Wells Fargo Bank, National Association et al v. City of Richmond, California et al

Filing 9

Declaration of John Ertman in Support of 8 MOTION for Preliminary Injunction filed byDeutsche Bank National Trust Company, Deutsche Bank Trust Company Americas, Wells Fargo Bank, National Association. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 8 ) (Tsai, Rocky) (Filed on 8/8/2013)

EXHIBIT I

ADVISORY SERVICES AGREEMENT

This Advisory Services Agreement (“Agreement”) is entered into by and between
Mortgage Resolution Partners LLC, a Delaware limited liability company (“MRP”) and the City
of Richmond, a municipal corporation and charter city (the “City”) and is effective as of
_______________, 2013 (the “Effective Date”).
RECITALS
A.
MRP is a community advisory firm advising public agencies on ways to
assist the agency in reducing the impact of the mortgage crisis with its communities including, if
necessary, by acquiring mortgage loans through the use of eminent domain, in order to
restructure or refinance the loans and thereby preserving home ownership, restoring homeowner
equity and stabilizing the communities’ housing market and economy by allowing many
homeowners to remain in their homes.
B.
America in general and the City in particular are each experiencing an
historic home mortgage crisis and as a result of the home mortgage crisis, many homeowners in
the City have lost significant portions of their disposable income, and some have been unable to
make timely mortgage payments on their homes. This has resulted in unprecedented rates of
default and foreclosure, loss of homeowner equity, loss of family wealth, and even loss of shelter
for some families. The home mortgage crisis has resulted in other adverse impacts within the
City such as job losses, reductions in income, consumer demand, and investment, a spiraling
reduction in property values, a reduction in property and payroll tax revenues, vandalism,
abandoned homes and a general decline in the economy and the quality of life for residents.
Restructuring or refinancing mortgage loans will benefit the City’s residents by preserving home
ownership; restoring homeowner equity; and likely also increasing income, property values,
consumer demand, investment, and property and payroll tax revenue.
C.
The City is interested in retaining MRP to act as its advisor to assist the
City in exploring potential solutions to the mortgage crisis; to assist the City by negotiating on
the City’s behalf with entities which will provide the necessary funding to the City in order to
allow the City to acquire loans; and to assist the City in negotiating contracts with third parties
including owners of loans, attorneys, lenders, data companies, other government agencies and
others as necessary to implement a program or programs to benefit the City’s residents.
NOW THEREFORE, in consideration of the foregoing, MRP and the City agree
as follows:
1.
PURPOSE. The purpose of this Agreement is to enable the City and MRP to work
together to assess and implement a program or programs designed to ease the impacts of the
mortgage crisis on the residents of the City.

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2.
SERVICES. MRP agrees to provide the following services (“Services”), and the City
authorizes MRP to represent the City as described:
(a)
to advise the City on various alternatives in order to provide assistance to its
residents who are burdened with mortgage loans including assessing the possibility and benefits
of the formation of a joint powers authority;
(b)
to identify and negotiate with companies acceptable to the City, in City’s sole and
absolute discretion, to lend funds to the City on a fully secured, non-recourse basis if such funds
are required in order to provide the necessary relief;
(c)
to provide extensive legal research acquired by MRP on all aspects of the
acquisition and refinancing of mortgage loans including each of the legal steps necessary to
implement the necessary programs;
(d)
to identify and negotiate with law firms acceptable to the City, in City’s sole and
absolute discretion, to work with the City to implement the programs which the City elects to
implement;
(e)
to negotiate with other local, state and federal governments and agencies as
necessary to implement programs chosen by the City;
(f)
to negotiate on behalf of the City with the holders of mortgage loans secured by
property owned by residents of the City (and with trustees, servicers, investors and other parties
having a relationship with the holders of the loans);
(g)
criteria;

to work with the City to identify mortgage loans to target based upon the City’s

(h)
to negotiate on behalf of the City with any other third party as necessary to
implement programs which the City elects to implement; and
(i)
to work with the City to establish education and communication programs to
address residents’ questions about a program or programs the City implements.
Provided, however, MRP shall not take action or implement programs or tasks set forth in
subsection (b), (d), (e), (f) and (h) hereof without the express written consent of City in advance,
which consent may be withheld in the City’s sole and absolute discretion. Provided further,
however, in no event shall MRP have the authority to enter into any contracts on behalf of the
City.
3.
COMPENSATION. As its sole and exclusive compensation for the performance of the
Services (the “Advisory Fee”), MRP shall receive the sum of $4,500 per loan for each loan
ultimately acquired by the City or otherwise resolved in a manner which results in the
restructuring or refinancing of a loan through a program implemented by the City. The Advisory
Fee shall be paid only through the programs implemented by the City and shall not be paid
directly by the City. City shall not be responsible for any cost or expense arising out of or related
to this Agreement or any program or programs the City implements.

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4.
ASSIGNMENT. MRP shall not have the right to assign and/or delegate its duties
hereunder without the prior written consent of City, which consent may be withheld in the City’s
sole and absolute discretion.
5.
COOPERATION. Each party agrees to cooperate to carry out the purpose of this
Agreement and to perform all acts and execute all documents reasonably required to institute the
programs chosen by the City pursuant to the terms of this Agreement or as are or may become
necessary or convenient to effectuate and carry out this Agreement.
6.
RELATIONSHIP OF PARTIES. The relationship of MRP to the City shall at all times
be that of an independent contractor. MRP expressly acknowledges and agrees that it does not
have the authority to bind the City by contract or otherwise.
7.
TERM. This Agreement shall be in effect for a period of one (1) year from the Effective
Date and will be renewed automatically for successive terms of one (1) year each unless either
party gives notice to the other at least sixty (60) days prior to the termination of any term. Upon
any such termination, this Agreement shall be null and void and of no further force or effect,
except as to those provisions which expressly survive the termination of the Agreement.
8.

INDEMNITY.

(a)
Except to the extent caused by the sole active negligence or willful misconduct of
City, City and City's representatives shall not be liable for any liability, penalties, costs, losses,
damages, expenses, causes of action, claims or judgments, including attorney's fees and other
defense costs (collectively, "Claims"), resulting from injury to or death sustained by any person,
or damage to property of any kind, or any other injury or damage whatsoever, which Claims
arise out of or are in any way connected with this Agreement or any programs or tasks
implemented pursuant to this Agreement.
(b)
Except to the extent caused by the sole active negligence or willful misconduct of
City, MRP shall indemnify, protect, defend and hold the City and its representatives, harmless of
and from any and all Claims arising out of or in any way related to or resulting directly or
indirectly from (i) this Agreement, (ii) the programs or tasks implemented pursuant to this
Agreement, (iii) any failure to comply with any applicable law, and (iv) any default or breach by
MRP in the performance of any obligation of MRP under this Agreement.
(c)
The provisions of this Section 8 shall survive the expiration or sooner termination
of this Agreement.
9.
INSURANCE. Upon receiving approval from the City to take action or implement
programs or tasks set forth in subsection (b) of Section 2, MRP, at its own cost and expense,
shall provide and maintain insurance coverage as required in Exhibit A, “City of Richmond
Insurance Requirements – Type II: Professional Services”. MRP shall submit current certificates
of insurance for the policies required in this Section 9 before taking action or implementing any
programs or tasks set forth in subsections (b), (d), (e), (f) and (h) of Section 2.

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10.

GENERAL PROVISIONS.

(a)
Execution. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original. A signature transmitted via scanning and emailing or
facsimile shall have the same effect as an original signature.
(b)
Modification of Agreement. This Agreement may be modified only by a writing
signed by MRP and the City.
(c)
Entire Agreement. This Agreement together with any Nondisclosure and/or
Common Interest Agreements entered into between the parties either prior or subsequent to the
Effective Date constitute the entire understanding and agreement between the parties concerning
this subject matter.
(d)
Severability. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid, void, or unenforceable, the provisions of the Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision
of this Agreement shall not void or affect the validity of any other provision of this Agreement.
(e)
Governing Law. This Agreement is governed by and shall be interpreted
according to the laws of the State of California. This Agreement is made in Contra Costa
County, California, and any action relating to this Agreement shall be instituted and prosecuted
in the courts of Contra Costa County, California.
(f)
Waiver of Breach. No waiver of breach of any term or provision of this
Agreement shall be construed to be, or shall be, a waiver of any other breach of this Agreement.
(g)
Arms-Length Transaction. This Agreement is a product of arms-length
negotiations and each party has had an opportunity to receive independent legal advice from
attorneys of its own choosing. Thus, neither party can claim that any ambiguities in any term of
this Agreement should be construed against any other party.
(h)
No Third Party Beneficiaries. This Agreement will not confer any rights or
remedies upon any person other than the parties hereto and their permitted successors and
permitted assigns.
11.
NOTICES. All notices under this Agreement shall be in writing and shall be transmitted
by personal delivery or reputable overnight courier service such as FedEx to the parties at the
following addresses:

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MRP:
Mortgage Resolution Partners, LLC
33 Pier South Embarcadero, Suite 201
San Francisco, CA 94111
Attn: CEO

The City:
450 Civic Center Plaza
Richmond, CA 94804
Attn: City Manager
With copy to:
450 Civic Center Plaza
Richmond, CA 94804
Attn: City Attorney

Such notice shall be deemed given upon personal delivery to the appropriate address or
on the next business day if sent by overnight courier service.
WHEREFORE, the parties indicate by their signatures below their entry into this
legally-binding Agreement.
The City
(signature)

(date)

Name (printed):
Mailing address:
Telephone no.:
E-mail address:
Date of Signing:
Attest
___________________
City Clerk

Approved as to form:
_____________________
City Attorney

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Mortgage Resolution Partners LLC
Representative:
(signature)

(date)

Name (printed):

Graham Williams

Mailing address:

33 Pier South Embarcadero, Suite 201, San Francisco, CA 94111

Telephone no.:

415-795-2032

E-mail address:

[e-mail]

Date of Signing:

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Exhibit A
Insurance Requirements

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