Attachment D2-Facility Use Agreement and Covenant (Lessee).pdf

Attachment D2 – Facility Use Restriction CCE-FY23-xx

FACILITY USE AGREEMENT AND COVENANT

Recording Requested by and When recorded mail to:

TBD

With a copy to:

County of Santa Clara Office of County Counsel 70 W. Hedding Street, 9th Floor San Jose, CA 95110

Project: Independent Living Home Habitability Improvements Project Grant Agreement No.

APN(s): xxx-xx-xxx

TO BE RECORDED WITHOUT FEE PER GOVERNMENT

CODE SECTION 27383

FACILITY USE AGREEMENT AND COVENANT

CCE-FY23-XX

This Facility Use Agreement and Covenant (“Covenant”) is dated as of XXXXXX by XXXXXX, (“Owner”) and _______ (“Lessee”) for the benefit of the County of Santa Clara, a political subdivision of the State of California (“County”) on the terms and conditions set forth below.

RECITALS

A. Owner is the owner of certain real property located at xxxxxx as more particularly described in the attached EXHIBIT A (“Property”). Lessee owns and operates a licensed Adult Residential Facility/Board and Care Home known as the __________ (“____”) on the Property.

B. The Community Care Expansion (“CCE”) Program was established by Assembly Bill 172

(Chapter 696, Statutes of 2021) to fund capital projects and promote the sustainability of residential adult and senior care facilities and to address historic gaps in the long-term care continuum. The California Department of Social Services awarded funds under this program to the County. Through a competitive grant application process, County awarded these grant funds (the “funds”) to sub-grantees who operate licensed board and care homes in Santa Clara County and serve the CCE program’s priority populations.

C. The CCE Program Grant Funds are intended to immediately preserve and avoid the closure of licensed residential adult and senior care facilities serving “Qualified Residents”, defined as applicants and recipients of Supplemental Security Income/State Supplementary Payment or Cash Assistance Program for Immigrants, including the “Prioritized Population” of qualified residents who are experiencing or at risk of homelessness (WIC sections 18999.97(c)(1) and (2)).

D. County and Lessee have entered into that certain to Grant Agreement dated xxx, xx, xxxx (“Grant Agreement”).

Owner and Lessee each warrants, represents, covenants and agrees to observe all the terms and conditions of the Covenant as follows:

SECTION 1. IMPROVEMENTS

Pursuant to the Grant Agreement, the County has made available CCE (OSP/CIP) funds for [INSERT DESCRIPTION OF CAPITAL IMPROVEMENTS, IF ANY] (collectively, the “Improvements”) to Lessee to improve security and improve the provision of services at the Property.

SECTION 2. OPERATING SUBSIDY

Pursuant to the Grant Agreement, the County has made available CCE Operating Subsidy Payment (OSP) funds (collectively, the “Expenses”) to Lessee to improve security and improve the provision of services at the Property.

SECTION 3. USE COVENANT

The Owner and Lessee each agrees that during the term of the Covenant the Property shall be used to provide licensed adult and senior residential care consistent with WIC section 18999.97. Owner and Lessee each agrees that the Property shall continue to be used to serve Qualified Residents and the Prioritized Population (as such terms are defined in the Grant Agreement) in a capacity as a residential care facility for the duration of the term of this Covenant.

Owner hereby warrants, represents and agrees that it shall not interfere with, terminate, or otherwise discontinue the use of the Property for any other purpose than the purposes of providing licensed adult and senior residential care during the term of this Covenant.

SECTION 3. TERM

This Covenant shall expire on such date as the Grant Agreement is terminated by the County or the Grant Agreement has otherwise expired or been terminated.

SECTION 4. MAINTENANCE COVENANT

The Owner and Lessee shall maintain the Property in good condition and repair, ordinary wear and tear excepted, and in accordance with all applicable laws, rules, ordinances, orders and regulations, including the CCE program funds applicable requirements.

SECTION 5. RUNS WITH THE LAND

The Owner hereby declares its understanding and intent that:

(i) The Covenants and restrictions contained herein shall be construed as covenants running with the land pursuant to California Civil Code section 1468 and not as conditions which might result in forfeiture of title by Owner; and

(ii) The Burden of the covenants and restrictions set forth in this Covenant touch and concern the interest in the Property in that the Owner's legal interest in the Property; and

(iii) The Benefit of the covenants and restrictions set forth in this Covenant touch and concern the Property by enhancing and increasing the enjoyment and use of the Property by applicants and recipients of Supplemental Security Income/State Supplementary Payment or Cash Assistance Program for Immigrants including those at risk of homelessness.

All covenants and restrictions contained herein shall be binding upon the Owner and its successors in interest for the benefit of the County and such covenants and restrictions shall run in favor of the County for the term of the Covenant. Each and every contract, deed or other instrument hereafter executed covering, or conveying or otherwise transferring Owner’s legal interest in the Property or any portion thereof, will be held conclusively to have been executed, delivered and accepted subject to this Covenant.

SECTION 6. NON-DISCRIMINATION

Owner and Lessee shall each comply with all applicable Federal, State and local laws and regulations, including the County of Santa Clara’s policies concerning nondiscrimination and equal opportunity in contracting. Such laws include but are not limited to the following: Title VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sections 503 and 504); California Fair Employment and Housing Act

(Government Code sections 12900 et seq.); and California Labor Code sections 1101 and 1102.

Neither Owner nor Lessee shall not discriminate against any contractor, employee, or applicant for employment because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status in the recruitment, selection for training including apprenticeship, hiring, employment, utilization, promotion, layoff, rates of pay or other forms of compensation. Neither Owner nor Lessee shall discriminate in provision of services provided by this contract because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status.

SECTION 7. REMEDIES

In the event of any breach of any of the covenants or restrictions set forth herein (“Default”), County shall have the right to exercise all the rights and remedies, and to maintain any action at law or suits in equity or other real property proceeding. Upon occurrence of a Default, County will give written notice to the parties identified in the manner provided in Section

8. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of the County to enforce the provisions hereof in the future for any continuing or new breach or violation of any of the covenants or restrictions contained in this Covenant. All rights and remedies, including without limitation, any action to obtain reimbursement of the grant funds, of any party legally entitled to enforce this Covenant, shall be cumulative and the exercise of any such right or remedy shall not impair or prejudice and shall not be a waiver of the right to exercise any other such rights and remedies.

SECTION 8. NOTICES

All notices, demands or other communications of any type under this Covenant shall be in writing and shall be (a) delivered in person, in which event the notice shall be deemed received when delivery is actually made; (b) sent by overnight courier for next business day delivery, in which event the notice shall be deemed received on the first business day after delivery to, and acceptance for delivery by, the courier; or (c) sent by registered mail or certified mail, postage prepaid, return receipt requested, through the United States Postal Service, in which event the notice shall be deemed received at the time of personal delivery or on the first attempted delivery on a business day. All such notices shall be sent to the following addresses:

To County: Office of the County Executive 70 West Hedding Street, East Wing, 11th Floor

San Jose, CA 95110 Attention: TBD

With a copy to: County of Santa Clara Office of County Counsel 70 West Hedding Street, 9th Floor San Jose, CA 95110

To Owner:

To Lessee:

Such addresses may be changed by notice to the other party given in the same manner as provided above.

SECTION 9. RECITALS AND EXHIBITS

The above recitals and the attached exhibits are hereby incorporated and made a part of this Covenant.

SECTION 10. COUNTERPARTS

This Covenant may be executed in any number of counterparts, and all of such counterparts so executed together shall be deemed to constitute one and the same agreement, and each such counterpart shall be deemed to be an original provided all of the parties have fully executed this Covenant.

[Remainder of Page Left Intentionally Blank]

Signature Page to Facility Use Agreement and Covenant

CIP-FY23-03

IN WITNESS WHEREOF, Owner and Lessee have executed this Covenant as of the date first written above.

OWNER:

By: _____________________________ Name: _____________________________ Title: _____________________________

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )

County of ____________________)

On_____________ before me, _____________________________, Notary Public, personally appeared, _______________________________________________________________________, proved to me the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature_____________________________

Signature Page to Facility Use Agreement and Covenant

LESSEE:

By: _____________________________ Name: _____________________________ Title: _____________________________

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )

County of ____________________)

On_____________ before me, _____________________________, Notary Public, personally appeared, _______________________________________________________________________, proved to me the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature_____________________________

Exhibit A to Facility Use Agreement and Covenant

Exhibit A

Legal Description