordability component of the project through restricting 70 units as rental housing for very-low income seniors and 8 units for extremely-low income seniors. One unit will be available as a Manager’s unit.

Ordinance 756 Section 17.725.007 states that the “Funds shall be dispersed at the discretion of the City Council for the purpose of assisting in the construction of low and very-low income dwelling units, or helping with other affordable housing opportunities.” This request for funds for the Brentwood Senior Commons project complies with the Ordinance for the expenditure of the Housing Trust funds.

The loans shall be disbursed in three disbursements, with funds from the Agency Loan to be disbursed first, followed by funds from the City Loan. The First disbursement shall be used for surveying, architectural and closing costs and shall not exceed $30,000. The second disbursement shall be used for predevelopment costs, including reasonable developer fees and shall not exceed $500,000 less the first disbursement of $30,000. The third disbursement shall be used for development and construction costs and shall not exceed $500,000.

Proceeding with this project is consistent with the Redevelopment Plan and the Five-Year Implementation Plan to provide affordable housing. The project is located outside of the Merged Project Area and therefore the Agency will have the ability to count 39 units from this project towards its housing production goals for the Agency.

FISCAL IMPACT
The cost of the project to the Agency is $100,000 and will be funded by the Agency’s Low and Moderate Housing Fund 302. The Low and Moderate Housing Fund is stable and healthy and can financially support the Eden Housing, Inc. Brentwood Senior Commons project.

Attachments
Resolution
Participation and Loan Agreement with attachments

AGENCY RESOLUTION NO.
RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A PARTICIPATION AND LOAN AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, THE CITY OF BRENTWOOD AND EDEN HOUSING, INC., AND APPROVING A LOAN IN THE AMOUNT OF $100,000.00 TO ASSIST IN THE CONSTRUCTION OF BRENTWOOD SENIOR COMMONS, AN 80-UNIT SENIOR APARTMENT PROJECT LOCATED ON OAK STREET
WHEREAS, Eden Housing, Inc. ("Developer") plans to purchase that approximately 3.47 acre parcel located on Oak Street between Larkspur Lane, Garin Parkway and Wild Iris Way in the City of Brentwood (the "Property").
WHEREAS, Developer plans to construct an 80-unit senior affordable apartment project known as Brentwood Senior Commons (the "Project") on the Property in accordance with the following City approvals, as may be amended or extended: (1) Rezoning 00-05A, approved on May 27, 2003, and (2) Design Review 03-02 and Conditional Use Permit 01-26, approved by the Planning Commission on February 18, 2003, by Resolution No. 03-08, and extended until February 18, 2004.
WHEREAS, the Project is categorically exempt from the provisions of the California Environmental Quality Act, Public Resources Code section 21000, et seq. ("CEQA") pursuant to CEQA Guidelines, California Code of Regulations section 15332.
WHEREAS, the Redevelopment Agency of the City of Brentwood (the "Agency") is carrying out the Merged Area Redevelopment Plan (the "Redevelopment Plan").
WHEREAS, the Agency has established a Low and Moderate Income Housing Fund for the Merged Project Area pursuant to Health and Safety Code Section 33334.3, and is authorized and empowered under the Community Redevelopment Law of the State of California, Health and Safety Code section 33000, et seq., and the Redevelopment Plan to use its Low and Moderate Income Housing Fund for the purpose of increasing the community's supply of low and moderate income housing.
WHEREAS, in order to assist in the construction of the affordable Project, which will increase the City's supply of low-income housing, Agency desires to loan Developer the amount of $100,000.00 from its Low and Moderate Income Housing Fund pursuant to the terms set forth in the Participation and Loan Agreement between the Agency, the City of Brentwood and Developer attached hereto (the "Loan Agreement"). The terms include the recordation of affordability covenants to ensure the long-term affordability of the Project.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD DOES HEREBY RESOLVE AS FOLLOWS:
The Redevelopment Agency hereby approves the loan of $100,000 from the Agency's Low and Moderate Income Housing Fund to Developer pursuant to the terms of the Participation and Loan Agreement attached hereto and authorizes and directs the Executive Director to execute the Loan Agreement, subject to any minor conforming, technical or clarifying changes approved by the City Attorney or Agency Special Counsel. The Redevelopment Agency further authorizes the Executive Director to take all actions necessary to carry out the Loan Agreement, including the execution of any attachments to the Loan Agreement, subject to any minor conforming, technical or clarifying changes approved by the City Attorney or Agency Special Counsel, and any other documents necessary to carry out the provisions of the Loan Agreement.
PASSED AND ADOPTED this 25th day of January, 2005, by the following vote:


PARTICIPATION AND LOAN AGREEMENT
by and between the
REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD,
CITY OF BRENTWOOD
and
EDEN HOUSING, INC.

Dated: January 25, 2005

TABLE OF CONTENTS
Page
100. DEFINITIONS; REPRESENTATIONS AND WARRANTIES 12
101. Definitions 12
102. Representations and Warranties 15
102.1 Agency Representations 15
a. Authority 15
b. No Conflict 15
102.2 City's Representations 15
a. Authority 15
b. No Conflict 15
102.3 Participant's Representations 15
a. Authority 16
b. No Conflict 16
c. No Participant Bankruptcy 16
d. In Escrow 16
102.4 Prohibition Against and Limitations on Change in Ownership, Management and Control of Participant 16
a. General 16
b. Prior to Issuance of Certificate of Completion 16
c. Following Issuance of Certificate of Completion 17
d. Pre-Approved Transfers 17
200. DEVELOPMENT OF THE SITE 18
201. Scope of Development 18
202. Schedule of Performance 19
203. Cost of Construction 19
204. Insurance Requirements 19
205. City and Other Governmental Agency Permits 20
206. Rights of Access During Construction 20
207. Antidiscrimination During Construction 20
208. Compliance With Laws 20
209. Prevailing Wages 20
210. Taxes and Assessments 21
211. Liens and Stop Notices 21
212. Right of the Agency and City to Satisfy Other Liens on the Site 21
213. Certificate of Completion 22
214. Mortgage, Deed of Trust, Sale and Lease-Back Financing 22
214.1 Holder Not Obligated to Construct Improvements 22
214.2 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure 22
214.3 Right of Agency and City to Cure Mortgage or Deed of Trust Default 23
215. Condition of the Site 23
300. COVENANTS, RESTRICTIONS AND AGREEMENTS 24
301. Use Covenants; Affordable Housing Covenant 24
302. Maintenance Covenants 24
303. Obligation to Refrain from Discrimination 24
304. Form of Nondiscrimination and Nonsegregation Covenants 24
a. In deeds 24
b. In leases 25
c. In contracts 25
305. Rights of Access 25
306. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction 25
400. FINANCIAL PROVISIONS 26
401. Participant's Financing 26
402. Construction and Permanent Financing 26
403. Agency and City Loans 26
404. Disbursement of Loans 26
405. Conditions Precedent to Disbursement of Loans 27
405.1 No Default 27
405.2 Execution of Loan Documents 27
405.3 Execution of Other Documents 27
405.4 Recordation of Documents 27
405.5 Insurance 27
405.6 Lender's Policy of Title Insurance 27
405.7 Disbursement of County Loan 27
405.8 Prepared to Close Escrow 27
405.9 Evidence of Surveying, Architectural and Closing Costs 28
405.10 Ownership of the Site 28
405.11 Tax Credit Financing 28
405.12 Construction and Permanent Financing 28
405.13 Approvals and Permits 28
406. Priority of Liens 28
407. Financial Records and Reporting Obligations 28
500. DEFAULTS AND REMEDIES 28
501. Default Remedies 28
502. Institution of Legal Actions 29
503. Termination by Participant 29
504. Termination by Agency and City 29
505. Option to Purchase, Enter and Possess 29
505.1 Events Triggering Right to Exercise Option 29
505.2 Subordination of Option 30
505.3 Exercise of Option 30
505.4 Option Price 30
506. Acceptance of Service of Process 31
507. Rights and Remedies Are Cumulative 31
508. Inaction Not a Waiver of Default 31
600. GENERAL PROVISIONS 31
601. Notices, Demands and Communications Between the Parties 31
602. Enforced Delay; Extension of Times of Performance 32
603. Successors and Assigns 33
604. Memorandum of Agreement 33
605. Relationship Between Agency, City and Participant 33
606. Agency and City Approvals and Actions 33
607. Counterparts 34
608. Integration 34
609. Titles and Captions 34
610. Interpretation 34
611. No Waiver 34
612. Modifications 34
613. Severability 34
614. Computation of Time 34
615. Legal Advice 35
616. Time of Essence 35
617. Cooperation 35
618. Conflicts of Interest 35
619. Participant's Indemnity 35
620. Date of Agreement 35
621. Nonliability of Officials and Employees of Agency and City 35
622. Assignment by Agency 36
623. Applicable Law 36


ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Site Legal Description
Attachment No. 3 Schedule of Performance
Attachment No. 4 Scope of Development
Attachment No. 5 Certificate of Completion
Attachment No. 6 Affordable Housing Covenant
Attachment No. 7 Memorandum of Agreement
Attachment No. 8 Agency Note
Attachment No. 9 Agency Deed of Trust
Attachment No. 10 City Note
Attachment No. 11 City Deed of Trust

PARTICIPATION AND LOAN AGREEMENT
THIS PARTICIPATION AND LOAN AGREEMENT (this "Agreement") dated as of this 25th day of January, 2005, the date of last execution of this Agreement by each of the parties indicated on the signature page hereof, is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body corporate and politic (the "Agency"), the CITY OF BRENTWOOD, a municipal corporation (the "City") and EDEN HOUSING, INC., a California nonprofit public benefit corporation (the "Participant").
RECITALS
The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 100 of this Agreement:
A. The purpose of this Agreement is to provide for the development of the Brentwood Senior Commons Project, an 80-unit senior affordable housing project, by Participant.
B. The Project is located on that approximately 3.47 acre parcel located on Oak Street between Larkspur Lane, Garin Parkway and Wild Iris Way in the City of Brentwood, as depicted on the Site Map attached hereto as Attachment No. 1 and described in the Site Legal Description attached hereto as Attachment No. 2 (the "Site"). Participant has entered into a purchase and sale agreement to purchase the Site.
C. Agency desires to enter into this Agreement because, pursuant to the Community Redevelopment Law and the Redevelopment Plan, the Project will provide affordable housing in the community. The Agency is authorized and empowered under the Community Redevelopment Law and the Redevelopment Plan to use its Low and Moderate Income Housing Fund for the purpose of increasing the community's supply of low and moderate income housing.
D. City desires to enter into this Agreement because, pursuant to the City's Inclusionary Housing Ordinance, it will assist in the construction of very low-, low- and moderate-income dwelling units. City is authorized to disburse funds from its Housing Trust Fund for such purposes.
E. Agency, City and Participant desire to enter into this Agreement to set forth the terms and conditions relating to: (i) Participant's development, use and operation of the affordable Project; and (ii) the disbursement of Agency and City loans to Participant in order to make it economically feasible for Participant to construct an affordable housing project.
F. The fulfillment of this Agreement is in the vital and best interests of the City and the health, safety and welfare of its residents and in accord with the provisions of applicable federal, state and local law.
AGREEMENT
NOW, THEREFORE, Agency, City and Participant hereby agree as follows:
100. DEFINITIONS; REPRESENTATIONS AND WARRANTIES
101. Definitions.
"Affiliate of Participant" means an entity or entities in which Participant retains more than fifty percent (50%) in the aggregate, directly or indirectly, of the ownership or beneficial interest and retains full management and control of the transferee entity or entities, either directly or indirectly through another entity, subject only to certain major events requiring the consent or approval of the other owners of such entity.
"Affordable Housing Covenant" means the Affordable Housing Covenant to be recorded against the Site as provided in Section 301 in the form attached hereto as Attachment No. 6 and incorporated herein.
"Affordable Senior Unit(s)" is defined in Section 301 hereof.
"Agency" means the Redevelopment Agency of the City of Brentwood, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, and any assignee of or successor to its rights, powers and responsibilities.
"Agency Deed of Trust" is defined in Section 403 hereof.
"Agency Loan" is defined in Section 403 hereof.
"Agency Note" is defined in Section 403 hereof.
"Agreement" means this Participation and Loan Agreement between Agency, City and Participant.
"Certificate of Completion" means the document which evidences the Participant's satisfactory completion of construction and installation of the Improvements, as set forth in Section 214 hereof, in the form attached hereto as Attachment No. 5 and incorporated herein.
"City" means the City of Brentwood, a California municipal corporation.
"City Deed of Trust" is defined in Section 403 hereof.
"City Loan" is defined in Section 403 hereof.
"City Note" is defined in Section 403 hereof.
"Claims" is defined in Section 209 hereof.
"Conditions Precedent to Disbursement of Loans" is defined in Section 405 hereof.
"Community Redevelopment Law" means the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000, et seq.).
"Construction and Permanent Financing" is defined in Section 402 hereof.
"County Loan" is defined in Section 401 hereof.
"Date of Agreement" means the date first set forth above.
"Default" means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 501 hereof.
"Fair Market Value" means the value of the Site, as established by a qualified licensed appraiser acceptable to Agency and/or City and Participant.
"First Disbursement" is defined in Section 404 hereof.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees, of the United States, the State of California, the County of Contra Costa, the City, or any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over Agency, City, Participant or the Site.
"Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
"Housing Trust Fund" means the fund created by Section 17.725.007 of the Brentwood Municipal Code, in which in-lieu fees from implementation of the City's Inclusionary Housing Ordinance are deposited.
"Improvements" means the 80-unit senior affordable rental project consisting of at least 79 Affordable Senior Units, and appurtenant on-site and off-site improvements to be constructed and installed by Participant as set forth herein and in the Scope of Development.
"Loans" is defined in Section 403 hereof.
"Low and Moderate Income Housing Fund" means the Agency's low and moderate income housing fund, as established pursuant to Health and Safety Code Section 33334.3.
"Memorandum of Agreement" is defined in Section 604 hereof.
"Notice" shall mean a notice in the form prescribed by Section 601 hereof.
"Participant" means Eden Housing, Inc., a California nonprofit public benefit corporation, or its permitted assignee or transferee.
"Participant's Financing" is defined in Section 401 hereof.
"Project" means the Site and the Improvements to be constructed by Participant on the Site as set forth herein.
"Redevelopment Plan" means the Merged Redevelopment Plan for the North Brentwood Redevelopment Project and the Brentwood Redevelopment Project, adopted on May 9, 2000, by Ordinance No. 632 of the City Council of the City on Brentwood, as amended, and incorporated herein by reference.
"Redevelopment Project" means the Merged Redevelopment Project, adopted by the City pursuant to the Redevelopment Plan.
"Schedule of Performance" means the Schedule of Performance attached hereto as Attachment No. 3 and incorporated herein, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished.
"Scope of Development" means the Scope of Development attached hereto as Attachment No. 4 and incorporated herein, which describes the scope, amount and quality of the work of Improvements to be constructed and installed by the Participant.
"Second Disbursement" is defined in Section 404 hereof.
"Site" is defined in Recital B.
"Site Legal Description" means the description of the Site attached hereto as Attachment No. 2 and incorporated herein.
"Site Map" means the map of the Site attached hereto as Attachment No. 1 and incorporated herein.
"Tax Credit Financing" is defined in Section 401 hereof.
"Third Disbursement" is defined in Section 404 hereof.
102. Representations and Warranties.
102.1 Agency Representations. Agency represents and warrants to Participant as follows:
a. Authority. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health & Safety Code Section 33000, et seq.), which has been authorized to transact business pursuant to action of the City. Agency has full right, power and lawful authority to perform its obligations hereunder and the execution, performance and delivery of this Agreement by Agency has been fully authorized by all requisite actions on the part of Agency.
b. No Conflict. To the best of Agency's knowledge, Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound.
Until the expiration or earlier termination of this Agreement, Agency shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 102.1 not to be true, immediately give written notice of such fact or condition to Participant.
102.2 City's Representations. City represents and warrants to Participant as follows:
a. Authority. City is a municipal corporation of the State of California, which has been authorized to transact business by law. City has full right, power and lawful authority to perform its obligations hereunder and the execution, performance and delivery of this Agreement by City has been fully authorized by all requisite actions on the part of City.
b. No Conflict. To the best of City's knowledge, City's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound.
Until the expiration or earlier termination of this Agreement, City shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 102.2 not to be true, immediately give written notice of such fact or condition to Participant.
102.3 Participant's Representations. Participant represents and warrants to Agency as follows:
a. Authority. Participant is a duly organized nonprofit public benefit corporation organized and in good standing under the laws of the State of California. The copies of the documents evidencing the organization of Participant delivered to Agency are true and complete copies of the originals, as amended to the Date of Agreement. Participant has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Participant has been fully authorized by all requisite actions on the part of Participant.
b. No Conflict. To the best of Participant's knowledge, Participant's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Participant is a party or by which it is bound.
c. No Participant Bankruptcy. Participant is not the subject of any bankruptcy proceeding.
d. In Escrow. Participant has entered into a purchase agreement to purchase the Site and intends to close escrow and purchase the Site in fee simple by February 19, 2005.
Until the expiration or earlier termination of this Agreement, Participant shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 102.3 not to be true, immediately give written notice of such fact or condition to Agency.
102.4 Prohibition Against and Limitations on Change in Ownership, Management and Control of Participant.
a. General. The qualifications and identity of the Participant are of particular concern to the Agency and City. It is because of the demonstrated qualifications and identity that the Agency and City have entered into this Agreement with the Participant. No voluntary or involuntary successor in interest of the Participant shall acquire any interest in the Site or the Project nor any rights or powers under this Agreement, except as expressly set forth herein. It is expressly stipulated and agreed that any assignment, sale, transfer or other disposition of the Project or the Site, or any portion(s) thereof or interest(s) therein or of any rights or powers under this Agreement in violation of this Section 102.4 shall be null, void and without effect, shall cause a reversion of title to Participant, and shall be ineffective to relieve Participant of its obligations under this Agreement and the Affordable Housing Covenant.
b. Prior to Issuance of Certificate of Completion. Prior to issuance of the Certificate of Completion, the Participant shall not assign or transfer this Agreement, the Project or the Site, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the Agency's Executive Director and City's City Manager. The Agency's Executive Director and City's City Manager shall have the right to disapprove any transfer, assignment or refinancing, which would diminish or otherwise impair the ability of the Participant to fulfill all its duties and obligations under this Agreement.
c. Following Issuance of Certificate of Completion. Following issuance of the Certificate of Completion, Participant shall not assign or transfer this Agreement, the Project or the Site, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the Agency's Executive Director and City's City Manager, which approval shall not be unreasonably withheld or delayed, and shall be granted upon Agency and City's receipt of evidence acceptable to Agency and City that the following conditions have been satisfied:
1. Participant is not in Default under this Agreement or the Affordable Housing Covenant, or the purchaser or assignee agrees to undertake to cure any Defaults or violations of Participant to the reasonable satisfaction of Agency and City.
2. The continued operation of the Project shall comply with the provisions of this Agreement and the Affordable Housing Covenant.
3. Either (i) the purchaser or assignee or its property manager has at least three year's experience in the ownership, operation and management of similar size rental housing projects, and at least one year's experience in the ownership, operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (ii) the purchaser or assignee agrees to retain a property management firm with the experience and record described in subclause (i) above, or (iii) Participant or its management company will continue to manage the Project for at least one year following such transfer and during such period will provide training to the purchaser or assignee and its manager in the responsibilities relating to the Affordable Senior Units.
4. The person or entity which is to acquire the Project does not have pending against it, and does not have a history of significant and material building code violations or complaints concerning the maintenance, upkeep, operation and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies.
5. The proposed purchaser or assignee enters into a written assignment, assumption and release of assignor agreement in a form and content reasonably satisfactory to Agency and City's legal counsel, and, if requested by Agency or City, provides an opinion of such purchaser or assignee's counsel to the effect that this Agreement and the Affordable Housing Covenant are valid, binding and enforceable obligations of such purchaser or assignee, subject to bankruptcy and other standard limitations affecting creditor's rights.
d. Pre-Approved Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency and City approval of a transfer or assignment of this Agreement, the Project, or the Site or any interest therein shall not be required in connection with any of the following:
1. Subject to the Participant submitting the assignment, assumption and release agreement referred to above and the approval of such agreement by the Agency and City, which approvals shall not be unreasonably withheld, any transfer or assignment of the Project or any interest therein to an Affiliate of Participant;
2. The granting of temporary or permanent easements or permits to facilitate development of the Project;
3. Any assignment for the purpose of obtaining and securing Participant's Financing and Construction and Permanent Financing, as contemplated by Sections 401 and 402 below, including the grant of a deed of trust, assignment of rents and security agreement to secure the funds necessary for Construction and Permanent Financing;
4. A transfer which combined with any and all previous or simultaneous transfers represents less than fifty percent (50%) of the equity or beneficial interest of Participant, provided such transfer does not cause a material change in the rights to manage and control Participant;
5. The rental, in the ordinary course of business, of the Affordable Senior Units, provided such rental is in accordance with the terms of this Agreement and the Affordable Housing Covenant; and
6. A transfer to any of the following: (a) a limited partnership in which the general partner is Eden Housing, Inc., a controlled affiliate of Eden (defined as an affiliate nonprofit corporation under the direct control or under the common control of Eden Housing, Inc.), or a limited liability company whose sole manager is Eden Housing, Inc. or a controlled affiliate of Eden ("an Eden LLC"); (b) a transfer of the initial limited partner's interest in the limited partnership to an investor limited partner or partners; (c) a transfer of the general partner's interest in the limited partnership to a controlled affiliate of Participant or an Eden LLC; and (iv) a transfer from the Participant limited partnership to Eden Housing, Inc., a controlled affiliate of Participant or an Eden LLC; provided, however, that prior to the transfers described in (a), (b) and (d), Participant shall deliver to the Agency and City a copy of the transferee's and assignee's organizational documents and execute an assignment, assumption and release agreement in a form reasonably approved by the Agency and City.
In the event of an assignment or transfer by Participant under the above Subsections 102.4(d)1 through 102.4(d)6, inclusive, not requiring the Agency and City's prior approval, Participant nevertheless agrees that it shall give at least fifteen (15) days prior written Notice to Agency and City of such assignment or transfer. In addition, Agency and City shall be entitled to review such documentation as may be reasonably required by the Agency's Executive Director and City's City Manager for the purpose of determining compliance of such assignment or transfer with the requirements of Subsections 102.4(d)1 through 102.4(d)6, inclusive.
200. DEVELOPMENT OF THE SITE
201. Scope of Development. The Project shall be developed and the Improvements shall be constructed and installed in accordance with the terms and provisions of this Agreement and the following approvals which have been granted, and as may be amended or extended, by the City and its component agencies: (1) Rezoning 00-05A, approved on May 27, 2003, and (2) Design Review 03-02 and Conditional Use Permit 01-26, approved by the Planning Commission on February 18, 2003, by Resolution No. 03-08 and extended until February 18, 2004 (the "City Approvals"). All such work shall be performed by a licensed contractor(s).
202. Schedule of Performance. The Participant shall commence and complete construction of the Improvements and satisfy all other obligations and conditions of this Agreement within the times established in the Schedule of Performance, subject to the provisions of Section 602 hereof. Construction shall be deemed commenced when the Participant has commenced excavation and grading of the Site.
203. Cost of Construction. All the costs of Site preparation, planning, designing and constructing the Improvements and developing the Project on the Site shall be borne solely by the Participant.
204. Insurance Requirements. Participant shall take out and maintain or shall cause its contractor to take out and maintain throughout the term of this Agreement, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000.00) combined single limit, or such other policy limit as the Agency and City may approve at their discretion, including contractual liability, as shall protect Participant, City and Agency from claims for such damages. Such policy or policies shall be written on an occurrence form. The Participant shall also obtain and maintain throughout the term of this Agreement a comprehensive automobile liability policy in the amount of Two Million Dollars ($2,000,000.00), combined single limit, and builder's all-risk insurance in an amount not less than the full insurable value of the Improvements on a replacement cost basis and shall furnish or cause to be furnished to the Agency and City evidence satisfactory to both Agency and City that Participant and any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, except for workers' compensation insurance which may be placed with insurers with a current A.M. Best's rating of no less than A-:VIII. Participant shall furnish a notarized certificate of insurance countersigned by an authorized agent of the insurance carrier on a form reasonably approved by the Agency and City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City, Agency and their respective officers, agents, employees, volunteers and representatives as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by Participant shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self-insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall be furnished by the Participant to Agency and City within the time provided in the Schedule of Performance.
205. City and Other Governmental Agency Permits. Participant shall secure, or caused to be secured, any and all permits or entitlements, in addition to the City Approvals, that may be required by City or any other governmental agency affected by or which has jurisdiction over the construction of the Project.
206. Rights of Access During Construction. Prior to the issuance of a Certificate of Completion, for purposes of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the Project and the work of Improvements, so long as the Agency, City or their representatives comply with all safety rules. The Agency and City (or their representatives) shall, except in emergency situations, notify the Participant prior to exercising its rights pursuant to this Section 206. Nothing herein shall be deemed to limit the ability of the City to conduct code enforcement and other administrative inspections of the Site in accordance with applicable law.
207. Antidiscrimination During Construction. Participant, for itself, and its successors and assigns, agrees that in the construction of Improvements on the Site, the Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry or national origin.
208. Compliance With Laws. Participant shall carry out the work of the Improvements in conformity with all applicable laws, including Public Contract Code requirements; City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City's Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
209. Prevailing Wages. Participant acknowledges and agrees that the Improvements constitute construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds under California Labor Code Section 1720(b)(3). Developer shall comply with all requirements of the Department of Industrial Relations in accordance with the California Labor Code, and all other applicable federal, state and local laws and regulations pertaining to labor standards and payment of prevailing wages (collectively, "Prevailing Wage Laws"). Participant shall (i) require its contractors and subcontractors to submit certified copies of payroll records to Participant; (ii) maintain complete copies of such certified payroll records; and (iii) make such records available to Agency, City and their designees for inspection and copying during regular business hours at the Site or at another location within the City of Brentwood.
Participant shall defend, indemnify and hold harmless Agency, City and their officers, employees, volunteers, agents and representatives from and against any and all present and future causes of action, claims, liabilities, obligations, damages, fines, penalties, judgments, actions or expenses (including attorney fees) (collectively, the "Claims"), arising out of or in any way connected with Participant's obligation to comply with all Governmental Requirements, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781, as amended and added by Senate Bill 966.
Participant hereby waives, releases and discharges forever Agency and the City, and its and their employees, officers, volunteers, agents and representatives, from any and all present and future Claims arising out of or in any way connected with Participant's obligation to comply with all Prevailing Wage Laws in connection with the work of the Improvements.
Participant is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

As such relates to this Section 209, Participant hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code.
210. Taxes and Assessments. Following Participant's purchase of the Site and during its period of ownership of the Site, Participant shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Site, subject to the Participant's right to contest in good faith any such taxes. Participant shall remove or have removed any levy or attachment made on the Site or any part thereof, or assure the satisfaction thereof within thirty (30) days following the date of attachment or levy.
211. Liens and Stop Notices. Participant shall not allow to be placed on the Site or any part thereof any lien or stop notice. If a claim of a lien or stop notice is given or recorded affecting the Project, the Participant shall within thirty (30) days of such recording or service:
a. pay and discharge the same;
b. affect the release thereof by recording and delivering to the Agency and City a surety bond in sufficient form and amount; or
c. provide the Agency and City with other assurance which the Agency and City deem, in their sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of Agency and City from the effect of such lien or bonded stop notice.
212. Right of the Agency and City to Satisfy Other Liens on the Site. After Participant purchases the Site and prior to the completion of construction of the Improvements, and after the Participant has had written Notice and has failed after a reasonable time, but in any event not more than sixty (60) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the Site which are not otherwise permitted under this Agreement, the Agency and City shall have the right, but not the obligation, to satisfy any such liens or encumbrances without further notice to the Participant. In such event, Participant shall be liable for and the Agency and/or City shall be entitled to reimbursement by the Participant for such paid lien or encumbrance.
213. Certificate of Completion. Following Participant's completion of the work of construction and installation of the Improvements on the Site in conformity with this Agreement, and within the time set forth in the Schedule of Performance, the Agency and City shall furnish the Participant with a "Certificate of Completion" substantially in the form of Attachment No. 5 attached hereto. The Agency and City shall not unreasonably withhold such Certificate of Completion. The Certificate of Completion shall be conclusive determination of satisfactory completion of the work of construction and installation of the Improvements on the Site and the Certificate of Completion shall so state. Any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants as set forth in Section 306 of this Agreement.
If the Agency and City refuse or fail to furnish the Certificate of Completion, the Agency and City shall, within thirty (30) days after Participant's written request therefore, provide the Participant with a written statement of the reasons the Agency and City refused or failed to furnish the Certificate of Completion. The statement shall also contain the Agency and City's opinion of the actions the Participant must take to obtain the Certificate of Completion. Agency and City's failure to provide such a written statement within such thirty (30) day period shall be deemed Agency and City's disapproval of Participant's request for issuance of the Certificate of Completion. The Certificate of Completion shall not constitute evidence of payment of the Loans or compliance with or satisfaction of any obligation of the Participant to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the work of Improvements, or any part thereof. The Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code.
214. Mortgage, Deed of Trust, Sale and Lease-Back Financing.
214.1 Holder Not Obligated to Construct Improvements. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion. Nothing in this Agreement shall be deemed to or be construed to permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon other than those uses or Improvements provided for or authorized by this Agreement.
214.2 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Participant as provided herein, whenever the Agency or City shall deliver any notice or demand to Participant with respect to any breach or default by the Participant hereunder, the Agency or City shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. No notice of default shall be effective as to the holder unless such notice is given. Each such holder shall (insofar as the rights of the Agency or City are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. In the event possession of the Site (or portion thereof) is required to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within sixty (60) days, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy. Nothing in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed the Participant's obligations to the Agency and City by written agreement satisfactory to the Agency and City. Any such holder properly completing the Improvements shall be entitled, upon compliance with the requirements of Section 214 of this Agreement, to a Certificate of Completion.
214.3 Right of Agency and City to Cure Mortgage or Deed of Trust Default. If a mortgage or deed of trust default or breach by the Participant prior to the completion of the construction of the Improvements occurs, and the holder of any mortgage or deed of trust has not exercised its option to cure the default, the Agency and/or City may cure the default, without acceleration of the subject loan, following prior Notice thereof to the Participant. In such event, the Participant shall be liable for and the Agency and/or City shall be entitled to reimbursement from the Participant of all costs and expenses associated with and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by the Participant and incurred by the Agency and/or City in curing such default. The Agency and/or City shall also be entitled to record a lien upon the Site to the extent of such incurred costs and disbursements. Any such lien shall be subject to prior encumbrances and deeds of trust. If the ownership of the Site has vested in the holder, the Agency and/or City, if it so desires, may elect to purchase the Site from the holder upon such terms as are mutually acceptable to the Agency, City and the holder.
215. Condition of the Site. Participant shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials that are located in, on or under the Site. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Participant shall install and utilize such equipment and implement and adhere to such procedures as are consistent with the standards prevailing in the industry, to the extent such standards exceed applicable Governmental Requirements, as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. Participant shall cause each release of Hazardous Materials in, on or under the Site to be remediated in accordance with all Governmental Requirements.
Participant agrees to indemnify, defend and hold Agency, City and their officers, employees, volunteers, agents and representatives harmless from and against any and all Claims, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Site, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site, caused by Participant or any of Participant's predecessors in interest. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic or consequential loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effects on the environment.
300. COVENANTS, RESTRICTIONS AND AGREEMENTS
301. Use Covenants; Affordable Housing Covenant. The Participant covenants and agrees for itself, its successors, its assigns and every successor in interest that the Site shall be used for affordable housing purposes and that at least 79 of the dwelling units to be constructed on the Site (the "Affordable Senior Unit(s)") shall be rented to very low- and extremely low-income households, all in accordance with the terms of the Affordable Housing Covenant, attached hereto as Attachment No. 8, the uses specified in the Redevelopment Plan and this Agreement for a period of fifty-five years or for such longer period as may be required by Participant's financing. The foregoing covenant shall run with the land. The Affordable Housing Covenant shall be executed and delivered by Participant to Agency and City in accordance with the Schedule of Performance.
302. Maintenance Covenants. Participant shall maintain in first-class condition and in accordance with the custom and practice generally applicable to senior residential projects in Contra Costa County, the private improvements and public improvements and landscaping to the curbline(s) on and abutting the Site. Said improvements shall include, but not be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all other improvements on the Site and in the public right-of-way to the nearest curbline(s) abutting the Site. To accomplish the maintenance, Participant shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement. The maintenance covenants and obligations set forth in this Section 302 shall remain in effect for the period of time specified in Section 306, below.
303. Obligation to Refrain from Discrimination. The Participant covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Participant itself or any person claiming under or through them establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the Site. The foregoing covenants shall run with the land.
304. Form of Nondiscrimination and Nonsegregation Covenants. All deeds, leases or contracts for the rental, sale or lease of the Site shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
a. In deeds. "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land."
b. In leases. "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, 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, sub lessees, subtenants, or vendees in the premises herein leased."
c. In contracts. "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the premises."
305. Rights of Access. For the purposes of assuring compliance with this Agreement, representatives of the City and Agency shall have the reasonable right of access to the Site without charges or fees for the purpose of inspection of the Site. Such representatives of City or Agency shall be those who are so identified in writing by the City's City Manager or the Agency's Executive Director.
306. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. Both the Agency and City are deemed to be the beneficiaries of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Redevelopment Project. Both the City and Agency shall have the right, if the Agreement or covenants are breached, to exercise all 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 or any other beneficiaries of this Agreement and covenants may be entitled. The covenants contained in this Agreement shall remain in effect until the issuance of the Certificate of Completion for the completion of the work of Improvements, except for the following:
a. The covenants pertaining to use and maintenance of the Site and all improvements thereon, as set forth in Sections 301 and 302, shall remain in effect for fifty-five (55) years from the date of recordation of the Affordable Housing Covenant.
b. The covenants against discrimination, as set forth in Sections 303 and 304, shall remain in effect in perpetuity.
c. The covenants pertaining to assignment or transfer of this Agreement, the Project or the Site set forth in Section 102.4(c) shall remain in effect for the duration of the Affordable Housing Covenant.
400. FINANCIAL PROVISIONS
401. Participant's Financing. The Participant intends to finance the Project utilizing funds from federal and/or state Low-Income Housing Tax Credits ("Tax Credit Financing") and a loan from the County of CDBG funds in the amount of $2.8 million ("County Loan"). The Tax Credit Financing and County Loan shall hereinafter be referred to "Participant's Financing." The Participant shall complete, to the extent not yet completed, all actions necessary to effectuate the Participant's Financing. City and Agency agree to take any actions City or Agency deem reasonably necessary to assist the Participant in obtaining all approvals necessary for the Participant's Financing.
402. Construction and Permanent Financing. In addition to the Participant's Financing, the Participant shall secure such additional construction and permanent financing as may be necessary to undertake and complete development of the Site and construction of the Improvements on the Site in accordance with the terms of this Agreement ("Construction and Permanent Financing").
403. Agency and City Loans. In consideration of the Participant's obligations hereunder, including, without limitation, Participant's obligation to construct the Improvements and to provide Affordable Senior Units on the Site, and subject to the terms and conditions of this Agreement, including, without limitation, Participant's fulfillment of the conditions precedent to disbursement of the Agency and City Loans, as set forth in Section 405 below, the Agency agrees to loan Participant an amount equal to $100,000.00 (the "Agency Loan") and the City agrees to loan Participant an amount equal to $900,000.00 (the "City Loan") to assist in financing pre-development and development costs, including development fees such as building, engineering, water, wastewater, roadway and other City fees. The Participant shall execute and deliver a promissory note to Agency in the form attached hereto as Attachment No. 8 (the "Agency Note"). The Agency Note shall be secured by a deed of trust (the "Agency Deed of Trust") to be recorded against the Site in the form attached hereto as Attachment No. 10. The Participant shall execute and deliver a promissory note to City in the form attached hereto as Attachment No. 9 (the "City Note"). The City Note shall be secured by a deed of trust (the "City Deed of Trust") to be recorded against the Site in the form attached hereto as Attachment No. 11. The Agency Loan shall be provided to Participant from Agency's Low- and Moderate Income Housing Fund. The City Loan shall be provided to Participant from the City's Housing Trust Fund. The Agency Loan and the City Loan may hereinafter be collectively referred to as the "Loans."
404. Disbursement of Loans. The Loans shall be disbursed in three disbursements, with funds from the Agency Loan to be disbursed first, followed by funds from the City Loan. The first disbursement shall be used for surveying, architectural and closing costs and shall not exceed $30,000.00 (the "First Disbursement"). The second disbursement shall be used for predevelopment costs, including reasonable developer fees, and shall not exceed $500,000.00 less the First Disbursement (the "Second Disbursement"). The First Disbursement and Second Disbursement shall not exceed $500,000.00. The third disbursement shall be used for development and construction costs and shall not exceed $500,000.00 (the "Third Disbursement"). Upon satisfaction or waiver of each and all of the Conditions Precedent to Disbursement of Loans as set forth in Section 405 below, Agency and/or City shall disburse the applicable loan disbursement to Participant.
405. Conditions Precedent to Disbursement of Loans. Each Agency's and City's obligations to disburse the Loans are conditioned upon the satisfaction or waiver by the Agency and City of each and all of the conditions precedent described below ("Conditions Precedent to Disbursement of Loans"), which are solely for the benefit of the Agency and City, and which shall be fulfilled or waived by the time periods provided for herein:
405.1 No Default. Subject to the expiration of any applicable cure period, Participant shall not be in default of any of its obligations under the terms of this Agreement, and all representations and warranties of Participant contained herein shall be true and correct.
405.2 Execution of Loan Documents. Participant shall have executed the City Note and Agency Note and executed and acknowledged the Agency Deed of Trust and City Deed of Trust in recordable format.
405.3 Execution of Other Documents. Participant shall have executed and acknowledged the Memorandum of Agreement and the Affordable Housing Covenant in recordable format.
405.4 Recordation of Documents. The Agency Deed of Trust, City Deed of Trust, Memorandum of Agreement and Affordable Housing Covenant shall have been recorded against the Site in the Contra Costa County Recorder's Office.
405.5 Insurance. Participant shall have furnished Agency and City with evidence of the insurance coverage required under section 204.
405.6 Lender's Policy of Title Insurance. A title insurer reasonably acceptable to the City and Agency shall be unconditionally and irrevocably committed to issuing a CLTA Lender's policy of title insurance insuring City in the principal amount of the City Loan, Agency in the amount of the Agency Loan and the validity and priority of the Agency Deed of Trust and City Deed of Trust as a lien upon the Site, subject only to matters of record approved by City and/or Agency in writing (including section 406 below) and the Construction and Permanent Financing, and showing fee simple title to the Site in the name of Participant.
405.7 Disbursement of County Loan. Participant shall have satisfied or County shall have waived all conditions precedent to disbursement of the County Loan and County shall be prepared to disburse the County Loan.
405.8 Prepared to Close Escrow. Participant shall have executed and acknowledged, where necessary, all documents and shall be in a position to close escrow on the Site.
405.9 Evidence of Surveying, Architectural and Closing Costs. Participant shall have provided City and Agency with satisfactory evidence of surveying, architectural and closing costs.
405.10 Ownership of the Site. With respect to the Second and Third Disbursements, Participant shall have obtained title to the Site in fee simple.
405.11 Tax Credit Financing. With respect to the Second and Third Disbursements, Participant shall either have obtained a preliminary reservation from CTCAC for the Tax Credit Financing and provided satisfactory evidence thereof to Agency and City or otherwise have demonstrated to Agency and City, in their sole and absolute discretion, an alternate means of financing those portions of the Project intended to be financed through Tax Credit Financing, including additional financing described in the County Loan documents.
405.12 Construction and Permanent Financing. With respect to the Third Disbursement, Participant shall have obtained the Construction Financing and a firm commitment for the Permanent Financing and provided satisfactory evidence thereof to Agency and City.
405.13 Approvals and Permits. With respect to the Third Disbursement, Participant shall have obtained all local, state and federal approvals necessary to proceed with construction of the Project on the Site. Approvals, such as building permits, can be conditioned upon the payment of fees.
406. Priority of Liens. Agency and City agree that the Agency Deed of Trust and City Deed of Trust shall be subordinate to any deeds of trust executed by Participant in favor of Participant's lenders securing loans for the Construction and Permanent Financing and a deed of trust executed by Participant securing the County Loan. The Affordable Housing Covenant shall be junior in priority only to deeds of trust executed by Participant in favor of Participant's lenders securing the loans for the Construction and Permanent Financing, provided, however, Participant shall make good faith, best efforts to secure Permanent Financing whose lenders who will not require the Affordable Housing Covenant to be subordinated to the deed of trust securing a loan for Permanent Financing as long as Participant is not required to accept less favorable loan terms.
407. Financial Records and Reporting Obligations. Participant covenants and agrees, on behalf of itself and its successors and assigns, that, in connection with the construction, ownership and operation of the Project, it shall keep full and accurate books of account and records as required by and described in the Affordable Housing Covenant.
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the permitted extensions of time as provided in Section 602 of this Agreement, failure by any party to perform any action or covenant required by this Agreement within the time periods provided herein following Notice and expiration of any applicable cure period, shall constitute a "Default" under this Agreement. A party claiming a Default shall give written Notice of Default to the defaulting party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and no other party shall not be in Default if such party within thirty (30) days following receipt of such Notice of Default immediately, with due diligence, commences to cure, correct or remedy such failure or delay and completes such cure, correction or remedy with diligence. If Participant claims a Default of Agency or City, Participant shall give written notice to both Agency and City, and either Agency or City, regardless of who is claimed to be in Default, may cure or commence to cure the Default.
502. Institution of Legal Actions. Except as otherwise specifically provided herein, upon the occurrence of a Default, the party or parties claiming a Default shall have the right, in addition to any other rights or remedies, to institute any action at law or in equity to cure, correct, prevent or remedy any Default, or to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Contra Costa, State of California, in an appropriate municipal court in that County or in the Federal District Court for the Northern District of the State of California. Notwithstanding anything herein to the contrary, the Participant's right to recover damages in the event of a Default by Agency or City shall be limited to recovery of actual damages and shall exclude consequential damages.
503. Termination by Participant. In the event of any Default of Agency or City, which is not cured within the time set forth in Section 501 hereof after written demand by Participant, including notice and cure provisions for any holder of record of any mortgage or deed of trust pursuant to Section 215.2, then this Agreement may, at the option of Participant, be terminated by Notice thereof to Agency and City. From the date of the Notice of termination of this Agreement by Participant to Agency and City and thereafter, this Agreement shall be deemed terminated, and except for Participant's indemnity obligations which shall survive termination of this Agreement, there shall be no further rights or obligations between the parties.
504. Termination by Agency and City. In the event that Participant is in Default of this Agreement and fails to cure such default within the time set forth in Section 501 hereof, then this Agreement and any rights of Participant or any assignee or transferee with respect to or arising out of the Agreement or the Site, shall, at the option of Agency and City, be terminated by Agency and City upon Notice thereof to Participant. From the date of the Notice of termination of this Agreement by Agency and City to Participant, this Agreement shall be deemed terminated and, except for Participant's indemnity obligations which shall survive termination of this Agreement, there shall be no further rights or obligations between the parties and, specifically, neither Agency nor City shall have no obligation to make any further disbursements of the Agency and City Loans.
505. Option to Purchase, Enter and Possess. The Agency and/or City shall have the additional right, at their option, to purchase the Site or any portion thereof with all improvements thereon, in accordance with this Section 505 (the "Option").
505.1 Events Triggering Right to Exercise Option. Agency and/or City may exercise the Option, if after disbursement of the Agency and City Loans or portion thereof and prior to the issuance of the Certificate of Completion therefore, the Participant:
a. Subject to extensions pursuant to Section 602 hereof, fails to Commence Construction of the Improvements on the Site or portion thereof within the time set forth in the Schedule of Performance; or
b. Once construction has been commenced, fails to diligently prosecute construction of the Improvements through completion, where such failure has not been cured within three (3) months after Participant's receipt of written Notice thereof from the Agency or City; or
c. Abandons or substantially suspends construction of the Improvements for a period of three (3) months after Participant's receipt of written notice of such abandonment or suspension from the Agency or City; or
d. Without the prior written consent of Agency or City, directly or indirectly, voluntarily or involuntarily sells, assigns, transfers, disposes of or further encumbers or agrees to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site, except for any sale or transfer which is expressly permitted by the terms of this Agreement. For the purpose of this paragraph, the terms "sell" and "transfer" shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any "change in ownership" as that term is used from time to time in California real property taxation law, irrespective of the fact that the Site may be exempt from such transaction during the period when owned by the Agency or City.
505.2 Subordination of Option. This option shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:
1. Any mortgage, deed of trust or other security instrument permitted by this Agreement;
2. Any rights or interests provided in this Agreement for the protection of the holder of such mortgages, deeds of trust or other security instruments; or
3. Any rental or lease agreement entered into by Participant that is not in violation of this Agreement.
505.3 Exercise of Option. In order to exercise the Option, the Agency and/or City shall give Participant Notice of such exercise and Participant shall, within thirty (30) days after Participant's receipt of such Notice, provide the Agency and/or City with a summary of all of the Participant's costs incurred as provided in Section 505.4 below. The Agency and/or City, within thirty (30) days thereafter, shall pay to Participant in cash the Option Price, and Participant shall thereupon execute and deliver to the Agency and/or City a grant deed transferring to the Agency and/or City all of Participant's interest in the Site.
505.4 Option Price. The Option Price shall equal:
1. The amount of the Fair Market Value of the Site; plus
2. The out-of-pocket costs actually incurred by the Participant for on-site labor and materials for the construction of the Improvements existing on the Site at the time of exercise of the Option (exclusive of amounts financed, if any, to the extent such financing obligations are assumed by the Agency and/or City); less
3. Any net gains or net income withdrawn or made by the Participant from the Site or such portion thereof or the Improvements; and less
4. Any amounts of City and Agency Loans disbursed to Participant pursuant to Section 402; and less
5. The amount of unpaid liens on the Site or such portion thereof which the Agency and/or City agrees to pay, and any unpaid current or past-due installments of assessments against the Site or such portion thereof which the Agency and/or City agrees to pay.
506. Acceptance of Service of Process. In the event that any legal action is commenced by the Participant against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency or in such other manner as may be provided by law. In the event that any legal action is commenced by the Participant against the City, service of process on the City shall be made by personal service upon the City Manager of the City or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency or City against the Participant, service of process on the Participant shall be made by personal service upon Executive Director or in such other manner as may be provided by law.
507. Rights and Remedies Are Cumulative. The rights and remedies of the parties are cumulative, and the exercise by any party 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 by the other party, except as otherwise expressly provided herein or in the limited recourse provisions in the Agency Promissory Note and the City Promissory Note.
508. Inaction Not a Waiver of Default. Any failures or delays by any party 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, or deprive either such party 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.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which any party may desire to give to the other parties under this Agreement must be in writing and may be given by any commercially acceptable means, including, but not limited to, via facsimile or via overnight courier, to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice.
To Agency: Redevelopment Agency of the City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attention: Executive Director
Facsimile: (925) 516-5407
With a copy to: McDonough, Holland & Allen
1901 Harrison Street, 9th Floor
Oakland, California 94612
Attention: Karen W. Murphy, Esq.
Facsimile: (510) 839-9104
To City: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attention: City Manager
Facsimile: (925) 516-5441
With a copy to: City of Brentwood
City Attorney's Office
150 City Park Way
Brentwood, CA 94513
Facsimile: (916) 516-5441

To Participant: Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544
Attention: Executive Director
Facsimile: (510) 582-6523

With a copy to: [Participant's investor limited partner
Name and address to be provided]

Any written notice, demand or communication shall be deemed received immediately if delivered by hand, on the third day from the date it is postmarked if delivered by first-class mail, postage prepaid, upon receipt of verification of transmission if sent via facsimile provided a copy is sent the same day via first-class mail, and on the next business day if sent via nationally recognized overnight courier. Notices sent by a party's attorney on behalf of such party shall be deemed delivered by such party.
602. Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, performance by any party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of the Agency or City under this Agreement which shall not excuse performance by the Agency or City). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause (but in any event shall not exceed a cumulative total of one hundred twenty (120) days), if Notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency, City and Participant. Participant expressly agrees that adverse changes in economic conditions, either of Participant specifically or the economy generally, changes in market conditions or demand, and/or Participant's inability to obtain financing or other lack of funding to complete the work of Improvements shall not constitute grounds of enforced delay pursuant to this Section 602. Participant expressly assumes the risk of such adverse economic or market changes and/or inability to obtain financing, whether or not foreseeable as of the Date of Agreement.
603. Successors and Assigns. Subject to the prohibitions against changes in the ownership, management and control of Participant set forth in Section 102.4 above, all of the terms, covenants and conditions of this Agreement shall be binding upon the Participant and its permitted successors and assigns. Whenever the term "Participant" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided.
604. Memorandum of Agreement. A "Memorandum of Owner Participation Agreement" in the form of Attachment No. 7 attached hereto shall be executed by Participant and recorded against the Site immediately following execution of the Agreement by the Agency and City.
605. Relationship Between Agency, City and Participant. It is hereby acknowledged that the relationship between Agency, City and Participant is not that of a partnership or joint venture and that the Agency and Participant shall not be deemed or construed for any purpose to be the agent of the other and that the City and Participant shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, the Agency and City shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Site or the Project. The Participant agrees to indemnify, hold harmless and defend the Agency and City from any claim made against the Agency or City arising from a claimed relationship of partnership or joint venture between the Agency and/or the City and the Participant with respect to the development, operation, maintenance or management of the Site or the Project.
606. Agency and City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the Agency, the Executive Director of the Agency or his or her designee is authorized to act on behalf of the Agency unless specifically provided otherwise or the context should require otherwise. Whenever a reference is made herein to an action or approval to be undertaken by the City, the City Manager of the City or his or her designee is authorized to act on behalf of the City unless specifically provided otherwise or the context should require otherwise.
607. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement.
608. Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material.
609. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise.
610. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by all parties.
611. No Waiver. A waiver by any party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by another party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement.
612. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party.
613. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
614. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
615. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
616. Time of Essence. Time is of the essence with respect to the performance by Agency, City and Participant of each and every obligation and condition of this Agreement.
617. Cooperation. Each party agrees to cooperate with the other parties in this transaction and, in that regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements.
618. Conflicts of Interest. No member, official or employee of the Agency or City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested.
619. Participant's Indemnity. The Participant shall defend (with counsel reasonably acceptable to the Agency and City), indemnify, assume all responsibility for, and hold the Agency, City and their officers, employees, volunteers, agents and representatives, harmless from any and all Claims of any kind or nature relating to the subject matter of this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Participant's activities under this Agreement, whether such activities or performance thereof be by the Participant or by anyone directly or indirectly employed or contracted with by the Participant and whether such damage shall accrue or be discovered before or after termination of this Agreement. The Participant's indemnity obligations under this Section 619 shall not extend to Claims occasioned by the sole or gross negligence or willful misconduct of Agency, City or their designated agents or employees.
620. Date of Agreement. The date of this Agreement ("Date of Agreement") shall be the date first set forth above.
621. Nonliability of Officials and Employees of Agency and City. No member, official or employee of Agency or City shall be personally liable to Participant, or any successor in interest, in the event of any Default or breach by Agency or City or for any amount which may become due to the Participant or its successors, or on any obligations under the terms of this Agreement. Participant hereby waives and releases any claim it may have against the members, officials or employees of Agency and City with respect to any Default or breach by Agency or City or for any amount which may become due to the Participant or its successors, or on any obligations under the terms of this Agreement. The Participant makes such release with full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
As such relates to this Section 621, the Participant hereby waives and relinquishes all rights and benefits that it may have under Section 1542 of the California Civil Code.
622. Assignment by Agency. The Agency or City may assign or transfer any of their rights or obligations under this Agreement with the approval of the Participant, which approval shall not be unreasonably withheld; provided, however, that the Agency or City may assign or transfer any of its interests hereunder to the City or Agency, respectively, or any public or private entity controlled by the City at any time without the consent of the Participant.
623. Applicable Law. The laws of the State of California, without regard to conflict of laws principles, shall govern the interpretation and enforcement of this Agreement.
IN WITNESS WHEREOF, Agency, City and Participant have executed this Agreement on the respective dates set forth below.

AGENCY:

CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic


Dated: , 2005 By:

Name:

Its: Executive Director

ATTEST:


Secretary


APPROVED AS TO FORM:


Commission Counsel

CITY:

CITY OF BRENTWOOD, a municipal corporation



Dated: , 2005 By:

Name:

Its: City Manager





ATTEST:


City Clerk


APPROVED AS TO FORM:


City Attorney

PARTICIPANT:

EDEN HOUSING, INC., a California nonprofit public benefit corporation


Dated: , 2005 By:

Name:

Its:

APPROVED AS TO FORM:


Participant Counsel


ATTACHMENT NO. 1
SITE MAP
[To be inserted]

ATTACHMENT NO. 2
SITE LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011


ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Action Date
1. Execution and Delivery of Agreement by Agency
The Agency and City shall consider approval of this Agreement, and if approved, shall deliver one executed original to Participant.
On January 25, 2004, or as soon as possible thereafter.
2. Execution, Delivery and Recordation of Memorandum of Agreement
Participant shall deliver one executed original of the Memorandum of Agreement and Agency and City shall record the Memorandum of Agreement. (§ 604)

Immediately following execution of Agreement by Agency and City and delivery to Participant.
3. Insurance
Participant shall furnish evidence of the insurance required under the Agreement. (§ 405)

Prior to the First Disbursement.
4. Execution and Delivery of Agency and City Notes
Participant shall deliver executed originals of the Agency and City Notes to Agency and City. (§ 405)
Prior to the First Disbursement.
5. Execution, Delivery and Recordation of Agency and City Deeds of Trust
Participant shall deliver executed originals of the Agency and City Deeds of Trust to Agency and City. (§ 405)
Prior to the First Disbursement.
6. Execution, Delivery and Recordation of Affordable Housing Covenant
Participant shall deliver one executed original of the Affordable Housing Covenant, which shall be recorded against the Site. (§ 405)
Prior to the First Disbursement.
7. First Disbursement
Agency and City shall disburse the First Disbursement. (§ 405)
Upon satisfaction of Conditions Precedent to Disbursement of Loans.

8. Purchase of the Site
Participant shall close escrow on its purchase of the Site.
Prior to the Second Disbursement.
9. Participant Obtains Tax Credit Financing
Participant obtains commitment for Tax Credit Financing for the Project.

Prior to the Second Disbursement.
10.
Second Disbursement
Agency and City shall disburse the Second Disbursement.
Upon satisfaction of Conditions Precedent to Disbursement of Loans.
11. Construction and Permanent Financing
The Participant shall have obtained commitments for the Construction and Permanent Financing.
Prior to disbursement of the Third Disbursement.
12. Third Disbursement
Agency and City shall disburse the Third Disbursement.
Upon satisfaction of Conditions Precedent to Disbursement of Loans.
13. Commencement of Construction of Participant's Improvements
The Participant shall commence construction of the Improvements to be constructed on the Site. (§ 202)

Within thirty (30) days of the Third Disbursement.
14. Completion of Construction of Participant's Improvements
The Participant shall complete construction of the Improvements to be constructed on the Site. (§ 202)

On or before 18 months following the Third Disbursement.
15. Certificate of Completion
The Agency and City shall provide the Certificate of Completion to the Participant. (§ 214)
Within thirty (30) days following satisfactory completion of the Improvements on the Site and the Participant's written request therefor.

ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT

I. PRIVATE DEVELOPMENT
A. General
The Participant agrees that the Site shall be developed and improved in accordance with the provisions of this Agreement and the plans, drawings and related design or land use approvals made by the Agency and the City, including the City Approvals.
B. Improvements
The Participant shall construct on the Site an 80-unit senior affordable housing project (the "Improvements").
C. Architecture and Design
The Improvements shall be of high architectural quality, shall be well landscaped and shall be effectively and aesthetically designed.
D. Applicable Codes
The Improvements shall be constructed in accordance with the Uniform Building Code (with City modifications) and the Brentwood Municipal Code and any other applicable law, statute, rule, regulation or ordinance.
II. SITE CLEARANCE AND PREPARATION
The Participant shall perform, or cause to be performed, at its sole cost and expense, the following work in a single phase:
A. On-Site Demolition and Clearance
1. On the Site, demolish or salvage, clear, grub and remove (as may be needed and called for in the approved plans) on-site buildings, pavements, walks, curbs, gutters and other improvements; and
2. Remove, plug and/or crush in place utilities, such as storm sewers, sanitary sewers, water systems, electrical overhead and underground systems and telephone and gas systems located on the Site, as may be required following any necessary relocation of the utilities.

B. Compaction, Finish Grading and Site Work
The Participant shall compact, finish grade and do such Site preparation as is necessary for the construction of the Participant's Improvements on the Site.
III. REMEDIATION
Remediation of any hazardous materials at the Site shall be performed by Participant. Participant shall be solely responsible for (a) contracting with all appropriate and necessary contractors; (b) administering all contracts; (c) compliance with remediation plan requirements of the administering agency; and (d) the payment of all remediation costs, including without limitation, all studies, investigations, tests and site remediation as required by the administering agency.

ATTACHMENT NO. 5
FORM OF CERTIFICATE OF COMPLETION

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood Redevelopment Agency
150 City Park Way
Brentwood, CA 94513
Attn: Redevelopment Manager ))))))))
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 6103.

CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body corporate and politic (the "Agency") and THE CITY OF BRENTWOOD in favor of EDEN HOUSING, INC., a California nonprofit public benefit corporation (the "Participant"), as of the date set forth below.
RECITALS
A. Agency, City and Participant have entered into that certain Participation and Loan Agreement (the "Agreement") dated , 2005, concerning the development of a senior affordable housing project on certain real property (the "Site") situated in the City of Brentwood, California, as more fully described in Exhibit A attached hereto and made a part hereof. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
B. As referenced in Section 214 of the Agreement, the Agency and City are required to furnish the Participant or its successors with a Certificate of Completion upon completion of construction of the Improvements (as defined in Section 100 of the OPA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder's Office of Contra Costa County. This Certificate is conclusive determination of satisfactory completion of the construction and development of the Improvements required by the Agreement.
C. The Agency and City have conclusively determined that such construction and development has been satisfactorily completed.
NOW, THEREFORE, the Agency and City hereby certify as follows:
1. The work of Improvements to be constructed by the Participant has been fully and satisfactorily completed in conformance with the Agreement.
2. All use, maintenance, operation, nondiscrimination and other covenants contained in the Agreement and Affordable Housing Covenant shall remain in effect and enforceable according to their terms.
3. This Certificate of Completion shall not be deemed or construed to constitute evidence of compliance with or satisfaction of any obligation of the Participant to any holder of a mortgage or deed of trust, or any insurer of a mortgage, securing money loaned to finance the purchase of the site, development of the Project or construction of the Improvements on the Site, or portion thereof, including the Agency and the City Deeds of Trust. This Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code.
IN WITNESS WHEREOF, the Agency and City have executed this Certificate this day of , 200 .
AGENCY:

CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic


Dated: , 2005 By:
Name:
Its: Executive Director

ATTEST:


Secretary
CITY:

CITY OF BRENTWOOD, a municipal corporation


Dated: , 2005 By:
Name:
Its: City Manager

ATTEST:

City Clerk

EXHIBIT A
SITE DESCRIPTION
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:


STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:
Signature:

ATTACHMENT NO. 6
AFFORDABLE HOUSING COVENANT

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood Redevelopment Agency
150 City Park Way
Brentwood, CA 94513
Attn: Redevelopment Manager ))))))))
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 6103.
AFFORDABLE HOUSING COVENANT
For valuable consideration, the receipt of which is hereby acknowledged, EDEN HOUSING INC., a California nonprofit public benefit corporation ("Owner"), the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD ("Agency") and the CITY OF BRENTWOOD ("City") agree as follows with reference to the following facts:
A. Owner owns that certain real property more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Site").
B. Agency, in acting to carry out the obligations under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.) with respect to affordable housing, and City, in acting to carry out the obligations under Chapter 17.725 of the Brentwood Municipal Code pertaining to use of the Housing Trust Fund, have entered into that certain Participation and Loan Agreement dated January 25, 2005, between Owner (as Participant), Agency and City (the "Loan Agreement") with respect to the Site.
C. Owner, Agency and City agree that the Site shall be subject to the conditions and restrictions, and the rights of Agency and City under this Affordable Housing Covenant (the "Covenant") as specified below.
1. USE OF THE SITE.
Owner hereby covenants and agrees that during the term of this Covenant, Owner shall use the Site in compliance with all of the following:
A. Development.
Participant shall promptly commence and diligently construct improvements on the Site and develop 80 affordable senior units and appurtenant recreational, parking and landscaping improvements (the "Project"). As described below in section 1(B), at least 79 rental units in the Project shall be restricted to senior households at the income levels set forth herein (the "Affordable Senior Units").
B. Rent and Income Restrictions.
(1) Not less than eight (10 percent) of the Affordable Senior Units shall be rented to extremely low-income households, as defined in Section 50106 of the California Health and Safety Code. Rent shall be no greater than that considered as "affordable rent" for extremely low-income households, adjusted for family size appropriate to the unit, pursuant to Section 50053 of the California Health and Safety Code, as amended, or any successor statute thereto. "Area Median Income" means the median household income (adjusted for household size) of the Metropolitan Statistical Area in which Contra Costa County is located, as established in accordance with Section 50093 of the California Health and Safety Code. "Adjusted for family size appropriate to the unit" shall mean a household of one and a half persons in the case of a one-bedroom unit and three persons in the case of a two-bedroom unit. The determination of an occupant's status as an extremely low-income household shall be made by Owner prior to initial occupancy of an Affordable Senior Unit in the Project by such occupant.
(2) The remainder of the Affordable Senior Units shall be rented to very low-income households, as defined in Section 50105 of the California Health and Safety Code. Rent shall be no greater than that considered as "affordable rent" for very low-income households, adjusted for family size appropriate to the unit, pursuant to Section 50053 of the California Health and Safety Code, as amended, or any successor statute thereto. "Area Median Income" means the median household income (adjusted for household size) of the Metropolitan Statistical Area in which Contra Costa County is located, as established in accordance with Section 50093 of the California Health and Safety Code. "Adjusted for family size appropriate to the unit" shall mean a household of one and a half persons in the case of a one-bedroom unit and three persons in the case of a two-bedroom unit. The determination of an occupant's status as a very low-income household shall be made by Owner prior to initial occupancy of an Affordable Senior Unit in the Project by such occupant.
(3) The Affordable Senior Units shall be rented to eligible households having at least one occupant over the age of 65.
(4) Notwithstanding the foregoing, Owner may set aside one (1) of the units for use as a "Manager's Unit," which unit shall be occupied by a person (or household) employed as an on-site manager of the Project. If the "Manager's Unit" is so occupied, it shall not be subject to the income limits or age restrictions set forth in subsections (1), (2) and (3) above, and the number of Affordable Senior Units shall be reduced to 79 Affordable Senior Units.
(5) The income of all persons residing in the Affordable Senior Unit shall be considered for purposes of calculating the applicable income. No less than one (1) person per bedroom shall be allowed. No more than three (3) persons shall be permitted to occupy a one (1) bedroom Affordable Senior Unit, and no more than four (4) persons shall be permitted to occupy a two (2) bedroom Affordable Senior Unit, or such other higher limitations as may be permitted or required by applicable occupancy laws that may be in effect.
(6) In the event of any inconsistency between the rent and income restrictions of this section 1(B) and any other affordability or regulatory agreement between Owner and any state or federal agency or the California Tax Credit Allocation Committee, the restrictions providing the lowest level of affordability for the most units shall apply.
C. Reporting Requirements. Annual reports, or as often as are required by the terms of other Owner financing, and annual income certifications or recertifications must be submitted to the Agency and City. The reports, at a minimum, shall include:
(1) The number of persons per unit
(2) Tenant name
(3) Initial occupancy date
(4) Rent paid per month
(5) Gross income per year
(6) Percent of rent paid in relation to income
(7) Copies of those documents used by Owner to certify the tenant as an Eligible Household
The first annual report and annual income certification (the "Initial Report") shall be submitted to the Agency and City within thirty (30) days of the date of the initial rental of all the Affordable Senior Units on the Site. Subsequent annual reports and annual income certifications or recertifications shall be submitted to the Agency and City on the anniversary date of submittal of the Initial Report. The Agency or City may, from time to time during the term of this Covenant, request additional or different information and Owner shall promptly supply such information in the reports required hereunder. Owner shall maintain all necessary books and records, including Site, personal and financial records, in accordance with requirements prescribed by the Agency and City with respect to all matters covered by this Covenant. Owner, at such time and in such forms as the Agency or City may require, shall furnish to Agency and/or City statements, records, reports, data and information pertaining to matters covered by this Covenant. Upon request for examination by the Agency or City, Owner, at any time during normal business hours, shall make available all of its records with respect to all matters covered by this Covenant. Owner shall permit the Agency or City to audit, examine and make excerpts or transcripts from these records.
D. Marketing Reports. Within ten (10) days of Agency or City's request, Owner shall deliver to Agency or City marketing and leasing information, schedules and reports for the Affordable Senior Units in form and substance reasonably acceptable to Agency or City.
E. Verification of Citizenship or Qualified Alien Status. Owner shall verify the citizenship or qualified alien status of all adult tenants and all adult applicants for tenancy as required under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law No. 104-193,8 U.S.C. §1621). Owner may charge a new tenancy applicant (but not an existing tenancy) a reasonable eligibility verification fee only if approved in writing by Agency and City. On an annual basis, Owner shall verify the citizenship or qualified alien status of tenants at the time of the annual income recertification.
Owner shall verify the citizenship or qualified alien status by causing the tenant or applicants for tenancy to complete and sign under penalty of perjury the HCD Benefit Status Form 1 (2/98) or such other form provided by the California Department of Housing and Community Development for this purpose. The signed forms shall be retained by Owner and shall be disclosed to Agency or City upon request.
All eligibility shall be conducted without regard to race, creed, color, gender, religion, age, disability, familial status or national origin of the tenant or applicant for tenancy.
2. LIMITATIONS ON TRANSFER.
A. General. The qualifications and identity of the Owner are of particular concern to the Agency and City. It is because of the demonstrated qualifications and identity that the Agency and City have entered into the Loan Agreement and the Covenant with the Owner. Owner may not transfer, assign or sell any interest in the Site or the Project nor any rights or powers under this Covenant, except as expressly set forth herein. It is expressly stipulated and agreed that any assignment, sale, transfer or other disposition of the Project or the Site, or any portion(s) thereof or interest(s) therein or of any rights or powers under this Covenant in violation of this Section 2 shall be null, void and without effect, shall cause a reversion of title to Owner, and shall be ineffective to relieve Owner of its obligations under this Covenant.
B. Prior to Issuance of Certificate of Completion. Prior to issuance of the Certificate of Completion, the Owner shall not assign or transfer this Covenant, the Project or the Site, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the Agency's Executive Director and City's City Manager. The Agency's Executive Director and City's City Manager shall have the right to disapprove any transfer, assignment or refinancing, which would diminish or otherwise impair the ability of the Owner to fulfill all its duties and obligations under this Covenant.
C. Following Issuance of Certificate of Completion. Following issuance of the Certificate of Completion, Owner shall not assign or transfer this Covenant, the Project or the Site, or any portion(s) thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of the Agency's Executive Director and City's City Manager, which approval shall not be unreasonably withheld or delayed, and shall be granted upon Agency and City's receipt of evidence acceptable to Agency and City that the following conditions have been satisfied:
(1) Owner is not in Default under the Loan Agreement or this Covenant, or the purchaser or assignee agrees to undertake to cure any Defaults or violations of Owner to the reasonable satisfaction of Agency and City.
(2) The continued operation of the Project shall comply with the provisions of the Loan Agreement and this Covenant.
(3) Either (i) the purchaser or assignee or its property manager has at least three year's experience in the ownership, operation and management of similar size rental housing projects, and at least one year's experience in the ownership, operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (ii) the purchaser or assignee agrees to retain a property management firm with the experience and record described in subclause (i) above, or (iii) Owner or its management company will continue to manage the Project for at least one year following such transfer and during such period will provide training to the purchaser or assignee and its manager in the responsibilities relating to the Affordable Senior Units.
(4) The person or entity which is to acquire the Project does not have pending against it, and does not have a history of significant and material building code violations or complaints concerning the maintenance, upkeep, operation and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies.
(5) The proposed purchaser or assignee enters into a written assignment and assumption agreement in form and content reasonably satisfactory to Agency and City's legal counsel, and, if requested by Agency or City, an opinion of such purchaser or assignee's counsel to the effect that this Covenant is a valid, binding and enforceable obligations of such purchaser or assignee, subject to bankruptcy and other standard limitations affecting creditor's rights.
D. Pre-Approved Transfers. Notwithstanding any other provision of this Covenant to the contrary, Agency and City approval of a transfer or assignment of this Covenant, the Project, or the Site or any interest therein shall not be required in connection with any of the following:
(1) Subject to the Owner submitting the assignment and assumption agreement referred to above and the approval of such agreement by the Agency and City, which approvals shall not be unreasonably withheld, any transfer or assignment of the Project or any interest therein to an Affiliate of Owner;
(2) The granting of temporary or permanent easements or permits to facilitate development of the Project;
(3) Any assignment for the purpose of obtaining and securing Owner's Financing and Construction and Permanent Financing, as contemplated by Sections 401 and 402 of the Loan Agreement, including the grant of a deed of trust, assignment of rents and security agreement to secure the funds necessary for Construction and Permanent Financing;
(4) A transfer which combined with any and all previous or simultaneous transfers represents less than fifty percent (50%) of the equity or beneficial interest of Owner, provided such transfer does not cause a material change in the rights to manage and control Owner;
(5) The rental, in the ordinary course of business, of the Affordable Senior Units, provided such rental is in accordance with the terms of the Loan Agreement and this Covenant; and
(6) A transfer to any of the following: (a) a limited partnership in which the general partner is Eden Housing, Inc., a controlled affiliate of Eden (defined as an affiliate nonprofit corporation under the direct control or under the common control of Eden Housing, Inc.), or a limited liability company whose sole manager is Eden Housing, Inc. or a controlled affiliate of Eden ("an Eden LLC"); (b) a transfer of the initial limited partner's interest in the limited partnership to an investor limited partner or partners; (c) a transfer of the general partner's interest in the limited partnership to a controlled affiliate of Participant or an Eden LLC; and (iv) a transfer from the Participant limited partnership to Eden Housing, Inc., a controlled affiliate of Participant or an Eden LLC; provided, however, that prior to the transfers described in (a), (b) and (d), Participant shall deliver to the Agency and City a copy of the transferee's and assignee's organizational documents and execute an assignment, assumption and release agreement in a form reasonably approved by the Agency and City.
In the event of an assignment or transfer by Owner under the above Subsections (1) through (6), inclusive, not requiring the Agency and City's prior approval, Owner nevertheless agrees that it shall give at least fifteen (15) days prior written Notice to Agency and City of such assignment or transfer. In addition, Agency and City shall be entitled to review such documentation as may be reasonably required by the Agency's Executive Director and City's City Manager for the purpose of determining compliance of such assignment or transfer with the requirements of Subsections (1) through (6), inclusive.

3. NO DISCRIMINATION.
A. Owner covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall Owner itself or any person claiming under or through it 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 or vendees in the Site.
B. All deeds, leases or contracts made relative to the Site, the improvements thereon or any part thereof, shall contain or be subject to substantially the following nondiscrimination clauses:
(1) In deeds: The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land.
(2) In leases: The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, that this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the leasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, 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 or vendees in the land herein leased.
(3) In contracts: There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, transfer, use occupancy, tenure or enjoyment of the land, nor shall the transferee himself or herself, or any person claiming under or through him or her, 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 or vendees in the land.
4. MAINTENANCE AND MANAGEMENT.
Owner shall maintain in first-class condition and in accordance with the custom and practice generally applicable to senior residential projects in Contra Costa County, the private improvements and public improvements (the "Improvements") and landscaping to the curbline(s) on and abutting the Site. The Improvements shall include, but not be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all other improvements on the Site and in the public right-of-way to the nearest curbline(s) abutting the Site. To accomplish the maintenance, Owner shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Covenant. The maintenance covenants and obligations set forth in this section 4 shall remain in effect for the period of time specified in section 6, below.
5. NO IMPAIRMENT OF LIEN.
No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Covenant shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Owner to the Site shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
6. DURATION.
The covenants set forth at sections 1, 2 and 4 shall remain in effect until the date which is fifty-five (55) years following the date the Certificate of Completion is recorded. The covenants set forth at section 3 shall remain in effect in perpetuity.
7. SUCCESSORS AND ASSIGNS.
The covenants contained in this Covenant shall inure to the benefit of Agency, City and its and their successors and assigns and shall be binding upon Owner and any successor in interest to the Site and the Project or any part thereof. The covenants shall run in favor of Agency, City and its and their successors and assigns for the entire period during which such covenants shall be in force and effect, without regard to whether Agency or City is or remains an owner of any land or interest therein to which such covenants relate. Agency, City and its and their successors and assigns, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach.
8. DEFAULT.
A. Any failure by Owner to perform any term or provision of this Covenant or the Agreement shall constitute an "Event of Default" (1) if Owner does not cure such failure within thirty (30) days following written notice of default from Agency or City, including notice and opportunity to cure for lenders pursuant to Section 215 of the Agreement ("Approved Lenders") or (2) if such failure is not of a nature which can be cured within such thirty- (30-) day period, the Owner does not within such thirty- (30-) day period commence substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. Agency and/or City shall not enforce any of its rights and remedies for breach by Owner except upon the occurrence of an Event of Default. The institution of legal actions in the Event of Default shall be brought only in accordance with Section 502 of the Agreement.
B. Any notice of default given hereunder shall specify in detail the nature of the failure in performance which Agency or City claims constitutes the Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Covenant. During the time periods herein specified for cure of a failure to perform, including the opportunities to cure for Approved Lenders, Owner shall not be considered to be in default of this Covenant for any purposes.
C. Any failure or delay by Agency or City in asserting any of its rights or remedies as to any Event of Default shall not operate as a waiver of any Event of Default or of any such rights or remedies or deprive Agency or City of their right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
D. To protect the rights of Approved Lenders, Agency and City shall not have the right to file any involuntary petition seeking reorganization, arrangement, adjustment, or composition of or in respect of Owner, respectively, under any liquidation, insolvency, bankruptcy, rehabilitation, reorganization, conservation or other similar law in effect now or in the future.
E. The obligations of Owner under this Covenant shall be personal to the entity or person, defined as Owner, which owned the Site at the time that an event, including without limitation, any Event of Default under this Covenant, occurred or was alleged to have occurred and such entity or person shall remain liable for any and all obligations including damages occasioned by an Event of Default, even after such person or entity ceases to be the owner of the Site. Accordingly, no subsequent owner of the Site shall be liable or obligated for the obligation of any prior owner, including, but not limited to, any obligation for payment, indemnification or damages, for default or breach of this Covenant or otherwise. The owner of the Site at the time the obligation was incurred, including any obligation arising out of a default or breach of this Covenant, shall remain liable for any and all payments and damages occasioned by the owner even after such person or entity ceases to be the owner of the Site.
F. Under no circumstances shall the Agency or City: (a) interfere with or attempt to influence the exercise by any Approved Lender of any of its rights under the terms of the mortgage or deed of trust, including, without limitation, the respective remedial rights of the Approved Lenders upon the occurrence of any event of default by Owner under such mortgage or deed of trust; or (b) upon the occurrence of an event of default under the terms of a mortgage or deed of trust of an Approved Lender, take any action to accelerate or otherwise enforce payment or seek other remedies with respect thereto.
IN WITNESS WHEREOF, City, Agency and Owner have caused this Covenant to be executed on their behalf by their respective officers thereunto duly authorized.
Dated for reference purposes only as of _________________, 200___.
AGENCY:

CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic


Dated: , 2005 By:
Name:
Its: Executive Director

ATTEST:


Secretary


APPROVED AS TO FORM:


Commission Counsel


CITY:

CITY OF BRENTWOOD, a municipal corporation


Dated: , 2005 By:
Name:
Its: City Manager


ATTEST:


City Clerk


APPROVED AS TO FORM:


City Attorney


OWNER:

EDEN HOUSING INC, a California nonprofit public benefit corporation


Dated: , 2005 By:
Name:
Its:


APPROVED AS TO FORM:


Owner Counsel



EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:


STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:
Signature:

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:

ATTACHMENT NO. 7
MEMORANDUM OF AGREEMENT

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood Redevelopment Agency
150 City Park Way
Brentwood, CA 94513
Attn: Redevelopment Manager ))))))))
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 6103.

MEMORANDUM OF PARTICIPATION AND LOAN AGREEMENT

THIS MEMORANDUM OF PARTICIPATION AND LOAN AGREEMENT ("Memorandum"), dated for identification purposes as of , 2005, is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and politic ("Agency"), the CITY OF BRENTWOOD (the "City") and EDEN HOUSING INC., a California nonprofit public benefit corporation ("Participant).
1. Participation and Loan Agreement. Agency, City and Participant have executed a Participation and Loan Agreement ("Agreement") dated , 2005, which provides, among other things, for (a) Participant to develop a 80-unit senior affordable rental project (the "Project"), with 79 of the units restricted to senior households of extremely low- and very low-income (the "Affordable Senior Units") on that certain real property (the "Site") located in the City of Brentwood, County of Contra Costa State of California, legally described in Exhibit A attached hereto and incorporated herein by this reference; (b) Participant to use, operate and maintain the Project, including the Affordable Senior Units, in accordance with the terms of the Agreement and the Affordable Housing Covenant; (c) Agency to provide the Agency Loan to Participant; (d) City to provide the City Loan to Participant; and (e) Participant to grant Agency and City an option to purchase the Site in the event of certain defaults. The Participation and Loan Agreement is available for public inspection and copying at the office of the City Clerk, City of Brentwood, City Hall, 150 City Park Way, Brentwood, California 94513. All of the terms, conditions, provisions and covenants of the Agreement are incorporated in this Memorandum by reference as though written out at length herein, and the Agreement and this Memorandum shall be deemed to constitute a single instrument or document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
2. Purpose of Memorandum. This Memorandum is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the Agreement, the terms, conditions, provisions and covenants of the Agreement shall prevail.
The parties have executed this Memorandum on the dates specified immediately adjacent to their respective signatures.
AGENCY:

CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic


Dated: , 2005 By:
Name:
Its: Executive Director


ATTEST:


Secretary


APPROVED AS TO FORM:


Commission Counsel


CITY:

CITY OF BRENTWOOD, a municipal corporation


Dated: , 2005 By:
Name:
Its: City Manager


ATTEST:


City Clerk




APPROVED AS TO FORM:


City Attorney


PARTICIPANT:

EDEN HOUSING INC., a California nonprofit public benefit corporation


Dated: , 2005 By:
Name:
Its:


APPROVED AS TO FORM:


Participant Counsel



EXHIBIT A
LEGAL DESCRIPTION OF SITE
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:


STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:
Signature:

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:

ATTACHMENT NO. 8
FORM OF AGENCY NOTE

Not to Exceed January 25, 2005
$100,000.00 Brentwood, California
FOR VALUE RECEIVED, EDEN HOUSING, INC., a California nonprofit public benefit corporation ("Maker"), having an address of 409 Jackson Street, Hayward, California 94544, promises to pay REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD ("Holder"), having an address of 150 City Park Way, Brentwood, California 94513, the principal sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00), pursuant to the terms and conditions set forth below.
1. Agency Loan. This Note is made pursuant to Section 403 of that certain Participation and Loan Agreement (the "Agreement") between Maker, Holder and the City of Brentwood (the "City"), dated January 25, 2005. This is a promissory note for the repayment to Holder of the One Hundred Thousand Dollar ($100,000.00) loan provided by Holder to Maker (the "Agency Loan") in order to enable Maker to provide Affordable Senior Units, as defined below, on that certain real property described in the Agreement (the "Site"). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
2. Disbursement. The Agency Loan shall be disbursed in accordance with and subject to the Conditions Precedent to Disbursement of Loans set forth in Sections 404 and 405 of the Agreement.
3. Interest. This Note shall bear simple interest at a rate of three percent per annum from the date of disbursement, except as provided in Section 12 below.
4. Deed of Trust. Payment of this Note is secured by a deed of trust, assignment of rents, security agreement and fixture filing (the "Deed of Trust") executed by Maker to North American Title Company, as Trustee, for the benefit of Holder, which Deed of Trust shall be recorded against the Site.
5. Affordable Senior Units. Pursuant to the Agreement, the Site will be developed with 80 affordable senior units (the "Affordable Senior Units"). Each Affordable Senior Unit will be rented to a qualified extremely low or very low-income senior household at an affordable rent as set forth in the Affordable Housing Covenant executed by Holder, Maker and City and recorded against the Site (the "Affordable Housing Covenant").
6. Repayment. So long as the Maker owns and operates the Project in compliance with the Affordable Housing Covenant and the Agreement and is not in default under this Note, no payments shall be due hereunder, and the entire outstanding unpaid Principal and interest of this Note shall be due and payable in full upon the fifty-fifth (55th) anniversary of this Note.
7. Place of Payment. Payment shall be made in lawful money of the United States to Holder c/o Redevelopment Agency of the City of Brentwood, 150 City Park Way, Brentwood, California 94513. The place of payment may be changed from time to time as the Holder may from time to time designate in writing.
8. Non-Negotiability; Transfer. This Note is non-negotiable and not transferable by Maker, except as provided in Section 102.4(d)(6) of the Agreement. Borrower, at its option, may negotiate transfer or assumption of this Note.
9. Prepayment. Maker shall have the right to prepay, at any time and from time to time, all or any portion of the amounts owing under this Note without any premium or penalty.
10. Event of Default. The occurrence of any of the following shall constitute an event of default under this Note: (a) Maker fails to pay any amount due hereunder within fifteen (15) days of its due date; or (b) any default by Maker under the Deed of Trust, the Affordable Housing Covenant, the Agreement or any other loan or other document affecting the Site, subject to any applicable cure periods provided therein.
11. Payment Upon Default. At the option of the Holder hereof and without notice, the entire unpaid principal and interest owing on this Note shall become immediately due and payable, (a) upon the occurrence of any event of default, or (b) upon the sale, transfer, assignment, conveyance or lease of the Property, in whole or in part, except for a Pre-Approved Transfer under Section 102.4(d) of the Agreement, prior to repayment of the principal and interest owing on this Note. 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 Holder's option. Holder's failure to exercise such option shall not constitute a waiver of such option with respect to any subsequent event. Holder'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.
12. Interest Upon Default. At all times when Maker is in default hereunder by reason of Maker's failure to pay principal or interest due under this Note or any amounts due under any loan documents securing this Note, the interest rate on the sums as to which Maker is in default, shall be the lower of the highest rate then allowed by law or five percent (5%) over the interest rate set forth in Section 3 above, as of the date of the default.
13. Waiver of Presentment. Maker and any endorsers 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 hereof or of any installment hereof, to the release of any party liable for this obligation, and any such extension or release may be made without notice to any of said parties and without any way affecting or discharging this liability.
14. Attorney Fees. Maker agrees to pay immediately upon demand all costs and expenses of Holder including reasonable attorneys' fees, (a) if after default this Note is placed in the hands of an attorney or attorneys for collection, (b) if after a default hereunder or under the Deed of Trust, Affordable Housing Covenant or the Agreement, or under any loan document referred to herein, Holder finds it necessary or desirable to secure the services or advice of one or more attorneys with regard to collection of this Note against Maker, any guarantor or any other party liable therefor or to the protection of its rights under this Note, the Deed of Trust, the Affordable Housing Covenant, the Agreement, or other loan document, or (c) if Holder seeks to have the Site 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. If Holder shall be made a party to or shall reasonably intervene in any action or proceeding, whether in court or before any governmental Agency, affecting the Site or the title thereto or the interest of the Holder under the Deed of Trust, including, without limitation, any form of condemnation or eminent domain proceeding, Holder shall be reimbursed by Maker immediately upon demand for all costs, charges and attorneys' fees incurred by Holder in any such case, and the same shall be secured by the Deed of Trust as a further charge and lien upon the Site.
15. Notices. Any notices provided for in this Note shall be given by mailing such notice by certified mail, return receipt requested at the address stated in this Note or at such address as either party may designate by written notice.
16. Successors and Assigns. This Note shall be binding upon Maker, its successors and assigns.
17. Governing Law. This Note shall be construed in accordance with and be governed by the laws of the State of California, without regard to conflict of laws principles.
18. Severability. If any provision of this Note is declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. Limited Recourse. Holder's recovery against Maker under this Note shall be limited solely to the Site, except that Maker may be personally liable to Holder for any losses or damages incurred by the following matters: (a) fraud or willful misrepresentation; (b) material physical waste of the Site; (c) failure to pay property or other taxes, assessments or charges, which may create liens senior to the lien of the Deed of Trust on all or any portion of the Site to the extent of such failure to pay; (d) any material representation or warranty of Borrower in this Note, the Deed of Trust or the Agreement proving to have been untrue when made; (e) failure to deliver any insurance or condemnation proceeds received by Maker to Holder or to otherwise apply such sums as required under the Deed of Trust to the extent of the insurance or condemnation proceeds not delivered; (f) failure to apply any rents, royalties, accounts, revenues, income, issues, profits and other benefits ("Project Income") from the Site which are collected or received by Maker during the period of any default to the payment of either (i) such indebtedness or other sums or (ii) the normal and necessary operating and maintenance expenses of the Site to the extent such Project Income is not applied as set forth herein; and (g) any breach by Maker of any covenant in the Deed of Trust or the Agreement regarding Hazardous Materials.


EDEN HOUSING, INC., a California nonprofit public benefit corporation


By:
Name:
Its:

"MAKER"
Disbursement Schedule

Disbursement Date of Disbursement Amount






ATTACHMENT NO. 9
AGENCY DEED OF TRUST

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood Redevelopment Agency
150 City Park Way
Brentwood, CA 94513
Attn: Redevelopment Manager ))))))))
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 6103.
DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING

APN: 013-360-121 & 013-212-011
This DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING is made as of January 25, 2005, among EDEN HOUSING, INC., a California nonprofit benefit corporation ("Trustor"), whose address is 409 Jackson Street, Hayward, California 94544, North American Title Company, a California corporation ("Trustee"), and REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and politic ("Beneficiary"), whose address is 150 City Park Way, Brentwood, California 94513.
Trustor irrevocably grants, conveys, transfers and assigns to Trustee in trust, with power of sale and right of entry and possession, all of Trustor's right, title and interest now owned or hereafter acquired in and to the real property in Contra Costa County, California, described on Exhibit A attached hereto and incorporated herein by this reference, together with all buildings, structures and improvements now existing or hereafter constructed thereon (the "Improvements") and all other property and interests of any kind or character which may be reasonably necessary or desirable to promote the present and future beneficial use and enjoyment of such real property and improvements (the "Property").
1. Secured Obligations. Trustor makes the grant, conveyance, transfer and assignment herein for the purpose of securing the following obligations (the "Secured Obligations"): (a) payment of the sum of $100,000.00 with interest thereon according to the terms of a promissory note (the "Note") of even date herewith, executed by Trustor in favor of Beneficiary or order and any extension or renewals thereof; (b) payment of such further sums as the then record owner of the Property may borrow from Beneficiary, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust; and (c) performance of each agreement and obligation of Trustor contained in the Participation and Loan Agreement by and between Trustor, Beneficiary and the City of Brentwood dated January 25, 2005, incorporated herein by reference and the Affordable Housing Covenant between Trustor, Beneficiary and the City of Brentwood dated January 25, 2005.
2. Maintenance and Repair. Trustor shall (a) keep the Property in good condition and repair and not remove or demolish any building; (b) complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed; (c) pay when due all claims for labor performed and materials furnished; (d) comply with all laws affecting the Property or requiring any alterations or improvements to be made; (e) not commit or permit waste; and (f) cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of the Property may be reasonably necessary.
3. Insurance. Trustor shall maintain hazard insurance against loss by fire, hazards included with the term "extended coverage," and any other hazards for which Beneficiary requires insurance, and liability insurance. The insurance carrier and the insurance policies and amounts of coverage shall be acceptable to Beneficiary, the policies shall name Beneficiary as a loss payee or an additional insured, as applicable, the policies shall include Beneficiary as an additional insured, as applicable, and shall require 30 days' prior notice to Beneficiary before the policy is modified or terminated.
4. Defense of Security. Trustor shall appear in and defend any action or proceeding purporting to affect the security or the rights or powers of Beneficiary or Trustee. Trustor shall pay all costs and expenses, including costs of evidence of title and attorneys' fees, in any such action or proceeding in which Trustee or Beneficiary may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
5. Payment of Taxes and Liens. Trustor shall pay (a) at least 10 days before delinquency, all taxes and assessments affecting the Property, including water stock assessments; (b) when due, all encumbrances, charges and liens, with interest, on the Property, which are or appear to be prior or superior to this Deed of Trust; and (c) upon demand all costs, fees and expenses of this Deed of Trust. If Trustor fails to make any payment or to do any act provided for in this Deed of Trust, then Beneficiary or Trustee may, without obligation to do so, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation under this Deed of Trust: (a) make or do the same in such manner and to such extent as either may deem necessary to protect the security, Beneficiary or Trustee being authorized to enter upon the Property for such purposes; (b) appear in or commence any action or proceeding purporting to affect the security, or the rights or powers of Beneficiary or Trustee; (c) pay, purchase, contest or settle any encumbrance, charge or lien which in the judgment of either appears to be senior to this Deed of Trust; and (d) in exercising any such powers, pay allowable expenses, including attorneys' fees.
6. Reimbursement of Costs. Trustor shall pay upon demand all sums expended by Beneficiary or Trustee provided for in this Deed of Trust or allowed by law, with interest from date of expenditure at the maximum rate provided in the Note.
7. No Waiver. By accepting payment of any sum after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums or declare a default for failure to pay.
8. Reconveyance. That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said note or notes to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals of such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto."
9. Assignment of Rents. Trustor hereby absolutely and unconditionally assigns to Beneficiary all of the rents, issues, profits, royalties, revenues, income and other benefits (collectively, the "Rents") derived from the Property, whether now due, past due or to become due, and hereby gives to and confers upon Beneficiary, either directly or through a receiver, the right, power and authority, but not the obligation, to collect the Rents, and to sue, either in the name of Trustor or Beneficiary, for all such Rents and to apply the same to the indebtedness secured hereby in such order as Beneficiary may determine in its sole discretion. This assignment of Rents is intended to create and shall be construed to create an absolute assignment to Beneficiary of all of Trustor's right, title and interest in the Rents; provided, however, so long as no default exists by Trustor in the payment of any indebtedness secured hereby, or in any other covenant contained herein, or in said note or notes or in any other document evidencing or securing such indebtedness, Trustor shall have the right to collect all Rents from the Property and to retain, use and enjoy the same. Upon the occurrence of such a default, without the necessity of demand or other notice to Trustor or any other act to enforce Beneficiary's interest pursuant to this assignment, Trustor shall have no interest whatsoever in the Rents that are received by Trustor after a default, and all such Rents shall be received and held by Trustor in constructive trust for Beneficiary and delivered promptly to Beneficiary, or to a court appointed receiver for the Property, without the necessity for further notice to, or demand upon, Trustor. Upon the occurrence of such a default and at any time thereafter during the continuance thereof, Beneficiary may, at its option, send any tenant of the Property a notice to the effect that: (a) a default has occurred; (b) Beneficiary has elected to exercise its rights under this assignment; and (c) such tenant is thereby directed to thereafter make all payments of Rents to or for the benefit of Beneficiary or as Beneficiary shall direct. Any such tenant shall be entitled to rely upon any notice from Beneficiary and shall be protected with respect to any payment of Rents made pursuant to such notice, irrespective of whether a dispute exists between Trustor and Beneficiary with respect to the existence of a default or the rights of Beneficiary hereunder. Any such tenant shall not be required to investigate or determine the validity or accuracy of such notice or the validity or enforceability of this assignment. Trustor hereby agrees to indemnify, defend and hold any such tenant harmless from and against any and all losses, claims, damages or liabilities arising from or related to any payment of Rents by such tenant made in reliance on and pursuant to such notice.
10. Default and Foreclosure. Upon default by Trustor in payment or performance of any Secured Obligation, Beneficiary may declare all sums secured immediately due and payable by delivery to Trustee of a declaration of default and demand for sale and of a notice of default and of a notice of sale, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust, said note or notes and all documents evidencing expenditures secured by this Deed of Trust. Upon default of any obligation secured by this Deed of Trust and acceleration of all sums due, Beneficiary may instruct Trustee to proceed with a sale of the Property under the power of sale granted in this Deed of Trust, noticed and held in accordance with California Civil Code Sections 2924, et seq., as such statutes may be amended from time to time. Trustor waives all rights it may have to require marshaling of assets or to require sales of assets in any particular order, including any rights under California Civil Code Sections 2899 and 3433.
11. Substitution of Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee.
12. Successors and Assigns. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term "Beneficiary" shall mean the owner and holder, including pledgees, of the secured note or notes, whether or not named as Beneficiary herein.
13. Trustee Acceptance. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
14. Further Assurances. Trustor shall, at its own cost and expense, do, execute, acknowledge, and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers, and assurances as Trustee or Beneficiary shall from time to time require, for better assuring, conveying, assigning, transferring, and confirming unto Trustee the Property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out the intention or facilitating the performance of the terms of this Deed of Trust, or for filing, registering, or recording this Deed of Trust. Trustor shall, on demand, execute and deliver, and hereby authorizes Trustee and Beneficiary, or either of them, to execute in the name of Trustor, to the extent it may lawfully do so, one or more financing statements, chattel mortgages, or comparable security instruments, to evidence more effectively the lien hereof. Immediately upon the execution and delivery of this Deed of Trust, and thereafter from time to time, Trustor shall cause this Deed of Trust, and any security instruments creating a lien or evidencing the lien hereof upon any personal property and each instrument of further assurance, to be filed, registered, or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the title of Trustee to, the Property encumbered hereby.
15. Condemnation and Insurance Proceeds. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Trustor hereby authorizes and empowers Beneficiary as attorney in fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary's expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Trustor hereby authorizes and empowers Beneficiary, at Beneficiary's option, as attorney in fact for Trustor, to commence, appear in and prosecute, in Beneficiary's or Trustor's name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award payment or claim for damages, direct or consequential, in connection with any condemnation or other taking, whether direct or indirect, of the Property, or any part thereof, or for conveyances in lieu of the Property, or any part thereof, shall be paid to Beneficiary. The foregoing powers of attorney are coupled with an interest and are irrevocable. Trustor hereby authorizes Beneficiary to apply such awards, payments, proceeds or damages relating to condemnation of the Property and insurance covering the Property, after the deduction of Beneficiary's expenses incurred in the collection of such amounts, at Beneficiary's option, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust. Beneficiary shall be under no obligation to question the amount of any compensation, awards, proceeds, damages, claims, rights of action, and payments relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may accept the same in the amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any awards, proceeds damages or claims arising in connection with such condemnation or taking or such insurance as Beneficiary may require.
16. Severability. If any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein or therein, but only to the extent of such invalidity.
17. Estoppel Certificate. Trustor shall, within ten (10) days of a written request from Beneficiary, furnish Beneficiary with a written statement, duly acknowledged, setting forth the sums secured by this Deed of Trust and any right of set off, counterclaim or other defense which exists against such sums and the obligations of this Deed of Trust.
18. California Uniform Commercial Code Security Agreement; Fixture Filing. Trustor hereby grants Beneficiary a security interest in all personal property of Trustor located on the Property and wherever located and used in any way in connection with or in any way relating to the Property, and whether now owned or hereafter in existence, acquired or created (including equipment, inventory, goods, documents, instruments, general intangibles, chattel paper, accounts, accounts receivable, deposit accounts and contract rights), and all fixtures of Trustor now owned or hereafter in existence, acquired or created on, of or relating to the Property, and all substitutions, replacements, additions, accessions and proceeds (including insurance proceeds) of all of the foregoing (collectively, the "Personal Property"). Beneficiary may file this Deed of Trust, or a reproduction hereof, in the real estate records or other appropriate index, as a financing statement for the Personal Property. Any reproduction of this Deed of Trust or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Trustor shall execute and deliver to Beneficiary, upon Beneficiary's request, any financing statements, as well as extensions, renewals and amendments thereof, and reproductions of this Deed of Trust in such form as Beneficiary may require to perfect a security interest with respect to the Personal Property. Trustor shall pay all costs of filing such financing statements and any extensions, renewals, amendments and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements Beneficiary may reasonably require. Without the prior written consent of Beneficiary, Trustor shall not create or suffer to be created pursuant to the California Uniform Commercial Code any other security interest in the Personal Property. Upon Trustor's breach of any covenant or agreement of Trustor contained in this Deed of Trust, including the covenants to pay when due all sums secured by this Deed of Trust, Beneficiary shall have the remedies of a secured party under the California Uniform Commercial Code and, at Beneficiary's option, may also invoke any remedies provided in this Deed of Trust as to the Personal Property. In exercising any of such remedies, Beneficiary may proceed against the Property and any of the Personal Property separately or together and in any order whatsoever, without in any way affecting the availability of Beneficiary's remedies under the California Uniform Commercial Code or the remedies provided in the Deed of Trust. This Deed of Trust also covers goods which are or which are to become fixtures on the Property and constitutes and is filed as a fixture filing under the California Uniform Commercial Code.
19. Due On Sale or Encumbrance. If all or any part of the Property, or any interest therein, or any beneficial interest in Trustor (if Trustor is not a natural person or persons but is a corporation, partnership, trust, limited liability company or other legal entity), is sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly, whether voluntarily or involuntarily or by operational law, Beneficiary may, at Beneficiary's option, declare all of the sums secured by this Deed of Trust to be immediately due and payable, and Beneficiary may invoke any remedies permitted by this Deed of Trust.
20. No Discrimination. The Trustor covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual preference, age, marital status, source of income, physical handicap, medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Trustor itself or any person claiming under or through it 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.
21. Nondiscrimination Clauses. All deeds, leases, or contracts made relative to the Property, the improvements thereon or any part thereof, shall contain or be subject to the nondiscrimination clauses set forth in California Health and Safety Code Section 33436.
22. Foreclosure. This Section 21 shall only apply if the development of the Property is financed in part with Low-Income Housing Tax Credit financing. Notwithstanding anything to the contrary contained herein or in any documents secured by this Deed of Trust or contained in any subordination agreement, Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the Property encumbered by this Deed of Trust, the following rule contained in Section 42(h)(6)(E)(ii) of the Internal Revenue Code of 1986, as amended (the "Code"), shall apply: For a period of three (3) years from the date of Foreclosure, with respect to any unit that had been regulated by the regulatory agreement with the California Tax Credit Allocation Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be increased except as otherwise permitted under Section 42 of the Code.
22. Subordination. Beneficiary, for itself and its successors and assigns, covenants and agrees that the lien of this Deed of Trust and all of Beneficiary's rights and powers under this Deed of Trust are subordinate and subject to the liens and rights of the County of Contra Costa (the "County") under that certain Deed of Trust delivered or to be delivered by Trustor for the benefit of the County in connection with a loan made or to be made to Trustor in the amount of approximately $2,800,000.00. The lien of this Deed of Trust and all of Beneficiary's rights and powers under this Deed of Trust are co-equal in lien priority to the liens and rights of the City of Brentwood under that certain Deed of Trust delivered or to be delivered by Trustor for the benefit of the City of Brentwood in connection with a loan made or to be made to Trustor in the amount of approximately $900,000.00.
23. Right of Beneficiary to Cure Prior Deeds of Trust or Other Security Interest Default. In the event of a default or breach by Trustor of a mortgage, deed of trust or other security interest with respect to the Property, the Beneficiary may cure the default prior to completion of any foreclosure. In such event, the Beneficiary shall be entitled to reimbursement from the Trustor of all costs and expenses incurred by the Beneficiary in curing the default secured by a lien upon the Property to the extent of such costs and disbursements.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to Trustor at Trustor's address hereinbefore set forth.
TRUSTOR:
EDEN HOUSING, INC., a California nonprofit public benefit corporation


By:
Name:
Its:




EXHIBIT A
LEGAL DESCRIPTION OF SITE
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:


STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:
Signature:

ADDENDUM TO DEED OF TRUST,
ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
This ADDENDUM TO DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING is made a part of that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Deed of Trust") dated as of
, 2005, executed by EDEN HOUSING, INC., as Trustor, in favor of
the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, as Beneficiary.
1. Hazardous Materials.
(a) Special Representations And Warranties. Without in any way limiting the other representations and warranties set forth in the Deed of Trust, and after reasonable investigation and inquiry, Trustor hereby specially represents and warrants to the best of Trustor's knowledge as of the date of this Deed of Trust as follows:
(i) Except as previously disclosed to Beneficiary the subject property is not and has not been a site for the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of any oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials, including, without limitation, any substances which are "hazardous substances," "hazardous wastes," "hazardous materials" or "toxic substances" under the Hazardous Materials Laws, as described below, and/or other applicable environmental laws, ordinances and regulations (collectively, the "Hazardous Materials"). "Hazardous Materials" shall not include commercially reasonable amounts of such materials used in the ordinary course of operation of the subject property which are used and stored in accordance with all applicable environmental laws, ordinances and regulations.
(ii) The subject property is in compliance with all laws, ordinances and regulations relating to Hazardous Materials ("Hazardous Materials Laws"), including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; and all comparable state and local laws, laws of other jurisdictions or orders and regulations.
(iii) There are no claims or actions ("Hazardous Materials Claims") pending or threatened against Trustor or the subject property by any governmental entity or agency or by any other person or entity relating to Hazardous Materials or pursuant to the Hazardous Materials Laws.
(iv) The subject property has not been designated as Border Zone Property under the provisions of California Health and Safety Code, Sections 25220 et seq. and there has been no occurrence or condition on any real property adjoining or in the vicinity of the subject property that could cause the subject property or any part thereof to be designated as Border Zone Property.
(b) Hazardous Materials Covenants. Trustor agrees as follows:
(i) Trustor shall not cause or permit the subject property to be used as a site for the use, generation, manufacture, storage, treatment, release, discharge, disposal, transportation or presence of any Hazardous Materials.
(ii) Trustor shall comply and cause the subject property to comply with all Hazardous Materials Laws.
(iii) Trustor shall immediately notify Beneficiary in writing of: (i) the discovery of any Hazardous Materials on, under or about the subject property; (ii) any knowledge by Trustor that the subject property does not comply with any Hazardous Materials Laws; (iii) any Hazardous Materials Claims; and (iv) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the subject property that could cause the subject property or any part thereof to be designated as Border Zone Property.
(iv) In response to the presence of any Hazardous Materials on, under or about the subject property, Trustor shall immediately take, at Trustor's sole expense, all remedial action required by any Hazardous Materials Laws or any judgment, consent decree, settlement or compromise in respect to any Hazardous Materials Claims.
(c) Inspection By Beneficiary. Upon reasonable prior notice to Trustor, Beneficiary, its employees and agents, may from time to time (whether before or after the commencement of a nonjudicial or judicial foreclosure proceeding) enter and inspect the subject property for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any Hazardous Material into, onto, beneath or from the subject property.
(d) Hazardous Materials Indemnity. Trustor hereby agrees to defend, indemnify and hold harmless Beneficiary, its employees, agents, successors and assigns from and against any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including, without limitation, attorneys' fees and expenses) which Beneficiary may incur as a direct or indirect consequence of the use, generation, manufacture, storage, disposal, threatened disposal, transportation or presence of Hazardous Materials in, on, under or about the subject property. Trustor shall immediately pay to Beneficiary upon demand any amounts owing under this indemnity, together with interest at the rate of ten percent (10%) per annum. Trustor's duty and obligations to defend, indemnify and hold harmless Beneficiary shall survive the release, reconveyance or partial reconveyance of this Deed of Trust.
(e) Legal Effect of Section. Trustor and Beneficiary agree that: (i) this Paragraph 1 is intended as Beneficiary's written request for information (and Trustor's response) concerning the environmental condition of the real property security as required by California Code of Civil Procedure §726.5; and (ii) each provision in this Paragraph (together with any indemnity applicable to a breach of any such provision) with respect to the environmental condition of the real property security is intended by Beneficiary and Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure §736, and as such it is expressly understood that Trustor's duty to indemnify Beneficiary hereunder shall survive: (y) any judicial or non-judicial foreclosure under this Deed of Trust, or transfer of the subject property in lieu thereof, and (z) the release and reconveyance or cancellation of this Deed of Trust.

Trustor's Initials




ATTACHMENT NO. 10
FORM OF CITY NOTE

Not to Exceed January 25, 2005
$900,000.00 Brentwood, California
FOR VALUE RECEIVED, EDEN HOUSING, INC., a California nonprofit public benefit corporation ("Maker"), having an address of 409 Jackson Street, Hayward, California 94544 promises to pay the CITY OF BRENTWOOD ("Holder"), having an address of 150 City Park Way, Brentwood, California 94513, the principal sum of NINE HUNDRED THOUSAND DOLLARS ($900,000.00), pursuant to the terms and conditions set forth below.
1. City Loan. This Note is made pursuant to Section 403 of that certain Participation and Loan Agreement (the "Agreement") between Maker, Holder and the Redevelopment Agency of the City of Brentwood (the "Agency"), dated January 25, 2005. This is a promissory note for the repayment to Holder of the Nine Hundred Thousand Dollar ($900,000.00) loan provided by Holder to Maker (the "City Loan") in order to enable Maker to provide Affordable Senior Units, as defined below, on that certain real property described in the Agreement (the "Site"). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
2. Disbursement. The City Loan shall be disbursed in accordance with and subject to the Conditions Precedent to Disbursement of Loans set forth in Sections 404 and 405 of the Agreement.
3. Interest. This Note shall bear simple interest at a rate of three percent per annum from the date of disbursement, except as provided in Section 12 below.
4. Deed of Trust. Payment of this Note is secured by a deed of trust, assignment of rents, security agreement and fixture filing (the "Deed of Trust") executed by Maker to North American Title Company, as Trustee, for the benefit of Holder, which Deed of Trust shall be recorded against the Site.
5. Affordable Senior Units. Pursuant to the Agreement, the Site will be developed with 80 affordable senior units (the "Affordable Senior Units"). Each Affordable Senior Unit will be rented to a qualified extremely low or very low-income senior household at an affordable rent as set forth in the Affordable Housing Covenant executed by Holder, Maker and Agency and recorded against the Site (the "Affordable Housing Covenant").
6. Repayment. So long as the Maker owns and operates the Project in compliance with the Affordable Housing Covenant and the Agreement and is not in default under this Note, no payments shall be due hereunder, and the entire outstanding unpaid Principal and interest of this Note shall be due and payable in full upon the fifty-fifth (55th) anniversary of this Note.
7. Place of Payment. Payment shall be made in lawful money of the United States to Holder c/o City of Brentwood, 150 City Park Way, Brentwood, California 94513. The place of payment may be changed from time to time as the Holder may from time to time designate in writing.
8. Non-Negotiability; Transfer. This Note is non-negotiable and not transferable by Maker, except as provided in Section 102.4(d)(6) of the Agreement. Borrower, at its option, may negotiate transfer or assumption of this Note.
9. Prepayment. Maker shall have the right to prepay, at any time and from time to time, all or any portion of the amounts owing under this Note without any premium or penalty.
10. Event of Default. The occurrence of any of the following shall constitute an event of default under this Note: (a) Maker fails to pay any amount due hereunder within fifteen (15) days of its due date; or (b) any default by Maker under the Deed of Trust, the Affordable Housing Covenant, the Agreement or any other loan or other document affecting the Site, subject to any applicable cure periods provided therein.
11. Payment Upon Default. At the option of the Holder hereof and without notice, the entire unpaid principal and interest owing on this Note shall become immediately due and payable, (a) upon the occurrence of any event of default, or (b) upon the sale, transfer, assignment, conveyance or lease of the Property, in whole or in part, except for a Pre-Approved Transfer under Section 102.4(d) of the Agreement, prior to repayment of the principal and interest owing on this Note. 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 Holder's option. Holder's failure to exercise such option shall not constitute a waiver of such option with respect to any subsequent event. Holder'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.
12. Interest Upon Default. At all times when Maker is in default hereunder by reason of Maker's failure to pay principal or interest due under this Note or any amounts due under any loan documents securing this Note, the interest rate on the sums as to which Maker is in default, shall be the lower of the highest rate then allowed by law or five percent (5%) over the interest rate set forth in Section 3 above, as of the date of the default.
13. Waiver of Presentment. Maker and any endorsers 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 hereof or of any installment hereof, to the release of any party liable for this obligation, and any such extension or release may be made without notice to any of said parties and without any way affecting or discharging this liability.
14. Attorney Fees. Maker agrees to pay immediately upon demand all costs and expenses of Holder including reasonable attorneys' fees, (a) if after default this Note is placed in the hands of an attorney or attorneys for collection, (b) if after a default hereunder or under the Deed of Trust, Affordable Housing Covenant or the Agreement, or under any loan document referred to herein, Holder finds it necessary or desirable to secure the services or advice of one or more attorneys with regard to collection of this Note against Maker, any guarantor or any other party liable therefor or to the protection of its rights under this Note, the Deed of Trust, the Affordable Housing Covenant, the Agreement, or other loan document, or (c) if Holder seeks to have the Site 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. If Holder shall be made a party to or shall reasonably intervene in any action or proceeding, whether in court or before any governmental Agency, affecting the Site or the title thereto or the interest of the Holder under the Deed of Trust, including, without limitation, any form of condemnation or eminent domain proceeding, Holder shall be reimbursed by Maker immediately upon demand for all costs, charges and attorneys' fees incurred by Holder in any such case, and the same shall be secured by the Deed of Trust as a further charge and lien upon the Site.
15. Notices. Any notices provided for in this Note shall be given by mailing such notice by certified mail, return receipt requested at the address stated in this Note or at such address as either party may designate by written notice.
16. Successors and Assigns. This Note shall be binding upon Maker, its successors and assigns.
17. Governing Law. This Note shall be construed in accordance with and be governed by the laws of the State of California, without regard to conflict of laws principles.
18. Severability. If any provision of this Note is declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. Limited Recourse. Holder's recovery against Maker under this Note shall be limited solely to the Site, except that Maker may be personally liable to Holder for any losses or damages incurred by the following matters: (a) fraud or willful misrepresentation; (b) material physical waste of the Site; (c) failure to pay property or other taxes, assessments or charges, which may create liens senior to the lien of the Deed of Trust on all or any portion of the Site to the extent of such failure to pay; (d) any material representation or warranty of Borrower in this Note, the Deed of Trust or the Agreement proving to have been untrue when made; (e) failure to deliver any insurance or condemnation proceeds received by Maker to Holder or to otherwise apply such sums as required under the Deed of Trust to the extent of the insurance or condemnation proceeds not delivered; (f) failure to apply any rents, royalties, accounts, revenues, income, issues, profits and other benefits ("Project Income") from the Site which are collected or received by Maker during the period of any default to the payment of either (i) such indebtedness or other sums or (ii) the normal and necessary operating and maintenance expenses of the Site to the extent such Project Income is not applied as set forth herein; and (g) any breach by Maker of any covenant in the Deed of Trust or the Agreement regarding Hazardous Materials.


EDEN HOUSING, INC., a California nonprofit public benefit corporation


By:
Name:
Its:

"MAKER"
Disbursement Schedule

Disbursement Date of Disbursement Amount






ATTACHMENT NO. 11
CITY DEED OF TRUST

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attn: Redevelopment Manager ))))))))
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 6103.
DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING

APN: 013-360-121 & 013-212-011
This DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING is made as of January 25, 2005, among EDEN HOUSING, INC., a California nonprofit public benefit corporation ("Trustor"), whose address is 409 Jackson Street, Hayward, California 94544, North American Title Company, a California corporation ("Trustee"), and CITY OF BRENTWOOD, a public body, corporate and politic ("Beneficiary"), whose address is 150 City Park Way, Brentwood, California 94513.
Trustor irrevocably grants, conveys, transfers and assigns to Trustee in trust, with power of sale and right of entry and possession, all of Trustor's right, title and interest now owned or hereafter acquired in and to the real property in Contra Costa County, California, described on Exhibit A attached hereto and incorporated herein by this reference, together with all buildings, structures and improvements now existing or hereafter constructed thereon (the "Improvements") and all other property and interests of any kind or character which may be reasonably necessary or desirable to promote the present and future beneficial use and enjoyment of such real property and improvements (the "Property").
1. Secured Obligations. Trustor makes the grant, conveyance, transfer and assignment herein for the purpose of securing the following obligations (the "Secured Obligations"): (a) payment of the sum of $900,000.00 with interest thereon according to the terms of a promissory note (the "Note") of even date herewith, executed by Trustor in favor of Beneficiary or order and any extension or renewals thereof; (b) payment of such further sums as the then record owner of the Property may borrow from Beneficiary, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust; and (c) performance of each agreement and obligation of Trustor contained in the Participation and Loan Agreement by and between Trustor, Beneficiary and the Redevelopment Agency of the City of Brentwood (the "Agency") dated January 25, 2005, incorporated herein by reference and the Affordable Housing Covenant between Trustor, Beneficiary and Agency dated January 25, 2005.
2. Maintenance and Repair. Trustor shall (a) keep the Property in good condition and repair and not remove or demolish any building; (b) complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed; (c) pay when due all claims for labor performed and materials furnished; (d) comply with all laws affecting the Property or requiring any alterations or improvements to be made; (e) not commit or permit waste; and (f) cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of the Property may be reasonably necessary.
3. Insurance. Trustor shall maintain hazard insurance against loss by fire, hazards included with the term "extended coverage," and any other hazards for which Beneficiary requires insurance, and liability insurance. The insurance carrier and the insurance policies and amounts of coverage shall be acceptable to Beneficiary, the policies shall name Beneficiary as a loss payee or an additional insured, as applicable, the policies shall include Beneficiary as an additional insured, as applicable, and shall require 30 days' prior notice to Beneficiary before the policy is modified or terminated.
4. Defense of Security. Trustor shall appear in and defend any action or proceeding purporting to affect the security or the rights or powers of Beneficiary or Trustee. Trustor shall pay all costs and expenses, including costs of evidence of title and attorneys' fees, in any such action or proceeding in which Trustee or Beneficiary may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
5. Payment of Taxes and Liens. Trustor shall pay (a) at least 10 days before delinquency, all taxes and assessments affecting the Property, including water stock assessments; (b) when due, all encumbrances, charges and liens, with interest, on the Property, which are or appear to be prior or superior to this Deed of Trust; and (c) upon demand all costs, fees and expenses of this Deed of Trust. If Trustor fails to make any payment or to do any act provided for in this Deed of Trust, then Beneficiary or Trustee may, without obligation to do so, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation under this Deed of Trust: (a) make or do the same in such manner and to such extent as either may deem necessary to protect the security, Beneficiary or Trustee being authorized to enter upon the Property for such purposes; (b) appear in or commence any action or proceeding purporting to affect the security, or the rights or powers of Beneficiary or Trustee; (c) pay, purchase, contest or settle any encumbrance, charge or lien which in the judgment of either appears to be senior to this Deed of Trust; and (d) in exercising any such powers, pay allowable expenses, including attorneys' fees.
6. Reimbursement of Costs. Trustor shall pay upon demand all sums expended by Beneficiary or Trustee provided for in this Deed of Trust or allowed by law, with interest from date of expenditure at the maximum rate provided in the Note.
7. No Waiver. By accepting payment of any sum after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums or declare a default for failure to pay.
8. Reconveyance. That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said note or notes to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals of such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto."
9. Assignment of Rents. Trustor hereby absolutely and unconditionally assigns to Beneficiary all of the rents, issues, profits, royalties, revenues, income and other benefits (collectively, the "Rents") derived from the Property, whether now due, past due or to become due, and hereby gives to and confers upon Beneficiary, either directly or through a receiver, the right, power and authority, but not the obligation, to collect the Rents, and to sue, either in the name of Trustor or Beneficiary, for all such Rents and to apply the same to the indebtedness secured hereby in such order as Beneficiary may determine in its sole discretion. This assignment of Rents is intended to create and shall be construed to create an absolute assignment to Beneficiary of all of Trustor's right, title and interest in the Rents; provided, however, so long as no default exists by Trustor in the payment of any indebtedness secured hereby, or in any other covenant contained herein, or in said note or notes or in any other document evidencing or securing such indebtedness, Trustor shall have the right to collect all Rents from the Property and to retain, use and enjoy the same. Upon the occurrence of such a default, without the necessity of demand or other notice to Trustor or any other act to enforce Beneficiary's interest pursuant to this assignment, Trustor shall have no interest whatsoever in the Rents that are received by Trustor after a default, and all such Rents shall be received and held by Trustor in constructive trust for Beneficiary and delivered promptly to Beneficiary, or to a court appointed receiver for the Property, without the necessity for further notice to, or demand upon, Trustor. Upon the occurrence of such a default and at any time thereafter during the continuance thereof, Beneficiary may, at its option, send any tenant of the Property a notice to the effect that: (a) a default has occurred; (b) Beneficiary has elected to exercise its rights under this assignment; and (c) such tenant is thereby directed to thereafter make all payments of Rents to or for the benefit of Beneficiary or as Beneficiary shall direct. Any such tenant shall be entitled to rely upon any notice from Beneficiary and shall be protected with respect to any payment of Rents made pursuant to such notice, irrespective of whether a dispute exists between Trustor and Beneficiary with respect to the existence of a default or the rights of Beneficiary hereunder. Any such tenant shall not be required to investigate or determine the validity or accuracy of such notice or the validity or enforceability of this assignment. Trustor hereby agrees to indemnify, defend and hold any such tenant harmless from and against any and all losses, claims, damages or liabilities arising from or related to any payment of Rents by such tenant made in reliance on and pursuant to such notice.
10. Default and Foreclosure. Upon default by Trustor in payment or performance of any Secured Obligation, Beneficiary may declare all sums secured immediately due and payable by delivery to Trustee of a declaration of default and demand for sale and of a notice of default and of a notice of sale, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust, said note or notes and all documents evidencing expenditures secured by this Deed of Trust. Upon default of any obligation secured by this Deed of Trust and acceleration of all sums due, Beneficiary may instruct Trustee to proceed with a sale of the Property under the power of sale granted in this Deed of Trust, noticed and held in accordance with California Civil Code Sections 2924, et seq., as such statutes may be amended from time to time. Trustor waives all rights it may have to require marshaling of assets or to require sales of assets in any particular order, including any rights under California Civil Code Sections 2899 and 3433.
11. Substitution of Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee.
12. Successors and Assigns. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term "Beneficiary" shall mean the owner and holder, including pledgees, of the secured note or notes, whether or not named as Beneficiary herein.
13. Trustee Acceptance. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
14. Further Assurances. Trustor shall, at its own cost and expense, do, execute, acknowledge, and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers, and assurances as Trustee or Beneficiary shall from time to time require, for better assuring, conveying, assigning, transferring, and confirming unto Trustee the Property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out the intention or facilitating the performance of the terms of this Deed of Trust, or for filing, registering, or recording this Deed of Trust. Trustor shall, on demand, execute and deliver, and hereby authorizes Trustee and Beneficiary, or either of them, to execute in the name of Trustor, to the extent it may lawfully do so, one or more financing statements, chattel mortgages, or comparable security instruments, to evidence more effectively the lien hereof. Immediately upon the execution and delivery of this Deed of Trust, and thereafter from time to time, Trustor shall cause this Deed of Trust, and any security instruments creating a lien or evidencing the lien hereof upon any personal property and each instrument of further assurance, to be filed, registered, or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the title of Trustee to, the Property encumbered hereby.
15. Condemnation and Insurance Proceeds. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Trustor hereby authorizes and empowers Beneficiary as attorney in fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary's expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Trustor hereby authorizes and empowers Beneficiary, at Beneficiary's option, as attorney in fact for Trustor, to commence, appear in and prosecute, in Beneficiary's or Trustor's name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award payment or claim for damages, direct or consequential, in connection with any condemnation or other taking, whether direct or indirect, of the Property, or any part thereof, or for conveyances in lieu of the Property, or any part thereof, shall be paid to Beneficiary. The foregoing powers of attorney are coupled with an interest and are irrevocable. Trustor hereby authorizes Beneficiary to apply such awards, payments, proceeds or damages relating to condemnation of the Property and insurance covering the Property, after the deduction of Beneficiary's expenses incurred in the collection of such amounts, at Beneficiary's option, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust. Beneficiary shall be under no obligation to question the amount of any compensation, awards, proceeds, damages, claims, rights of action, and payments relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may accept the same in the amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any awards, proceeds damages or claims arising in connection with such condemnation or taking or such insurance as Beneficiary may require.
16. Severability. If any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein or therein, but only to the extent of such invalidity.
17. Estoppel Certificate. Trustor shall, within ten (10) days of a written request from Beneficiary, furnish Beneficiary with a written statement, duly acknowledged, setting forth the sums secured by this Deed of Trust and any right of set off, counterclaim or other defense which exists against such sums and the obligations of this Deed of Trust.
18. California Uniform Commercial Code Security Agreement; Fixture Filing. Trustor hereby grants Beneficiary a security interest in all personal property of Trustor located on the Property and wherever located and used in any way in connection with or in any way relating to the Property, and whether now owned or hereafter in existence, acquired or created (including equipment, inventory, goods, documents, instruments, general intangibles, chattel paper, accounts, accounts receivable, deposit accounts and contract rights), and all fixtures of Trustor now owned or hereafter in existence, acquired or created on, of or relating to the Property, and all substitutions, replacements, additions, accessions and proceeds (including insurance proceeds) of all of the foregoing (collectively, the "Personal Property"). Beneficiary may file this Deed of Trust, or a reproduction hereof, in the real estate records or other appropriate index, as a financing statement for the Personal Property. Any reproduction of this Deed of Trust or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Trustor shall execute and deliver to Beneficiary, upon Beneficiary's request, any financing statements, as well as extensions, renewals and amendments thereof, and reproductions of this Deed of Trust in such form as Beneficiary may require to perfect a security interest with respect to the Personal Property. Trustor shall pay all costs of filing such financing statements and any extensions, renewals, amendments and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements Beneficiary may reasonably require. Without the prior written consent of Beneficiary, Trustor shall not create or suffer to be created pursuant to the California Uniform Commercial Code any other security interest in the Personal Property. Upon Trustor's breach of any covenant or agreement of Trustor contained in this Deed of Trust, including the covenants to pay when due all sums secured by this Deed of Trust, Beneficiary shall have the remedies of a secured party under the California Uniform Commercial Code and, at Beneficiary's option, may also invoke any remedies provided in this Deed of Trust as to the Personal Property. In exercising any of such remedies, Beneficiary may proceed against the Property and any of the Personal Property separately or together and in any order whatsoever, without in any way affecting the availability of Beneficiary's remedies under the California Uniform Commercial Code or the remedies provided in the Deed of Trust. This Deed of Trust also covers goods which are or which are to become fixtures on the Property and constitutes and is filed as a fixture filing under the California Uniform Commercial Code.
19. Due On Sale or Encumbrance. If all or any part of the Property, or any interest therein, or any beneficial interest in Trustor (if Trustor is not a natural person or persons but is a corporation, partnership, trust, limited liability company or other legal entity), is sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly, whether voluntarily or involuntarily or by operational law, Beneficiary may, at Beneficiary's option, declare all of the sums secured by this Deed of Trust to be immediately due and payable, and Beneficiary may invoke any remedies permitted by this Deed of Trust.
20. No Discrimination. The Trustor covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual preference, age, marital status, source of income, physical handicap, medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Trustor itself or any person claiming under or through it 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.
21. Foreclosure. This Section 21 shall only apply if the development of the Property is financed in part with Low-Income Housing Tax Credit financing. Notwithstanding anything to the contrary contained herein or in any documents secured by this Deed of Trust or contained in any subordination agreement, Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the Property encumbered by this Deed of Trust, the following rule contained in Section 42(h)(6)(E)(ii) of the Internal Revenue Code of 1986, as amended (the "Code"), shall apply: For a period of three (3) years from the date of Foreclosure, with respect to any unit that had been regulated by the regulatory agreement with the California Tax Credit Allocation Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be increased except as otherwise permitted under Section 42 of the Code.
22. Subordination. Beneficiary, for itself and its successors and assigns, covenants and agrees that all of its rights and powers under this Deed of Trust are subordinate and subject to the rights of the County of Contra Costa (the "County") under that certain Deed of Trust delivered or to be delivered by Trustor for the benefit of the County in connection with a loan made or to be made to Trustor in the amount of approximately $2,800,000.00. The lien of this Deed of Trust and all of Beneficiary's rights and powers under this Deed of Trust are co-equal in lien priority to the liens and rights of the Agency under that certain Deed of Trust delivered or to be delivered by Trustor for the benefit of the Agency in connection with a loan made or to be made to Trustor in the amount of approximately $100,000.00.
23. Right of Beneficiary to Cure Prior Deeds of Trust or Other Security Interest Default. In the event of a default or breach by Trustor of a mortgage, deed of trust or other security interest with respect to the Property, the Beneficiary may cure the default prior to completion of any foreclosure. In such event, the Beneficiary shall be entitled to reimbursement from the Trustor of all costs and expenses incurred by the Beneficiary in curing the default secured by a lien upon the Property to the extent of such costs and disbursements.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to Trustor at Trustor's address hereinbefore set forth.

TRUSTOR:
EDEN HOUSING, INC., a California nonprofit public benefit corporation

By:
Name:
Its:



EXHIBIT A
LEGAL DESCRIPTION OF SITE
The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:
PARCEL ONE:
PARCEL J, AS SHOWN ON THE MAP OF SUBDIVISION 8424, FILED DECEMBER 6, 2002, IN MAP BOOK 449, PAGE 27, CONTRA COSTA COUNTY RECORDS.
EXCEPTING THEREFROM:
"ALL OIL, GAS, CASINGHEAD, GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, IN, ON, AND UNDER SAID LAND OR THAT MAY BE PRODUCED, RECOVERED OR SAVED FROM SAID LAND WITH THE RIGHT OF ENTRY ON SAID PROPERTY FOR THE PURPOSE OF EXPLORING, TAKING, REMOVING, DISPOSING, MINING, AND OPERATING FOR OIL, GAS AND OTHER HYDROCARBON AND MINERALS SUBSTANCES, AND ALL RIGHTS REASONABLE AND INCIDENT TO SUCH PURPOSE, PROVIDED, HOWEVER THE ADEQUATE COMPENSATION FOR ANY AND ALL DAMAGE TO LAND, CROPS AND IMPROVEMENTS THEREON WILL BE PAID TO GRANTEES, THEIR HEIRS, SUCCESSORS OR ASSIGNS, IN THE EVENT DAMAGES ARE CAUSED BY THE EXERCISE OF ANY OF THE RIGHTS ABOVE RESERVED", AS RESERVED IN THE DEED FROM M. PHILIP DAVIS TO MYOSHI YAMANAKA, ET UX, RECORDED OCTOBER 14, 1963, IN BOOK 4470, AT PAGE 743, OFFICIAL RECORDS.
A.P.N. 013-360-121
PARCEL TWO:
PARCEL F, AS SHOWN ON THE MAP OF SUBDIVISION 8413, FILED JUNE 9, 2003, IN BOOK 454 OF MAPS, PAGE 22, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY
EXCEPTING THEREFROM:
ALL OIL, GAS, GEOTHERMAL STEAM, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS NOW OR HEREAFTER FOUND, SITUATED OR LOCATED IN ALL OR ANY PORTION OF THE LANDS DESCRIBED HEREIN LYING MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SAID GAS, OIL, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS OR CHEMICAL GAS LYING BELOW A DEPTH OF MORE THAN FIVE HUNDRED FEET (500') BELOW THE SURFACE THEREOF INCLUDING THE RIGHT TO GRANT LEASES FOR ALL OR ANY OF SAID PURPOSES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LANDS OR ANY PORTION THEREOF WITHIN FIVE HUNDRED FEET (500') VERTICAL DISTANCE BELOW THE SURFACE THEREOF, AS RESERVED IN THE GRANT DEED EXECUTED BY FRANK A. SCIORTINO, ET AL, RECORDED JULY 31, 2002 AS INSTRUMENT NO. 2002-267314 OF OFFICIAL RECORDS.
PARCEL THREE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR IRRIGATION PIPE LINE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 155, 156, 160, 161 AND SUBDIVISION ROAD "A" AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE EAST LINE OF PARCEL TWO ABOVE DISTANT THEREON SOUTH 0º 01' WEST, 1603.73 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 14' 6" EAST, 943.8 FEET; THENCE NORTH 4º 3' 06" EAST, 547 FEET TO THE SOUTH LINE OF LOT 151, AS SHOWN ON SAID MAP.
PARCEL FOUR:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR INGRESS AND EGRESS OVER A STRIP OF LAND 20 FEET IN WIDTH, THE SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF SAID LOT 161 AT THE SOUTHEAST CORNER OF PARCEL TWO ABOVE; THENCE NORTH 89º 09' EAST ALONG SAID SOUTH LINE, 88.19 FEET TO THE WEST LINE OF SUBDIVISION ROAD "A" AS SHOWN ON SAID MAP.
PARCEL FIVE:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET IN WIDTH, THE NORTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 146, 147, 148, 149, SUBDIVISION ROADS "A" AND "E", AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917, IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF PARCEL TWO ABOVE; THENCE FROM SAID POINT OF BEGINNING NORTH 89º 15' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION (16 M 325) 2678.12 FEET TO THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP.
PARCEL SIX:
AN EASEMENT (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL TWO ABOVE FOR DRAINAGE PURPOSES OVER A STRIP OF LAND 10 FEET WIDE, THE EAST LINE OF WHICH IS DESCRIBED AS FOLLOWS:
PORTION OF LOTS 149, 150 AND 157 AS SHOWN ON THE MAP OF SUBDIVISION NO. 4, BRENTWOOD IRRIGATED FARMS, FILED SEPTEMBER 11, 1917 IN BOOK 16 OF MAPS, PAGE 325, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF SAID LOT 149 AT THE WEST LINE OF SELLERS AVENUE, AS SHOWN ON SAID MAP; THENCE FROM SAID POINT OF BEGINNING SOUTH 0º 01' WEST ALONG THE WEST LINE OF SAID SELLERS AVENUE 1080 FEET; MORE OR LESS, TO AN EXISTING SUMP PUMP WHICH IS DISTANT NORTH 0º 01' EAST, 1541.66 FEET FROM THE NORTH LINE OF BRENTWOOD ROAD AS SHOWN ON SAID MAP.
APN: 013-212-011

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:

Signature:


STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 200 , before me, , the undersigned, personally appeared ,
( ) personally known to me
( ) 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.
WITNESS my hand and official seal:
Signature:

ADDENDUM TO DEED OF TRUST,
ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
This ADDENDUM TO DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING is made a part of that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Deed of Trust") dated as of
, 2005, executed by EDEN HOUSING, INC., as Trustor, in favor of
the CITY OF BRENTWOOD, as Beneficiary.
1. Hazardous Materials.
(a) Special Representations And Warranties. Without in any way limiting the other representations and warranties set forth in the Deed of Trust, and after reasonable investigation and inquiry, Trustor hereby specially represents and warrants to the best of Trustor's knowledge as of the date of this Deed of Trust as follows:
(i) Except as previously disclosed to Beneficiary the subject property is not and has not been a site for the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of any oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials, including, without limitation, any substances which are "hazardous substances," "hazardous wastes," "hazardous materials" or "toxic substances" under the Hazardous Materials Laws, as described below, and/or other applicable environmental laws, ordinances and regulations (collectively, the "Hazardous Materials"). "Hazardous Materials" shall not include commercially reasonable amounts of such materials used in the ordinary course of operation of the subject property which are used and stored in accordance with all applicable environmental laws, ordinances and regulations.
(ii) The subject property is in compliance with all laws, ordinances and regulations relating to Hazardous Materials ("Hazardous Materials Laws"), including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; and all comparable state and local laws, laws of other jurisdictions or orders and regulations.
(iii) There are no claims or actions ("Hazardous Materials Claims") pending or threatened against Trustor or the subject property by any governmental entity or agency or by any other person or entity relating to Hazardous Materials or pursuant to the Hazardous Materials Laws.
(iv) The subject property has not been designated as Border Zone Property under the provisions of California Health and Safety Code, Sections 25220 et seq. and there has been no occurrence or condition on any real property adjoining or in the vicinity of the subject property that could cause the subject property or any part thereof to be designated as Border Zone Property.
(b) Hazardous Materials Covenants. Trustor agrees as follows:
(i) Trustor shall not cause or permit the subject property to be used as a site for the use, generation, manufacture, storage, treatment, release, discharge, disposal, transportation or presence of any Hazardous Materials.
(ii) Trustor shall comply and cause the subject property to comply with all Hazardous Materials Laws.
(iii) Trustor shall immediately notify Beneficiary in writing of: (i) the discovery of any Hazardous Materials on, under or about the subject property; (ii) any knowledge by Trustor that the subject property does not comply with any Hazardous Materials Laws; (iii) any Hazardous Materials Claims; and (iv) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the subject property that could cause the subject property or any part thereof to be designated as Border Zone Property.
(iv) In response to the presence of any Hazardous Materials on, under or about the subject property, Trustor shall immediately take, at Trustor's sole expense, all remedial action required by any Hazardous Materials Laws or any judgment, consent decree, settlement or compromise in respect to any Hazardous Materials Claims.
(c) Inspection By Beneficiary. Upon reasonable prior notice to Trustor, Beneficiary, its employees and agents, may from time to time (whether before or after the commencement of a nonjudicial or judicial foreclosure proceeding) enter and inspect the subject property for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any Hazardous Material into, onto, beneath or from the subject property.
(d) Hazardous Materials Indemnity. Trustor hereby agrees to defend, indemnify and hold harmless Beneficiary, its employees, agents, successors and assigns from and against any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including, without limitation, attorneys' fees and expenses) which Beneficiary may incur as a direct or indirect consequence of the use, generation, manufacture, storage, disposal, threatened disposal, transportation or presence of Hazardous Materials in, on, under or about the subject property. Trustor shall immediately pay to Beneficiary upon demand any amounts owing under this indemnity, together with interest at the rate of ten percent (10%) per annum. Trustor's duty and obligations to defend, indemnify and hold harmless Beneficiary shall survive the release, reconveyance or partial reconveyance of this Deed of Trust.
(e) Legal Effect of Section. Trustor and Beneficiary agree that: (i) this Paragraph 1 is intended as Beneficiary's written request for information (and Trustor's response) concerning the environmental condition of the real property security as required by California Code of Civil Procedure §726.5; and (ii) each provision in this Paragraph (together with any indemnity applicable to a breach of any such provision) with respect to the environmental condition of the real property security is intended by Beneficiary and Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure §736, and as such it is expressly understood that Trustor's duty to indemnify Beneficiary hereunder shall survive: (y) any judicial or non-judicial foreclosure under this Deed of Trust, or transfer of the subject property in lieu thereof, and (z) the release and reconveyance or cancellation of this Deed of Trust.

Trustor's Initials






 

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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