HomeMy WebLinkAboutParadise Creek Housing Partners, L.P. - Partial Assumption of Phase II Obligations Under Site Infrastructure Agreement - 2017PARTIAL ASSUMPTION OF PHASE II OBLIGATIONS
UNDER SITE INFRASTRUCTURE AGREEMENT
THIS PARTIAL ASSUMPTION OF PHASE II OBLIGATIONS UNDER SITE
INFRASTRUCTURE AGREEMENT ("Agreement") is dated as of the ;20�'day of March, 2017, and is
entered into by and between the City of National City ("City"), and Paradise Creek Housing Partners, L.P.,
a California limited partnership ("Developer").
RECITALS
A. Developer and the Community Development Commission of the City of National City
("CDC") acting in its capacity as the National City Redevelopment Agency ("CDC -RDA"), entered into
that certain Disposition and Development Agreement [Transit Oriented Infill Affordable Housing and
Paradise Creek Enhancement Project] ("Project") dated June 21, 2011 ("DDA").
B. Paradise Creek II Housing Partners, L.P., a California limited partnership (the "Phase II
Developer") and the City have entered into that certain Site Infrastructure Agreement dated December 20,
2016 (the "Phase II SIA") whereby the Phase II Developer agreed to assume all obligations of the Developer
under the DDA with respect to the Phase Il Project, as defined in the DDA.
C. The Phase II Developer is obligated to improve the Paradise Creek Parcel, as defined in
and pursuant to the DDA, and has or will subcontract with the City for the improvement of the Paradise
Creek Parcel. Pursuant to the Phase II SIA, the Phase II Developer agreed to pay City $4.8 million to
improve the Paradise Creek Parcel in full and complete satisfaction of the Phase II Developer's obligation
to improve the Paradise Creek Parcel under the DDA.
D. Discussions between the City, the Developer and the Phase II Developer subsequent to the
execution of the Phase II SIA have resulted in an agreement by the Developer to assume responsibility for
a portion of the payment required to be made to the City by the Phase II Developer pursuant to the Phase II
SIA. The City and the Phase II Developer have amended or will amend the Phase II SIA to reflect the
assumption of a payment of $500,000.00 to the City by the Developer, a portion of the $4,800,000.00
required to be made by the Phase II Developer under the Phase II SIA.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the City and Developer hereby agree as follows:
Developer's Payment for Site Infrastructure.
(a) Park Improvements. The Phase II Developer is subcontracting with the City to
perform the work needed to fulfill the Phase I1 Developer's obligation to improve (i) the open space located
on the Paradise Creek Parcel (as defined in the DDA) and (ii) the obligation to improve and expand the
Paradise Creek Education Parcel (as defined in the DDA) and the associated recreational area, as set forth
in Recitals B and DA., to the DDA, Exhibit F (Scope of Development) to the DDA and elsewhere in the
DDA.
(b) Maximum Amount. In consideration of the mutual covenants set forth in this
Agreement, the Developer shall pay the City Five Hundred Thousand and No/100 Dollars ($500,000.00)
which, when taken with the amount payable to the City by the Phase II Developer pursuant to the Phase II
SIA, will constitute full and complete satisfaction of all obligations under the DDA with respect to the
improvement of the Paradise Creek Parcel, on the terms and conditions set forth herein.
(c) Payment Amount and Timing. Within ten (10) business days of receiving a
demand from the City, the Developer shall pay the City the specified amount for the improvement of the
Paradise Creek Parcel as specified in Paragraph 2(a) herein, up to the maximum amount set forth in
Paragraph 2(b) herein.
3. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in accordance with
California law, without regard to any choice of law principles.
(b) Indermifty. City shall indemnify, defend and hold Developer harmless from and against
any and all loss, damage, cost, expense (including attorney's fees), injury (including death) and claims
therefor arising out of City's (and its contractors and subcontractors') performance under the Phase II SIA,
excepting to the extent the same results from the gross negligence or willful misconduct of Developer.
(c) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
(d) Captions. The captions in this Agreement are inserted for convenience of reference and in
no way define, describe or limit the scope or intent of this Agreement or any of the provisions of this
Agreement.
(e) Binding Ems. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors, heirs and permitted assigns.
(f) Modifications, Waiver. No waiver, modification, amendment, discharge or change of this
Agreement shall be valid unless it is in writing and signed by the party against which the enforcement of
the modification, waiver, amendment, discharge or change is sought.
(g) Entire Agreement. This Agreement contains the entire agreement between the parties
relating to the subject matter hereof and all prior or contemporaneous agreements, understandings,
representations or statements, oral or written, are superseded.
(h) Partial Invaliditv. Any provision of this Agreement which is unenforceable, invalid, or the
inclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall
have no effect, but all the remaining provisions of this Agreement shall remain in full effect.
(i) Attorneys' Fees. The parties agree that the prevailing party in litigation for the breach
and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled to their expert
witness fees, if any, as part of their costs of suit, and attorneys' fees as may be awarded by the court,
pursuant to California Code of Civil Procedure ("CCP") Section 1033.5 and any other applicable provisions
of California law, including, without limitation, the provisions of CCP Section 998. All claims, disputes,
causes of action or controversies shall be subject solely to the jurisdiction of the San Diego Superior Court,
Downtown Branch.
0) Capacity and Authority. All individuals signing this Agreement for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power of
attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent and warrant that
they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on
whose behalf they are signing.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first written above.
City:
City of Nation 1 City
By:
R orrison, Mayor
Approved as to Form:
By: �,/ JYr�t%V
George Eiser, Acting City Attorney
17�1% 51 Iffl 9 04.E
Paradise Creek Housing Partners, L.P., a California limited partnership
By: Related/Paradise Creek Development Co., LLC, a California limited liability company
Its: Administrative General Partner
am
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Frank Cardone, Vice President
By: CHW Paradise Creek Development Co., LLC, a California limited liability company
Its: Managing General Partner
By: Community HousingWorks, a California nonprofit public benefit corporation
Its: Managing Member
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ne Wi , Senior Vice President