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2013 12-17 CC HA AGENDA PKT
RON MORRISON Mayor LUIS NATIVIDAD Vice Mayor JERRY CANO Councilmember MONA RIOS Councilmember ALEJANDRA SOTELO-SOLIS Councilmember 1243 National City Blvd. National City, CA 91950 619-336-4300 Meeting agendas and minutes available on web WWW.NATIONALCITYCA. GOV AGENDA OF A REGULAR MEETING - NATIONAL CITY CITY COUNCIL/ COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY COUNCIL CHAMBERS CIVIC CENTER 1243 NATIONAL CITY BOULEVARD NATIONAL CITY, CALIFORNIA TUESDAY, DECEMBER 17, 2013 — 6:00 PM ORDER OF BUSINESS: Public sessions of all Regular Meetings of the City Council / Community Development Commission - Housing Authority (hereafter referred to as Elected Body) begin at 6:00 p.m. on the first and third Tuesday of each month. Public Hearings begin at 6:00 p.m. unless otherwise noted. Closed Sessions begin at 5:00 p.m. or such other time as noted. If a workshop is scheduled, the subject and time of the workshop will appear on the agenda. The Mayor and Council members also sit as the Chairperson and Members of the Board of the Community Development Commission (CDC). REPORTS: All open session agenda items and reports as well as all documents and writings distributed to the Elected Body less than 72 hours prior to the meeting, are available for review at the entry to the Council Chambers. Regular Meetings of the Elected Body are webcast and archived on the City's website www.nationalcityca.gov. PUBLIC COMMENTS: Prior to the Business portion of the agenda, the Elected Body will receive public comments regarding any matters within the jurisdiction of the City and/or the Community Development Commission. Members of the public may also address any item on the agenda at the time the item is considered by the Elected Body. Persons who wish to address the Elected Body are requested to fill out a "Request to Speak" form available at the entrance to the City Council Chambers, and turn in the completed form to the City Clerk. The Mayor or Chairperson will separately call for testimony of those persons who have turned in a "Request to Speak" form. If you wish to speak, please step to the podium at the appropriate time and state your name and address (optional) for the record. The time limit established for public testimony is three minutes per speaker unless a different time limit is announced. Speakers are encouraged to be brief. The Mayor or Chairperson may limit the length of comments due to the number of persons wishing to speak or if comments become repetitious or irrelevant. WRITTEN AGENDA: With limited exceptions, the Elected Body may take action only upon items appearing on the written agenda. Items not appearing on the agenda must be brought back on a subsequent agenda unless they are of a demonstrated emergency or urgent nature, and the need to take action on such items arose after the agenda was posted. Upon request, this agenda can be made available in appropriate alternative formats to persons with a disability in compliance with the Americans with Disabilities Act. Please contact the City Clerk's Office at (619) 336-4228 to request a disability -related modification or accommodation. Notification 24-hours prior CC/CDC Agenda 12/17/2013 — Page 2 to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Spanish audio interpretation is provided during Elected Body Meetings. Audio headphones are available in the lobby at the beginning of the meeting. Audio interpretacion en espariol se proporciona durante sesiones del Consejo Municipal. Los audibfonos ester] disponibles en el pasillo al principio de la junta. COUNCIL REQUESTS THAT ALL CELL PHONES AND PAGERS BE TURNED OFF DURING CITY COUNCIL MEETINGS. CC/CDC Agenda 12/17/2013 — Page 3 OPEN TO THE PUBLIC CITY COUNCIL / COMMUNITY DEVELOPMENT COMMISSION AGENDA CALL TO ORDER ROLL CALL PLEDGE OF ALLEGIANCE TO THE FLAG PUBLIC ORAL COMMUNICATIONS (THREE -MINUTE TIME LIMIT) PROCLAMATIONS PRESENTATIONS 1. Employee of the Quarter 2013 - Firefighter Kevin Hamel 2. Sage Project Presentation of Marina District Land Use Plan from SDSU Students. 3. Update from the San Diego Port District on integrated planning efforts. (Keith Walzak, Manager of the Port's Environmental and Land Use Management Department) INTERVIEWS / APPOINTMENTS 4. Interviews and Appointments: Library Board of Trustees. (City Clerk) CONSENT CALENDAR 5. Approval of the Minutes of the Regular Meeting of the City Council and Community Development Commission - Housing Authority of the City of National City of November 5, 2013. (City Clerk) 6. Resolution of the City Council of the City of National City granting a 4-foot wide aerial easement with the right to erect and maintain anchorage to San Diego Gas and Electric Company for the purpose of existing overhead utility facilities at the property located at 421 W. 30th Street in National City. (APN 562-220-41) (Engineering) 7. Resolution of the City Council of the City of National City: 1) accepting the work of Koch -Armstrong General Engineering, Inc., 2) approving the final contract amount of $719,939.61; 3) authorizing the release of retention in the amount of $35,996.98, and 4) ratifying the filing of a Notice of CC/CDC Agenda 12/17/2013 —Page 4 Completion for the National City Street Resurfacing and Concrete Improvement Project, Specification No. 12-06 (funded by Proposition A and CDBG Funds). (Engineering) 8. Resolution of the City Council of the City of National City, 1) awarding a contract in the not to exceed amount of $831,517.30 to EC Constructors, Inc. for the 1726 Wilson Avenue Tenant and Site Improvements, Specification 13-06; 2) authorizing a 15% contingency in the amount of $124,727.59 for any unforeseen changes; and 3) authorizing the Mayor to execute the contract (funded by General Fund). (Engineering) 9. Resolution of the City Council of the City of National City authorizing the City Manager to execute a Subordination Agreement allowing a new mortgage not -to -exceed $120,000 to be and remain a lien prior and superior to a housing rehabilitation assistance loan on a single -unit property located in National City (Housing, Grants, & Asset Management) 10. Warrant Register #21 for the period of 11/13/13 through 11/19/13 in the amount of $1,995,464.82. (Finance) 11. Warrant Register #22 for the period of 11/20/13 through 11/26/13 in the amount of $1,479,283.77. (Finance) 12. Investment Report for the quarter ended September 30, 2013. (Finance) PUBLIC HEARINGS ORDINANCES FOR INTRODUCTION ORDINANCES FOR ADOPTION NON CONSENT RESOLUTIONS NEW BUSINESS 13. Temporary Use Permit - "Christmas with Kids" hosted by Christmas with Kids National City at 123 E. 3rd Street on December 25, 2013 from 6 a.m. to 12 p.m. The applicant has requested a waiver of fees. (Neighborhood Services) 14. Report and Presentation seeking City Council direction to staff to enter negotiations with Enterprise Fleet Management for the replacement, maintenance, and fleet management of National City's Tight and medium duty vehicle and retum to City Council at a later date to consider a five- year Lease Agreement. (Engineering) CC/CDC Agenda 12/17/2013 — Page 5 15. Notice of Decision - Planning Commission approval of a Conditional Use Permit for a Wireless Communications Facility located at 2575 East 8th Street. (Applicant: Verizon Wireless) (Case File 2013-26 CUP) (Planning) 16. Notice of Decision - Planning Commission approval of a Conditional Use Permit and Coastal Development Permit for a Wireless Communications Facility located at 1445 Tidelands Avenue. (Applicant: Verizon Wireless) (Case File 2013-24 CUP, CDP) (Planning) 17. Response to request by City Council to provide information regarding the retail sale of animals in pet stores and related municipal codes. (Police) COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY 18. Resolution of the Community Development Commission- Housing Authority of the City of National City authorizing the Executive Director to execute a Subordination Agreement and an Amendment to the Project Deed of Trust securing the Declaration. of Covenants, Conditions, and Restrictions for 372 affordable rental units at 2721 Plaza Boulevard in National City (Housing, Grants, and Asset Management) PUBLIC HEARINGS- HOUSING AUTHORITY NON CONSENT RESOLUTIONS- HOUSING AUTHORITY NEW BUSINESS- HOUSING AUTHORITY STAFF REPORTS 19. Enterprise Zone Program (Housing, Grants & Asset Management) MAYOR AND CITY COUNCIL CLOSED SESSION REPORT ADJOURNMENT Adjourned Regular City Council/Community Development/Housing Authority of the City of National City Meeting - Tuesday - January 21, 2013 - 6:00 p.m. - Council Chambers - National City, California. CC/CDC Agenda 12/17/2013 - Page 6 City Offices are closed Monday, December 23, 2013 through Friday, January 3, 2014 in Observance of the Employee Work Furlough. The modified City Council Meetings are: December 17 Regular Meeting January 07 DISPENSE WITH MEETING January 21 Regular Meeting RECEIVED Nov 2 7 2013 ITEM #1 12/17/13 CITY OF NATIONAL CITY MEMORANDUM DATE: November 25, 2013 TO: Leslie Deese, Ci Manager FROM: Stacey Steve n, irector of Administrative Services SUBJECT: EMPLOYE THE QUARTER PROGRAM The Employee Recognition Program communicates the City's appreciation for outstanding performance. In doing so, it recognizes employees who maintain high standards of personal conduct and make significant contributions to the workplace and community. The employee to be recognized for the fourth quarter of calendar year 2013 is: Firefighter Kevin Hamel By copy of this memo, the employee is invited to attend the Council meeting on Tuesday, December 17, 2013 to be recognized for his achievement and service. Attachment cc: Firefighter Kevin Hamel Frank Parra, Director of Emergency Services James Stiles, A/Fire Battalion Chief Josie Flores -Clark — Executive Assistant III Human Resources — Office File NAT r co Performance Recognition Award Nomination Form I nominate Kevin Hamel for the Performance Recognition Award for the following reasons: Please state reason why your nominee should receive an award, (i.e., examples of service beyond requirements of position, exemplary service to the public, outstanding job performance, etc). Do not to exceed 150 total words. Please be as specific as possible when giving your examples. Kevin recently demonstrated his commitment to the citizens of National City by volunteering to lead the National City Fire Department, National City Firefighter's Association, and City of National City's "Tower of Terror". Kevin spent well over 50 off duty hours volunteering his time to plan, coordinate, and orchestrate the actual event. As a newer employee Kevin demonstrated excellent leadership qualities as he brought many partners together to ensure a successful, safe, fun Halloween night for the community. These included working with local businesses, multiple departments within the city, and Sweetwater High school members. Kevin worked with others to ensure the design and decoration of the tower was not only the scariest but also the safest around. Kevin went above and beyond on the day of the event to be available to media in order to promote the event and in turn to make a substantial contribution to the City of National City's image. His creativity, positive attitude, and willingness to work make him an excellent example of a great employee. As a new firefighter, Kevin is an excellent paramedic who provides a high level of patient care on a daily basis to the residence of our city. We are proud to have Kevin Hamel as our employee of the quarter. FORWARD COMPLETED NOMINATION TO: Nominate Signatur National City Performance Recognition Program uman Resources Department files A ina Battalion Chief Date: 11/25/2013 ITEM#2 12/17/13 SAGE PROJECT PRESENTATION OF MARINA DISTRICT LAND USE PLAN FROM SDSU STUDENTS ITEM # 3 12/17/13 UPDATE FROM THE SAN DIEGO PORT DISTRICT ON INTEGRATED PLANNING EFFORTS (KEITH WALZAK, MANAGER OF THE PORT'S ENVIRONMENTAL AND LAND USE MANAGEMENT DEPARTMENT) 12/12/2013 Comprehensive Integrated Port Master Plan Urban Design Studio Comprehensive Integrated Port Master Plan A project of regional importance A rare opportunity to think 50 years ahead A legacy for the Port and the Community 1 12/12/2013 Team Leader Urban Design Studio mimeo Innunu. �s.s .......... •. ��- II.i11 Design . EngineeringEconomics Outreach Carrier Johnson Spurlock Poirier Moffat & Nichol CCI Partners Cook and Schmid Randall Lamb Jones Lang LaSalle itr Agency and Stakeholder Coordination Begins with a set of Guiding Principles & Vision Statement Coastal Commission Certificalio[1 Phase l: Vision Plan: 9 Month Process 2 12/12/2013 Phase I: Vision Plan "Touch Points" SEPT Pro Kick Off OCT 2013i 2014 NOV DEC JAN FEB MAR APR MAY JUNE Vision Plan Finallyear Vision Plan Board of Commissioner/Stakehold BoatBoardSub Tours r Interviews 1 Project Launch Web Site . Web Survey Stakeholder Workshops Boa Committee Workshop Draft ! • Community Town Halls BoardSub Committee 1 Assessment Report Community Open House Board Board Sub Draft Workshop Committee Integrated Port Master Plan Update Rev. 1212013 3 12/12/2013 4 12/12/2013 . Portion of Business District, San Diego. Cal. Connect the Bay to the Upland Communities 5 12/12/2013 Scale Comparison - Port of Los Ahgeles/Long Beach 6 12/12/2013 ^- --'--^ 7 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 4 ITEM TITLE: Interviews and Appointments: Library Board of Trustees. (City Clerk) PREPARED BY: Michael R. Della DEPARTMENT: City CI PHONE: 619-336-4226 APPROVED BY: EXPLANATION: There is a current vacancy on the Library Board of Trustees. One application is on file. The applicant has been invited to appear for an interviews FINANCIAL STATEMENT: ACCOUNT NO. ENVIRONMENTAL REVIEW: ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance STAFF RECOMMENDATION: Conduct interview and take further action as desired to fill the vacancy. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Application CITY OF NATIONAL CITY APPLICATION FOR APPOINTMENT TO CITY BOARDS, COMMISSIONS, AND COMMITTEES - Civil Service Commission _ Planning Commission _ Community & Police Relations Commission* (CPRC) Public Art Committee* ✓ Library Board of Trustees Traffic Safety Committee Parks, Recreation & Senior Citizens Advisory Board Note: Applicants must be residents of the City of National City except for those marked by an * Applicants for the Community and Police Relations Commission must pass a criminal background check prior to appointment. Name: re) Or`; c_ �c� r; CP G.-rrv,7c. Home Address: (r33 E 154 6 . , 0,43 Tel. No.: Le 19 O'414 -a� ►9 Business Affiliation: Lc,,,,,t_asc)_. 'vs Title: O `^' ^Q-s' Business Address: C33 - tit S+. b.-a Q et Tel. No.: Length of Residence in National City: 30 San Diego County: 3°ys California: '.off Educational Background: CsndwQ Ele,.,.C1.s--4\or.& ,,.�,d ►� 5 u.4.6. \-> S D a. ati. i it mrs E'o Q Wuxi �n L- , S.c'k a 1 V GZ�,�,� - S LAM Occupational Experience: U A:i-v.i-S;t cvs-1-(--0 o � , G�c �� n ti fe-S 'z_cr. cam, na •o•, \-‘3 c o✓r 4 rN 4 MIskc.rS r Professional or Technical Organizatibni Memberships: 1)1•\a roc ,�� 1Z c� O_ 1 i-4 E Civic or Community Experience, Membership, or Previous Public Service Appointments: cVi1 r Se �rv•(1 GarI Sc.& L,J Experience or Special Knowledge Pertaining to Area of Interest: o y :ram \o y rt1 9r c.L� wd �cAek. inc�rc U�qc, Have you ever been convicted of a felony crime? No: 1-Yes: misdemeanor crime? No:k. Yes:_ If any convictions were expunged disclosure is not required. Convictions are not necessarily disqualifying. Please feel free to provide an explanation or information regarding yes answers to the above two questions. Date: Oo-4- , - i3 Signature: U Please feel free to provide additional information or letters o end rr ement. Please return completed form to: Office of the City Clerk 1243 National City Blvd, National City, CA 91950 Thank you for your interest in serving the City of National City. * Residency requirements may not apply This documents is filed as a public document Revised: March 2012 Item # 5 12/17/13 APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY OF NOVEMBER 5, 2013. (City Clerk) Book95/PageXX 11-05-2013 DRAFT DRAFT DRAFT MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY November 5, 2013 The Regular Meeting of the City Council Commission — Housing Authority of the City at 6:06 p.m. by Mayor / Chairman Ron Mord ROLL CALL Council / Board members present: Can Administrative Officials present: Dalla, Raulston, Rodriguez, Silva, Stevens rtn.> Others present: Student Rep h:'ve Kane PLEDGE OF ALLEGIANCE TO PUBLIC ORAL Kevin Stanton altercation in a hot St cli Squ ins, orne$ q and re ue`- he Rita Heu treated at a ational C tCityC PROCLAMATION ATIO sistance r th Has Council expres ed disappointment about how a friend was cil meeting. Community Development (. City was called to order orrison, Natividad, se, t ong, Man o,.kP a, Williams. Sotelo-Solis. :- Ilo, Parra, RON MORRISON an injury he received during an ociates, appeared on behalf of his iss current litigation involving Morgan CITY COUNCIL PROCLAMATION ADMIN (102-2-1) 1. Proclaiming November 5, 2013 as "Connect2Compete Day". (Mayor / City Council) Book 95 / Page XX 11-05-2013 PRESENTATIONS COUNCIL MEETING PRESENTATIONS 2013 (102-10-8) 2. Presentation of a display ornament to the City of National City and staff for our participation and celebration of the 50th Anniversary of the Metro Wastewater System. (Vice Mayor Natividad) CONSENT CALENDAR ADOPTION OF CONSENT CALENDAR. It through 7 (Resolution Nos. 2013-163 throug Nos. 9 and 10 (Warrant Registers). Motio ull Item Nos. 5 and 8 and to a • . rove Carried by unanimous vote. APPROVAL OF MINUTES 3. Approval of the Minut Community Developni National City of Septem ACTION: Approve DONATIONS R CONTRACT( 4. Resolutio THE CITY GRANT/PU 5. Resolution THE CITY $31,862 GRA 3 (Minutes), Item Nos. 4 Item No. 8 (TUP), Item seconded by Rios, to Consent Calendar. f the ReguEFv4gs of the Cit+uncil and mission ` _ ; using Authority of the City of and O'" r 15, 2013. (City Clerk) 09-1-4) TION OF THE CITY COUNCIL OF THORIZING THE NATIONAL CITY THE DONATION OF A POLICE TH �.._ TATES GOVERNMENT - NAVAL ROUP'3"ONE (NSWG-1) AND AUTHORIZE TO SIGN THE INDEMNITY AGREEMENT. ee above. (206-4-27) -164. RESOLUTION OF THE CITY COUNCIL OF IONAL CITY RATIFYING THE ACCEPTANCE OF A FROM THE STATE OF CALIFORNIA AB109 FUNDS ADMINISTERED THROUGH THE CITY OF SAN DIEGO AND RATIFYING THE ESTABLISHMENT OF A FISCAL YEAR 2014 APPROPRIATION OF $31,862 AND A CORRESPONDING REVENUE BUDGET FOR MONITORING AND ASSISTING FRONTLINE LAW ENFORCEMENT IN OUR REGION WITH THE PROBLEMS ASSOCIATED WITH THE EARLY RELEASE OF NON-VIOLENT OFFENDERS FROM STATE PRISON. (Police) ACTION: Motion by Rios, seconded by Cano, to adopt the Resolution. Carried by unanimous vote. Book 951 Page XX 11-05-2013 CONSENT CALENDAR (cont.) CONTRACT (C2009-52) 6. Resolution No. 2013-165. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A THIRD AMENDMENT TO THE AGREEMENT WITH GROSSMAN PSYCHOLOGICAL ASSOCIATES, APC, IN THE NOT -TO - EXCEED AMOUNT OF $49,500 TO P ' ODE PRE -PLACEMENT EVALUATIONS, PRE -EMPLOYMENT ' MS, AN OFFICER ASSISTANCE PROGRAM, CRITICAL ENT DEBRIEFING, AND FITNESS FOR DUTY EVALUATIONS POLICE DEPARTMENT FOR THE TERM OF ONE YEAR. ACTION: Adopted. See ENCROACHMENT AGREEMENT AD 7. Resolution No. 2013-166. RES THE CITY OF NATIe, L CITY A AMENDMENT NUDE hm::. ONE ENCROACHMENT PE THE CITY OF NATION MANAGEM ENCRO AND H MONITO DEPARTM p. City (NeighbF AC with m TIO COMPA O TH E SO QUIRE ONME AGR D 010 (903-14-4) ON . ;;THE CI UNCIL OF REINSTA NT AND MONITORING WELL NT BY AND BETWEEN ON ENVIRONMENTAL G WELL (W-27) OSEVELT AVENUE 8T ``' EET FOR CONTINUED THE COUNTY OF SAN DIEGO L HEALTH. (Engineering) 3 (2s`s -29) Annual Tree Lighting Ceremony hosted by the ent on December 12, 2013 from 5 p.m. to 8 re & rick Row, between "A" Avenue and National is a City sponsored event under Policy No. 804 es) ion by Rios, seconded by Sotelo-Solis, to approve ations and addition of cars. Carried by unanimous vote. WARRANT REGISTER JULY 2013 — JUNE 2014 (202-1-28) 9. Warrant Register #14 for the period of 9/25/13 through 10/1/13 in the amount of $1,976,643.46. (Finance) ACTION: Ratified. See above. WARRANT REGISTER JULY 2013 — JUNE 2014 (202-1-28) 10. Warrant Register #15 for the period of 10/2/13 through 10/8/13 in the amount of $241,687.47. (Finance) ACTION: Ratified. See above. z Book 95 / Page XX 11-05-2013 ORDINANCE FOR INTRODUCTION MUNICIPAL CODE 2013 (506-2-28) 11. AN ORDINANCE AMENDING APPENDIX 'A OF THE WESTSIDE SPECIFIC PLAN TO ADD "SELF -STORAGE FACILITY WITH ACCESSORY TRUCK RENTAL" AS A CONDITIONALLY -ALLOWED USE IN THE LIMITED COMMERCIAL (CL) ZONE. (Applicant: U- Haul/Amerco) (Case File 2013-20- SPA) (PI ' g) TESTIMONY: Eddie Perez, San Die _ oke in opposition. NON CONSENT RESOLUTIONS EQUIPMENT DONATIONS OF SURP 12. Resolution No. 2013-167. R THE CITY OF NATIONAL CI 1989 SEAGRAVES FIRE ENGIN TO PROVIDE THE F THAT WILL ALLOW MORE REALISTIC EN RECOMMENDATION: S donation in o assist T Mike A EN 13. the VEERING �R - solution N6'. CITY OF LICATIO nsv' ROGR PLY, A GRA AND PROTEC HOOVER A SCIENCE TUDEN T. (Fire nds 09-1-3) TION OF TH THORIZING THE ATER M WITH A Y COUNCIL OF ATION OF A SCHOOL ENGINE PRACTICE SKILLS IN A ity Council approve the 3,w <i3 . ee ter High answered conded by Sotelo-Solis, to bring back hange in language. Carried by TS / RETORTS ADMIN (1104-1-1) 3-1` � RESOLUTION OF THE CITY COUNCIL OF ION ITY AUTHORIZING THE SUBMITTAL OF OR G ANT FUNDS FOR THE URBAN GREENING UNDER THE SAFE DRINKING WATER QUALITY LOOD CONTROL, RIVER AND COASTAL D ACT OF 2006 (PROPOSITION 84) FOR THE PARK/PARADISE CREEK WALK PROJECT IN THE AMOUNT OF $1,100,000, COMMITTING TO A LOCAL MATCH OF $200,000 FOR A TOTAL PROJECT COST OF $1,300,000, AND AUTHORIZING THE CITY MANAGER TO EXECUTE A GRANT AGREEMENT, IF APPROVED FOR FUNDING. (Engineering) RECOMMENDATION: Adopt the Resolution. 4 Book 95 / Page XX 11-05-2013 NON CONSENT RESOLUTIONS (cont.) ENGINEERING DEPT - GRANTS / REPORTS ADMIN (1104-1-1) 13. Resolution No. 2013-168 (continued). TESTIMONY: Stephanie Buttell-Maxin, representing Paradise Creek Educational Park Foundation, expressed concerns about several aspects of the plan and requested an opportunity for additional input. Ted Godshalk, Paradise Creek Ed #jonal Park, listed eight concerns with the proposed plan. Margaret Godshalk, Paradise C ducational Park, spoke in opposition. ACTION: Motion by Rios,r}ended "Q"Cano, to adopt the Resolution. Carried by u <::a . us vote. NEW BUSINESS CONDITIONAL USE PERMI 14. Notice of Decision — Permit for a Self-Stora 1300 Wilson Avenue. CUP) (Plan RECOM Commi T repre olina • ACTI • Hearin SPECIFIC 15. Consid Affirmative located at 1 013 (403- Commis with Acc`= -Haul/ Sta Sta mends on Pete " v spok iron he of o ...� P ez, ., oho ext m pproval of a Conditional Use ry Truck Rental located at o) (Case File 2013-20- sion of the Planning Notic4'ecision be filed. Parul Butala and Carlos Vizcarra, avor and responded to questions. tal Coalition, expressed concern Diego, s' `'` a in opposition. Rios, seconded by Sotelo-Solis, to set a Public Carried by unanimous vote. DE (417-1-10) Planning Commission's recommendations on the ion by Amortization of the nonconforming land uses oolidge Avenue (Steve's West Coast Automotive) and 108 W. 18th Street (Jose's Auto Electric). (Planning) RECOMMENDATION: Direct staff to prepare Resolutions for City Council consideration ordering the nonconforming uses to be terminated within the amortization periods determined by the City Council. TESTIMONY: A Staff Presentation including a PowerPoint was made by Attorney George Eiser from the Law Firm of Meyers Nave; Ray Pe, Principal Planner, National City; Mike Garcia, Principal Tierra West Advisors and Brian Brinig, J.D., C.P.A. (Copy of Presentation on file in the Office of the City Clerk). 5 Book 95 / Page XX 11-05-2013 NEW BUSINESS (cont.) A recess was called at 8:47 pm The meeting reconvened at 8:53 pm. All members were present. SPECIFIC PLAN — WESTSIDE (417-1-10) 15. Consideration of the Planning Commission's Affirmative Termination by Amortization of. located at 1732 Coolidge Avenue (Steve's W. 18th Street (Jose's Auto Electric) (co TESTIMONY: Dr. Ruth He' spoke in support of the PI Sonia Ruan, Kimball Sc Ken Seaton-Msemagi, N Alicia Sanchez, National Cit Dr. Sheila Senp :t. spoke in s Joanna Hernan• ke in sup Margarita Garci""aN�I City, amortization. Rosi C s Te Eddie mA. bara �hn4 Bora Coax sp ACTIO�? Plannin•rEy. esolution facul c`• Commissio" rinciple, spoke i City, spoke in su oke /t.pport of a commendations on the onconforming land uses oast Automotive) and 108 SD Medical School, ommendation. ort. of amortization. ke in support of early zation. waga, N nal Ci ` ke in` ....ort. inez, ro alf Coalition, spoke in itted I supp tional spoke in support. ego, s in support. I Ci oke in support. ttorne; a enting the Environmental Health s:� o�= °' suppo v' he shorter amortization period. Sotelo-Solis, seconded by Rios, to approve 's recommendations and return with a unanimous vote. otio • mmi` arried TEMPORAR PE S 2013 (203-1-29) 16. Tempora. �'� it — Promotion of Certified Pre -Owned Vehicles with outdoor tent :` flatable attachment sponsored by Frank Motors at 2829 National City Boulevard from November 6, 2013 to November 6, 2014 from 8 a.m. to 9 p.m. with no waiver of fees. (Neighborhood Services) RECOMMENDATION: Approve the application for a Temporary Use Permit subject to compliance with all conditions of approval for 3 to 6 months only and with no waiver of fees. Staff does not recommend a one year approval period. TESTIMONY: None. ACTION: Motion by Natividad, seconded by Cano, to approve staff recommendation. Carried by unanimous vote. 6 COUNCIL MEETINGS REGS 1 SCHE 18. City Council Meeting Schedule - (City Clerk) RECOMMENDATION. TESTIMONY: No ACTION: Motion O • do Z Motio s. Na one. Book 95 / Page XX 11-05-2013 NEW BUSINESS (cont.) TEMPORARY USE PERMITS 2013 (203-1-29) 17. Temporary Use Permit — 21st Annual Fiesta Filipiniana-Mexicana Karaoke hosted by the Seafood City Supermarket on November 9, 2013 from 10 a.m. to 10 p.m. at 1420 E. Plaza Blvd with no waiver of fees. (Neighborhood Services) RECOMMENDATION: Approve the applic.. for a Temporary Use Permit subject to compliance with all conditi ;;of approval with no waiver of fees. TESTIMONY: None. ACTION: Motion by Rios, ,`=; o''ded b-no, to approve staff recommendation. Carried. "�'animous vo N N Mo' Carri otelo- ADMIN 102-7-1) mbe13 throug ` " uary 2014. and pro ;:3 irection. Natividad, to approve vote, to -wit: Ayes: on, " otelo-Solis. Absent: Sotelo-Solis, to approve Option "A". to -wit: Ayes: Cano, Morrison, Rios, bsent: None. Abstain: None. ENT COMMISSION — NATIONAL CITY COUNCIL POLI T"a..:;-"f' L (102-13-1) 19. Discussion ox.`ential Workshop Dates for City Council Policy Manual Review. (City anager) ACTION: Motion by Sotelo-Solis, seconded by Natividad, to schedule a Citv Council Policy Workshop on December 10, 2013. Carried by unanimous vote. g Book 95 / Page XX 11-05-2013 STAFF REPORTS Executive Director Brad Raulston reported that he and the City Engineer would be attending the Neighborhood Council meetings to provide an update on the Parks Master Plan. City Engineer Steve Manganiello reported that the Walk San Diego organization has ranked National City 2nd in the county for walkabj this year. Police Chief Manuel Rodriguez briefed the C called into one of the schools, how the i learned. Public Works Director Joe Smith re building has been designated an E Protection agency as a result of retro-fit e MAYOR AND CITY COUNC Vice Mayor Natividad committee for the :cE building plans; guns; suggeste site and announ cook -off. Cow To Swe their memory o Council Mem thanked the Poli and helping make a thanked employee efforts ke som s challe n the recent bomb threat as handled and lessons that the Nation ity Civic Center Star facility by nvironmental un• zken by the e Halloween Luncheon ok into an issue with aut the dangers of toy o One -Sight vision project the City of Chula Vista to a menudo prais-. .`` d volunteers for another successful ed by +0 people followed by a victorious ming. Member Sotelo-Solis thanked staff for and V`=t®'e sted that the next meeting be adjourned in taneda a former City Employee. sed the Homecoming and One -Site events and r attending the Rotary Convention over the weekend entation on the School Supplies program. Mayor Morrison acknowledged that it has been a very busy time the last few weeks including the Dia De Los Muertos and La Vista and the State of the City Address. The Mayor presented a check to the City Manager for $18,120 from the Regional Solid Waste Authority. CLOSED SESSION REPORT City Attorney Claudia Silva stated there was nothing to report from the Closed Session. (See attached Exhibit 'L') Book 95 I Page XX 11-05-2013 ADJOURNMENT Motion by Sotelo-Solis, seconded by Rios, to adjoum the meeting to the next Regular Meeting of the City Council and Community Development Commission — Housing Authority of the City of National City to be held Tuesday, November 19, 2013 at 6:00 p.m. at the Council Chambers, National City, California. Carried by unanimous vote. The meeting closed at 10:29 p.m. The foregoing minutes were roved at thXg{oxe'� Meeting of ember 17, 2013. Mayor EXHIBIT 'L' AGENDA OF A SPECIAL MEETING CITY COUNCIL OF THE CITY OF NA AND SUCCESSOR AGENCY TO T DEVELOPMENT COMMIS NATIONAL CITY REDEVE tL CITY UNITY AS ENT ANCY Main Co Room Ci "zE:: nter 1243 NationaBoulevar National City, Special Meetin ay, Novem " 013 — 5:00 p.m. ROLL CALL ¢2`Z9 v:t.. CLOSED SESSION inference Wit vernment Co•® unity Youth '" 1 Perior Court Chia" D06 al Co sel — Exist i' tigation ction 49 9(a) tic Cent City of National City, CDC, et al. q Vo. 37 7-00076404-CU-El-CTL; Court of Appeal Case No. 2. Conferen? Legal of sel — Existing Litigation Government f; Se .�1�4956.9(a) The Affordable F & r. alition of San Diego County v. Sandoval, et al Sacramento CouNo. 34-2012-80001158-CU-WM-GDS SUCCESSOR AGENCY 1. Conference with Legal Counsel — Existing Litigation Government Code Section 54956.9(a) Community Youth Athletic Center v. City of National City, CDC, et al. SD Superior Court Case No. 37-2007-00076404-CU-EI-CTL; Court of Appeal Case No. D060001 I Agenda of a Special Meeting November 5, 2013 Page 2 CLOSED SESSION (cont.) SUCCESSOR AGENCY 2. Conference with Legal Counsel — Existing Litigation Government Code Section 54956.9(a) The Affordable Housing Coalition of San Diego County v. Sandoval, et al Sacramento Court Case No. 34-2012-80001158-CU-WM-GDS ADJOURNMENT Next Regular Meeting of the City Council an Housing Authority of the City of National Council Chambers, National City, Califo Development Commission — Tuesday;r<f ember 5, 2013, 6:00 p.m., 1‘ CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 6 ITEM TITLE: Resolution of the City Council of the City of National City granting a 4-foot wide aerial easement with the right to erect and maintain anchorage to San Diego Gas & Electric Company for the purpose of existing overhead utility facilities at the property located at 421 W. 30th Street in National City (APN 562-220-41). PREPARED BY: Stephen Manganiello, City Engineer PHONE: 619-336-4382 EXPLANATION: See attached DEPARTMENT: Engineering & Public Works APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Aerial and Anchorage Easement Deed 3. Resolution Explanation: By Resolution No. 2011-149, the City Council approved vacating portions of Lots 33 & 34 and a portion of 29th Street of Bahia Vista, according to Map thereof No. 1815, filed in the office of the San Diego County Recorder. The land, now Parcel No. 562-220-41, is located at 421 W. 30th Street in National City. On August 2, 2011, the "Order of Vacation", was recorded with the San Diego County Recorder's office. On May 7, 2013, the City Council adopted Resolution No. 2013-61 granting San Diego Gas & Electric (SDG&E) a 4-foot wide aerial easement to the existing overhead utility facilities at the property to facilitate electric power to the City's new digital sign. This request from San Diego Gas & Electric (SDG&E) is for a second 4-foot wide aerial easement with the right to erect and maintain anchorage, which will allow SDG&E to aerially cross City property to facilitate power to the new billboard. Staff recommends that Council approve this easement. SDG&E has requested and shall pay for the recordation. Recording Requested by San Diego Gas & Electric Company When recorded, mail to: San Diego Gas & Electric Company 8335 Century Park Court, Suite 100 San Diego, CA 92123-1569 Attn: Real Estate Records - CPI 1D Project No.: Const. No.: A.P.N.: Sketch No.: 350549-020 2334630 562-220-41 OS-15347 SPACE ABOVE FOR RECORDER'S USE Transfer Tax None SAN DIEGO GAS & ELECTRIC COMPANY AERIAL AND ANCHORAGE EASEMENT THE CITY OF NATIONAL CITY, A MUNICIPAL CORPORATION, (Grantor), grants to SAN DIEGO GAS & ELECTRIC COMPANY, a corporation (Grantee), an easement and right of way in, upon, over and across the lands hereinafter described, to erect, construct, reconstruct, replace, repair, maintain and use suspended wires and/or cables with all necessary appurtenances for use in connection therewith as Grantee may now or hereafter deem convenient or necessary, together with the right of ingress and egress to, from and along this easement in, upon, over and across the hereinafter described lands. Grantee further has the right but not the duty to clear and keep this easement clear from explosives, buildings, structures and materials. The property in which this easement and right of way is hereby granted is situated in the County of San Diego, State of California, described as follows: That portion of 30th Street, East of Interstate 5 and the Railroad Right of Way, now vacated and closedto public use by Resolution No. 2011-149 in the City of National City, delineated on Exhibit "A" and shown on Exhibit "B" on "Order of Vacation" recorded August 2, 2011 at Document No. 2011-0392875 of Official Records of said County of San Diego, being a portions of Lots 33 & 34 and a portion of 29th Street of Bahia Vista, according to Map thereof No. 1815, filed in the Office of the County Recorder of said County of San Diego. The easement in the aforesaid lands shall be 4.00 feet in width, being 2.00 feet on each side of the center line of the facilities to be installed, the approximate location being shown and delineated as "UTILITY FACILITIES" on the Exhibit "A", attached hereto and made a part hereof. Grantor grants to Grantee the right to erect and maintain on Grantor's property such anchorage as may be necessary for Grantee's purposes. s:land:data:lraforms:dtstributtoneasements:ESMTaerial long.doc -I- 80047SS 9//97 REV. 02/01 Rev. 1 Grantor shall not erect, place or construct, nor permit to be erected, placed or constructed, any building or other structure, plant any tree, drill or dig any well, within this easement. Provided however, the existing billboard signs may remain but shall not be altered or replaced without prior written consent of Grantee, which consent shall not unreasonably be withheld. Grantor shall not increase or decrease the ground surface elevations within this easement after installation of Grantee's facilities, without prior written consent of Grantee, which consent shall not unreasonably be withheld. Grantor further grants to Grantee the right to assign any or all of the rights granted in this easement in whole or in part to other companies providing utility or communication facilities/services. Grantee shall have the right but not the duty, to trim or remove trees and brush along or adjacent to this easement and remove roots from within this easement whenever Grantee deems it necessary. Said right shall not relieve Grantor of the duty as owner to trim or remove trees and brush to prevent danger or hazard to property or persons. The legal description for this easement was prepared by San Diego Gas & Electric Company pursuant to Section 8730 of the Business and Professions Code, State of California. This easement shall be binding upon and inure to the benefit of successors, heirs, executors, administrators, permittees, licensees, agents or assigns of Grantor and Grantee. IN WITNESS WHEREOF, Grantor executed this instrument this day of , 20 Drawn: C. Echeverria Checked: Date: 09/1 THE CITY OF NATIONAL CITY, A MUNICIPAL CORPORATION BY: NAME: Ron Morrison (print name) TITLE: Mayor s:land.:dota:lrgforms:distribution easemenis:ESMT aerial long.doc 800475S Rev. 1 9//97 REV. 01/01 STATE OF CALIFORNIA COUNTY OF )SS. On , before me (name, title of officer), appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature s:land:dala:lraforns:dislribulion ease,nenls:ESMT aerial long.doc 800475S 9//97 REV. 02/01 Rev. 1 P839732 BILLBOARD SIGNS OWNER: CITY OF NA77ONAL CITY APN 562-220-41 O.H.E. N N N 62 22 30th STREET BAHIA VISTA MAP NO. 1815 N N N POR. LOTS 33 & 34 & POR. Of 29TH STREET N N N NEW POLE P251174 & ANCHOR EXHIBIT "A" N N I REF: ORDER OF VACATION REC. AUGUST 2, 2011 DOC. 2011-0392875 SAN DIEGO GAS & ELECTRIC SAN DIEGO, CALIFORNIA NO. 421 W. 30th Street National City SUPPLEMENTS ORIGINATOR: CHenry OK TO INSTALL: SURVEYED BY: NONE DRAWN BY: Echeverria DATE: 09/11 / 13 SCALE: NONE R/W OK: DATE: THOS. BROS. 1309—H4 PROJECT NO. 350549-020 CONST. NO. 2334630 DRAWING NO. OS-15347 DATE: BY APP'D -4- RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY GRANTING A 4-FOOT WIDE AERIAL AND ANCHORAGE EASEMENT WITH THE RIGHT TO ERECT AND MAINTAIN ANCHORAGE TO SDG&E FOR THE PURPOSE OF THE EXISTING OVERHEAD UTILITY FACILITIES AT THE PROPERTY LOCATED AT 421 WEST 30TH STREET TO FACILITATE ELECTRIC POWER TO THE CITY'S DIGITAL SIGN WHEREAS, on July 5, 2011, the City Council adopted Resolution No. 2011-149, which approved vacating portions of Lots 33 and 34, and a portion of 29th Street of Bahia Vista, according to Map No. 1815, filed in the San Diego County Recorder; and WHEREAS, the address location for this property is currently 421 West 30th Street; and WHEREAS, the Order of Vacation was recorded with the San Diego County Recorder on August 2, 2011; and WHEREAS, on May 7, 2013, the City Council adopted Resolution No. 2013-61 granting SDG&E a 4-foot wide aerial easement to the existing overhead utility facilities on the property to provide electrical power to the City's new digital sign; and WHEREAS, SDG&E has recently requested a separate 4-foot wide Aerial and Anchorage Easement with the right to erect and maintain anchorage for the existing overhead facilities that cross the property to allow SDG&E to aerially cross City property to erect and maintain anchorage and provide power to the City's digital sign. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby grants a 4-foot wide Aerial and Anchorage Easement with the right to erect and maintain anchorage to SDG&E for the existing overhead utility facilities at the property located at 421 West 30th Street to erect and maintain anchorage and provide electrical power to the City's digital sign. PASSED and ADOPTED this 17th day of December, 2013. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva Ron Morrison, Mayor CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 7 ITEM TITLE: Resolution of the City Council of the City of National City: 1) accepting the work of Koch -Armstrong General Engineering, Inc., 2) approving the final contract amount of $719,939.61; 3) authorizing the release of retention in the amount of $35,996.98, and 4) ratifying the filing of a Notice of Completion for the National City Street Resurfacing and Concrete Improvement Project, Specification No. 12-06 (funded by Proposition A and CDBG Funds) PREPARED BY: Stephen Manganiello PHONE: 619-336-4382 EXPLANATION: See attached DEPARTMENT: Engineering APPROVED BY: 1 FINANCIAL STATEMENT: APPROVED: T/1�i' Finance ACCOUNT NO. APPROVED: MIS Retention is encumbered on Purchase Order 76352 and will be released upon City Council approval. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt Resolution BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS. . Explanation 2. Notice of Completion 3. Final Contract Balance Sheet 4. Resolution On September 17, 2012, four bids were received and opened and read to the public for the National City Street Resurfacing and Concrete Improvements, Specification 12-06. The project included street resurfacing and concrete improvements are various locations in the City. After reviewing the bids, staff determined that Koch -Armstrong General Engineering, Inc. was responsive and that they were the lowest responsible bidder qualified to perform the work as described in the project specifications. On October 16, 2013, the City Council adopted Resolution No. 2012-205 awarding the contract to Koch -Armstrong General Engineering, Inc. in the amount of $657,679.24. The Notice to Proceed with construction was issued on November 12, 2013, with a construction start date of November 19, 2013. The Notice of Completion was issued on October 15, 2013, and filed with the San Diego County recorder's Office on November 5, 2013. Twelve changes orders were issued for this project and are detailed in the Final Contract Balance Report (attached). Change Order Nos. 1 and 2 decreased the bid amount by $72,930, and Change Order Nos. 3 through 12 increased the original contract amount by $165,035.07, while line item adjustments decreased the contract by $43,763.61 for a net increase of $62,260.37 to the original contract. This results in a 9.47% contract increase for a final contract balance of $719,939.61. As a result of satisfactory completion of the project, staff recommends that the City Council: 1) accept the work of Koch -Armstrong General Engineering, Inc., 2) approve the final contract amount of $719,939.61; 3) authorize the release of retention in the amount of $35,996.98 and 4) ratify the filing of a Notice of Completion for the National City Street Resurfacing and Concrete Improvement Project, Specification No. 12-06. PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: City Engineer City of National City 1243 National City Blvd. National City, CA 91950 AND WHEN RECORDED MAIL TO: City Engineer City of National City 1243 National City Blvd. National City, CA 91950 THE ORIGINAL OF THIS DOCUMENT WAS RECORDED ON NOV 05, 2013 DOCUMENT NUMBER 2013-0659391 Ernest J. Dronenburg, Jr., COUNTY RECORDER SAN DIEGO COUNTY RECORDER'S OFFICE TIME: 8:59 AM THIS SPACE FOR RECORDER'S USE ONLY (Note: This document is recorded on behalf of the City of National City, a municipal corporation, and is exempt from Recorder's fees pursuant to Government Code Section 27383) NOTICE OF COMPLETION: The National City Street Resurfacing and Concrete Improvement Project, Specification No. 12-06 (Please fill in document title(s) on this line) THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) -1- RECORDING REQUESTED BY WHEN RECORDED MAIL TO: NAME: CITY OF NATIONAL CITY ADDRESS: Attn: CITY CLERK 1243 NATIONAL CITY BOULEVARD NATIONAL CITY, CA 91950 NOTICE OF COMPLETION CALIFORNIA CIVIL CODE SECTION 3093 NOTICE IS HEREBY GIVEN of the completion on October 15, 2013 of The National City Street Resurfacing; and Concrete Improvement Project, Specification No. 12-06 Work of improvement or portion of work of improvement under construction or alteration. Various Locations in National City, CA 91950 State Zip Code The undersigned owns the following interest or estate in said property: Owner -in -Fee Nature of the interest or estate of owner (mortgagor, lessee, etc.) Said work of improvement was performed on the property pursuant to a contract with Koch -Armstrong General Engineering, Inc. Name of Original Contractor The following work and material were supplied: All Labor, Material and Equipment. General statement of kind of labor, services, equipment or materials The names and addresses of co -owners are: N/A Dated: October 23, 2013 Joint tenants, tenants in common, or other owners Signature of Owner City of National City, 1243 National City Blvd., National City, CA 91950 I, the undersigned, say: I have read the foregoing Notice of Completion and know the contents thereof; the same is true of my own knowledge. I declare under penalty of perjury that the forgoing is true and correct. Executed on er 23, 2013, at National City, California. Signature RON ORRISON, MAYOR Noo010-1 -2- FINAL CONTRACT BALANCE RETENTION REDUCTION DATE: December 3, 2013 PROJECT: National City Street Resurfacing and Concrete Improvement Project Specification No. 12-06 TO: Kock -Armstrong General Engineering Inc. P.O. Box 1190 Lakeside, CA 92040 ORIGINAL CONTRACT AMOUNT: $ 657,679.24 START DATE: 11/19/2012 COMPLETION DATE: 8/28/2013 ORIGINAL CONTRACT LENGTH: 90 Working Days EXTENTION OF WORK DAYS: 6 Months, 10 Days TOTAL CONTRACT TIME: 9 Months, 10 Days DESCRIPTION: This Final Contract Balance reports final line item amounts and summarizes all changes to produce a final contract amount. Please see Attachment "A" to this Final Contract Balance. CHANGE ORDERS AND LINE ITEM ADJUSTMENTS: Change Order #1 provided for the reduction of line items #7 Remove and Replace 4" PCC Sidewalk, #14 Furnish and install 2" Conduit Sweep due to a clerical error on addendum #3. This Change Order does not change any line item prices. This Change Order decreased the total contract amount by $31,270.00. (This amount was already included as part of the Original Contract at time of award). Change Order #2 provided for the removal of the specification for perform thermoplastic from Line Item#11. This Change Order will replace the installation of four (4) thermoplastic checkered cross -walks with the installation of one (1) thermoplastic cross- walk under Line Item#12. This Change Order decreased the total contract amount by $41,660.00. (This amount was already included as part of the Original Contract at time of award). -1- FINAL CONTRACT BALANCE Resurfacing and Concrete Improvement Project Specification No. 12-06 Change Order #3 provided for the removal and replacement of 272 SF of concrete driveway at 30th Street, west of Harding Avenue. This Change Order increased the total contract amount by $3,944.00. Change Order #4 provided for the required repair of the existing D-25 on the North Side of Plaza Boulevard between D Avenue and Highland. This Change Order increased the total contract amount by $1298.54. Change Order #5 provided for the installation of striping, street markings, and stop signs at various locations throughout the city. This Change Order increased the total contract amount by $18,711.58. Change Order #6 provided for the removal of tree -roots and removal and replacement of 4" asphalt on G Avenue north of 24th Street. This Change Order increased the total contract amount by $3,824.08 Change Order #7 provided for the addition of No.4 rebar 24" from center for the G-17 ally aprons on C Avenue between 16th and 20th streets. These alleys require greater structural stability due to high usage from trash trucks and other larger vehicles. This Change Order increased the total contract amount by $1,127.14. Change Order #8 provided for the removal of line item #3, REAS Flex Seal, Plant Mix, and replace it with lump sum item for 1.25" header cuts and placement of 1.25" Warm Mix Overlay on Mile of Cars Way from National City Boulevard to 135 feet west of Wilson Avenue. This Change Order increased the total contract amount by $47,888.36. Change Order #9 provided for the removal and replacement of the "Do Not Enter" and "One Way" signs at B Avenue and 2151 Street which are not on acceptable standards. This Change Order increased the total contract amount by $488.32. Change Order #10 provided for the change and update of the striping on 8th Street between Rachel Avenue and Olive Avenue in accordance with the overall striping and traffic plan for 8th Street. The asphalt for this section of 8th Street is also showing signs of wear and cracking and should be sealed prior to the new striping to ensure maximum life for the existing asphalt street section. This Change Order increased the total contract amount by $37,743.25. Change Order #11 provided for the required repair of the asphalt at Alpha Street from Palm Avenue to Beta Street. As this work is the same scope and character as the original contract, the Engineering Department requested that this work be completed as a change order addition to the Contract. This Change Order increased the total contract amount by $49,959.80. Page 2 -2- FINAL CONTRACT BALANCE Resurfacing and Concrete Improvement Project Specification No. 12-06 Change Order #12 provided for a reflection to the adjustments to the original contract base bid. This Change Order does not change the total contract amount of the project. Line Item #2, "Cold Milling", was increased 500 SF for an increase in the total contract amount by $1,750.00. Line Item #4, "6" Asphalt Concrete Dig -outs and Replacement", was decreased 31.82 Tons for a decrease in the total contract by $3,683.16. Line Item #7, "Remove and Replace 4" PCC Sidewalk", was decreased by 909.5 SF for a decrease in the total contract amount by $3,550.00. Line Item #8, "Remove and Replace 6"-8" Curb and Gutter", was decreased by 42.5 LF for a decrease in the total contract amount by $1,785.00. Line Item #10, "Remove and Replace Traffic Loops", was increased by 2 units each for an increase in the total contract amount by $640.00. Line Item #14, "Furnish and install 3" PVC Conduit", was decreased by 275 LF for a decrease in the total contract amount by $7,328.75. Line Item #15, "Furnish and install 2" Conduit Sweep", was decreased by 8 units for a decrease in the total contract amount by $5,120.00. Line Item #17, "Furnish and install Pull Rope", was decreased by 1,100 LF for a decrease in the total contract amount of $1,177.00. Line Item #19, "Furnish and install #5 Pull Box", was decreased by 2 units for a decrease in the total contract amount of $748.00. Line Item #21, "Remove and Replace 4" PCC Sidewalk", was increased by 1,059 SF for an increase in the total contract amount of $6,565.80. Line Item #22, "Install Root Barriers", was decreased by 660 LF for a decrease in the total contract amount of $7,821.00. Line Item #23, "Remove and Replace 6"-8" Curb and Gutter", was decreased by 1,723 LF for a decrease in the total contract amount of $63,751.00. Line Item #24, "Remove and Replace PCC Driveway was increased by 1,903 SF for an increase in the total contract amount of $27,593.50. Line Item #25, "Remove and Replace Cross -Gutter", was decreased by 1,238 SF for a decrease in the total contract amount of $20,179.00. Page 3 -3- FINAL CONTRACT BALANCE Resurfacing and Concrete Improvement Project Specification No. 12-06 Line Item #26, "Remove and Replace Pedestrian Ramps", was increased by 12 units for an increase in the total contract amount of $31,440.00. Line Item #27, "Tree Removals with Stumping", was increased by 3 units for an increase in the total contract amount of $3,390.00. CONTRACT ADJUSTMENT: As a result of the above change orders, the contract price is adjusted as follows: 1. The final contract price is adjusted to $719,939.61. This document and its purpose to balance payment shall be considered full compensation for furnishing and installing the materials, labor, tools and equipment, profit, overhead, and all incidentals for performing the work described above. Koch -Armstrong General Engineering, Inc. will not be entitled to damages or additional payment for delays as described in the 2010 edition of the Standard Specifications for Public Works Construction, Section 6-6.3, for performing the work as described above. Page 4 -4- City of National City Nabenal City Street Resurfacing and Concrete Improvement Project Specification No. 12-06 Final Billing Statement October 2, 2013 Original Contract Previous Billings ;'5§a,o- To Date No. gem Unit Quantity Unit Price Amount Quantity Armand ®* Y +'77t.�." ` Amount Oiy. (Della) Price (Delta) B BASE BID "A" - MILE OF CARS WAY..- _Quantity 1 Mobi6zationlDemobi8zation LS 1 3,500.00 3,500.00 060 2,10000 y " + - -: 1.00 3,500.00 - 2 Cold Milling SF 100 3.50 350.00 - - + t fi n'r0 Iir'ss•, 600.00 2,100.00 500.00 1,750.00 3 REAS Flex Seal, Plant Mix GAL 11,500 6.40 73,600.00 11,500.00 73,600.00 awn a 1wT;" 11,500.00 73,600.00 - 4 6' Asphalt Concrete Dig -outs and an TON 1600 115.75 185.200.00 1,566_18 18151684 Q „ ( +f' 1,6B8.18 181,516.84 (31.82) (3,683.16) 5 Remove Unsuitable Sub -Grade and Replace with CMB and Geo-Fabric TON 1,000 48.10 48,100.00 - - 'may - _ (1,000.00) (12,878.00) (48,100.00) (7,469.24) s i ' " E- 6 Crack Fling and Weed Abatement SY 12,878 0.5e 7,469.24 - 7 Remove and Reps 4" PCC Sidewalk SF 1,200 7.10 0,520.00 290.50 2,062.55 "- __ dG 1 , --7 290.50 2,062.55 (909.50) (6,457.45) 8 Remove and Replace 6-8" Curb and Gutter LF 160 42.00 6,720.00 117.50 4,935 00 ?`' `�'H-rhe' E 117.50 4,935.00 (42.50) (1,785.00) 9 Remove and Replace Gass -Gutter SF 90 22.00 1,980.00 • (90.00) 10 Remove end Replace Tragic Loops EA 52 320.00 16,640.00 - _ , ..1' 6+ "i r ,: - 54.00 17,280.00 2.00 640.00 11 Remove end Replace Striping, PavementLS 1 26,380.00 26,380.00 1.00 26,380 00 �p �i s 1.00 26,380.00 12 Install Four (4) Themloplestic Checkered Cross -Walks (Intersection Can Way of Mile of CaWay LS 1 11,830.00 11,830.00 - 'rK e +�+ 1 1.00 11,830.00 13 Provide 30 x 30 Signs EA 4 310.00 1,240.00 - ,f . -• 4.00 1.240.00 - - 14 Furnish and Install 3" PVC LF 1,100 26.65 29,315.00 825.00 21 98625 £'S"' „tax, 825.00 21,98625 (275.00) (,2.) 18 Furnish end Install 2"ConduConduitSweep EA 12 640.00 7,680.00 4.00 2,560.00 " r �ti ,, ,,L, 4.00 2,560.00 (8.00) (5,120.00) 16 Relocate Existing Signal Interconnect Cable to New ComAit Run LS 1 4,263.00 4,263.00 1.00z- 126300 -x, ;?`',74t`� 1.00 4,263.00 - 17 F Furnish and Install Pull Rope LF 2,000 1.07 2,140.00 900.00 B6300,�,+ 1lt: 900.00 963.00 (1,100.00) (1,177.00) 16 Furnish and Install46 Pull Box with Extension EA 3 427.00 1,281.00 3.00 1,281.00 ,', „x'•�"^ 3.00 1,281.00 19 Fumiah end Install a5 Pull Box EA 5 374.00 1,870.00 7.00 2,618 00 �'Y 7.00 2,618.00 2.00 748.00 B BASE BID'B"-COBG CONCRETE - h - - 20 M MobilirafronfDemobi8zntion LS 1 1,500.00 1,500.00 1.00 1,500.00 1.00 1,500.00 21 Remove and Replace 4' PCC Sidewalk SF 5,765 6.20 35,743_00 6,824.00 42,308.80 4 ae' .,.^ 6,824.00 42,308.60 1,059.00 6,565.80 22 Install Root Barden LF 900 11.85 10,665.00 40.00 47400 �I+ aT'x g e 240.00 2,844.00 (660.00) (7,821.00) 23 Remove and Replace 6-6' Curb and Gutter LF 2,210 37.00 81,770.00 487.00 18,019.00 ,.: , r .t ;, 487.00 18,019.00 (1,723.00) (63,751.00) 24 Remove and Replace PCC Driveway SF 120 14.50 1,740.00 2,023.00 29,333.60 , g., i 2,023.00 29,333.50 1,903.00 27,593.50 25 Remove and Replace Cross-G,tler PI SF 1,710 16.30 27,873.00 472.00 7,893.80 s ? 3 ��. 472.00 7,693.60 (1,238.00) (20,179.40) 26 Remove and Replace Pedestrian Ramps EA 20 2,620.00 52,400.00 32.00 83,840.00 ' *- "" ' -'... „� 32.00 83,840.00 12.00 31,440,00 27 Tree Removals with Stumping EA 7 1,130.00 7,910.00 10.00 11,300.00 'i... jS(+L, 10.00 11,300.00 3.00 3,390.00 CHANGE ORDERS - emu,. 1 Reduction o1 Line hems Nos. 7, 14, 15 LS 1 - (1.00) 2 Reduction In Line Item Nes. 11, 12 LS 1 - - _ 2t _ - (1.00) - 3 Access Gh'e+"al' LS 1 3,944.00 3,944.00 1.00 3.944.00 1.00 3,944.00 4 D-25 0 Plaza LS 1 1,298.54 1,298 54 1.00 1,298.54 0 a "p v y 1.00 1,298.54 _ 5 Sniping (6 locations) LS 1 18,711.58 18,711.58 1.00 18711 58 s.g �. 1.00 18,711.58 6 T&M - G Street LS 1 3,824.08 3,824.08 1.00 3,824.08 "�,r " c8a` } 1.00 3,824.08 - _ 7 Reber In Alleys LS 1 1,127.14 1,127.14 1.00 112714 "4° z�ly'-, ?X 1.00 1,127.14 - - 8 Warm Rix Overlay on Mile of Cars LS 1 47,888.36 47,888.36 1.00 47,888 36 ,-q,-�*..* } i _ 1.00 47,888.36 - • 9" T&M Signs LS 1 488.32 488.32 1.00 488.32 4, ":`l,• 1.00 488.32 - - 10 Furnish and place REAS on Bth St LS 1 37,743.25 37,743.25 1.00 37,743.25 ,E - { ' - " 1.00 37,743.25 - - 11 Alpha Street Repair and REAS LS 1 49.959.80 49,959.80 .. - .'t'-' E• "g(i; 1.00 49,959.80 - - "Changed from C08 TOTALS: 822,664.31 633,759.61 ... , -... 179?801, 719,939.61 (102,724.71) RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ACCEPTING THE WORK PERFORMED BY KOCH-ARMSTRONG GENERAL ENGINEERING, INC., FOR THE TOTAL FINAL AMOUNT OF $719,939.61, AUTHORIZING THE RELEASE OF THE RETENTION IN THE AMOUNT OF $35,996.98, AND RATIFYING THE NOTICE OF COMPLETION FILED WITH THE COUNTY RECORDER ON NOVEMBER 5, 2013 FOR THE NATIONAL CITY STREET RESURFACING AND CONCRETE IMPROVEMENT PROJECT BE IT RESOLVED by the City Council of the City of National City as follows: It appearing to the satisfaction of the Engineering Division of the Development Services Department that all work required to be done by Koch -Armstrong General Engineering, Inc., for the total final amount of $719,939.61, for the National City Street Resurfacing and Concrete Improvement Project has been completed, the City Council of National City hereby accepts said work, ratifies the Notice of Completion filed with the County Recorder on November 5, 2013, and orders that payment for said work be made in accordance with said contract, including release of the retention in the amount of $35,996.98. PASSED and ADOPTED this 17th day of December, 2013. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Ron Morrison, Mayor CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 8 TEM TITLE: Resolution of the City Council of the City of National City, 1) awarding a contract in the not to exceed amount of $831,517.30 to EC Constructors, Inc. for the 1726 Wilson Avenue Tenant and Site Improvements, Specification No. 13-06; 2) authorizing a 15% contingency in the amount of $124,727.59 for any unforeseen changes; and 3) authorizing the Mayor to execute the contract (funded by General Fund) PREPARED BY: Stephen Manganiello PHONE: 336-4382 EXPLANATION: See attached. DEPARTMENT: Engineering APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Funds are available in Account No. 001-409-500-598-1592 (WI-TOD): ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Bid Opening Summary 3. Three Lowest Bidders Summary 4. Resolution EXPLANATION The 1726 Wilson Avenue Tenant and Site Improvements Project, Specification No. 13-06, will prepare the site and building at 1726 Wilson Avenue for a new Public Works yard, offices, breakroom, bathrooms, lunch room and equipment maintenance facility, for the Public Works Streets, Sewer and Vehicle/Equipment Maintenance Division staff and vehicles and equipment storage. In November, 2013, the bid solicitation was advertised in local newspapers and posted on the City's website. On December 2, 2013, five sealed bids were received by the deadline, opened and publically disclosed. EC Constructors, Inc. was the apparent low bidder with a total bid amount of $831,517.30. Upon review of all documents submitted and reference checks, EC Constructors' bid is responsive, and they are the lowest responsible bidder qualified to perform the work as described in the project specifications. Attached are the bid opening results and a summary of the three lowest bidders for your information. Staff recommends the following: 1) award a contract in the not to exceed amount of $831,517.30 to EC Constructors, Inc. for the1726 Wilson Avenue Tenant and Site Improvements Project, Specification No. 13-06; 2) authorize a 15% contingency in the amount of $124,727.59 for any unforeseen changes; and 3) authorize the Mayor to execute the contract. BID OPENING SPECIFICATION NUMBER: 13-06 PROJECT TITLE: 1726 Wilson Avenue Tenant and Site Improvements TIME: 2:30 P.M. DATE: Monday, December 2, 2013 ESTIMATE: Base Bid: $725,000 Additive Bid: $40,000 PROJECT ENGIN NO. BIDDER'S NAME (PAGE (1(A)-2) BID AMOUNT (PAGES 1(A)-2, 1(A)-3, 1(A)-4) (Base Bid) --o---- ___ - BID AMOUNT WAGES 1(A)-5) (Additive and Additive Alternative Bid) BID AMOUNT (PAGES 1(A)-5) (GRAND TOTAL) ADDENDA (PAGE 1(A)-1) am SECURITY (PAGE 1(A)-10 (check (PAGE 1(A)-11 (bond) 1. E.C. Constructors 9834 River Street $655,641.00 $102,911.00 $ 72,963.00 $831,515.00 1,2 Bond 2. M.A. Stevens Const. 125 E. 17th Street National City, CA 91950 $659,153.13 $128,768.40 $ 61,775.70 $849,697.23 1,2 Bond 3. Just Construction 3103 Market Street $767,411.87 $35,096.00 $59,102.50 $861,610.37 1,2 Bond 4. Fordyce Construction 9932 Prospect Avenue $768,045.00 $64,800.00 $49,400.00 $882,245.00 1,2 Bond 5. Murray Builders 9715 Carroll Center #102 San Diego, CA 92126 $799,000.00 $66,300.00 $94,600.00 $959,900.00 1,2 Bond -1- EC Constructors M.A. Stevens Construction, Inc. Just Construction, Inc. } q ftc iF.;4 S t a . .M k w5it'..6x 'as-.'t".»i . . $.4r Item No. Description (5) Indicates Specialty Item Unit Qty. Unit Price Extension (Quantity x Unit Price) Unit Price Extension (Quantity x Unit Price) Unit Price Extensi - Quant l Unit Pri , 1 Mobilization LS 1 $ 10,935.00 $ 10,935.00 $ 4,875.00 $ 4,875.00 $ 9,630.00 $ 9,630.00 2 Signing and Striping (including salvage and relocation of existing signs) LS 1 $ 1,996.00 $ 1,996.00 $ 2,727.50 $ 2,727.50 $ 3,520.30 $ 3,520.30 3 Clearing and Grubbing LS 1 $ - $ - $ 7,335.00 $ 7,335.00 $ 6,955.00 $ 6,955.00 4 Water Pollution Control LS 1 $ 1,618.00 $ 1,618.00 $ 1,500.00 $ 1,500.00 $ 4,494.00 $ 4,494.00 S Architecturallmprovements- Mechanical, Electrical, Plumbing, and Structural LS 1 $ 409,022.00 $ 409,022.00 $ 384,336.25 $ 384,336.25 $ 459,101.57 $ 459,101.57 6 Site light pole, fixture, and foundation EA 2 $ 4,903.00 $ 9,806.00 $ 3,537.50 $ 7,075.00 $ 3,210.00 $ 6,420.00 7 Furnish and Install 1" Conduit LFT 550 $ 3.55 $ 1,952.50 $ 4.11 *24$0150- $ 3.20 $ 1,760.00 8 Furnish and Install 2" Conduit LFT 550 $ 3.83 $ 2,106.50 $ 4.38 $ . 2 fl0t3 1 $ 5.90 $ 3,245.00 9 Furnish and Install Conductors LFT 600 $ 2.46 $ 1,476.00 $ 2.81 $'' 1,68640r $ 3.20 $ 1,920.00 10 Furnish and Install Pull Boxes EA 4 $ 628.75 $ 2,515.00 $ 2,875.00 $ 11,500.00 $ 267.50 $ 1,070.00 11 Refurbish Existing Light Pole and Lamp EA 2 $ 355.50 $ 711.00 $ 812.50 $ 1,625.00 $ 321.00 $ 642.00 12 Furnish and Install 25' Ornamental Steel Gate per project specifications (including gate operators, key pads, and all other appurtenances) EA 1 $ 25,407.00 $ 25,407.00 $ 30,237.50 $ 30,237.50 $ 23,835.50 $ 23,835.50 13 Furnish and Install 35' Ornamental Steel Gate per project specifications (including gate operators, key pads, and &I other appurtenances) EA 1 $ 31,012.00 $ 31,012.00 $ 39,445.00 $ 39,445.00 $ 27,349.00 $ 27,349.00 14 Furnish and Install Ornamental Steel Fence per project specifications LF 850 $ 103.44 <`; y Z4100 """ $ 118.25 $ 100,512.50 $ 121.30 $ 103,105.00 15 Construct 6" PCC SF 800 $ 2.10 $ 1,680.00 $ 7.50 $ 6,000.00 $ 13.90 $ 11,120.00 16 Construct 6" PCC with f74 bars, 24" O.C. SF 3000 $ 15.70 $ 47 100.00 $ 8.13 $ 2090:d0 $ 16.10 $ 48,300.00 17 Provide and install 4" Class II Aggregate Base TON 85 $ 37.18 $ 60 D. $ 58.75 $ 4,993.75 $ 117.70 $ 10,0( 18 Unclassified Excavation LS 1 $ 820.00 $ 820.00 $ 5,000.00 $ 5,000.00 $ 16,050.00 $ 16,05 21 Furnish and Install 4" Fire Service Lateral Per Sweetwater Authority Specifications EA 1 $ 11,591.00 $ 11,591.00 $ 12,138.75 $ 12,138.75 $ 17,120.00 $ 17,120.00 22 Furnish and Install 4" Backflow Preventer Per EA 1 $ 4,374.00 $ 4,374.00 $ 8,347.50 $ 8,347.50 $ 10,700.00 $ 10,700.00 23 Furnish and Install 6"x4" Reducer Per Sweetwater Authority Specifications EA 1 $ 437.00 $ 437.00 $ 773.75 $ 773.75 $ 1,070.00 $ 1,070,00 •Extension rice adjusted due t" calculation errors Base Bid Subtotal* $ $' 643'30 Base Bid Subtotal* $ 6$9,16.0Q' a Base Bid Subtotal 57,411.87 $ 757,411.87 V){, I ✓ ... .. , '�. $ 26,750.00 A-1 Hoist System LS 1 $ 80,439.00 $ 80,439.00 $ 108,068.40 $ 108,068.40 $ 26,750.00 A-4 Furnish and Install Tuffshed Model Industrial PRO Exterior Storage or approved equal (800 SF), Sheet C-03A & C-03B, Construction Note 7 EA 1 $ 22,472.00 $ 22,472.00 $ 20,70100 $ 20,700.00 $ 8,346.00 $ 8,346.00 Additive Bid Subtotal $ 102,911.00 Additive Bid Subtotal 128,768.40 Additive Bid Subtotal $ 35,096.00 'sPAa���'fi±4Td1`iE,BV A-2 Furnish and Install Covered Work Area, Regular Style, per Gaport or Approved Equal. Dimensions: W=28', L=26', LH=12', Gauge Size: 12GA of Galvanized Steel, Sheet C-03A, Construction Note 6 EA 2 $ 6,317.50 $ 12,635.00 $ 6,392.85 $ 12,785.70 $ 19,260.00 $ 38,520.00 A-3 Material Storage Containers, Sheet C-03B, LS 1 $ 60,328.00 $ 60,328.00 $ 48,990.00 $ 48,990.00 $ 20,582.50 $ 20,582.50 Additive Alternative Bid Subtotal $ 72,963.00 Additive Alternative Bid Subtotal $ 61,775.70 Additive Alternative Bid Subtotal $ 59,102.50 GRAND TOTAL BID (TOTAL BASE BID + TOTAL ADDITIVE BID + TOTAL ADDITIVE ALTERNATIVE BID) $ 831,517.30 $ 849,712.10 $ 861,610.37 -2- RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AWARDING A CONTRACT TO EC CONSTRUCTORS, INC., IN THE NOT TO EXCEED AMOUNT OF $831,517.30 FOR THE 1726 WILSON AVENUE TENANT AND SITE IMPROVEMENTS PROJECT, AUTHORIZING A 15% CONTINGENCY IN THE AMOUNT OF $124,727.59 FOR ANY UNFORESEEN CHANGES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID CONTRACT WHEREAS, the Engineering Division of the Development Services Department, in open session on December 2, 2013, did publicly open, examine, and declare five sealed bids for the 1726 Wilson Avenue Tenant and Site Improvements Project (the "Project"); and WHEREAS, EC Constructors, Inc., was the lowest responsive bidder with a proposed bid amount of $831,517.30; and WHEREAS, a 15% contingency amount up to $124,727.59 for any unforeseen changes to the Project is requested. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby awards the contract for the 1726 Wilson Avenue Tenant and Site Improvements Project to the lowest responsive, responsible bidder, to wit: EC CONSTRUCTORS, INC. BE IT FURTHER RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute on behalf of the City a contract in the amount of $831,517.30 with EC Constructors, Inc., for the 1726 Wilson Avenue Tenant and Site Improvements Project. Said contract is on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Council hereby authorizes a 15% contingency amount up to $124,727.59 for unforeseen changes to the Project. PASSED and ADOPTED this 17th day of December, 2013. ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Ron Morrison, Mayor MEETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT 'December 17, 2013 AGENDA ITEM NO. 9 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the City Manager to execute a Subordination Agreement allowing a new mortgage not -to -exceed $120,000 to be and remain a lien prior and superior to a housing rehabilitation assistance loan on a single -unit property located in National City PREPARED BY: Carlos Aguirre, Community Dev. Manage Housing, Grants, & DEPARTMENT: Asset Management PHONE: 619 336-4391; APPROVED BY: EXPLANATION: The City of National City (City) made a loan for $32,835 from the HOME Investment Partnership Program to Joseph J. Rader ("Borrower") on October 17, 2011 to assist the Borrower with the rehabilitation of an owner occupied single-family residence located at 2407 "J" Avenue in National City. The City is owed an outstanding balance of $33,424. The Borrower is interested in refinancing the first mortgage loan on the property and has been approved for a new loan with Bank of America ("Lender"). The Lender is requiring that the City execute the attached subordination agreement allowing the new loan to hold superior position to the City issued loan. The City loan will maintain second lien position on the property. The purpose of the refinance is to allow the Borrower to reduce the interest rate paid to a fixed rate of 4.5% and to consolidate unsecured debts with loan proceeds thereby lowering total monthly debt payments. Staff has satisfactorily reviewed the combined loan -to -value, preliminary title report, new loan terms, and good faith estimate and draft settlement statement that outline the closing costs of the transaction. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: j there is no fiscal impact associated with this request. ENVIRONMENTAL REVIEW: Entering into the subordination agreement is exempt from environmental review. ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: 'Staff recommends the adoption of a resolution to execute the Subordination Agreement. BOARD / COMMISSION RECOMMENDATION: `There is no board or commission recommendation required for the Subordination Agreement. ATTACHMENTS: 1. Draft Subordination Agreement between the City and the Borrower Attachment No. 1 After Recording retum to: CITY OF NATIONAL CITY 140 East 12th Street, National City 91950 CA — LST File No: 1600504700 This instrument was prepared by: Towana Garrett LandSafe Title of California Inc. 1831 Chestnut St 6th FI St. Louis MO 63103 BOA Loan # 248698309 PARCEL TAX MAP ID NO: 5630211800 Real Estate Subordination Agreement THIS SUBORDINATION AGREEMENT ("MAY RESULT" OR "RESULTS") IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. This Real Estate Subordination Agreement ("Agreement") is executed as of the date herein, by CITY OF NATIONAL CITY having an address of 140 East 12th Street, National City 91950 ("Subordinator"), in favor of Bank of America, N.A., having an address for notice purposes of Bank of America 4161 Piedmont Parkway Greensboro, NC 27410 Whereas, Subordinator is the owner and holder of, or creditor under, the indebtedness described in and secured by a Deed of Trust or Mortgage dated 10/13/2011, executed by JOSEPH J. RADER And which was recorded on 10/17/2011 in Volume / Book N/A, Page N/A, and if applicable, Document Number 2011-0544016, of the land records of SAN DIEGO County, State of, California, in the amount of $32,835.00 as same may have been or is to be modified prior hereto or contemporaneously herewith (the "Senior Lien"), encumbering the land described therein (said land and such improvements, Attachment No. 1 appurtenances and other rights and interests regarding said land, if any, as are described in the Senior Lien being called herein collectively the "Property") (see attached Exhibit "A"); and Whereas, Bank of America has been requested to make a loan, line of credit or other financial accommodation to JOSEPH J. RADER (joint and severally, "Borrower"), to be secured by, without limitation, a deed of trust or mortgage, (the "Junior Lien"), covering without limitation, the Property and securing the indebtedness described therein including the payment of a promissory note, line of credit agreement or other borrowing agreement made by Borrower and/or others payable to the order of Bank of America in the maximum principal face amount of $120,000.00, including provisions for acceleration and payment of collections costs (the "Obligation")' the Junior Lien and the Obligation to contain such other terms and provisions as Bank of America and Borrower shall determine; and Now, Therefore, for valuable consideration, Subordinator hereby subordinates the Senior Lien to Bank of America's Junior Lien, subject to the terms of this Agreement. The Subordinator's Senior Lien is subordinated to Bank of America's Junior Lien only to the extent of the Principal Amount of the Obligation and any amounts advanced pursuant to the terms of the Obligation or the security instrument for the payment of insurance premiums, taxes, costs of collection, protection of the value of the property or Bank of America's rights in the Property or foreclosure. All other rights of Subordinator now or hereafter existing in or with respect to the Property (including but not limited to all rights and to proceeds of insurance and condemnation) are hereby subordinated, and are and shall remain completely and unconditionally subordinate, to the Junior Lien and the rights of Bank of America regardless of the frequency or manner of renewal, extension, consolidation or modification of the Junior Lien or the Obligation. This Agreement shall inure to the benefit of the Subordinator and Bank of America and their respective successors and assigns, including any purchaser(s) (at foreclosure or otherwise) of the Property or any part thereof, and their respective successors and assigns. CITY OF NATIONAL CITY Signature Leslie Deese Printed Name City Manager Title December 18,2013 Date Acknowledgment: State of County of On day of 20 before me, a Notary Public in and for said State, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 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. (seal) Signature of Person taking Acknowledgment Printed name Commission Expiration Date RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE A SUBORDINATION AGREEMENT ALLOWING A NEW MORTGAGE NOT -TO -EXCEED $120,000 TO BE AND REMAIN A LIEN PRIOR AND SUPERIOR TO HOUSING REHABILITATION ASSISTANCE LOAN ON A SINGLE -UNIT PROPERTY LOCATED IN NATIONAL CITY WHEREAS, the City of National City ("City") made a loan for $32,835 from the HOME Investment Partnership Program to Joseph J. Rader ("Borrower") on October 17, 2011 to assist the Borrower with the rehabilitation of an owner occupied single-family residence located at 2407 "J" Avenue in National City (the "Property"); and and WHEREAS, the City is owed an outstanding balance of approximately $33,424; WHEREAS, the Borrower is interested in refinancing the debt on the property and has been approved for a new loan with Bank of America (the "Lender") that requires the City to execute a Subordination Agreement allowing the new loan to hold superior position to the City Loan to maintain second lien position on the Property; and WHEREAS, the purpose of the refinance is to allow the Borrower to reduce the interest rate to 4.5% and use loan proceeds to pay off unsecured debt to lower monthly debt payments; and WHEREAS, maintaining a second lien position pursuant to the Borrower refinancing to lower the interest rate while consolidating and lowering total monthly debt payments further preserves and secures the City's interest in the Property. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Manager to execute a Subordination Agreement in favor of a new First Trust Deed with Bank of America as beneficiary. After being recorded by the County of San Diego, said Subordination Agreement will be on file in the office of the City Clerk. PASSED and ADOPTED this 17th day of December, 2013. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Della, City Clerk Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT_ MEETING DATE: December 17, 2013 AGENDA ITEM NO. 10 ITEM TITLE: NVarrant Register #21 for the period of 11/13/13 through 11/19/13 in the amount of $1,995,464.82. (Finance) PREPARED BY: 1K. Apalategui'; DEPARTMENT: Financ PHONE: 619-336-4331 APPROVED BY: �at �ip v EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 11/13/13 through 11/19/13. In accordance with Finance Department policy, below is an explanation of all warrants above $50,000.00. Vendor Check Amount Explanation City of San Diego 309896 1,250,073.00 Sewer Transportation and Treatment Pal Engineering 309909 183,998.56 8th Street Smart Growth Public Emp Ret System 309913 291,023.10 Service Period 10/19/13-11/11/13 SDG&E 309919 65,506.45 Facilities Gas & Electric Utilities FINANCIAL STATEMENT: ACCOUNT NO. Reimbursement total $1,995,464.82. APPROVED: APPROVED: ENVIRONMENTAL REVIEW: This is not a project and, therefore, not subject to environmental review. ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $1,995,464.82. BOARD / COMMISSION RECOMMENDATION: IN/A' ATTACHMENTS: NA/arrant Register #21 PAYEE SMART & FINAL POWER PLUS SDG&E SWEETWATER AUTHORITY ATKINS NORTH AMERICA INC BOOT WORLD BROADWAY AUTO ELECTRIC BUCKNAM INFRASTRUCTURE GRP INC BUREAU VERITAS N AMERICA INC CALIFORNIA COMMERCIAL SECURITY CALIFORNIA ELECTRIC SUPPLY CELLEBRITE USA, INC. CITY OF SAN DIEGO CITY OF SAN DIEGO DANIELS TIRE SERVICE DECKSIDE POOL SERVICE DELL MARKETING CORP DOKKEN ENGINEERING EW FORD JODYEAR TIRE & RUBBER COMPANY JERAULDS CAR CARE CENTER METRO AUTO PARTS DISTRIBUTOR NAPA AUTO PARTS NATIONAL CITY TROPHY ORKIN PEST CONTROL PAL GENERAL ENGINEERING INC PERRY FORD POWERSTRIDE BATTERY CO INC PRUDENTIAL OVERALL SUPPLY PUBLIC EMP RETIREMENT SYSTEM RAMONA PAVING AND RBF CONSULTING ROAD ONE TOWING RPM WELDING INC SCS ENGINEERS SDG&E STAPLES ADVANTAGE SUPERIOR READY MIX SWEETWATER AUTHORITY WIRED PAYMENTS TRISTAR RISK MANAGEMENT STAR RISK MANAGEMENT SECTION 8 HAPS PAYMENTS WARRANT REGISTER # 21 11/19/2013 DESCRIPTION MOP 45756. SUPPLIES FOR FIRE DEPT EQUIPMENT RENTAL / S A GAS AND ELECTRIC UTILITIES / S A WATER UTILITIES / S A SEWER BILL/TAX ROLL PREPARATION MOP 64096 WEARING APPAREL MOP 72447 AUTO PARTS SIGN INVENTORY SAFE ROUTES TO SCHOOL EXPENSES MOP 45754 R&M BUILDINGS MOP 45698 ELECTRICAL MATERIAL CELLEBRITE KIT / POLICE SEWER TRANSPORTATION/TREATMENT VEHICLE MOUNT PORT REPLICATOR / FIRE TIRES HYDROCHLORIC ACID, DRY CHLORINE, DELL POWEREDGE 620 SERVER PLAZA BLVD PS&E R& M CITY VEHICLES MOP 72654 TIRES MOP 72449 R&M AUTO PARTS MOP 75943 AUTO PARTS MOP 45735 AUTO PARTS MOP 66556 BUILDING MATERIAL PEST MAINTENANCE 8TH ST. SMART GROWTH CHARGES MOP 45703 AUTO PARTS MOP 67839 AUTO PARTS MOP 45742 LAUNDRY SERVICE SERVICE PERIOD 10/29/13 THRU 11/11/13 8TH ST. SAFETY ENHANCEMENTS 8TH ST. SAFETY ENHANCEMENTS MOP 75948 R&M AUTO EQUIPMENT MOP 45749 R&M BUILDINGS WELL DESTRUCTION, 1200 NCBLVD FACILITIES GAS & ELECTRIC UTILITIES MOP 45704 MATERIALS & SUPPLIES TACK OIL, 3/8 SHEET & COLDMIX ASPHALTS FACILITIES WATER PREFUND FOR ROBERT BANGS OCT 2013 WC REPLENISHMENT Start Date 11/13/2013 End Date 11/19/2013 CHK NO DATE 309884 11/14/13 309885 11/19/13 309886 11/19/13 309887 11/19/13 309888 11/19/13 309889 11/19/13 309890 11/19/13 309891 11/19/13 309892 11/19/13 309893 11/19/13 309894 11/19/13 309895 11/19/13 309896 11/19/13 309897 11/19/13 309898 11/19/13 309899 11/19/13 309900 11/19/13 309901 11/19/13 309902 11/19/13 309903 11/19/13 309904 11/19/13 309905 11/19/13 309906 11/19/13 309907 11/19/13 309908 11/19/13 309909 11/19/13 309910 11/19/13 309911 11/19/13 309912 11/19/13 309913 11/19/13 309914 11/19/13 309915 11/19/13 309916 11/19/13 309917 11/19/13 309918 11/19/13 309919 11/19/13 309920 11/19/13 309921 11/19/13 309922 11/19/13 111 AMOUNT 485.26 195.00 22.12 1,014.48 3,076.00 116.63 364.32 2,105.00 5,893.55 279.59 533.06 12,497.99 1,250,073.00 12,051.07 1,772.58 2,154.03 12,029.79 20,539.91 641.70 323.94 172.03 109.50 182.36 14.72 375.73 183,998.56 42.24 145.72 290.45 291,023.10 15,651.25 2,417.95 165.00 901.40 1,028.50 65,506.45 791.64 2,522.48 16,304.47 A/P Total 1,907,812.57 130746 11/13/13 130775 11/13/13 18,216.16 64,655.34 4,780.75 GRAND TOTAL S _1,995,464.82 Certification IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE HEREBY CERTIFY TO THE ACCURACY OF THE DEMANDS LISTED ABOVE AND TO THE AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW. MARK RODER , FINANCE LESLIE DEESE, CITY MANAGER FINANCE COMMITTEE RONALD J. MORRISON, MAYOR -CHAIRMAN LUIS NATIVIDAD, VICE -MAYOR ALEJANDRA SOTELO-SOLIS, MEMBER MONA RIOS, MEMBER JERRY CANO, MEMBER I HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF BY THE CITY COUNCIL ON THE 17t' OF DECEMBER, 2013. AYES NAYS ABSENT CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. ]f1 ITEM TITLE: 'Warrant Register #22 for the period of 11/20/13 through 11/26/13 in the amount of $1,479,283.77. (Finance) PREPARED BY: 1K. Apalateguii DEPARTMENT: Finan e PHONE: 619-336-4331 APPROVED BY:`�. EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 11/20/13 through 11/26/13. In accordance with Finance Department policy, below is an explanation of all warrants above $50,000.00. Vendor Check Amount Explanation County of San Diego 310007 52,972.00 Stormwater Share Costs FINANCIAL STATEMENT: ACCOUNT NO. Reimbursement total $1,479,283.77. APPROVED: -74/ Finance APPROVED: MIS ENVIRONMENTAL REVIEW: This is not a project and, therefore, not subject to environmental review. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: !Ratification of warrants in the amount of $1,479,283.77. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: (,Warrant Register #22 PAYEE ACE UNIFORMS & ACCESSORIES INC ADORAMA CAMERA, INC. ALDEMCO AMERICAN BACKFLOW SPECIALTIES ASSI SECURITY INC BAY SYSTEMS INC CAL EXPRESS CALIFORNIA ELECTRIC SUPPLY CEPA OPERATIONS INC. CHRISTENSEN & SPATH LLP CINTAS DOCUMENT MANAGEMENT CITY OF NATIONAL CITY CLAIMS MANAGEMENT ASSOCIATES CLEAN HARBORS COUNTY OF SAN DIEGO COUNTY OF SAN DIEGO DATA TICKET INC DISCOUNT SPECIALTY CHEMICALS °LOYMENT DEVELOP DEPT oGIL CORPORATION I -AST SIGNS FEDEX FOLSOM LAKE FORD GEORGE'S LAWN EQUIPMENT CO GOODYEAR TIRE & RUBBER COMPANY GROSSMAN PSYCHOLOGICAL GST HANDY METAL MART INC HOME DEPOT CREDIT SVCS INDEPENDENT FORENSIC SERVICES JERAULDS CAR CARE CENTER LASER SAVER INC LOPEZ, T MAN K-9 INC. MARCHANTE, A MASON'S SAW & MASTER PLUMBING MEYERS NAVE MEYERS NAVE NATIONAL CITY CHAMBER OF NINYO & MOORE PACIFIC AUTO REPAIR °ACIFIC PRODUCTS & SERVICES ZADISE CREEK _RRY FORD PROCHEM SPECIALTY PRODUCTS INC PRUDENTIAL OVERALL SUPPLY QUAL CHEM CORPORATION RAUCH DETISCH & STEINKE RDO EQUIPMENT CO 1/3 WARRANT REGISTER #22 11/26/2013 DESCRIPTION CHK NO DATE AMOUNT CHAMELEON SOFT SHELL JACKET 309923 11/26/13 133.91 SAMSUNG 11.6" HD TS TABLET PC ATOM 309924 11/26/13 842.00 FOOD / NUTRITION 309925 11/26/13 3,184.52 BACKFLOWS, GAUGES, PARTS / PW 309926 11/26/13 930.35 RELOCATE CARD READERS / PD 309927 11/26/13 6,366.00 LABOR FOR AIR CONDITIONING 309928 11/26/13 87.50 ATTORNEY SVCS - SEPT 2013 309929 11/26/13 42.00 MOP 45698 ELECTRICAL MATERIAL 309930 11/26/13 421.33 FUME HOOD CERTIFICATION 309931 11/26/13 175.00 PROFESSIONAL SVCS 309932 11/26/13 227.50 MONTHLY SHREDDING 309933 11/26/13 258.05 BLDG PERMITS FOR PW RELOCATION 309934 11/26/13 25,963.26 RISK MANAGEMENT SVC - NOV 2013 309935 11/26/13 4,965.00 HAZARDOUS WSTE PICKUP 309936 11/26/13 571.00 HEALTH PERMITS AND LICENSES 309937 11/26/13 250.00 MAIL PROCESSING SVCS JUL 2013 309938 11/26/13 1,981.52 TICKET INVOICING - SEPT 2013 309939 11/26/13 11,632.70 USR URATIC SALT REMOVER 309940 11/26/13 232.08 EMPLO DEVELOPMENT DEPT 309941 11/26/13 9,689.00 PLAN CHECK/CONSULTANT SERVICES 309942 11/26/13 10,272.24 ALUMINUM COLOR: WHITE AND BLACK 309943 11/26/13 749.09 MAIL SVC - NSD 309944 11/26/13 34.31 2014 TAURUS / POLICE 309945 11/26/13 42,581.36 4 IN TAP HEAD/WHEEL / PW 309946 11/26/13 355.36 MOP 72654 TIRES 309947 11/26/13 1,232.64 PRE -EMPLOYMENT PSYCHOLOGICAL EXAMS 309948 11/26/13 6,225.00 TOUGHBOOK CF 31 13-312OM / FIRE 309949 11/26/13 5,572.62 TUBING/SHEET BENDING/WELDING 309950 11/26/13 485.70 500L MINI STRING HEAVY DUTY CLEAR 309951 11/26/13 366.98 SART EXAMS 309952 11/26/13 2,000.00 R&M CITY VEHICLES 309953 11/26/13 1,283.06 MOP 45725 BLACK INKJET 309954 11/26/13 178.54 TRANSLATION SERVICES 309955 11/26/13 210.00 EVALUATION OF K9 / POLICE 309956 11/26/13 375.00 REIMB FOR NOTARY FILING FEE 309957 11/26/13 369.35 MOP 45729 MATERIALS & SUPPLIES 309958 11/26/13 682.45 INSPECTION: 302 W 19TH 309959 11/26/13 250.00 PROFESSIONAL SVC THROUGH 10/31/13 309960 11/26/13 1,750.00 PROFESSIONAL SVCS THROUGH 10/31/13 309961 11/26/13 495.00 SALUTE TO NAVY LUNCHEON 309962 11/26/13 50.00 MARINA GATEWAY STREETSCAPE, SPEC 08-16 309963 11/26/13 976.00 MOP 72448 R&M AUTO EQUIPMENT 309964 11/26/13 1,430.39 SET OF HD (THICK) REPLACEMENT JAWS 309965 11/26/13 119.56 PROFESSIONAL SVCS - WI-TOD-DDA PHASE I 309966 11/26/13 8,081.01 MOP 45703 R&M AUTO EQUIPMENT 309967 11/26/13 211.86 30 GAL DRUM CAR-GLO SOAP / PW 309968 11/26/13 261.27 MOP 45742 LAUNDRY SERVICE 309969 11/26/13 282.32 PAIL GRANULAR SEWER LINE 309970 11/26/13 460.08 PROFESSIONAL SVCS - PLAZA BLVD WIDENING 309971 11/26/13 3,554.51 LABOR, OIL PRESSURE SENSOR 309972 11/26/13 636.48 PAYEE RELIABLE TIRE CO RUSS' BEE REMOVAL S D REGIONAL TRAINING CENTER SAN DIEGO AREA CHAPTER OF ICC SAN DIEGO MIRAMAR COLLEGE SDG&E STAPLES ADVANTAGE SUBPOENA COMPLIANCE PAYMENTS SUNSHINE APARTMENTS INC SWEETWATER AUTHORITY SWEETWATER AUTHORITY THE ENGRAVING STORE THE SEMINAR GROUP TODD PIPE & SUPPLY LLC TOPECO PRODUCTS TURF STAR U S BANK UNITED ROTARY BRUSH VALLEY INDUSTRIAL SPECIALTIES VISION SERVICE PLAN (CA) WAXIE SANITARY SUPPLY WEST PAYMENT CENTER WESTFLEX INDUSTRIAL WILLY'S ELECTRONIC SUPPLY ALDEMCO ALL FRESH PRODUCTS AT&T MCI CAROLYN ST CLAIR CHRISTIANSEN, J CINTAS DOCUMENT MANAGEMENT CITY OF CHULA VISTA CITY OF SAN DIEGO COUNTY OF SAN DIEGO COUNTY OF SAN DIEGO COX COMMUNICATIONS CULLIGAN OF SAN DIEGO D-MAX ENGINEERING HEALTH & HUMAN RSRC CNTR KIMLEY HORN AND ASSOC INC LANGUAGE LINE SERVICES MTS MUNICIPAL CODE CORPORATION NEXUS IS INC ORIENTAL TRADING CO INC PERISCOPE HOLDINGS INC PRO BUILD PRO -EDGE KNIFE PROJECT PROFESSIONALS CORP. SAN DIEGO COUNTY BAR ASSOC SAN DIEGO COUNTY BAR ASSOC WARRANT REGISTER #22 11/26/2013 DESCRIPTION 40 PASSENGER TIRES/TRUCK TIRES BEE REMOVAL FROM CITY PROPERTY TUITION: CRUCIAL CONVERSATIONS CLASS/TRAINING TUITION: CPT FOR POLICE FACILITIES GAS & ELECTRIC MOP 45704 OFFICE SUPPLIES - S8 WIRE TAP FEES REIMB: RESIDENTIAL OVERPAYMENT FACILITIES WATER FIRE FLOW TESTS, WILSON, HOOVER AVE FLAG BOX, INCLLUDES FETCH TIME REGISTRATION - GOVERNMENT LAW NAT GAS WTR HTR/COPPER DIELECTRIC MOP 63849 TIRES GEARBOX PULLEY/TAPER CREDIT CARD EXP - SA STREET SWEEPER REPAIRS MOP 46453 PLUMBING MATERIAL VISION SVC PLAN - NOV 2013 JANITORIAL SUPPLIES CLEAR INVESTIGATIVE DATABASES MOP 63850 MATERIALS & SUPPLIES MOP 45763 AUTO PARTS FOOD CONSUMABLES/NON CONSUMABLES FOOD FOR NUTRITION CENTER PHONE SVC 10/01/13 - 10/31/13 RECREATION SUPPLIES ED. REIMBURSEMENT MONTHLY SHREDDING ANIMAL SHELTER COSTS WASTE MONITORING FEES FY 2010 RENEWAL FEE STORMWATER SHARE COST COMMUNICATIONS SVC 10/30-11/29/13 WATER SOFTENER NC STORM WATER SERIVCES EMPLOYEE ASST PROGRAM BIKE BOXES, SERVICES, OCTOBER, 2013 LANGUAGE LINE INTERPRETATION MTS FLAGGER SERVICES CODE SUPPLIMENT #39, UPDATE 2 CONFIGURE PBX FOR INTERNATIONAL CALLS STRIPED TABLECLOTH ROLUBLACK CURTAIN 5-DIGIT COMMODITY CODE LICENSE MOP 45707 LEADCHECK TESTING KITS KNIFE SHARPENING SERVICES CITYWIDE SEWER REHAB MEMBERSHIP DUES - 2014 SD COUNTY BAR MEMBERSHIP DUES - 2014 SD COUNTY BAR 2/3 CHK NO DATE AMOUNT 309973 11/26/13 485.00 309974 11/26/13 475.00 309975 11/26/13 350.00 309976 11/26/13 50.00 309977 11/26/13 46.00 309978 11/26/13 22,223.45 309979 11/26/13 572.61 309980 11/26/13 470.00 309981 11/26/13 655.00 309983 11/26/13 32,656.78 309984 11/26/13 400.00 309985 11/26/13 94.81 309986 11/26/13 425.00 309987 11/26/13 2,950.17 309988 11/26/13 252.93 309989 11/26/13 133.75 309990 11/26/13 337.85 309991 11/26/13 1,064.80 309992 11/26/13 9f 309993 11/26/13 1 309994 11/26/13 2 309995 11/26/13 259.42 309996 11/26/13 310.33 309997 11/26/13 48.27 309998 11/26/13 3,888.19 309999 11/26/13 1,295.40 310000 11/26/13 384.11 310001 11/26/13 59.10 310002 11/26/13 595.00 310003 11/26/13 92.95 310004 11/26/13 27,844.94 310005 11/26/13 2,725.00 310006 11/26/13 235.00 310007 11/26/13 52,972.00 310008 11/26/13 29.12 310009 11/26/13 204.50 310010 11/26/13 15, 539.12 310011 11/26/13 726.74 310012 11/26/13 2,609.11 310013 11/26/13 6.65 310014 11/26/13 54.84 310015 11/26/13 220.04 310016 11/26/13 112.50 310017 11/26/13 a' 310018 11/26/13 1 310019 11/26/13 310020 11/26/13 46.00 310021 11/26/13 3,128.44 310022 11/26/13 235.00 310023 11/26/13 150.00 PAYEE SEAPORT MEAT COMPANY SHINN, B SMART & FINAL SMITH, J STAPLES ADVANTAGE STARTECH COMPUTERS SWRCB SWRCB SYMPRO INC SYSCO SAN DIEGO U S BANK U S HEALTHWORKS WEST PAYMENT CENTER WILLY'S ELECTRONIC SUPPLY PAYROLL Pay period Start Date 24 10/29/2013 WARRANT REGISTER-#22 11/26/2013 DESCRIPTION FOOD / NUTRITION TINY TOTS CLASSROOM SUPPLIES MOP 45756 MISC SUPPLIES - COMM SVC REIMB - WELDING SVCS MOP 45704 OFFICE SUPPLIES - PD MOP 61744 DUPLEX CONFERENCE PHONE ANNUAL PERMIT FEE 7/1/13 - 6/30/14 ANNUAL PERMIT FEE 7/1/13 - 6/30/14 ANNUAL SUPPORT 11/15/13-11/14/14 FOOD/CONSUMABLES / NUTRITION CREDIT CARD EXP - PD MEDICAL SERVICES CLEAR INVESTIGATIVE DATABASES MOP 45763 MISC SUPPLIES - MIS End Date Check Date 11 /11 /2013 11/20/2013 3/3 CHK NO DATE AMOUNT 310024 11/26/13 2,035.13 310025 11/26/13 87.43 310026 11/26/13 234.18 310027 11/26/13 54.50 310028 11/26/13 262.65 310029 11/26/13 299.70 310030 11/26/13 23,982.00 310031 11/26/13 10,405.00 310032 11/26/13 5,060.00 310033 11/26/13 1,999.46 310034 11/26/13 3,115.05 310035 11/26/13 155.00 310036 11/26/13 455.11 310037 11/26/13 922.75 A/P Total 388,104.60 1,091,179.17 GRAND TOTAL $ 1,479,283.77 Certification IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE HEREBY CERTIFY TO THE ACCURACY OF THE DEMANDS LISTED ABOVE AND TO THE AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW. MARK ROBER S, FINANCE LESLIE DEESE, CITY MANAGER FINANCE COMMITTEE RONALD J. MORRISON, MAYOR -CHAIRMAN LUIS NATIVIDAD, VICE -MAYOR ALEJANDRA SOTELO-SOLIS, MEMBER MONA RIOS, MEMBER JERRY CANO, MEMBER I HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF BY THE CITY COUNCIL ON THE 17'h OF DECEMBER, 2013. AYES NAYS ABSENT CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. ]t2 ITEM TITLE: Investment Report for the quarter ended September 30, 2013. PREPARED BY: Ronald Gutlay PHONE: 19-336-43461 EXPLANATION: See attached staff report. DEPARTMENT: 1 Financ 4 APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: See attached staff report. ENVIRONMENTAL REVIEW: This is not a project and, therefore, not subject to environmental review ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: jAccept and File the Investment Report for the Quarter ended September 30, 2013. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. Staff Report 2. Investment Listings City Council Staff Report December 17, 2013 ITEM Staff Report: Investment Report for the quarter ended September 30, 2013. BACKGROUND The California Government Code (§ 53646(b)) requires that, when the treasurer or the chief fiscal officer of a local agency renders to the legislative body of the agency a quarterly report on the agency's investment portfolio, such report shall include the following information regarding all securities, investments, and moneys held by the local agency: ➢ type of investment; ➢ issuer (bank or institution); ➢ date of maturity; ➢ dollar amount invested; and ➢ current market valuation as of the date of the report. In addition, the Government Code (§ 53646(b)(2)) requires that the report state the City's compliance with its investment policy and include a statement regarding the ability of the local agency to meet its pool's ability to meet its expenditure requirements Code (§ 53646(b)(3)). OVERVIEW OF CITY INVESTMENTS The City's pooled investment portfolio balance as of September 30, 2013 is summarized below and compared to the balance as of September 30, 2012. 9/30/2013 9/30/2012 Book Value' $ 57,226,835 $ 53,961,651 Market Value 2 $ 56,985,205 $ 53,885,249 (1) actual cost of investments (2) amount at which the investments could be sold The California Treasurer's Local Agency Investment Fund ("LAIF") and The County of San Diego Pooled Money Fund comprise 60.24% of the City of National City's total investment portfolio (51.47% and 8.77 %, respectively). These are liquid investment pools that allow participants to earn market rate returns, while retaining access to funds within 24 to 48 hours of a withdrawal request with no penalty. The remainder of the City's portfolio is composed of investments that may be liquidated at any time. However, these investments likely do not provide Page 2 Staff Report: Investment Report for the quarter ended September 30, 2013. December 17, 2013 the short liquidity (i.e., quick access to funds) of the pooled money funds, and liquidation/withdrawal of these investments is at the risk of loss and/or penalty to the City. Summaries of the City's investment portfolio are illustrated below. INVESTMENT PORTFOLIO SUMMARY BY ISSUER/MANAGER As of September 30, 2013 Issuer/Manager Local Agency Investment Fund Chandler Asset Management County of San Diego Neighborhood National Bank First Tennessee National Bank2 Totals for September 2013 1 includes accrued interest 2 calculated on 30/360 basis li t.f l�tr)Pid�di Chandler Asset Management $20,140,172' Total Market % of Book Value Market Value' YTM Portfolio 29,314,418 29,331,049 0.24% 51.47% 20,412,417 20,140,172 0.49% 35.34% 5,000,000 4,998,000 0.41% 8.77% 2,000,000 2,000,000 0.65% 3.51% 500,000 515,984 1.97% 0.91% 57,226,835 56,985,205 0.00 100.00% Issuer/Manager Page 3 Staff Report: Investment Report for the quarter ended September 30, 2013. December 17, 2013 INVESTMENT PERFORMANCE BY ISSUER/MANAGER For the Quarter Ended September 30, 2013 Total Market Value' 6/30/13 9/30/13 Local Agency Investment Fund Chandler Asset Management County of San Diego Neighborhood National Bank (CDARS CD) First Tennessee National Bank Totals for September 2013 ' includes accrued interest 2 withdrew $2,094,000 on 8/29/2013 $ 31,408,418 $ 29,331,049 $ 20,073,957 20,140,172 4,968,000 4,998,000 2,000,000 2,000,000 519,354 515,984 .$ Change (2,077,369) 2 66,215 30,000 3,279 (3,370) 58,969,729 $ 56,985,205 $ (1,981,245) Yield (Net) 0.29% 1.32% 2.42% 0.65% 0.31% COMPLIANCE STATEMENT All of the City's investments are in compliance with the City's investment policy (City Council Policy No. 203) and the California Government Code (§ 53601 et seq). FINANCIAL STATEMENT Realized and unrealized gains/(losses), reflected below, for the period were $120,519. These changes include changes in security market values, gain/(loss) from the sale of assets, accrued interest, and reinvested interest/earnings. Issuer/Manager Gain/(Loss) Chandler Asset Management 66,215 County of San Diego 30,0001 First Tennessee Bank 1 1,194 LAIF 19,831 Neighborhood National Bank 1 3,2791 Totals for September 2013 $ 120,519 1 interest paid to the City is not reinvested Staff certifies that there are sufficient funds to meet the pool's expenditure requirements. RECOMMENDATIONS Accept and file the Investment Report for the quarter ended September 30, 2013. Monthly Account Statement City of National City September 1, 2013 through September 30, 2013 Chandler Team For questions about your account, please call (800) 317-4747 or Email operationsatchandierasset.com Custodian Bank of New York Melton Trust Company Kitty Kwong +1(213)630-6279 Information contained herein is confidential. We urge you to compare this statement to the one you receive from your qualified custodian. Prices are provided by IDC, an independent pricing source. 4 City of National City Account#10162 Average Duration Average Coupon Average Purchase YTM Average Market YTM Average S&P/Moody Rating Average Final Maturity Average Life 1.75 1.94 % 0.55 % 0.45 % AA+/Aae 1.85 yre 1.79 yrs SECTOR ALLOCATION PER FORMANCE PEVIPA/ Inc to Portfolio Summary As of 9/30r2013 ACCouN1' SUM1h1ARv 19,978,365 20,049,145 106,814. 91,027 20,085,179 32,921 19,844,935 20,391,939 20,391,939 MATURITY OISTRISL. ION 20,140,172 32,176 -1,005 19,697,421 20,412,417 20,412,417 0.28 % 0.34 % 0.14 % 0.25 % N/A 0.22 % 0.29 % 0.29 % 0.37 % N/A TOP ISSUERS Issuer Government of United States Federal National Mortgage Assoc Federal Home Loan Mortgage Corp Federal Home Loan Bank Federal Fann Credit Bank Federated Govt Obligation Money N/A N/A 0.49 % % Portfolio 22.2% 22.0 % 20.4% 19.4 % 15.9 % 0.1 % 100.0 % Chandler Myer Mang m.nt. CONFIDENTIAL Page Exaaalon T4n:10f242013 1;0g:3g PM City of National City Account 1110162 Holdings Report As of 9/30/13 Ct SIP AtiEN�Y 1 r,,rch�sr 1.1 Hoak 'ewht ns{ vnirr. Eesk L'ilua riw. if r,r{ii _ct v,a:ir „r P in _, ar nlLa55 "d o.•U, t.9'alurdy :a Ar' Clu 0.1 3133XSAE8 FHLB Note 3.625% Due 1011812013 3134A4UK8 FHLMC Note 4.875% Due 11/1512013 31331RP90 FFCB Note 5 45% Due 12/11/2013 31398AV22 FNMA Note 2.75% Due 3/132014 560,000.00 460,000.00 02/21/`2012 0.34 % 02/242012 0.34 % 590,312.81 590,312.81 100.17 029 % 495,871.16 100.59 495,671,16 0.13 % 580,931.84 2.83 % 9,191.39 (29,380.97) Aaa 0.05 AA+ 0.05 462,729.18 2.34 % Aaa 0.13 8,471.87 (32,941.98) AA+ 0.12 545,000.00 02/28/2012 593,701.20 101.04 550,888.17 2.78 % Aae 020 0.42 % 593,701.20 0,15 % 9,075.78 (43,013.03) AA+ 020 470,000.00 02124/2012 0.36 % 492,683.81 101.20 475,133824 2.38 % Aaa 0.45 492,683.81 0.10 % 546.25 (17,047.37) AA+ 0,45 3137EAC83 FHLMC Note 2.5% Due 423/2014 3133X7FK5 FHLB Note 5.25% Due 6/18/2014 3137EACD9 FHLMC Note 3% Due 7/28/2014 31398AZV7 FNMA Note 2.625% Due 11/20/2014 313381H24 FHLB Note 025%Due 1/1612015 3137EACHO FHLMC Note 2.875% Due 2/9/2015 31331KLE8 FFCB Note 1.6% Due 5/18/2015 476,000.00 02721/2012 0.42 % 498,260,53 496,260.53 101.36 481,48143 2.42 % Aaa 0,56 0.09 % 5,211.81 (14,799.10) AA+ D.56 530,000.00 02121/2012 589,291.10 103.65 549,333.34 2.77 % Aae 0.72 0.40 % 589,291.10 0.16 % 7,961.04 (39,957.76) AA+ 0.70 470,000.00 02/24/2012 498,1159.88 10231 480,846.19 2.40 % Aaa 0.82 0.45 % 498,859.88 0.21 % 2,487.50 (18,013.69) AA+ 0.82 470,000.00 02/212012 496,61422 102.80 483,181.15 2.42 % Aaa 1.14 0.54 % 496,814.22 0.16 % 4,489.48 (13,433.07) AA+ 1.12 825,000.00 06/21/2013 624,343.75 100.04 625,288.13 3.11 % Aaa 1.30 0.32 % 024,343.75 0.22 % 325.52 924.38 AA+ 129 560,000.00 02/24/2012 598,380.16 103.55 579,884.48 2.89 % Aae 1.36 0.53 % 598,380.18 0.25 % 2,325.56 (18,495.68) AA+ 1.34 540,000.00 05/18/2013 0.28 % 554,277.60 554,277.60 102.09 551,288.70 2.75 % Aaa 1.83 0.32 % 3,192.00 (2,988.90) AA+ 1.81 31398AU34 FNMA Note 2.375% Due 7/28/2015 3133EADW5 FFCB Nate 0.55% Due 8/172015 3137EACM9 FHLMC Note 1.75% Due 9/102015 470,000,00 02/24/2012 497,406.17 103.85 457,174.74 2.43 % Aaa 1.82 0.65 % 497,408.17 0.37 % 1,953.44 (10,231.43) AA+ 1.79 425,000.00 04/192012 424,280.50 100.12 425,489.18 2.11 % Aaa 1.88 0.60 % 424,260.50 0A9 % 285.69 1,228.68 AA+ 1.87 535.000.00 02242012 0.67 % 555,169.50 555,189.50 102.64 549,105.49 2.73 % Ma 1.95 0.39 % 548.15 (6,061.01) AA+ 1.92 313370J85 FHLB Note 1.75% Due 9/112015 565,000.00 01/11/2013 0.38 % 555,407.80 585,407.80 102.55 579,380.94 2.88 % Aae 1.95 0.44 % 549.31 (6,026.86) AA+ 1.92 31398A41,11 FNMA Note 1.625% Due 10282015 525,000.00 05/082013 541,779.00 102.45 537,839.40 2.60 % Asa 2.07 0.32 % 541,779.00 0.44 % 3,873.18 :3,939.60) AA+ 2.03 31331.251 FFCB Note 375,000.00 02/27/2012 386,490.75 102.30 383,812.83 1.92 % Aaa 2.13 1.5% Due 11/162015 0.58 % 386,490.75 0.41 % 2,109.38 (2,878.12) AA+ 2.09 313371NW2 FMB Note 1.375% Due 12/1172015 3135G0880 FNMA Note 0.375% Due 12212015 3133ECFVI FFCB Note 0A3% Due 1292016 800,000.00 11/16/2012 517,925.00 10194 611,820.20 3.05 % Aaa 2.20 0.39 % 617,928.00 0.49 % 2,520.83 (6,307.80) AA+ 2.16 490,000.00 11/28/2012 488,658.30 99.74 488,703.95 2.43 % Ma 2.22 0.45 % 488,858.30 0.49 % 510.42 (154.35) AA+ 2.21 516,000.00 022612013 514,902.15 99.79 513,903.05 2.55 % Asa 233 0.44 % 514,902.15 0.52 % 381.39 (999.10) AA+ 2.31 Chandler Asset Menapearerrl-CONFIDeITIAL Pape 3 Execution Tire:1072/20131;09:39 PM CAi City of National City Account #10162 Holdings Report As of 9/30/13 C.Ll31P Security Cse4 11IM1 r 1 4 t:1,;l ?la Cw. 'Ft, M1: f.! r. 7ktT'61.. _-.. M ilrkrt union !\c cr,o-rd tin t51 Dart Pal ar,rly '-i, r-C1 CY, S':P Lit;rit�,n 3133EAIU3 FFCB Note 1.05% Due 3/28/2018 3136G0BA0 FNMA Note 2.375% Due 4/11/2016 3137EACT4 FHLMC Note 2.5% Due 5/27/2018 3137EACW7 FHLMC Note 2% Due 8/25/2016 31331V3Z7 FFCB Note 5.2% Due 9/152016 313371PV2 FHLB Note 1.825% Due 12/9/2016 3135G0GY3 FNMA Note 125% Due 1/302017 3135000Y7 FNMA Callable Note 1X 227/15 1% Due 2272017 3137EADC0 FHLMC Note 1% Due 3/82017 3135G0M23 FNMA Note 0.875% Due 8282017 313378A43 FHLB Note 1.375% Due 3/9/2018 Total Agency NCNEY MAtewruND 340,000.00 375,000.00 375,000.00 03/11/2013 0.48 % 2.49 2.48 02724/2012 397,993.13 104.37 391,383.00 1.98 % Aaa 2.53 0.86 % 397,993.13 0.63 % 4,206.73 (8,810.13) AA+ 244 03120/20/2 395,804,83 104.80 393,001.13 1.97 % Aae 2.65 1.14 % 395,804.63 0.87 % 3,229,17 (2,803.50) AA+ 2.55 575,000.00 01/09/2013 804,782.00 103.82 0.58 % 604,762,00 15,265,000.00 346,079.20 101.27 348,079.20 0.54 % 344,310.52 1.71 % Aae 29.75 (1,768.88) AA+ 595,802.35 296 % Ma 2.90 0.74% 1,150.00 (8,959.65) AA+ 2.82 365,000.00 06/22/2012 430,13425 112.88 411,277.29 205 % Aaa 2,96 0.88 % 430,134.25 0.85 % 843.56 (18,856.99) AA+ 2.78 480,000.00 02/29/2012 494,668.80 102.03 489,752,84 2.44 % Aae 3.19 0.97 % 494,688.80 0.98 % 2,428.67 (4,918.18) AA+ 3.09 400,000.00 09/17/2012 409,328.00 101.12 404,485.20 2.01 % Asa 3.34 0.71 % 409,328,00 0.91 % 847,22 (4,842.80) AA+ 325 800.000,00 04/26/2013 605,768.00 100.01 600,045.60 2.98 % Aaa 3.41 0.74 % 805,788.00 0.99 % 566.67 (5,720.40) AA+ 1.39 535,000,00 08/202012 538,388,55 100.31 538,880.84 2.67 % Aaa 3.44 0.86 % 538,388.55 0.91 % 341.81 (1,725.91) AA+ 3.37 545,000.00 08/16/2013 636,429.80 99.01 539,594.15 2.68 % Asa 3.91 1.32 % 535,429.80 1.13 % 437,14 4,184.35 AA+ 3.83 470,000.00 09/17/2013 464,472.80 99.74 488,760.61 2.33 % Aaa 4.44 1.65 % 484,472.80 1.44 % 394.93 4,287.81 AA+ 4.29 15,865,423.35 15,883,184.53 77.62 % Aae 1.98 0.60 % 15,885,423.35 0.51 % 00,300.42 (312,288.82) AA+ 1.86 80934N807 Federated Govt Obit Fund Inst Total Money Market Fund FI US TREASURY' 27,421.18 Various 27,421.16 1.00 0.01 % 27,421.18 0.01 % 27,421.16 0.01 % 27,421.16 27,421.16 0.01 % 27,421.18 0.00 27,421.16 0.00 0,14 % Aee 0.00 AAA 0.14 % 0.09 Aea AM 0.00 0.00 0.00 0.00 912828FB0 US Treasury Note 0.5% Due 10/15/2013 912828PU8 US Treasury Note 0.5% Due 11/15/2013 912828PZ7 US Treasury Note 1.25% Due 3/152014 912828LK4 US Treasury Note 2.375% Due 8/312014 500,000.00 01/3012013 501,271.21 Aaa 490,000.00 0.14 % M+ 02/21/2012 0.30 % 501,271.21 491,705.16 491,705.16 100.02 0.12% 100.05 0.08 % 500,078.00 1,164.37 249 % (1,193,21) 490,288.03 2.44 % Aae 925A1 (1,437.13) AA+ 0.04 0.04 0.13 0.12 500,000.00 02/21/2012 509,493.86 100.54 502,715.00 2.60 % Aaa 0.45 0.32 % 509,493.88 0.07 % 276.24 (6,778.86) AA+ 0.48 470,000.00 0224/2012 493,244.54 102.06 479,675A2 2.39 % Aea 0.92 0.39 % 493,244.54 0.13 % 955.90 (13,589.12) AA+ 0.91 Chandler Asset Menegement-CONFIDENTIAL Page 4 Execution 7ine:10/2/2013 1.09:39 PM TOTAL MARKET VALUE PLUS ACCRUED City of National City Account #10182 Holdings Report As of 9/30/13 C11SIP UI TREAa iGr 3:5+,- 117515, V eTC flna4 77,5 r,4ar2e1 V:1110, 4crruNt 4,7E Par; 1louuy l r, fd 912828MZ0 US Treasury Note 2.5% Due 4/30/2015 420,000.00 02/24/2012 444,612.34 0.48 % 446,812.34 103.56 0.25 % 434,946.12 912828TK6 US Treasury Note 0.25% Due 8/15/2015 912828PE4 US Treasury Note 1.25% Due 10/31/2015 912828QA1 US Treasury Note 2.25% Due 3/31/2016 912828RF9 US Treasury Note 1% Due 8/31/2016 Total US Treasury Aaa 1.58 4.394.02 (11,686.22) AA+ 1.55 2.18 % 520,000.00 04/29/2013 520,022.05 99.90 519,471.68 2.58 % Ma 1.87 0.25 % 520,022.04 0.30 % 186.03 (550.37) AA+ 1.87 435,000.00 02/24/2012 445,434.88 101.85 443,054.46 2.21 % Aaa 2.08 0.59 % 446,434.88 0.30 % 2,275.48 (2,380.24) AA+ 2.05 500,000.00 12/14/2012 530,431.36 104.48 522.304.50 2.59 % Ma 2.50 0.38 % 530,431.36 0.45 % 30.91 (8,126.88) AA+ 2.44 570,000.00 10/12/2012 581,357.36 0.48 % 581,357.38 4,519,573.54 4,405,000.00 0.37 % 4,519,57250 101.08 576,058.25 2.86 % Me 2.92 0.83 % 488.12 (5,301.13) AA+ 2.87 4,468,560.40 22.24 % Aaa 1.42 0.27 % 10,006.45 (51,003.10) AA+ 1.39 20,412,417.97 20,049,145.15 100.00 % Asa 1.85 TOTAL PORTFOLIO 19,097,421.16 0.55 % 20,412,417.07 0.4S % 91,028.90 (303,271.92) AA+ 1.75 20,140,172.00 Cost/Book Value as of 09/30/13 Cost/Book Value as of 06/30/13 $20,140,172 $20,073,957 Net earnings for 1st quarter ending September 30, 2013 $ 66,215 Chandler Peet Mrla0emr11- CONROPM1AL Pep* 5 Execution Thnx 10/22013 100:99 PM County of San Diego Treasurer Investment Report MONTH ENDING September 30, 2013 Participant Cash Balances San Diego Pooled Money Fund as of September 30, 2013 0000) FEW POW FMV %af PIWAY PMV PNV %aPARTICIPANT071a1113 o51Y1ne OMMOMM Ts1N PARTICIPANT 07I31M3 001i1na OO130y13 Total COUNTY 0 006,863 $ 006,308 $ O53,761 10.26% MLlopJJI.stenon Oyster/. 4606 3,605 3,$60 CCJNTY-SPECIAL TRUST FUNDS 1,530.232 1,211.17E 1.133,131 17.53% MW.slloPin..CSD 0 0 0 NDN.000NTYTRV5TIAOfT FINDS 266,44e 250,514 230,112 3.08% Mlmmn Rescues Corperre0an Dlsdod 410 41e saioa.s-(J(1 IN3,001,793 2.017.791 2,076,900 44.00% Math 017 County Carrr.luy District 1,424 7,003 1,047 COMMUNITY COLLAGES North County Cornet* Paryotusl 1.410 1,188 1,103 Out p.po North CONEY Cry 1,405 1,404 1,425 alm s.ont 664,235 020,7E1 511.629 7.02% North County Olspstah 1,067 2,306 2,549 Mira Car 48,370 116,307 117,047 1.61% Nolte County Piro2,206 2,282 2,322 Pd.mur 25.000 Cloy W 24,167 17,257 0.27% Cl.terVlstri t full. Imer,I 20,102 1e,103 18,120 Southwestern MIND 144,410 137,472 2.13% Palomar R..ouar Comsnsgon Dletriot 0 a 0 160,743 104,650 155,239 2.05% Pins Volley FPD 393 a0+ 306 Total Community Co0sges 111.335 07L11113 040,001 14.119% Ponsrada Cum Perpetual 12 12 11 SSAS 4,a9a 4112 Pinu.d. Dansluy District 1,531 1.512 1,452 MV AL 72,097 72,6IO 06,026 Rumens C.m.bry Perpetual Ptanione Gemology DINGS e349 345 ma 701 700 701 345 e43 aA1O Rancho S.rks Fe FPD 11,041 10,298 R403 100,031 108,056 106,171 San Clo0a Housing Commission 2,379 2,176 o CITIES San Diego Rural Pins 5 0 0 Chula Vida »tea RN" 0 -106 7 30,082 31,006 39,049 Son Marcos FPD 1 1 1 Del Mar 3,012 3,000 0 $,110 Encinitas 2 2 012 Osrt Valdrl $snllatlon O,03,a0e Ns0and City 13 1s 1318 4,055 4902 4sPo h1 30 Ss10. 1ptlsm Doplot 4,9112 4,OO5 4.55292 SOD Rp1aud Airport Authority 264300 250,009 281,200 So County OPS ceder 0 0 0 Spring Vdlsy/C.e. de Oa 0 0 0 Upper San I.*ds Toy Resonolr 13 13 13 Vderdks taster District 5,051 6,046 eon Valley Center FPD 3,/55 3,961 2,070 VsIsy Oar csm.t«y ea se ea Vsosy CO Calm Perpslai 225 220 22e Vele, Ctr Water Death 13,061 13.e01 144512 Meta FPD 2,095 2,003 2,005 505,203 906r423 5e3,602 0.0s% INDEPENDENT PAINNCIeS Alpine FPD ac1N. Suny.1de FPD Ronsao apdng. FPD Deer !Imbue FPD Fallbroolt Pubic UV Public Agency Self Neuman System .bdian•Guyemeo. FPD lairs ease n.o. Rao i Pack lakeside Fin Leveedte Water Medd Low Sweetwaaw FPD 1,11O 4,169 LIMO OA67 14 446 205 350 6.149 11.214 416 020 4,130 1,345 5,555 14 445 207 315 7,193 11,291 eras 743 5,910 1,166 GSM 14 448 206 310 6,510 11,203 341 To*I independent Agents** PeW.d Money Ford Total 09.944,814 1146 9,413 $6,4065436 100.0014 COU'r,s; r or SAt4 DIEGO rWir.',z1RER . T X rcUEcror, City of National City Portfolio Management Portfolio Summary September 30, 2013 city of Naomi c*y investments Pr Merkel Book %of Csyeks YTMIC YTaOC Value Value Wee Pagano Term Velorly 7a0 Equiv. jai F.qut& I.AF 28314,418.28 29,331,04811 20,314,418.28 92.14 1 1 0.241 0244 Fodan gAgency SUDRMee 800.000,03 514,70010 900,000.00 1.57 1.28 888 1.073 2103 CDAR8 2,000,000.00 2.000 000.00 2.000.000.00 e.20 334 117 0.641 0193 31.314.41E25 Investments 31.345,63091 31,114,41 a.25 160.00% Total Earnings Current Yea Average D68y Balance Melee Rude of Ruling September 30 Month Ending Reporting pKbd 0100121113-01031113013 0,085.56 31.014,41085 Mr Oulu 1Uoem13- 1ea1`cad beer leeeeey e.erhle 53 22 0s83 0.207 Pa lk& CNC cc w imminag ey,slepee limpolVm 110 CITY OF NATIONAL CITY, CALIFORNIA VBED COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 .TEM TITLE: AGENDA ITEM NO. haw Resolution of the City Council of the City of National City authorizing the Mayor to execute a Site Infrastructure Agreement between the City of National City and Paradise Creek Housing Partners, L.P., a California limited partnership, for payment that shall not exceed $4,000,000 to the City for site infrastructure costs incurred on the Westside Transit -Oriented Affordable Housing and Paradise Creek Enhancement Project. PREPARED BY: Carlos Aguirre PHONE: 619-336-4391 EXPLANATION: Housing, Grants, & Asset DEPARTMENT: Management APPROVED Paradise Creek Housing Partners, L.P., a California limited partnership ("Developer") and the Community Development Commission of the City of National City ("CDC") entered into a Disposition and Development Agreement titled Transit Oriented Infill Affordable Housing and Paradise Creek Enhancement Project and dated June 21, 2011 ("DDA"). Phase I of the development consists of 109 units and the development of a community park. The City has paid or will pay substantial amounts for preparation of the Phase I, which the Developer has agreed to reimburse to the City. The Site Infrastructure Agreement ("Agreement") shall be obligated to pay to the City up to Four Million and No/100 Dollars ($4,000,000.00) ("Maximum Site Infrastructure Reimbursement"), on the terms and conditions set forth in the attached Agreement. Within ten (10) business days of receiving a demand from the City, the Developer shall reimburse the City for the fees, costs and expenses incurred by the City with respect to preparation of the Site, including without limitation, costs incurred with respect to relocation of persons and improvements located at the Site; provided, however that the aggregate amount of such reimbursements shall not exceed the Maximum Site Infrastructure Reimbursement. 111 FINANCIAL STATEMENT: APPROVED: 4C- Finance ACCOUNT NO. APPROVED: MIS Staff will return with a request to establish appropriations in the appropriate Project accounts. ENVIRONMENTAL REVIEW: n/a ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: n/a ATTACHMENTS: 116 1. .Site Infrastructure Agreement Attachment No. 1 SITE INFRASTRUCTURE AGREEMENT THIS SITE INFRASTRUCTURE AGREEMENT ("Agreement") is dated as of the 17th day of December, 2013, by and between the City of National City ("City"), Paradise Creek Housing Partners, L.P., a California limited partnership ("Developer"). RECITALS A. The Developer and the Community Development Commission of the City of National City ("CDC") entered into that certain Disposition and Development Agreement [Transit Oriented Infill Affordable Housing and Paradise Creek Enhancement Project] dated June 21, 2011 ("DDA"). The Developer will construct, ground lease and operate "Phase I" on a portion of the "Site," as both terms are defined in the DDA. The Developer has or will assign its rights and obligations with respect to Phase II, as defined in the DDA, to a limited partnership. B. The City has paid or will pay substantial amounts for preparation of the Phase I Site, which the Developer has agreed to reimburse to the City, which reimbursements shall be referred to herein as the "Site Infrastructure Reimbursements." NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Developer hereby agree as follows: 1. Site Infrastructure. (a) Maximum Amount. In consideration of the mutual covenants set forth in this Agreement, the Developer shall be obligated to pay to the City up to Four Million and No/100 Dollars ($4,000,000.00) ("Maximum Site Infrastructure Reimbursement"), on the terms and conditions set forth herein. (b) Payment Amount and Timing. Within ten (10) business days of receiving a demand from the City, the Developer shall reimburse the City for the fees, costs and expenses incurred by the City with respect to preparation of the Site, including without limitation, costs incurred with respect to relocation of persons and improvements located at the Site; provided, however that the aggregate amount of such reimbursements shall not exceed the Maximum Site Infrastructure Reimbursement. The first installment of the Site Infrastructure Reimbursements shall be One Million and No/100 Dollars ($1,000,000.00), which amount shall be due and payable to the City on or before January 6, 2014. The City acknowledges that the Developer will be paying the Site Infrastructure Reimbursements utilizing funds from third -party sources that may not have been fully -funded at the time the City and Developer are entering into this Agreement. Therefore, notwithstanding anything to the contrary set forth in this Agreement, in the event that the City makes a demand for payment under this Section 1(b) and the Developer has not received funds sufficient to pay the amount demanded, the parties shall meet and confer in order to agree on an amount and a time for payment; and until they reach such an agreement no amounts shall be due hereunder. 1 Attachment No. 1 2. No Representations or Warranties by the City. Except as set forth in the DDA, the City is not making any representations or warranties whatsoever to the Developer with respect to the condition of the Site, any work done on the Site, or the adequacy or completeness of any Site preparation work. In furtherance and not in limitation of the foregoing sentence, except as set forth in the DDA, the City HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARAC TER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE OF HAZARDOUS MATERIALS OR MOLD UPON THE SITE OR ANY PORTION THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE SITE OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE SITE OR ANY PORTION THEREOF, OR ANY RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE SITE OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) — 12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE SITE; (9) THE SQUARE FOOTAGE OF THE SITE OR THE IMPROVEMENTS THEREON; (10) IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER OR WA1ER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE SITE; (14) THE ABILITY OF DEVELOPER TO REZONE THE SITE OR CHANGE THE USE OF THE SITE; (15) THE ABILITY OF DEVELOPER TO ACQUIRE ADJACENT PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE SITE WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE IMPROVEMENTS ON THE SITE; (20) THE CHARACI'F,R OF THE NEIGHBORHOOD IN WHICH THE SITE IS SITUATED; (21) THE CONDITION OR USE OF THE SITE OR COMPLIANCE OF THE SITE WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING 2 Attachment No. 1 ORDINANCES, CODES OR OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE SITE OR FITNESS OF THE SITE FOR ANY PARTICULAR PURPOSE (THE DEVELOPER AFFIRMS THAT IT HAS NOt RELIED ON THE CITY'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE SITE FOR ANY PARTICULAR PURPOSE, AND THAT THE CITY MAKES NO WARRANTY THAT THE SITE IS FIT FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER CONCERNING THE SITE. THE DEVELOPER SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE SITE AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF SUCH EXAMINATIONS. THE DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE SITE WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE CITY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE CITY SHALL NOT BE LIABLE FOR ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE SITE NOR SHALL THE CITY BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING TO THE SITE OR THE OPERATION THEREOF, FURNISHED BY THE CITY, OR ANY AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON THE CITY'S BEHALF. IT IS ACKNOWLEDGED AND AGREED THAT THE DEVELOPER IS ACQUIRING THE SITE SUBJECT TO THE FOREGOING. THE DEVELOPER WILL GROUND LEASE THE SITE IN ITS "AS -IS" CONDITION AND HEREBY ACKNOWLEDGES AND AGREES THAT THE DEVELOPER IS FULLY AWARE OF THE AGE OF THE SITE, THAT OVER TIME VARIOUS EVENTS MAY HAVE OCCURRED ON THE SITE WHICH EVENTS MAY BE TYPICAL AND(OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF SIMILAR AGE TO THE SITE AND SIMILARLY LOCATED IN THE CITY OF NATIONAL CITY AND/OR THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE, SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS, PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL AGENCIES WITH JURISDICTION OVER THE SITE. THE ACQUISITION OF ALL OR ANY PORTION OF THE SITE BY THE DEVELOPER [BY GROUND LEASE OR OTHERWISE] SHALL BE CONCLUSIVE EVIDENCE THAT: (A) THE DEVELOPER HAS FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND COMPLETELY INSPECTED) THE SITE; AND (B) THE DEVELOPER ACCEPTS THE SITE AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE FOR THEIR PURPOSES. • Attachment No. 1 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE DEVELOPER SHALL PERFORM AND RELY SOLELY UPON THE DEVELOPER'S OWN INVESTIGATIONS CONCERNING ITS INTENDED USE OF THE SITE, AND THE SITE'S FITNESS THEREFOR. THE DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT THE CITY'S COOPERATION WHETHER BY PROVIDING DOCUMENTS RELATING TO THE SITE OR PERMITTING INSPECTION OF THE SITE, SHALL NOT BE CONSTRUED AS ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SITE, OR WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO THE DEVELOPER IN RELATION TO THE SITE. DEVELOPER'S INITIALS 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) 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. (c) 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. (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, heirs and permitted assigns. (e) 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. (f) 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. (g) Partial Invalidity. 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. 4 • • • Attachment No. 1 • • (h) 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. (i) Independent Counsel. Each of the parties hereto acknowledges that: (i) they have been given the opportunity to be represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel, if such counsel was retained; and (ii) this Agreement is the result of negotiations between the parties hereto and the advice and assistance of their respective counsel, if such counsel was retained. The fact that this Agreement was prepared or negotiated by any party's counsel as a matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this Agreement shall not be construed against either party due to the fact that such party's counsel prepared or negotiated this Agreement in its final form. (j) 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above. City; City of National City By: Ron Morrison, Mayor Approved as to Form: By: Claudia Gacitua Silva, City Attorney [SIGNATURES CONTINUED ON FOLLOWING PAGE] Attachment No. 1 DEVELOPER: 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 By: yL.A 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 By: Anne Wilson, Senior Vice President 6 • o • Attachment No. 1 • s • DEVELOPER: Paradise Creek Housing Partners, L.P., a California limited partnership By: kelated/Paradise Creek Development Co., LLC, a California limited liability company Its• Administrative General Partner By: 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 By: 1� '�,� 1,-) �. Ann Wils6n, Senior Vice President 6 ADD -ON • RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A SITE INFRASTRUCTURE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND PARADISE CREEK HOUSING PARTNERS, L.P., A CALIFORNIA LIMITED PARTNERSHIP, FOR PAYMENT THAT SHALL NOT EXCEED $4,000,000 TO THE CITY FOR SITE INFRASTRUCTURE COSTS INCURRED ON THE WESTSIDE TRANSIT -ORIENTED AFFORDABLE HOUSING AND PARADISE CREEK ENHANCEMENT PROJECT WHEREAS, Paradise Creek Housing Partners, L.P., a California limited partnership, ("Developer") and the Community Development Commission of the City of National City ("CDC") entered into a Disposition and Development Agreement [Transit Oriented Infill Affordable Housing and Paradise Creek Enhancement Project] dated June 21, 2011 ("DDA"); and WHEREAS, the Developer will construct, ground lease, and operate "Phase I" on a portion of the "Site," as both terms are defined in the DDA. The Developer has or will assign its rights and obligations with respect to Phase II, as defined in the DDA, to a limited partnership; and WHEREAS, in consideration of the mutual covenants set forth in this Agreement, the Developer shall be obligated to pay to the City up to Four Million Dollars ($4,000,000.00) ("Maximum Site Infrastructure Reimbursement"), on the terms and conditions set forth in the Site Infrastructure Agreement ("Agreement"); and WHEREAS, within ten (10) business days of receiving a demand from the City, the Developer shall reimburse the City for the fees, costs, and expenses incurred by the City with respect to preparation of the Site, including without limitation, costs incurred with respect to relocation of persons and improvements located at the Site, provided however, that the aggregate amount of such reimbursements shall not exceed the Maximum Site Infrastructure Reimbursement; and WHEREAS, The first installment of the Site Infrastructure Reimbursements shall be One Million Dollars ($1,000,000.00), which amount shall be due and payable to the City on or before January 6, 2014; and WHEREAS, the City acknowledges that the Developer will be paying the Site Infrastructure Reimbursements utilizing funds from third -party sources that may not have been fully -funded at the time the City and Developer are entering into this Agreement, therefore, notwithstanding anything to the contrary set forth in this Agreement, in the event that the City makes a demand for payment under this Section 1(b) of the Agreement, and the Developer has not received funds sufficient to pay the amount demanded, the parties shall meet and confer in order to agree on an amount and a time for payment, and until they reach such an agreement no amounts shall be due hereunder. NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor to execute a Site Infrastructure Agreement between the City of National City and Paradise Creek Housing Partners, L.P., a California limited partnership, for payment to the City that shall not exceed $4,000,000 for site infrastructure costs incurred on the Westside Transit -Oriented Affordable Housing and Paradise Creek Enhancement Project. [Signature Page to Follow] Resolution No. 2013 — Page Two PASSED and ADOPTED this 17th day of December, 2013. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney ADD -ON 0 Ron Morrison, Mayor • CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 13 ITEM TITLE: Temporary Use Permit — "Christmas with Kids" hosted by Christmas with Kids National City at 223 E. 3rd Street on December 25, 2013 from 6 a.m. to 12 p.m. The applicant has requested a waiver of fees. PREPARED BY: 1Vianey Rivera PHONE: 1(619) 336-4364 EXPLANATION: DEPARTMENT: Nel•,'•Orh•.- Services Division APPROVED BY: This is a request from the Christmas with Kids National City organization to conduct the "Christmas with Kids" event at 223 E. 3rd Street on December 25, 2013 from 6 a.m. to 12 p.m. This event has been taking place at the King's Residence for 40 years here in National City. Since the passing of Mr. King, other community groups have taken up this charity that provides bicycles to underprivileged children. This event starts early Christmas morning and television networks will be there broadcasting throughout the morning of this event. Street closures are being requested on E 3rd Street between 'B' Avenue and 'D' Avenue. Note: In 2012 and 2011, City Council did waive Public Work fees associated with this event and not the T.U.P processing fee. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. APPROVED: MIS The City has incurred $237.00.00 for processing the TUP through various City departments, plus $337.70 for Public Works. Total fees are $574.70 pNVIRONMENTAL REVIEW: N/A1 ORDINANCE: INTRODUCTION: i FINAL ADOPTION: STAFF RECOMMENDATION: Approve the Application for a Temporary Use Permit subject to compliance with all conditions of approval with no waiver of fees. BOARD / COMMISSION RECOMMENDATION: IN/A ATTACHMENTS: Application for a Temporary Use Permit with recommended approvals and conditions of approval. CITY OF NATIONAL CITY NEIGHBORHOOD SERVICES DIVISION APPLICATION FOR A TEMPORARY USE PERMIT RECOMMENDATIONS AND CONDITIONS SPONSORING ORGANIZATION: Christmas with the Kids National City EVENT: CHRISTMAS WITH THE KIDS DATE OF EVENT: December 25, 2013 TIME OF EVENT: 6AM TO 12PM APPROVALS' DEVELOPMENT SERVICES YES [ x ] NO [ ] SEE CONDITIONS [ x ] RISK MANAGER YES [ x ] NO [ ] SEE CONDITIONS [ x ] PUBLIC WORKS YES [ x ] NO [ ] SEE CONDITIONS [ x ] FINANCE YES [ x ] NO [ ] SEE CONDITIONS [ x ] FIRE YES [ x ] NO [ ] SEE CONDITIONS [ x ] COMMUNITY SERVICES YES [ x ] NO [ ] SEE CONDITIONS [ x ] POLICE YES [ x ] NO [ ] SEE CONDITIONS [ x ] CITY ATTORNEY YES [ x ] NO [ ] SEE CONDITIONS [ x ] CONDITIONS OF APPROVAL: DEVELOPMENT SERVICES (619) 336-4318 BUILDING: No comments. PLANNING: No comments. ENGINEERING: No comments. RISK MANAGER (619) 336-4370 Besides the required insurance certificate and endorsement, all looks ok. PUBLIC WORKS (619)366-4580 Street Division • Staff will close affected street and remove barricades when event over. • Staff will post "no parking" signs along affected streets before the event. • The cost to provide street personnel for the event is estimated to be: 1. Man Hours (Regular) 2 hours x $32.57 $ 65.14 2. Man Hours (OT) 4 hours x $48.85 195.40 3. Equipment/Truck 4 hours x $16.34 65.36 4. "No Parking" Signs 20 x $0.45 each 9.00 5. Barricades 8 x $0.35 each 2.80 6. Total $ 337.70 Facilities Division No involvement in this event. Parks Division No involvement in this event. FINANCE No Stipulations FIRE (619) 336-4550 Stipulations required by the Fire Department for this event are as follows: 1) The Fire Department has no comments or cost for this event If you have any questions please feel free to contact me. COMMUNITY SERVICES No involvement. POLICE During their unobligated time, we can have our on -duty officers extra patrol during this time period. The PD has no other stipulations, just as long as Public Works puts out the requested barricades for the street closure and then later picks them up. CITY ATTORNEY Requires an indemnification and hold harmless agreement, and a policy of general liability insurance, with the City and its officials, employees, agents and volunteers as additional insureds, with amounts of coverage to be determined by the Risk Manager Type of Event: _ Public Concert — Fair _ Festival ' Communit'ent _ Parade _ Demonstration _ Circus _ Block Party — Motion Picture _ Grand Opening _ Other Event Title: c\-16a5 Llt\\-\1 \ & Event Location: 11-,3 ,5^► 3t' ilov6\ G Ch q r9 5 Event Date(s): From 11'25'2o3 to 11'2-5'205i3 Actual Event Hours: b air pm to 12— ama. Total Anticipated Attendance: ( Participants Spectators) Setup/assembly/construction Date:1.• -5- 2-6t3 Start time: ON; 00 Please descri e the cope of your setu /assembly work ( pecific details): Seep barrle4S. 5tk YYj1 '►cec- u►N A-oy. 10-c \-\c c.1es con, s ree Dismantle Date:1Z-Z5-ZAj Completion Time: 12. a List any street(s) requiring closure as a result of this event. Include street name(s), clay and time of closing and d •y and time of reop -ni g. ee.)A Peie. lueQ �1M \ 2: Z5.2.41 Sponsoring Organization:Gr165-r1aS u.91711\C\c\S oval CI Chief Officer of Organizat' n (Name) -6(\ tN \V - (Y Applicant (Name): v S$ l v `P.-N 5 c Address: V oT O �ef\c�1i� . Sao N:)163p C 9212i 1 Daytime Phone: col ' 10 Evening Phone: Z32' i616 Fax: U T� E-Mail: b 'MG 0585\i-vsa\\ . Gov`\ Contact Person "on site" day of the event:Rv c s oni, Cellular: e •23Z • \ble) NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT AND IMMEDIATELY AVAILABLE TO CITY OFFICIALS Is your organization a "Tax Exempt, nonprofit" organization?)<7 YES NO Are admission, entry, vendor or participant fees required? _ YES NO If YES, please explain the purpose and provide amount(s): $ N /A Estimated Gross Receipts including ticket, product and sponsorship sales from this event. $ I v )P\ Estimated Expenses for this event. What is the projected amount of revenue that the Nonprofit Organization will receive as a result of this event? Please provide a DETAILED DESCRIPTION of your event. Include details regarding any components of your event such as the use of vehicles, animals, rides or any other pertinent information about the event. ? c'f ran = > t ‘‘\els. ,1 V'c' 1 v' -c 14 o). 1101/4-1-'. \o-tc Ai` f 5\- \ &s v ‘Via t a V 1 e +�(�\c,v)C.Aet5 \\11\ act eL\v\e, c\f\Aa •-e exk5 72; r\es. C\-eaNn v C vA\ 5 C�\'( . (\\te- YES CIO If the event involves the sale of cars, will the cars come exclusively from National City car dealers? If NO, list any additional dealers involved in the sale: N AN _ YES yNO Does the event involve the sale or use of alcoholic beverages? YES XNO Will items or services be sold at the event? If yes, please describe: YES O Does the event involve a moving route of any kind along streets, sidewalks or highways? If YES, attach a detailed map of your proposed route indicate the direction of travel, and provide a written narrative to explain your route. _ YES O Does the event involve a fixed venue site? If YES, attach a detailed site map showing all streets impacted by the event. YES YES O Does the event involve the use of tents or canopies? If YES: Number of tent/canopies Sizes NOTE: A separate Fire Department permit is required for tents or canopies. 0 Will the event involve the use of the _QV or your stage or PA system? SPECIFY: In addition to the route map required above, please attach a diagram showing the overall layout and set-up locations for the following items: Alcoholic and Nonalcoholic Concession and/or Beer Garden areas. Food Concession and/qr Food Preparation areas Please describe how food will be served at the event: kJ! r If you intend to cook food in the event area please specify the method: GAS _ELECTRIC CHARCOAL _ OTHER (Specify): Portable and/or Permanent Toilet Facilities umber of portable toilets: _ (1 for every 250 people is required, unless the applicant can _show that there are facilities in the immediate area available to the public during the event) Tables # and Chairs # encing, barriers and/or barricades Generator locations and/or source of electricity ® Canopies or tent locations (include tent/canopy dimensions) Booths, exhibits, displays or enclosures Scaffolding, bleachers, platforms, stages, grandstands or related structures Vehicles and/or trailers Other related event components not covered above Trash containers and dumpsters (Note: You must properly dispose of waste and garbage throughout the term of your event and immediately upon conclusio of the event the area must be returned to a clean condition.) Number of trash cans: Trash containers with lids: 2.. Describe your plan for clean-up and rem vaq I of waste and garbage d rinu g and after the event: /bd ?eCSOY1 few 0 altitAN if0->V\ oY, 6\i-e 5idew 1k $ Please describe your procedures for both Crowd Con rol and Internal Security; M �� 5 'rt }re arr •-O c) \oge.A n \O Cec- o,r1 A-6 W'V\r") ly\C .\ AD c� `b\cib ct-Q( \v\ �,ssr eo9\6 G\N‘ • (%ek\ _ YES Have you hired any Professional Security organization to handle security arrangements for this event? If YES, please list: Security Organization: Security Organization Address: ti/A Security Director (Name): 1J1 tT Phone: _ YES XNO Is this a night event? If YES, please state how the event and surrounding area will be illuminated to ensure safety of the participants and spectators: Please indicate what arrangement you have made for providing First Aid Staffing and Equipment. \CS� -&\d V * OY\ 1 Please describe your Accessibility Plan for access at your event by individuals with disabilities: C\ ewc,.-\ks %%\1 be- ) 5 Please provide a detailed description of your PARKING plan: Please describe your plan for DISABLED PARKING: s �*e Please d scribe youk plan to notify all res ar busin es and c event: + r►\T� G(� Oh NOTE: eighb• orhoo s re i. ents mus a notitiell scheduled in the City parks. impacted b tIr r0vVS CWr v,1 41 Nam" 72hours in advance when eve s a e r City of National City PUBLIC PROPERTY USE HOLD HARMLESS AND INDEMNIFICATION AGREEMENT Persons requesting use of City property, facilities or personnel are required to provide a minimum of $1,000,000 combined single limit insurance for bodily injury and property damage which includes the City, its officials, agents and employees named as additional insured and to sign the Hold Harmless Agreement. Certificate of insurance must be attached to this permit. Organization ON:A5\-w\a5 lu cri�e✓'r tl v � C t - Person in Charge of Activity t 1 �Y S V `/‘\ Address 14) 2. 53 01 11V Wv42. v‘ 1e, o CR Telephone 61) M5 r 9 Date(s) of Use 1,0-'25 '2-03 HOLD HARMLESS AGREEMENT As a condition of the issuance of a temporary use permit to conduct its activities on public or private property, the undersigned hereby agree(s) to defend, indemnify and hold harmless the City of National City and the Parking Authority and its officers, employees and agents from and against any and all claims, demands, costs, losses, liability or, for any personal injury, death or property damage, or both, or any litigation and other liability, including attorneys fees and the costs of litigation, arising out of or related to the use of public property or the activity taken under the permit by the permittee or its agents, employees or contractors. ignature of Applicant Official Title Date -1-eeDsk3l£c-azegN*s 00.3 %\ /\`\ /2-C.1 For Office Use.Only Certificate of Insurance Approved Date _ YES'NO Are there any musical entertainment features related to your event? If YES, please state the number of stages, number of bands and type of music. Number of Stages: Number of Bands: Type of Music: _ YES,k, NO Will sound amplification be used? If YES, please indicate: Start time: am/pm Finish Time am/pm YES NO Will sound checks be conducted prior to the event? If YES, please indicate: Start time: am/pm Finish Time am/pm Please describe the sound equipment that will be used for your event: _ YES ,XjNO Fireworks, rockets, or other pyrotechnics? If YES, please describe: YE§_ NO Any signs, banners, decorations, special lighting? If YES, please describe: Revised 02/29/12 Euros St iok Strire fro k St cats 1 iUtdtGa, A Road Barriers at 3rd Ave and 8 & D Ave. Diego yet. Hesdirgservi La Casa Liquor Solar I Window' and Perinr One kn.0 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO.14 ITEM TITLE: Report and presentation seeking City Council direction to staff to enter into negotiations with Enterprise Fleet Management for the replacement, maintenance, and fleet management of National City's light and medium duty vehicles and return to City Council at a later date to consider a five-year Lease Agreement. PREPARED BY: Stephen Manganiello PHONE: 336-4382 EXPLANATION: See attached staff report. DEPARTMENT: Engineering APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Direct staff to enter into negotiations with Enterprise Fleet Management and return to City Council at a later date to consider a five-year Lease Agreement BOARD / COMMISSION RECOMMENDATION: N/A 4TTACHMENTS: 1. Staff Report Staff Report on Fleet Operations and Management Services Objective #2 of National City's 2013-2018 Strategic Plan is to "Achieve Fiscal Sustainability". One of the key initiatives (Item 2d) proposed in the Strategic Plan to achieve this object is to "Fund replacement reserves, or create financing plans, for fleet, facilities and other City assets." This report and subsequent presentation will focus on the fleet management and financing component of this initiative. National City's fleet consists of approximately 210 vehicles / heavy equipment, which supports all City departments in delivering municipal services to residents, local businesses and visitors. Much of the fleet is aging and in need of replacement. For example, the average life cycle for National City vehicles is approximately 17 years, while some vehicles have been in operation since the 1980's. The City currently owns 119 light and medium duty vehicles, of which 31 are Police Department Patrol vehicles ("black & whites"). For the purpose of this analysis, light duty vehicles include sedans, vans, SUVs, and small pick-up trucks. Medium duty vehicles include '/ ton to 1 lY ton trucks. Currently, the entire fleet is City -owned and maintenance is handled by the City's Public Works Vehicle / Equipment Maintenance Division, which is comprised of three mechanics and one lead mechanic. Specialized / extensive maintenance and repairs, as well as "overflow" work, is sent primarily to local mechanic shops in National City. The typical vehicle holding pattern for National City is to purchase the vehicle, operate it until it is obsolete, then sell it at auction. In comparison to an industry standard of five to seven years of cost-effective life for the vehicles described above, over two-thirds of National City's vehicles are below this standard. Traditionally, aging vehicles have not been replaced at the cost- effective point in their lifecycles due to limited capital resources and challenging economic times. The result has been significantly higher maintenance costs (older vehicles result in more frequent "big ticket" repairs), excessive downtime (which results in reliance on more spare vehicles and poor fleet utilization), poor fuel economy, poor service availability, decreased "curbside appeal," and increased greenhouse gas emissions. As previously stated, and confirmed by the City's Public Works Vehicle / Equipment Maintenance Division staff, outside support services are needed to maintain fleet operations and provide a high level of service. Therefore, in order to provide safe, dependable, cost- effective and energy -efficient vehicles, the Engineering & Public Works Department recommends partnering with an experienced fleet management company for vehicle replacement, maintenance, and risk management services. After reaching out to local businesses (such as the Mile of Cars) and exploring joint -use opportunities with other agencies such as the City of Chula Vista, staff has determined that Enterprise Fleet Management offers the most comprehensive services and flexible options to supplement fleet operations for light and medium duty vehicles (excludes Police "black & whites"). These support services will allow the City to maintain current staffing levels within the Public Works Vehicle / Equipment Maintenance Division, as there will continue to be high demand for servicing the remainder of the fleet. Details on services provided by Enterprise Fleet Management, including a comprehensive benefit / cost analysis and financing plan, will be included in the formal presentation to City Council. Engineering & Public Works Department City Council Meeting, 12/17/2013 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO.15 ITEM TITLE: Notice of Decision — Planning Commission approval of a Conditional Use Permit for a Wireless Communications Facility located at 2575 East 8th Street. (Applicant: Verizon Wireless) (Case File 2013-26 CUP) PREPARED BY: Martin Reeder, AICP PHONE: 336-4313 EXPLANATION: The project site is located on the Paradise Valley Hospital campus in the Institutional (I) zone, on a property developed with a two-story skilled nursing facility and a parking lot. The applicant proposes to install a 60-foot tall faux pine tree and an approximately 195 square -foot equipment shelter. Tree -mounted equipment includes twelve 6-foot tall panel antennas and a 4-foot diameter microwave dish. Planning Commission conducted a public hearing on December 2, 2013. Commissioners asked questions regarding conditions of approval and the stealth design of the facility. The Commission voted to approve the Conditional Use Permit based on required findings and subject to Conditions of Approval. The attached Planning Commission staff report describes the proposal in detail. DEPARTMENT: IR APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: 1Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: [Staff concurs with the decision of the Planning Commission and recommends that the Notice of Decision be filed. BOARD / COMMISSION RECOMMENDATION: The Planning Commission approved the Conditional Use Permit. Ayes: Alvarado, Baca, Bush, DeLaPaz, Flores, Garcia Absent: Pruitt l ATTACHMENTS: 1. Location Map 3. Resolution No. 29-2013 2. Planning Commission Staff Report 4. Reduced Plans m 0 m E 4th StI 0 0 Zone Boundary Project Location APN: 554-280-06 HiII-Dr E 8th St N O O V N O 7th St � I0) 820 I Feet 0 125 250 500 Planning Commission Location Map 2013-26 CUP 11.20.13 1 CITY OF NATIONAL CITY - PLANNING DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 PLANNING COMMISSION STAFF REPORT Title: Case File No.: Location: APN: Staff report by: Applicant: Property Owner: Parcel size: Plans prepared by: Combined General Plan/ Zoning designation: Item no. 5 December 2, 2013 PUBLIC HEARING — CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY LOCATED AT 2575 E. 8T" STREET. 2013-26 CUP Paradise Valley Manor and Health Care Center 554-280-06 Michael Fellows — Planning Technician Verizon Wireless Prime Healthcare Services Foundation 7.21 acres Booth & Suarez Architects Institutional (I) Adjacent Land Use / Zoning: North: East: South: West: Environmental review: Hospital Property / I Church / I Multifamily Residential across 8th Street / MXD-1 Hospital Parking lot I Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) 2 BACKGROUND Site characteristics The project site is located at 2575 E. 8th Street on the Paradise Valley Hospital campus in the Institutional (I) zone. The subject property is developed with a two-story skilled nursing facility and a parking lot. The property directly adjacent to the nursing facility slopes downward towards the interior of the lot. Project proposal The applicant proposes to install a 60-foot tall faux pine tree and an approximately 195 square -foot equipment shelter. The 11'-6" by 16'-10" shelter would be approximately 9 feet high and constructed of block. It would be built into the slope and exposed on two sides. An electrical generator would be installed on a concrete pad adjacent to the proposed equipment shelter. A chain link fence would surround the entire facility. Tree -mounted equipment includes twelve 6-foot tall panel antennas and a 4-foot diameter microwave dish. The facility is proposed approximately 55 feet to the east of the assisted living center. No additional landscaping is proposed. Analysis The proposal is a good example of a stealth facility, consistent with City policy. The antennas are proposed to project approximately three feet from the tree trunk but will be obscured by tree branches. Wiring between the tree and shelter uses an "ice bridge", which is a conduit between the two. A condition has been added to require that all wiring between the shelter and the tree trunk shall be placed underground and that the equipment shelter be finished with a materials and colors similar to the existing buildings on -site. There are a variety of tree types and heights in the area of the proposed wireless facility. The proposed 60-foot high faux pine tree is expected to fit in well with the surrounding landscaping. To be further consistent with City policy, co -location with existing facilities was researched. Based on the 'search ring', the applicant has stated that there was no ability to locate on existing facilities nearby. The facility is proposed to improve service in the area surrounding the hospital. Based on the attached Coverage Map, the area currently has limited or weak service. The facility is expected to generate only one to two vehicle trips per month for maintenance staff and is unlikely to have any impacts on local traffic patterns. Comments were received from the Building Department and require compliance with current and new 2014 codes. Standard Conditions of Approval for wireless facilities are 3 also included, requiring compliance with local, state, and federal codes, and that any external equipment is painted to match the surface on which it is mounted. Summary The proposed project is consistent with the Land Use Code in that it meets all applicable design requirements for wireless communication facilities. The project is considered 'stealth' and blends in with existing facilities and nearby development. The new facility will help to provide coverage in an area with limited service and provide additional reception for Verizon Wireless customers. RECOMMENDATION Approve 2013-26 CUP based on attached findings. ATTACHMENTS 1. Recommended Findings for Approval 2. Recommended Conditions of Approval 3. Location Map 4. Existing Wireless Facilities Map 5. Site Photos 6. Coverage Maps 7. Notice of Exemption 8. Public Hearing Notice (Sent to 28 property owners) 9. Applicant's Plans (Exhibit A 10/11/2013 Case File No. 2013-26 CUP) IA. ?Ikki MICHAEL FELLOWS BRAD RAULSTON Planning Technician Executive Director 4 RECOMMENDED FINDINGS FOR APPROVAL 2013-26 CUP — 2575 E. 8th Street 1. That the site for the proposed use is adequate in size and shape, since the facility, including the faux pine tree and shelter (195 square feet), can easily be accommodated on the 7.21 acre site, and will not affect surrounding existing uses. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility requires only one to two visits each month for routine maintenance, which will have a negligible effect on the adjacent developed streets. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 60-foot faux pine tree will adequately screen the twelve panel antennas, and since the landscaping and fencing on -site will provide adequate screening of the equipment shelter from adjacent properties. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will improve the performance of the Verizon Wireless communications network, resulting in enhanced service for its customers. 5 RECOMMENDED CONDITIONS OF APPROVAL 2013-26 CUP — 2575 E. 8th Street General 1. This Conditional Use Permit authorizes a wireless communications facility at 2575 E. 8th Street. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibits A and B, Case File No. 2013- 26 CUP, dated 10/10/2013. Any additional antennas or facilities must be in substantial conformance with the design for installation shown on these plans. 2. Before this Conditional Use Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. The applicant shall also submit evidence to the satisfaction of the Planning Department that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Executive Director prior to recordation. 3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.12.040 of the Municipal Code. Building/Fire 5. Plans submitted for improvements in 2013 must comply with the 2010 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. If submitted in 2014, plans submitted for improvements must comply with the 2013 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. Engineering 6. The Priority Project Applicability checklist for the National Pollutant Discharge Elimination System (NPDES) is required to be completed and submitted to the Engineering Department. The checklist will be required when a project site is submitted for review of the City Departments. The checklist is available at the Engineering Department. If it is determined that the project is subject to the "Priority Project Permanent Storm Water BMP Requirements" and the City of National City Storm Water Best Management Practices of the Jurisdictional Urban Runoff 6 Management Program (JURMP) approved Standard Urban Storm Water Mitigation Plan (SUSMP) documentation will be required prior to issuance of an applicable engineering permit. The SUSMP shall be prepared by a Registered Civil Engineer. 7. The Best Management Practices (BMPs) for the maintenance of the proposed construction shall be undertaken in accordance with the National Pollutant Discharge Elimination System (NPDES) regulations which may require a Storm Water Pollution Prevention Plan (SWPPP) for the project. An approved SWPPP will be required prior to issuing of a construction permit. 8. A permit shall be obtained from the Engineering Department for all improvement work within the public right-of-way, and any grading construction on private property. Utilities 9. Prior to any construction or grading activities, the applicant shall coordinate with all utilities with infrastructure in the area to ensure protection of any existing utility services. 10. Call 800-227-2600 (Underground Service Alert) for mark out prior to any digging activities. Planning 11.AII appropriate and required local, state and/or federal permits must be obtained prior to operation of the wireless communications facility. 12. The chain link fence shall incorporate vinyl slats in order screen the equipment shelter and generator. 13. The exterior material and colors of the equipment shelter must match the existing buildings. 14.AII exterior equipment (e.g., RRU units, GPS antennas, microwave dish antenna, panel antennas) shall be painted to match the surface on which it is mounted. 15. Exterior walls of buildings/poles to a height of not less than 6 feet shall be treated with a graffiti resistant coating subject to approval from the Building Official. Graffiti shall be removed within 24 hours of its observance. 16.The permittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant and the complaining user. This condition in no way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 17. The applicant or operator shall be responsible for the removal and disposal of any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete within six (6) months of discontinuance. 7 Feet 1,375 2,750 5,500 5b O Wireless facilities in National City A Wireless facilities in unincorporated area Wireless Communication Facilities National City Planning Department 2012 FACILITY APN LOCATION PROVIDER FILE_NO_ 1 562-340-44 2434 Southport Urban Comm Rad CUP-1992-11 Radio communication facility (microwave transmitter)- 80-foot tall tower and 8-foot in diameter dish antenna 2 562 340 26 300 W 28th AirTouch CDC Reso 94-28 75-foot monopole with three sector antennas and 450-sa foot eauipment buildina. 562-340-26 300 W 28th Nextel CUP-2003-30 12 antennae on existing communications tower and a 270 square foot equipment enclosure adiacent to existing equipment 4 559-032-02 1215 Wilson Pac Bell CUP-1995-11 Located on roof of existina building. PCS facility- six roof -mounted antennas and two ground -mounted equipment boxes. 5 557-410-03 1645 E Plaza Pac Bell CUP--1995-13 Located on roof of Quality Inn. PCSfacility- six panel antennas and equipment cabinet. 6 555-086-11 910 Hoover AirTouch CUP-1995-18 Located on existing building. Cellular facility- three support structures with five panel antennas each, two dish antennas and equipment cabinet 7 556-471-24 801 National City Blvd AT&T CUP-1996-2 Located on roof of Red Lion Hotel. Paging facility- four whip antennas, one global positioning satellite antenna and equipment cabinet. 556-471-24 801 National City Blvd Nextel CUP-1994-8 Located on roof of Red Lion Hotel. ESMR facility- three whip antennas and eauipment cabinet. 556-471-24 801 National City Blvd Pagenet CUP-1996-12 Located on roof of hotel. Paging facility- four antennas and eauipment cabinet one floor down from roof. 556-471-24 801 National City Blvd AT&T CUP-1999-5 Located atop Red Lion Hotel. Wireless communication facility- four antennas and radio base system. 8 554-120-30 2400 E 4th AT&T CUP-1996-4 Located on roof of Paradise Valley Hospital. Paaina facility- four whip antennas, one alobal POsitioninasatellite antenna and equipment cabinet. 9 559-160-13 1022 W Bay Marin GTE CUP-1996-5 Located on a 360-sa foot building. Cellular facility- 60-foot monopole with twelve panel antennas. 10 563-370-36 3007 Highland Pac Bell CUP-1996-6 Located on existing Super Saver buildina. PCSfacilitv- six panel antennas and two equipment cabinets. 12 554-050-12 303 Palm AirTouch CUP-1996-8 60-foot hiah monopole with six whip antennas, thirty directional cellular antennas, and three dishes with an eauiDmentcabinet at base. 554-050-12 303 Palm Sprint PCS CUP-2001-10 Located on National Guard Armory property. PCSfacility six antennas in three 40-foot flag poles, one GPS antenna and a new equipment building. 14 564-471-01 3030 Plaza Bonita Rd Nextel CUP-1997-8 Located atop Plaza Bonita sign. ESMRfacilitv- nine antennas and equipment cabinet. 564-471-01 3030 Plaza Bonita Rd Pac Bell CUP-1996-7 Located atop the existing Plaza Bonita sign. PCSfacility- three antennas and two eauiDmentcabinets at base of sign. 16 557-420-36 1840 E 12th Nextel CUP-1999-4 60-foot monopalm on vacant commercial lot. 20 555-082-11 111 W 9th Sprint CUP-2000-9 Located atop 2-story Sid's Camet Barn warehouse. Wireless communication facility- twelve wireless panel antennas and 4-inch GPS antenna. 21 555-030-21 330 National City Blvd GTE CUP-2000-11 Located atop BayTheatre. Wireless communication facility- twelve panel antennas and four equipment cabinets. 22 564-250-50 2435 Sweetwater Sprint CUP-2000-14 Located at Sweetwater Inn. Global Positioning System with nine panel antennas. 30 557-420-36 1905 E Plaza Sprint PCS CUP-2001-3 53 foot tall monopalm with nine panel antennas. PCS Facility with one equipment enclosure and a GPS antenna. 32 556-473-18 242E 8th AT&T CUP-2001-6 Located atop an existing church. 34 563-370-35 3007 Highland Nextel CUP-2001-12 Located atop Sweetwater Square. New equipment building over trash enclosure, nine panel antennas and one GPS antenna. 36 563-231-38 1914 Sweetwater Cingular CUP-2002-3 Located on an existing 75 foot tall pole sign for the SweetwaterTown and Country Shopping Center. 37 564-310-37 3737 Sweetwater Cingular CUP-2002-4 72 foot tall monopine with standard equipment enclosure 39 556-101-15 241 National City Blvd Cingular CUP-2002-6 12 panel antennas behind four new partial parapet walls atop an existina fumiture store; four equipment cabinets outside 40 558-200-24 2415 E 18th Cingular CUP-2002-13 Panel antennas located inside new liaht standards; equipment located inside existing commercial buildina 41 556-354-13 716 Highland AT&T CUP-2002-14 Six facade mounted panel antennas with equipment on roof of PacBell switching station. Equipment screened to match existing. 44 556-590-61 1019 Highland Sprint PCS CUP-2002-24 6 panel antennas in a new monument sign in the South Bay Plaza shopping center 556-590-61 1019 Highland Cingular CUP-2002-2 Located atop South Bay Plaza on an existing mechanical equipment screen. 51 552-283-11 2323 E Division Sprint CUP-2004-6 3 panelantennasina 9x10x16 roof-mountedcupola 52 560-191-30 1701 D Ave Nextel CUP-2004-12 12 panel antennas on a 57' faux broadleaf tree with 230 square foot equipment enclosure 53 551-570-20 51 N Highland Sprint CUP-2004-15 2 panel antennas in a 45' flagpole with 4 wall -mounted equipment cabinets 55 563-231-39 1914 Sweetwater Nextel PC Reso 20-2002 2 panel antennas in a 45' flagpole with 4 wall -mounted equipment cabinets 57 554-120-24 2701 E 8th Cingular PC Reso 02-2001 Co-locationin churchspire-3 antennas within existing architectural feature 554-120-24 2701 E 8th T-Mobile CUP-2000-19 Located at existing church. Antennas located in a GO-footmonument. 554-120-24 2701 E 8th Sprint CUP-2000-27 12 panel antennas mounted on exterior of self -storage building and painted to match; all equipment located inside of the buildings 554-120-24 2701 E 8th AT&T CUP-2000-19 Located at existing church. Antennas located in a 60-foot monument 58 558-030-30 1035 Harbison Nextel CUP-2005-3 12 panel antennas on a monopaim with 299 SQ.ft. equipment enclosure. 60 556-510-12 914 E 8th Cingular CUP-2005-10 12 panel antennas on 39-ft monopine with 280 sq. ft. equipment shelter 61 559-040-53 1439 Tidelands Cingular CUP-2005-9 12 panel antennas on monopaim with associated equipment shelter 559-040-53 1445 Tidelands Nextel CUP-2000-31 40-footmonopalmwith three sectors of four antennas each and equipment shelter 63 562-200-02 2900 Highland Cingular CUP-2005-12 3 antennas on replacement light standard with associated equipment shelter 64 563-010-47 2605 Highland Cricket CUP-2006-11 3 antennas in new architectural feature of church with associated equipment 563-010-47 2605 Highland Sprint CUP-2002-18 Six panel antennas and equipment inside a new 54 foot tall monument/cross/sign. 65 557-420-31 1900 E Plaza Cricket CUP-2006-6 3 antennas on new faux palm tree with associated equipment 557-420-31 1900 E Plaza Cingular CUP-2004-4 5 panel antennas in a new pole sign at Jimmy's Restaurant 67 561-222-23 1526-40 E 18th T-Mobile CUP-2006-10 12 panel antennas on a new 45-foot tall faux pine tree with associated equipment shelter 68 564-471-07 3030 Plaza Bonita Rd Cingular CUP-2005-24 12 antennas facade mounted to new rooftop enclosure that will house equipment 68 564-471-07 3030 Plaza Bonita Rd Verizon CUP-2003-13 12 panel antennas on the roof of the Plaza Bonita Mall behind a screen wall 69 559-106-17 525 W 20th Cricket CUP-2005-25 3 antennas on existing self storage building painted to match with associated equipment 559-106-17 525 W 20th Sprint CUP-2001-4 Located on existina storaae building. Wireless communication facility- 9 antennas and equipment building. 70 554-050-15 2005 E 4th Cricket PC Reso 09-2003 3 antennas on existing light standard with associated equipment shelter 554-050-15 2005 E 4th Cingular CUP-2003-5 12 panel antennas on a replacement 100 foot Tight standard in ElTovon park and a 160 square foot equipment enclosure. 554-050-15 2005 E 4th GTE CUP-1998-4 Located in ElTovon Park. Cellular facility- 97'8" monopole with twelve panel antennas, three omni antennas, and 192-sqfoot equipment building. 554-050-15 2005 E 4th Nextel CUP-2005-15 12 panel antennas on a 47-foot tall faux -broadleaf awith 230 sq. ft.equipment shelter 71 564-290-06 3820 Cagle St Cricket PC RESO 10-2004 3 antennas on existing faux pine tree with vaulted equipment shelter 564-290-06 3820 Cagle St Sprint CUP-2001-2 Located at Sweetwater Heights Centennial Park. Wireless communication facility- 35-foot pole with six antennas, equipment building and adiacent liahting for the park. 564-290-06 3820 Cagle St T-Mobile CUP-2004-3 Located at Sweetwater Heights Centennial Park. Wireless communication facility- 55-foot monopine with twelve panel antennas and equipment building 564-290-06 3820 Cagle St Cingular PC Reso 11-2002 Co -location on 55-foot monopine - additional 12 panel antennas and new 275 SQ.ft. equipment vault 72 669-060-26 5800 Boxer Rd Cricket PC RESO 32-2003 3 antennas on existing water tower with associated equipment shelter 669-060-26 5800 Boxer Rd T-Mobile CUP-2003-16 12 panel antennas on the outside of the 0.0. Arnold water tank and a 150 square foot equipment enclosure adiacent to the tank 669-060-26 5800 Boxer Rd Sprint PC Reso 32-2003 6 panel antennas on the outside of the 0.0. Arnold water tank and a 360 square foot equipment enclosure adjacent 669-060-26 5800 Boxer Rd Cingular CUP-2005-21 12 panel antennas on the outside of the 0.0. Arnold water tank and a 520 square foot equipment enclosure adjacent 73 562-330-43 152 W 33rd Cricket PC Reso 21-2002 3 antennas on existing self storage within matching architectural projection with associated equipment 562-330-43 152 W 33rd Sprint CUP-2002-8 12 panel antenas mounted on exterior of self -storage building and painted to match; all equipment located inside of the 74 555-053-17 700 NCB Cricket PC Reso 05-2000 3 antennas facade mounted to existina hotel with associated equipmen 555-053-17 700 NCB Metricom CUP-2000-4 Located atop Holiday Inn. Wireless communication facility with equipment cabinet. 555-053-17 700 NCB Skytel CUP-2000-30 Located atop Holiday Inn Hotel. - 8-foot whip antenna, two 4x2-foot panel antennas, and one GPS antenna with two indoor equipment cabinets. 75 560-203-03 1800 National City Blvd Nextel CUP-2006-15 76 561-360-35 1810 E 22nd Cricket 2007-14 CUP 3 antennas on recration building at Las Palmas Park 561-360-35 1820 E 22nd Sprint-Nextel CUP-2000-8 78 560-143-36 1703 Hoover Cleawire 2009-22 CUP 9 antennas located on 3 different locations on industrial/ warehouse building. Each location will have 2 pannel antennas. 79 559-160-33 700 Bay Marina Dr Cleawire 2009-23 CUP 9 antennas on tower of Manna Gateway Plaza commercial building hidden behind parapet wall. 6-foot tall equiptmant cabinent on roof below tower will be mostly covered 80 560-151-20 142E 16th AT&T 2010-11 CUP 6 panel antennas and RF transparent cupola atop National City Ministry Church, as well as a 330 sq ft equipment/storage/trash enclosure on the ground. The 8-foot tall Cupola will have a cross afixed to it in order to appea as part of the church 81 561-271-01 2005 Highland Ave Plancom 2010-31 CUP 12 antenas on a 43-foot mono -palm on eastern property line 561-271-01 2005 Highland T-Mobile CUP-2003-4 12 antennas on the roof of a Highland Avenue office building 561-271-01 2005 Highland Cingular CUP-2006-2 12 antennas on the roof of a Highland Avenue office building with new cupola to match existing 82 563-184-47 2909 Shelby Dr P95-025 75-foot monopole and equipment building. 83 563-062-17 2524 Prospect St AT&T ZAP99-028 35-foot monopalm with three sector directional antenna system and equipment cabinets. 85 564-310-32 3312 Bonita Heights Lane AT&T ZAP00-133 86 563-063-29 2563 Grove St AT&T MUP91-026W2 86 563-063-29 2563 Grove St P91-026W Monopole located aside live palm trees. 1 - Looking West at Site from access • • 9 - Looking South at equipment & generator site 10 - Looking Northwest to faux tree location (close-up) Without Site Useelon. SD LTEOB297073 User mi _ t Wad Oct 9 7623:57 2013 Dta9a SSquareDat9n, NAM Center Let 32-40-52.47 N Center Len. 1 7-0443.71 W Celle ltl: Cell Nana • sd_I9nt dary_read • oalletlar toed ■ secondary highway LTE RSRP 7CL Cir RSRP tdBm) • s•75 o >-e5 • se -95 • se-105 Seale: 124000 GeoPlen 965 1l • 1 r� 1 ru LJtT-1 rA�((-Cr I With Site Vim® Session. SD L7E_09292013 User aelmnl Wed Oat ft 1021092013 Dolma: Square Datum: NAD83 Center Lat.: 2.47 N Center Lem 117.04117A043.71 W Cella Lot: Can Name • e4_li9nt_duty_road 12=7.11- Y Wledor road LTE RSRP 7CL Clr. RSRP (d8m) ■ a_-75 ❑ >= -95 ■ a=-95 ■ x.105 Scale: 1.24000 GeoPlen v8.5.2 Propnedry and Conflderllal La 051 lament 1 Civ L TH C l AT1 CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 NOTICE OF EXEMPTION TO: County Clerk County of San Diego P.O. Box 1750 1600 Pacific Highway, Room 260 San Diego, CA 92112 Project Title: 2013-26 CUP Project Location: 2575 E. 8th Street Contact Person: Michael Fellows Telephone Number: (619) 336-4315 Description of Nature, Purpose and Beneficiaries of Project: Conditional Use Permit for a wireless communications facility involving a 60-foot faux palm tree on an existing property developed with assisted living facility. The project will increase signal strength and service area for Verizon Wireless customers. Applicant: Lisa Mercurio for Verizon Wireless 15505 Sand Canyon Avenue Irvine, CA 92618 Exempt Status: Telephone Number: (858) 248-2461 ® Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) Reasons why proiect is exempt: There is no possibility that the proposed use will have a significant impact on the environment since wireless telecommunications facility will occupy only a small portion of the 7.2 acre property, will be effectively screened, and will not affect use of the property. Date: MICHAEL FELLOWS Planning Technician 21 CITY OF NATIONAL CITY - PLANNING DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 NOTICE OF PUBLIC HEARING CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY AT 2575 E. 8TH STREET. CASE FILE NO.: 2013-26 CUP APN: 554-280-06 The National City Planning Commission will hold a public hearing after the hour of 6:00 p.m. Monday, December 2, 2013, in the City Council Chambers, Civic Center, 1243 National City Boulevard, National City, California, on the proposed request. (Applicant: Verizon Wireless) The applicant proposes a new wireless telecommunications facility with a 60-foot tall, faux pine tree that includes 12 panel antennas and a microwave dish. A concrete block enclosure (195 square feet) would house associated equipment. Information is available for review at the City's Planning Department, Civic Center. Members of the public are invited to comment. Written comments should be received by the Planning Division on or before 12:00 p.m., December 2, 2013, who can be contacted at 619-336-4310 or planning( nationalcityca.gov If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. NATIONAL CITY PLANNING DEPARTMENT if-lk BRAD RAULSTON Executive Director 22 RESOLUTION NO. 29-2013 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY LOCATED AT 2575 E. 8TH STREET. APPLICANT: VERIZON WIRELESS CASE FILE NO. 2013-26 CUP WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit for a wireless communications facility located at 2575 East 8th Street, at a duly advertised public hearings held on December 2, 2013, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearings the Planning Commission considered the staff report contained in Case File No. 2013-26 CUP maintained by the City and incorporated herein by reference along with evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on December 2, 2013, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the facility, including the faux pine tree and shelter (195 square feet), can easily be accommodated on the 7.21 acre site, and will not affect surrounding existing uses. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility requires only one to two visits each month for routine maintenance, which will have a negligible effect on the adjacent developed streets. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 60-foot faux pine tree will adequately screen the twelve panel antennas, and since the landscaping and fencing on -site will provide adequate screening of the equipment shelter from adjacent properties. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will improve the performance of the Verizon Wireless communications network, resulting in enhanced service for its customers. 23 BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: General 1. This Conditional Use Permit authorizes a wireless communications facility at 2575 E. 8th Street. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibits A and B, Case File No. 2013- 26 CUP, dated 10/10/2013. Any additional antennas or facilities must be in substantial conformance with the design for installation shown on these plans. 2. Before this Conditional Use Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. The applicant shall also submit evidence to the satisfaction of the Planning Department that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Executive Director prior to recordation. 3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.12.040 of the Municipal Code. Building/Fire 5. Plans submitted for improvements in 2013 must comply with the 2010 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. If submitted in 2014, plans submitted for improvements must comply with the 2013 edition of the Califomia Building, Electrical, Plumbing, Mechanical, and Fire Codes. Engineering 6. The Priority Project Applicability checklist for the National Pollutant Discharge Elimination System (NPDES) is required to be completed and submitted to the Engineering Department. The checklist will be required when a project site is submitted for review of the City Departments. The checklist is available at the Engineering Department. If it is determined that the project is subject to the "Priority Project Permanent Storm Water BMP Requirements" and the City of National City Storm Water Best Management Practices of the Jurisdictional Urban Runoff Management Program (JURMP) approved Standard Urban Storm Water Mitigation Plan (SUSMP) documentation will be required prior to issuance of an applicable engineering permit. The SUSMP shall be prepared by a Registered Civil Engineer. 24 7. The Best Management Practices (BMPs) for the maintenance of the proposed construction shall be undertaken in accordance with the National Pollutant Discharge Elimination System (NPDES) regulations which may require a Storm Water Pollution Prevention Plan (SWPPP) for the project. An approved SWPPP will be required prior to issuing of a construction permit. 8. A permit shall be obtained from the Engineering Department for all improvement work within the public right-of-way, and any grading construction on private property. Utilities 9. Prior to any construction or grading activities, the applicant shall coordinate with all utilities with infrastructure in the area to ensure protection of any existing utility services. 10. Call 800-227-2600 (Underground Service Alert) for mark out prior to any digging activities. Planning 11.AII appropriate and required local, state and/or federal permits must be obtained prior to operation of the wireless communications facility. 12. The chain link fence shall incorporate vinyl slats in order screen the equipment shelter and generator. 13. The exterior material and colors of the equipment shelter must match the existing buildings. 14.AII exterior equipment (e.g., RRU units, GPS antennas, microwave dish antenna, panel antennas) shall be painted to match the surface on which it is mounted. 15. Exterior walls of buildings/poles to a height of not less than 6 feet shall be treated with a graffiti resistant coating subject to approval from the Building Official. Graffiti shall be removed within 24 hours of its observance. 16. The permittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant and the complaining user. This condition in no way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 17. The applicant or operator shall be responsible for the removal and disposal of any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete within six (6) months of discontinuance. BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council. BE IT FINALLY RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the Planning Commission resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to 5:00 p.m. on the day of 25 that City Council meeting. The City Council may, at that meeting, appeal the decision of the Planning Commission and set the matter for public hearing. CERTIFICATION: This certifies that the Resolution was adopted by the Planning Commission at their meeting of December 2, 2013, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: ?)-,1..,ctlA.- CHAIRPERSON 26 VICINITY MAP TITONAS GUIDE PAGE: 12RO - 97 ADDRESS Rte ENT •M IF wiww TAR. •L PIM DIRECTIONS: lTA•I TDE1 wool w PAM , DIG. law ewe GMO. WO90. AWOE.G T. MU NCAO seYMA.TM.TO W. R P. TOM .P P.•o•9sG C NC wa 0Ie T-PRew0. IRO TO WI OWL WWI Lae M 9 NOWgle AL rm TAB Km lM CAL WA IR wIw L TGGY.M MINI LOTMO AVG 110 TO!. Ne.0 STMT. C ON OM.. w. BIN LOT. 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IMP 1VG14[1. •RCN •1151*0*9* or * wN TOM 152Z 0.1.100 •LM]I Y9 •*TAMS • NInm NM INN PROJECT ADDRESS: LIT a11 Wmr wTww (3R,u wW ASSESSORS PARCEL RIMER, EN-9N-w COSTING ZONING: 1 DORR•N.w) TOTAL SITE AREA: PROPOSER PROJECT AREA: POP. OR. NW 30. •.RCTC w0a RmaUl[ 11. ASS w P ROPOSED ME OF CONSTRUCTION, P ROPMEO OCCUPANCY: : ti17:6I I AwI ITIC r-1 A-0 A-1 A-2 A-3 A-1 A-5 G-1 SHEET SCHEDULE TIE CNR Aw we•cr Do* 95 PLO ...30 9R PLO OAww. OW PU. 51113MN •NA.% e9wNn 90.1e1, GNA11010 ROMPNY 0AWTWOWL Awtww PIMA RIAu R.mwr•. 9wm LEGAL DESCRIPTION LOT O R 0.1.5 SILL. 111 Ow OF NA ON,3 N< mwn w UN eeRn RAM w 5.41.11. IIRR no Iwaf. rym N TWO RRL w iK @9R A -P RORq R 4W.0 M. wmew TL SM. ACCESSIBILITY DISCLAIMER T... • AA I1em.CAweD>LYommAmAANN Pa IYmPwT 11. TAOyIa. room, .W . TO Mmw APPLICABLE CODES wL 9w0 wNl *0.71111111M NDL.e9 1nI *.R CO. Art Oa. NOL 1151M a10 mis fYR01w. 1LLYM. COOL A10 WW1 PY911Y .11.AL w9C. MO W. a9a1L EI1nLL'x 0-.L Lwe MOOT <Y•.•OL I. NON. NI. Aaa WHOM SNOW 50e0 MO M. R <.w:R. Me NOR 1100171151 C!1 1Aa1TtCI11116 T IIICaIVARID n rwmn crmAa u yBso. la.w.:i-ALP. PREPARED FOR VleritZgfftwireless P.O. ROE 19107 WANE, a 12023-9707 (941) 299-7000 R APPROVALS 00/0 OAR OP GR ¢/N DATE OPP DATE PROJECT NAME E. 8TH & S. EUCLID 2373 EAST BPI STREET NATIONAL Cm', CA 91950 SAN DIEGO COUNTY EE DRAWING DALES i41 Tm• m((,)a) NATIONAL CITY PLANNING DIV. EXHIBIT A CASE PILE NO. 2013-26 CUP DATE: 10/11/2013 SAW TREE TITLE SHEET PROJECT DATA a PIIO;CMTBWNMIJW —.--O T-1 ACTOR IDMRII m 19WR�DI :EA M4a ISIMMI ♦ ♦ 414141.411 61v4Rm MOM IMPS ar 3F 04 F�1 i0p Tllu [etREVMGbe.FIt 11 TILE REMIT. an MIN RAW. 411O11145 mummer ER ME RR NNIVROCE OW.. TOM* WS MX PNrM. Bum& nn r. n I.Nouelnrnr aCwmA41110 41014et M.urw e. ..eM r<u.m ..�� .gin PREPARED r0R \/ IleigNiV - � wall c1M- � P.O. ROE 19707 YMNE. CA 6E6E1-9907 (O19) E89-7000 19 APPROVALS Alt MR nF MR P MT, - OIR 9EIM MR On KAN OM 1 PROJECT NAME E 8TH & S. 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SARmo.rIT:.. .. am+.mee.:.: Ir.n--.a ®ma°1SJ..mM,on NO MiH5'1a..a1[n N.l au.,mawe MM O4 ....w.m no.. w_.w w1..e. :.:1 urmMaua....e.r.w...e.e .... tA.Amnm Pla Mrs me:...w 1N. m. m. ma Oa ITN.M.wv morn Ma NOT nonm *5.9.N1n.a ..4.7moem.:.° 33- -YO`..oewm me..e.w vwwmm Mmn.nm PREPARED POP ver%QnWIlmless P.O. ROY 19707 IRM1E. u 9E922-9707 (999) E22-7000 APPROVALS .AE OAR Ma OF Ian D . mT. DA Wort e.. PROJECT NAYS E 8TH & S EUCLID 2575 EAST O.I STREET MOOR. CRT. CA. 91950 SAM 01E00 COMM DRAWING DATES e SHEET T1RE SRE PLAN e C-1 YEM9 fwireless LOOKING NORTHEAST TOWARD SUBJECT SITE SITE PRIOR TO INSTALLATION SITE AFTER INSTALLATION VICINITY MAP E. 8TH & S. EUCLID 2575 EAST 8TH STREET NATIONAL CITY, CA 91950 verizonwiretess LOOKING SOUTH TOWARD SUBJECT SITE SITE PRIOR TO INSTALLATION VICINITY MAP E. 8TH & S. EUCLID 2575 EAST 8TH STREET NATIONAL CITY, CA 91950 • VeraMwireless LOOKING EAST TOWARD SUBJECT SITE VICINITY MAP E. 8TH & S. EUCLID 2575 EAST 8TH STREET NATIONAL CITY, CA 91950 1e/7,, 'Qpf wireless LOOKING WEST TOWARD SUBJECT SITE SITE PRIOR TO INSTALLATION s " •� 'A 1'IONUL .. t . 'M.... Ty VICINITY MAP E. 8TH & S. EUCLID 2575 EAST 8TH STREET NATIONAL CITY, CA 91950 CMC CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 16 ITEM TITLE: ;Notice of Decision — Planning Commission approval of a Conditional Use Permit and Coastal Development Permit for a Wireless Communications Facility located at 1445 Tidelands Avenue. (Applicant: Verizon Wireless) (Case File 2013-24 CUP, CDP) I PREPARED BY: IMartin Reeder, AICP DEPARTMENT: ,p PHONE: 1336-4313 APPROVED BY. EXPLANATION: The project site is a long, narrow parcel located between Tidelands Avenue and a railroad right-of-way to the in the Medium Industrial (IM) zone, and also within the Coastal Zone. There are existing wireless facilities located at the same site, operated by Sprint and AT&T. Both existing facilities are faux palm trees and are 40 and 50 feet tall respectively. The applicant proposes to install a 60-foot tall faux palm tree and a 257 square -foot equipment shelter directly south of the existing facilities. Tree -mounted equipment includes twelve 6-foot tall panel antennas and a 4-foot diameter microwave dish. Planning Commission conducted a public hearing on December 2, 2013. Commissioners asked questions regarding conditions of approval, facility design, landscaping, and property upkeep. The Commission voted to approve the Conditional Use Permit based on required findings and subject to Conditions of Approval. The attached Planning Commission staff report describes the proposal in detail. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: (Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: !Staff concurs with the decision of the Planning Commission and recommends that the Notice of Decision be filed. BOARD / COMMISSION RECOMMENDATION: The Planning Commission approved the Conditional Use Permit. Ayes: Alvarado, Baca, Bush, DeLaPaz, Flores, Garcia Absent: Pruitt; ATTACHMENTS: 1. Location Map 2. Planning Commission Staff Report 4. Reduced Plans 3. Resolution No. 28-2013 Unified Port of Sa Diego -(CZ) Zone Boundary Project Location APN: 559-040-53 enter Dr 1400 1600 1 I H CZ IP r , I I I W 14th St I I I Feet 0 95 190 380 Planning Commission Location Map 2013-24 CUP, CDP I 11.20.13 Ty 108`87 CITY OF NATIONAL CITY - PLANNING DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 PLANNING COMMISSION STAFF REPORT Title: Case File No.: Location: APN: Staff report by: Applicant: Property Owner: Parcel size: Plans prepared by: Combined General Plan/ Zoning designation: Medium Industrial — Coastal Zone (MM-CZ) Adjacent Land Use / Zoning: Item no. 3 December 2, 2013 PUBLIC HEARING — CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY LOCATED AT 1445 TIDELANDS AVENUE IN THE COASTAL ZONE. North: East: South: West: Environmental review: 2013-24 CUP, CDP East side of Tidelands Ave., south of Civic Center Dr. 559-040-53 Martin Reeder, AICP — Principal Planner Verizon Wireless Tidelands Avenue Props LLC 0.4 acres Booth & Suarez Architects Master Machine Corporation / MM-CZ Pacific Steel Inc. across railroad right-of-way / MH-CZ Tidelands Industrial Park / MM-CZ Port of San Diego General Services Building across Tidelands Avenue (MT-CZ-UPD) Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) 2 BACKGROUND Site characteristics The project site is located at 1445 Tidelands Avenue, shown on the current zoning map as being in the Medium Industrial (IM) zone, and also within the Coastal Zone. The long, narrow, relatively flat parcel is located between Tidelands Avenue to the west and the railroad right-of-way to the east. The recent Land Use Code Update is not active in the Coastal Zone. This is due to the fact that the necessary changes in the City's Local Coastal Plan have not been approved by the Coastal Commission. Therefore, the City's previous zoning would generally apply. In this case the zone would have been MM-CZ (Medium Manufacturing — Coastal Zone) — essentially the same zone. History There are two existing wireless facilities located at the same site; a Sprint facility approved in 2001 and an AT&T facility approved in 2005. Both are faux palm trees and are 40 and 50 feet tall respectively. Along with the respective equipment shelters, the site is also developed with several live palm trees. The quality of landscaping is fairly poor, with ground cover and vegetation sparsely located around the site. Project proposal The applicant proposes to install a 60-foot tall faux palm tree and a 257 square -foot equipment shelter. Tree -mounted equipment includes twelve 6-foot tall panel antennas and a 4-foot diameter microwave dish. The new facility is proposed directly south of the existing facilities. No additional landscaping is proposed, although an existing palm tree would need to be relocated to accommodate the project. The facility also proposes to have an emergency generator in case of power failure. The generator would be on a concrete pad adjacent to the proposed equipment shelter. Analysis The proposal is a good example of a stealth facility, consistent with City policy. The antennas are proposed to project approximately three feet from the tree trunk but will be obscured by the fronds. Wiring between the tree and shelter uses an "ice bridge", which is a conduit between the two. The two existing facilities have underground wiring, consistent with City policy. A condition has been added to require that all wiring between the shelter and the tree trunk shall be placed underground. The equipment shelter would be covered with a smooth stucco coating to match the finish of the existing buildings on -site and would also be surrounded by chain link fence. The proposed shelter structure is similar in size to the existing shelters on -site. The proposed shelter is 24'-6" by 10'-6" feet in size (257 square feet) and approximately 11 feet high. The existing shelters for Sprint and AT&T are around 200 and 300 square 3 feet respectively, and are both 10 feet high. To enhance the site, staff is proposing a condition of approval requiring that the applicant re -plant the areas on -site that have dead/dying or non-existent plant material. There are approximately eight live palm trees in the area of the wireless facilities ranging in height form 19-feet to 50-feet. With the existing palm trees and condition to replant nearby lower -lying landscape material, the proposed 60-foot high faux palm tree is expected to fit in well with the surrounding area. A condition has also been added to encourage the relocated palm tree to be placed south of the proposed site, in order to further screen the faux palm. To be further consistent with City policy, co -location with existing facilities was researched. Based on the 'search ring', the applicant has stated that there was no ability to locate on the existing facility, but was able to locate the proposed facility adjacent to an existing facility on the same site. By locating adjacent to an existing facility, there is greater opportunity to camouflage the mono -palms with the cluster of palm trees and other vegetation. The facility is proposed to improve service between Interstate 5 and the waterfront to the west of the site. Based on the attached Coverage Map, the area currently has limited or weak service. The facility is expected to generate only one to two vehicle trips per month for maintenance staff and is unlikely to have any impacts on local traffic patterns. Local Coastal Plan The project area is not within an area of retained Coastal Commission permit jurisdiction or in an area of appeal jurisdiction. It is also within an area generally exempted from the Coastal Development Permit (CDP) process. However, the required discretionary review (CUP) triggers a public hearing for the CDP also. As part of said discretionary review, the Planning Commission must find that the granting of the CDP is consistent with and implements the Certified Local Coastal Program. The project is compliant with this finding in that it involves a stealth wireless facility, a conditionally - allowed use in the MM-CZ zone, and will not prohibit coastal access or obstruct views. Comments were received from the Building Department and require compliance with current and new 2014 codes. Standard Conditions of Approval for wireless facilities are also included, requiring compliance with local, state, and federal codes, and that any external equipment is painted to match the surface on which it is mounted. Summary The proposed project is consistent with the Land Use Code in that it meets all applicable design requirements for wireless communication facilities. The project is considered 'stealth' and blends in with existing facilities and nearby development. The new facility will help to provide coverage in an area with limited service and provide additional reception for Verizon Wireless customers. 4 RECOMMENDATION Approve 2013-24 CUP, CDP based on attached findings. ATTACHMENTS 1. Recommended Findings for Approval 2. Recommended Conditions of Approval 3. Location Map 4. Existing Wireless Facilities Map 5. Site Photos 6. Coverage Maps 7. Notice of Exemption 8. Public Hearing Notice (Sent to 8 property owners) 9. Applicant's Plans (Exhibits A and B dated 10/10/2013 Case File No. 2013-24 CUP, CDP) MARTIN REEDER, AICP Principal Planner BRAD RAULSTON Executive Director 5 RECOMMENDED FINDINGS FOR APPROVAL 2013-24 CUP, CDP —1445 Tidelands 1. That the site for the proposed use is adequate in size and shape, since the facility, including the faux palm tree and shelter (257 square feet), can easily be accommodated on the 0.40 acre site, and will not affect surrounding existing uses. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility requires only one to two visits each month for routine maintenance, which will have a negligible effect on the adjacent developed streets. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 60-foot artificial palm tree will adequately screen the twelve panel antennas, and since the landscaping and fencing on -site will provide adequate screening of the equipment shelter from adjacent properties. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will improve the performance of the Verizon Wireless communications network, resulting in enhanced service for its customers. 5. That the proposed project is consistent with and implements the Certified Local Coastal Program, since the proposed stealth wireless facility, is a conditionally - allowed use in the MM-CZ zone and will not prohibit coastal access or obstruct views. 6 RECOMMENDED CONDITIONS OF APPROVAL 2013-24 CUP, CDP —1445 Tidelands General 1. This Conditional Use Permit and Coastal Development Permit authorize a wireless communications facility at 1445 Tidelands. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibits A and B, Case File No. 2013-24 CUP, dated 10/10/2013. Any additional antennas or facilities must be in substantial conformance with the design for installation shown on these plans. 2. Before this Conditional Use Permit and Coastal Development Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit and Coastal Development Permit. The applicant shall also submit evidence to the satisfaction of the Planning Department that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit and Coastal Development Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Executive Director prior to recordation. 3.. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.12.040 of the Municipal Code. Building/Fire 5. Plans submitted for improvements in 2013 must comply with the 2010 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. If submitted in 2014, plans submitted for improvements must comply with the 2013 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. Engineering 6. The Priority Project Applicability checklist for the National Pollutant Discharge Elimination. System (NPDES) is required to be completed and submitted to the Engineering Department. The checklist will be required when a project site is submitted for review of the City Departments. The checklist is available at the 7 Engineering Department. If it is determined that the project is subject to the "Priority Project Permanent Storm Water BMP Requirements" and the City of National City Storm Water Best Management Practices of the Jurisdictional Urban Runoff Management Program (JURMP) approved Standard Urban Storm Water Mitigation Plan (SUSMP) documentation will be required prior to issuance of an applicable engineering permit. The SUSMP shall be prepared by a Registered Civil Engineer. 7. The Best Management Practices (BMPs) for the maintenance of the proposed construction shall be undertaken in accordance with the National Pollutant Discharge Elimination System (NPDES) regulations which may require a Storm Water Pollution Prevention Plan (SWPPP) for the project. An approved SWPPP will be required prior to issuing of a construction permit. 8. A permit shall be obtained from the Engineering Department for all improvement work within the public right-of-way, and any grading construction on private property. Utilities 9. Prior to any construction or grading activities, the applicant shall coordinate with all utilities with infrastructure in the area to ensure protection of any existing utility services. 10. Call 800-227-2600 (Underground Service Alert) for mark out prior to any digging activities. Planning 11.All appropriate and required local, state and/or federal permits must be obtained prior to operation of the wireless communications facility. 12. The dead/dying and non-existent landscape areas on -site shall be re -planted to the satisfaction of the Planning Department. The proposed relocated palm tree shall be placed south of the project area to the extent possible. 13. As part of construction of the proposed driveway to the project, the existing driveway border shall be repaired. Please contact the Planning Department for additional information. 14. The chain link fence shall incorporate vinyl slats in order to match the existing facilities on site. 15.AII exterior equipment (e.g., RRU units, GPS antennas, microwave dish antenna, panel antennas) shall be painted to match the surface on which it is mounted. 16. Exterior walls of buildings/poles to a height of not less than 6 feet shall be treated with a graffiti resistant coating subject to approval from the Building Official. Graffiti shall be removed within 24 hours of its observance. 17. The permittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant and the complaining user. This condition in no 8 way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 18. The applicant or operator shall be responsible for the removal and disposal of any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete within six (6) months of discontinuance. 9 Feet 1,375 2,750 5,500 O Wireless facilities in National City /\ Wireless facilities in unincorporated area Wireless Communication Facilities National City Planning Department 2012 FACILITY APN LOCATION PROVIDER FILE_NO_ 1 562-340-44 2434 Southport Urban Comm Rad CUP-1992-11 Radio communication facility (microwave transmitter)- 80-foot tall tower and 8-foot in diameter dish antenna 2 562 340 26 300 W 28th AirTouch CDC Reso 94-28 75-foot monopole with three sector antennas and 450-sa foot eauipment buildina. 562-340-26 300 W 28th Nextel CUP-2003-30 12 antennae on existing communications tower and a 270 square foot equipment enclosure adiacent to existing equipment 4 559-032-02 1215 Wilson Pac Bell CUP-1995-11 Located on roof of existina building. PCS facility- six roof -mounted antennas and two ground -mounted equipment boxes. 5 557-410-03 1645 E Plaza Pac Bell CUP-1995-13 Located on roof of Quality Inn. PCSfacilitv- six panel antennas and equipment cabinet. 6 555-086-11 910 Hoover AirTouch CUP-1995-18 Located on existing building. Cellular facility- three support structures with five panel antennas each, two dish antennas and equipment cabinet 7 556-471-24 801 National City Blvd AT&T CUP-1996-2 Located on roof of Red Lion Hotel. Paging facility- four whip antennas, one global positioning satellite antenna and equipment cabinet. 556-471-24 801 National City Blvd Nextel CUP-1994-8 Located on roof of Red Lion Hotel. ESMR facility- three whip antennas and eauipment cabinet. 556-471-24 801 National City Blvd Pagenet CUP-1996-12 Located on roof of hotel. Paging facility- four antennas and eauipment cabinet one floor down from roof. 556-471-24 801 National City Blvd AT&T CUP-1999-5 Located atop Red Lion Hotel. Wireless communication facility- four antennas and radio base system. 8 554-120-30 2400 E 4th AT&T CUP-1996-4 Located on roof of Paradise Valley Hospital. Paaina facility- four whip antennas, one alobal POsitioninasatellite antenna and equipment cabinet. 9 559-160-13 1022 W Bay Marin GTE CUP-1996-5 Located on a 360-sa foot building. Cellular facility- 60-foot monopole with twelve panel antennas. 10 563-370-36 3007 Highland Pac Bell CUP-1996-6 Located on existing Super Saver buildina. PCSfacility- six panel antennas and two equipment cabinets. 12 554-050-12 303 Palm AirTouch CUP-1996-8 60-foot hiah monopole with six whip antennas, thirty directional cellular antennas, and three dishes with an eauiDmentcabinet at base. 554-050-12 303 Palm Sprint PCS CUP-2001-10 Located on National Guard Armory property. PCSfacility six antennas in three 40-foot flag poles, one GPS antenna and a new equipment building. 14 564-471-01 3030 Plaza Bonita Rd Nextel CUP-1997-8 Located atop Plaza Bonita sign. ESMRfacilitv- nine antennas and equipment cabinet. 564-471-01 3030 Plaza Bonita Rd Pac Bell CUP-1996-7 Located atop the existing Plaza Bonita sign. PCSfacility- three antennas and two eauiDmentcabinets at base of sign. 16 557-420-36 1840 E 12th Nextel CUP-1999-4 60-foot monopalm on vacant commercial lot. 20 555-082-11 111 W 9th Sprint CUP-2000-9 Located atop 2-story Sid's Camet Barn warehouse. Wireless communication facility- twelve wireless panel antennas and 4-inch GPS antenna. 21 555-030-21 330 National City Blvd GTE CUP-2000-11 Located atop BayTheatre. Wireless communication facility- twelve panel antennas and four equipment cabinets. 22 564-250-50 2435 Sweetwater Sprint CUP-2000-14 Located at Sweetwater Inn. Global Positioning System with nine panel antennas. 30 557-420-36 1905 E Plaza Sprint PCS CUP-2001-3 53 foot tall monopalm with nine panel antennas. PCS Facility with one equipment enclosure and a GPS antenna. 32 556-473-18 242 E 8th AT&T CUP-2001-6 Located atop an existing church. 34 563-370-35 3007 Highland Nextel CUP-2001-12 Located atop Sweetwater Square. New equipment building over trash enclosure, nine panel antennas and one GPS antenna. 36 563-231-38 1914 Sweetwater Cingular CUP-2002-3 Located on an existing 75 foot tall pole sign for the SweetwaterTown and Country Shopping Center. 37 564-310-37 3737 Sweetwater Cingular CUP-2002-4 72 foot tall monopine with standard equipment enclosure 39 556-101-15 241 National City Blvd Cingular CUP-2002-6 12 panel antennas behind four new partial parapet walls atop an existina fumiture store; four equipment cabinets outside 40 558-200-24 2415 E 18th Cingular CUP-2002-13 Panel antennas located inside new liaht standards; equipment located inside existing commercial buildina 41 556-354-13 716 Highland AT&T CUP-2002-14 Six facade mounted panel antennas with equipment on roof of PacBell switching station. Equipment screened to match existing. 44 556-590-61 1019 Highland Sprint PCS CUP-2002-24 6 panel antennas in a new monument sign in the South Bay Plaza shopping center 556-590-61 1019 Highland Cingular CUP-2002-2 Located atop South Bay Plaza on an existing mechanical equipment screen. 51 552-283-11 2323 E Division Sprint CUP-2004-6 3 panelantennasina 9x10x16 roof-mountedcupola 52 560-191-30 1701 D Ave Nextel CUP-2004-12 12 panel antennas on a 57' faux broadleaf tree with 230 square foot equipment enclosure 53 551-570-20 51 N Highland Sprint CUP-2004-15 2 panel antennas in a 45' flagpole with 4 wall -mounted equipment cabinets 55 563-231-39 1914 Sweetwater Nextel PC Reso 20-2002 2 panel antennas in a 45' flagpole with 4 wall -mounted equipment cabinets 57 554-120-24 2701 E 8th Cingular PC Reso 02-2001 Co-locationin churchspire-3 antennas within existing architectural feature 554-120-24 2701 E 8th T-Mobile CUP-2000-19 Located at existing church. Antennas located in a GO-footmonument. 554-120-24 2701 E 8th Sprint CUP-2000-27 12 panel antennas mounted on exterior of self -storage building and painted to match; all equipment located inside of the buildings 554-120-24 2701 E 8th AT&T CUP-2000-19 Located at existing church. Antennas located in a 60-foot monument 58 558-030-30 1035 Harbison Nextel CUP-2005-3 12 panel antennas on a monopaim with 299 SQ.ft. equipment enclosure. 60 556-510-12 914 E 8th Cingular CUP-2005-10 12 panel antennas on 39-ft monopine with 280 sq. ft. equipment shelter 61 559-040-53 1439 Tidelands Cingular CUP-2005-9 12 panel antennas on monopaim with associated equipment shelter 559-040-53 1445 Tidelands Nextel CUP-2000-31 40-footmonopalmwith three sectors of four antennas each and equipment shelter 63 562-200-02 2900 Highland Cingular CUP-2005-12 3 antennas on replacement light standard with associated equipment shelter 64 563-010-47 2605 Highland Cricket CUP-2006-11 3 antennas in new architectural feature of church with associated equipment 563-010-47 2605 Highland Sprint CUP-2002-18 Six panel antennas and equipment inside a new 54 foot tall monument/cross/sign. 65 557-420-31 1900 E Plaza Cricket CUP-2006-6 3 antennas on new faux palm tree with associated equipment 557-420-31 1900 E Plaza Cingular CUP-2004-4 5 panel antennas in a new pole sign at Jimmy's Restaurant 67 561-222-23 1526-40 E 18th T-Mobile CUP-2006-10 12 panel antennas on a new 45-foot tall faux pine tree with associated equipment shelter 68 564-471-07 3030 Plaza Bonita Rd Cingular CUP-2005-24 12 antennas facade mounted to new rooftop enclosure that will house equipment 68 564-471-07 3030 Plaza Bonita Rd Verizon CUP-2003-13 12 panel antennas on the roof of the Plaza Bonita Mall behind a screen wall 69 559-106-17 525 W 20th Cricket CUP-2005-25 3 antennas on existing self storage building painted to match with associated equipment 559-106-17 525 W 20th Sprint CUP-2001-4 Located on existina storaae building. Wireless communication facility- 9 antennas and equipment building. 70 554-050-15 2005 E 4th Cricket PC Reso 09-2003 3 antennas on existing light standard with associated equipment shelter 554-050-15 2005 E 4th Cingular CUP-2003-5 12 panel antennas on a replacement 100 foot light standard in ElTovon park and a 160 square foot equipment enclosure. 554-050-15 2005 E 4th GTE CUP-1998-4 Located in ElTovon Park. Cellular facility- 97'8" monopole with twelve panel antennas, three omni antennas, and 192-sqfoot equipment building. 554-050-15 2005 E 4th Nextel CUP-2005-15 12 panel antennas on a 47-foot tall faux -broadleaf awith 230 sq. ft.equipment shelter 71 564-290-06 3820 Cagle St Cricket PC RESO 10-2004 3 antennas on existing faux pine tree with vaulted equipment shelter 564-290-06 3820 Cagle St Sprint CUP-2001-2 Located at Sweetwater Heights Centennial Park. Wireless communication facility- 35-foot pole with six antennas, equipment building and adiacent liahting for the park. 564-290-06 3820 Cagle St T-Mobile CUP-2004-3 Located at Sweetwater Heights Centennial Park. Wireless communication facility- 55-foot monopine with twelve panel antennas and equipment building 564-290-06 3820 Cagle St Cingular PC Reso 11-2002 Co -location on 55-foot monopine - additional 12 panel antennas and new 275 SQ.ft. equipment vault 72 669-060-26 5800 Boxer Rd Cricket PC RESO 32-2003 3 antennas on existing water tower with associated equipment shelter 669-060-26 5800 Boxer Rd T-Mobile CUP-2003-16 12 panel antennas on the outside of the 0.0. Amold water tank and a 150 square foot equipment enclosure adiacent to the tank 669-060-26 5800 Boxer Rd Sprint PC Reso 32-2003 6 panel antennas on the outside of the 0.0. Amold water tank and a 360 square foot equipment enclosure adjacent 669-060-26 5800 Boxer Rd Cingular CUP-2005-21 12 panel antennas on the outside of the 0.0. Amold water tank and a 520 square foot equipment enclosure adjacent 73 562-330-43 152 W 33rd Cricket PC Reso 21-2002 3 antennas on existing self storage within matching architectural projection with associated equipment 562-330-43 152 W 33rd Sprint CUP-2002-8 12 panel antenas mounted on exterior of self -storage building and painted to match; all equipment located inside of the 74 555-053-17 700 NCB Cricket PC Reso 05-2000 3 antennas facade mounted to existina hotel with associated equipmen 555-053-17 700 NCB Metricom CUP-2000-4 Located atop Holiday Inn. Wireless communication facility with equipment cabinet. 555-053-17 700 NCB Skytel CUP-2000-30 Located atop Holiday Inn Hotel. - 8-foot whip antenna, two 4x2-foot panel antennas, and one GPS antenna with two indoor equipment cabinets. 75 560-203-03 1800 National City Blvd Nextel CUP-2006-15 15 panel antennas behindscreen wall atop existing car dealership with associated equipment 76 561-360-35 1810 E 22nd Cricket 2007-14 CUP 3 antennas on recration building at Las Palmas Park 561-360-35 1820 E 22nd Sprint-Nextel CUP-2000-8 Located in Las Palmas Park. Monopalm and eauipment along with live palms. 78 560-143-36 1703 Hoover Cleawire 2009-22 CUP 9 antennas located on 3 different locations on industrial warehouse building. Each location will have 2 panne) antennas. Associated equiptment will be located in building 79 559-160-33 700 Bay Marina Dr Cleawire 2009-23 CUP 9 antennas on tower of Marina Gateway Plaza commercial building hidden behind parapet wall. 6-foot tall equiptmant cabinent on roof below tower will be mostly covered 80 560-151-20 142 E 16th AT&T 2010-11 CUP 6 panel antennas and RF transparent cupola atop National City Ministry Church, as well as a 330 sq ft equipment/storage/trash enclosure on the ground. The 8-foot tall Cupola will have a cross afixed to it in order to appea as part of the church 81 561-271-01 2005 Highland Ave Plancom 2010-31 CUP 12 antenas on a 43-foot mono -palm on eastem property line 561-271-01 2005 Highland T-Mobile CUP-2003-4 12 antennas on the roof of a Highland Avenue office building 561-271-01 2005 Highland Cingular CUP-2006-2 12 antennas on the roof of a Highland Avenue office building with new cupola to match existing 82 563-184-47 2909 Shelby Dr P95-025 75-foot monopole and equipment building. 83 563-062-17 2524 Prospect St AT&T ZAP99-028 35-foot monopalm with three sector directional antenna system and equipment cabinets. 85 564-310-32 3312 Bonita Heights Lane AT&T ZAP00-133 86 563-063-29 2563 Grove St AT&T MUP91-026W2 86 563-063-29 2563 Grove St P91-026W Monopole located aside live palm trees. • 11. IL NO !NI 43 CO ., Seseoa. SD_LTE 09022013 User zeamit Thu Sep 1915:37:38 2013 Default Square Datum: N5D83 Center Lat. 32<001.27 N Cooler Lan:117-06-52.85 W Cols LN: Cal Name M r.:460nrread • secondary_hlghway LTE RSRP 7CL Cis RSRP (dBm) a>m -75 ❑ „-55 • >_ -95 ■ >_ -105 Scala: 1 24000 GeoPlan v6.5.2 Propriemry and Confidential VVr� Vk- 5 i Session: SD_LIE _03022013 Wen2eWnii The Sep 1915:26:39 2013 Defa.i Square Deem: NF663 Center LaL 32-40-01.27 N Center Lon:11 i-06-52.65 W Cella LEI: Cell Name ® E9M_duty_road • m9acmr road • samndary_Eiplway LTE RSRP 7CL Gc RSRP (dam) ■ >_ -75 ❑ >_ -85 • >. -95 ■ >_ -105 Scle:1:24000 workftweiess GeoPlan v6.52 Proprietary and Confidential W1=KA ife CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 NOTICE OF EXEMPTION TO: County Clerk County of San Diego P.O. Box 1750 1600 Pacific Highway, Room 260 San Diego, CA 92112 Proiect Title: 2013-24 CUP, CDP Proiect Location: 1445 Tidelands Avenue, National City, CA 91950 Contact Person: Martin Reeder Telephone Number: (619) 336-4313 Description of Nature, Purpose and Beneficiaries of Proiect: Conditional Use Permit for a wireless communications facility involving a 60-foot faux palm tree on an existing industrial property with two other similar facilities. The project will increase signal strength and service area for Verizon Wireless customers. Applicant: Lisa Mercurio for Verizon Wireless 15505 Sand Canyon Avenue Irvine, CA 92618 Exempt Status: Telephone Number: (858) 248-2461 ® Categorically Exempt pursuant to Class 3 Section 15303 (New Construction or Conversion of small structures) Reasons why project is exempt: There is no possibility that the proposed use will have a significant impact on the environment since the area is in a fully developed industrial area and has two almost identical facilities in the same area. The proposal will not affect use of the property or impact coastal views/access. Date: MARTIN REEDER, AICP Principal Planner 22 CITY OF NATIONAL CITY - PLANNING DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 NOTICE OF PUBLIC HEARING CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY LOCATED AT 1445 TIDELANDS AVENUE IN THE COASTAL ZONE. CASE FILE NO.: 2013-24 CUP, CDP The National City Planning Commission will hold a public hearing after the hour of 6:00 p.m. Monday, December 2, 2013, in the City Council Chambers, Civic Center, 1243 National City Boulevard, National City, California, on the proposed request. (Applicant: Verizon Wireless) The project site is located at the northern end of the property adjacent to the railroad right-of- way. The applicant proposes to install 12 panel antennas on a new 60-foot tall faux palm tree and a new 247 square -foot equipment shelter. The time within which judicial review of the City Council action must be sought on this item is governed by Section 1094.6 of the California Government Code of Civil Procedure (CCP). The right to appeal a decision of the City Council is governed by Section 1094.5 of the CCP and Chapter 1.42 of the City of National City Municipal Code. Plans are available for review at the City's Planning Department, Civic Center. Members of the public are invited to comment. Written comments should be received by the Planning Department on or before 12:00 p.m., December 2, 2013, who can be contacted at 619-336- 4310 or planninq(a.nationalcitvca.gov If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. NATIONAL CITY PLANNING DEPARTMENT �N,` BRAD RAULSTON Executive Director 23 RESOLUTION NO. 28-2013 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY LOCATED AT 1445 TIDELANDS AVENUE IN THE COASTAL ZONE. APPLICANT: VERIZON WIRELESS CASE FILE NO. 2013-24 CUP, CDP WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit and Coastal Development Permit for a wireless communications facility located at 1445 Tidelands Avenue in the Coastal Zone., at a duly advertised public hearings held on December 2, 2013, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearings the Planning Commission considered the staff report contained in Case File No. 2013-24 CUP, CDP maintained by the City and incorporated herein by reference along with evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on December 2, 2013, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the facility, including the faux palm tree and shelter (257 square feet), can easily be accommodated on the 0.40 acre site, and will not affect surrounding existing uses. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility requires only one to two visits each month for routine maintenance, which will have a negligible effect on the adjacent developed streets. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 60-foot artificial palm tree will adequately screen the twelve panel antennas, and since the landscaping and fencing on -site will provide adequate screening of the equipment shelter from adjacent properties. 24 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will improve the performance of the Verizon Wireless communications network, resulting in enhanced service for its customers. 5. That the proposed project is consistent with and implements the Certified Local Coastal Program, since the proposed stealth wireless facility, is a conditionally - allowed use in the MM-CZ zone and will not prohibit coastal access or obstruct views. BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: General 1. This Conditional Use Permit and Coastal Development Permit authorize a wireless communications facility at 1445 Tidelands. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibits A and B, Case File No. 2013-24 CUP, dated 10/10/2013. Any additional antennas or facilities must be in substantial conformance with the design for installation shown on these plans. 2. Before this Conditional Use Permit and Coastal Development Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to retum the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit and Coastal Development Permit. The applicant shall also submit evidence to the satisfaction of the Planning Department that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit and Coastal Development Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Executive Director prior to recordation. 3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.12.040 of the Municipal Code. Building/Fire 5. Plans submitted for improvements in 2013 must comply with the 2010 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. If submitted in 2014, plans submitted for improvements must comply with the 2013 edition of the California Building, Electrical, Plumbing, Mechanical, and Fire Codes. 25 Engineering 6. The Priority Project Applicability checklist for the National Pollutant Discharge Elimination System (NPDES) is required to be completed and submitted to the Engineering Department. The checklist will be required when a project site is submitted for review of the City Departments. The checklist is available at the Engineering Department. If it is determined that the project is subject to the "Priority Project Permanent Storm Water BMP Requirements" and the City of National City Storm Water Best Management Practices of the Jurisdictional Urban Runoff Management Program (JURMP) approved Standard Urban Storm Water Mitigation Plan (SUSMP) documentation will be required prior to issuance of an applicable engineering permit. The SUSMP shall be prepared by a Registered Civil Engineer. 7. The Best Management Practices (BMPs) for the maintenance of the proposed construction shall be undertaken in accordance with the National Pollutant Discharge Elimination System (NPDES) regulations which may require a Storm Water Pollution Prevention Plan (SWPPP) for the project. An approved SWPPP will be required prior to issuing of a construction permit. 8. A permit shall be obtained from the Engineering Department for all improvement work within the public right-of-way, and any grading construction on private property. Utilities 9. Prior to any construction or grading activities, the applicant shall coordinate with all utilities with infrastructure in the area to ensure protection of any existing utility services. 10. Call 800-227-2600 (Underground Service Alert) for mark out prior to any digging activities. Planning 11. Alt appropriate and required local, state and/or federal permits must be obtained prior to operation of the wireless communications facility. 12. The dead/dying and non-existent landscape areas on -site shall be re -planted to the satisfaction of the Planning Department. The proposed relocated palm tree shall be placed south of the project area to the extent possible. 13. As part of construction of the proposed driveway to the project, the existing driveway border shall be repaired. Please contact the Planning Department for additional information. 14. The chain link fence shall incorporate vinyl slats in order to match the existing facilities on site. 15.AII exterior equipment (e.g., RRU units, GPS antennas, microwave dish antenna, panel antennas) shall be painted to match the surface on which it is mounted. 16. Exterior walls of buildings/poles to a height of not less than 6 feet shall be treated with a graffiti resistant coating subject to approval from the Building Official. Graffiti shall be removed within 24 hours of its observance. 17. The permittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the 26 permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant and the complaining user. This condition in no way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 18. The applicant or operator shall be responsible for the removal and disposal of any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete within six (6) months of discontinuance. BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council. BE IT FINALLY RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the Planning Commission resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to 5:00 p.m. on the day of that City Council meeting. The City Council may, at that meeting, appeal the decision of the Planning Commission and set the matter for public hearing. CERTIFICATION: This certifies that the Resolution was adopted by the Planning Commission at their meeting of December 2, 2013, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: caaaio_cApez,..._ CHAIRPERSON 27 ) 2 § s| , 11N15 svi § I6 .� i:Ear | .| 1 71. | �P i § | �� FL i �| ,... �t 2 ||� �1�� | | ,■, ■ ! ] |�|$|1|I|§) fl 2 h |.|| . hik ■| | | �F � 1II§|�% ||| , ■| ■ A &,| & | ■ | |||,| 28 AAeuWCTRAR ■ mcOROTAial NT RAN* ...nm tos a R RT ■ RPM MAAAp-WA OIIIIIIIID 11 PIEPAIRP raft M �:wfmIess P.O. RON MOP M10A5-g]O) "'UT to—>000 tt APPROVALS AM Pm ■ RTC R UN NT RN ■ M Oaf A' AA■ We. y■ 7 PROJECT NAME R Ivca►MW 1445 1111EIN05 AYCIIE NATIONAL COT, CA 111530 SAM ■ECO COU■T 1 Tali DRAM It SHEET TIME ORE PLAN IT oracetrAwagAWAAT ■ A-0 i•l i APCIn¢TIRI ee fltHMfNIn9 an .r emwu c. n.nee.1.<..m.,d .... alillin e PREPARED MR IIIPITZellwireless P.O. ROE 19107 OMNE. 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MONOPALM ELEVATION IA® I9A SOL M rAlm1°"S WMO,, 0�9G�TRIMLY 11'1 i eecxrtlinn( n nC0RPSMTR S fw19.1*MUM 'Aim M Min.IF IMp MO..1.Mn r PREPARED FOR P.O.VillettMlIsvireless 9W 19707 IRDRI , G1) 924eSe2b-9T17 9929U0 it APPROVALS ILK Mn NT PV MR LIAR YR n9 OR WOW OM IS PROJECT RARE TIDELANDS 1445 TI00LN1D2 AVENUE NATIDNAL CT'. <A 91950 SAN MOO MINTY R DRAWING DATES R SHEET TITLE MONOPN.M ELEVATION, ANTENNA PLAN & DETALS 4 .m1¢tt..wtal•l.n n A-6 m_r _/ram 3S Ci 67f l511311i11, E1/ 1 kI RR RR 65 ���J[Lf e�'Y f�FC.•MI[�E-rkrl E�.[ 36 LOOKING SOUTHEAST TOWARD SUBJECT SITE s rE PRIOR To INSTALLATION SITE AR INSTALLATION VICINTVY MA.P TIDELANDS 1445 TIDELANDS AVENUE NATIONAL CITY, CA 91950 LOOKING NORTHEAST TOWARD SUBJECT SITE SITE PRIOR, TO INSTALLATION SITE AFTER INSTALLATION VICINITY MAP TIDELANDS 1445 TIDELANDS AVENUE NATIONAL CITY, CA.91950 LOOKING EAST TOWARD SUBJECT SITE SITE PRIOR TO INSTALLATION SITE AMR INSTALLATION VEfly MAP TIDELANDS 1445 TIDELANDS AVENUE NATIONAL CITY, CA 91950 Z--,:ittYPe)Sr,tz EQUTPA OLNERA CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 17, 2013 AGENDA ITEM NO. 17 ITEM TITLE: Response to request by City Council to provide information regarding the retail sale of animals in pet stores and related municipal codes. PREPARED BY: Jose Tellez, Captain DEPARTMENT: Police PHONE: 4513 APPROVED BY: EXPLANATION: On November 19, 2013, a Councilmember requested staff prepare a report regarding the retail sales of animals in pet stores and the municipal codes related to sales. The information was requested in order to evaluate the need for City Council action regarding animals sold in pet stores in National City.' FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Staff Report NATIONAL CITY POLICE DEPARTMENT INTER -DEPARTMENT MEMORANDUM Date: December 5, 2013 To: Manuel Rodriguez, Chief of Police From: Jose Tellez, Captain Subject: Staff Report — Executive Brief on Animal Sales During the November 19, 2013 City Council Meeting, staff was directed to provided information regarding the sale of animals by pet stores, due to the recent ban by some local cities to prohibit animal sales. This report provides information on the purpose of animal sales as well as the reasoning for banning these sales. In addition, the following areas will be discussed: • Pet stores located in National City • Animal Regulations • National City Municipal Codes related to animal sales • Issues regarding animal sales by pet stores • Current number of cities in San Diego County that ban animals sales and related municipal codes • City of Carlsbad decision • Factors to consider BACKGROUND There are currently two pet stores in National City, Fiesta Pet Shop — 1145 Highland Avenue, Suite A and Pet Market #3 —1536 Sweetwater Road, Suite F. A third pet store is in the process of obtaining permits to operate within the city, National City Puppy — 1430 East Plaza Blvd. Currently, Fiesta Pet Shop and Pet Market #3 sell dogs and cats, along with other animals and pet supply products. SUMMARY Those in favor of prohibiting the retail sale of animals believe there is insufficient oversight because retail stores usually obtain their dogs and cats from a number of sources. These sources include breeders, regulated by the U.S. Department of Agriculture, and smaller hobby breeders, who are not subject to regulations. Regulation information is according to Pet Industry Joint Advisory Council which represents pet 2 stores across the country. Animal Advocates, including the Humane Society of the United States, believe that pet stores obtain many of their animals from "puppy mills" and "kitten factories, places where dogs and cats are bred and raised in cramped, unhealthy, and inhumane conditions. (OLR Research Report August 2013) Two cities in San Diego County (San Diego and Chula Vista) have banned pet stores in their communities from selling dogs and cats. Animal rights groups, including the Humane Society of the United States, say banning the sale of dogs and cats at pet stores not only will help reduce the number of animals treated inhumanely but it will encourage the adoption of more pets from shelters and rescue groups. On the other side of the debate, pet store owners and some mass breeders say the criticisms are overblown. They contend the ban limits consumer choice, threatens the long-term viability of dog breeding and encourages the "underground" sale of animals. Additionally, store owners and breeders assert they purchase / obtain animals for resale from reputable licensed breeders. Some retail stores deal with larger and established breeders that are inspected by the U.S. Department of Agriculture and the American Kennel Club. Guarantees for the consumer regarding the health of the animals varies from store to store. ORDINANCES The City of National City does not have ordinances regulating the retail sale of animals in stores however the following ordinance addresses the sale of animals in public: NCMC 8.32.050: Animal sales in public places prohibited. It is unlawful to offer for sale, sell, or to exchange or transfer for any form of consideration puppies or kittens on public property or on private property open to the public, including but not limited to areas in front of stores, commercial shopping areas, commercial parking areas, swap meets and auctions. ANIMAL SALE PROHIBITIONS The City of Chula Vista in 2012 passed an ordinance prohibiting the sales of dogs and cats by pet stores. The following Chula Vista Municipal Codes address the animal sales ban: CVMC 6.08.108: Pet shops — Dog and cat sales prohibited Pet shops are prohibited from selling dogs or cats in the City of Chula Vista. 3 CVMC 6.30.010: Sale of animals, birds, or reptiles on public property or on private property open to the public prohibited It is unlawful to give away, offer for sale, sell, exchange, or transfer for any form of consideration, or for no consideration, any animal, bird, or reptile on public property or on private property open to the public, including, but not limited to, areas in front of stores, commercial shopping areas, commercial park areas, swap meets, and auctions. CVMC 6.30.020 Exceptions: CVMC 6.30.010 shall not apply to: A. Any legally recognized nonprofit charitable organization that provides or contracts to provide services as a public animal sheltering agency. B. Any legally operated business that sells animals, birds, or reptiles in its normal course of business. C. Any nonprofit animal rescue or adoption organization. D. Any gift, sale, exchange, or transfer of any animal, bird, or reptile on public property or on private property open to the public that is authorized by federal or state law. The City of San Diego in August 2013 passed an ordinance to prohibit, with certain exceptions, the retail sale of dogs, cats, and rabbits within the city. Additionally, the ordinance does not prevent the owner / operator of an establishment from providing space and appropriate care for animals owned by a city or county animal shelter, the humane society, or non-profit rescue organization for the purpose of public adoption. The following San Diego Municipal Codes outlines the ban: SDMC 42.0706 Pet Shops - Prohibition of the Sale of Dogs, Cats, and Rabbits (a) It is unlawful for any person to display, offer for sale, deliver, barter, auction, give away, transfer, or sell any live dog, cat, or rabbit in any pet shop, retail business, or other commercial establishment located in the City of San Diego, unless the dog, cat, or rabbit was obtained from a city or county animal shelter or animal control agency, a humane society, or a non-profit rescue organization. All pet shops, retail businesses, or other commercial establishments selling dogs, cats, or rabbits shall maintain a certificate of source for each of the animals and make it available upon request to animal control officers, law enforcement, code compliance officials, or any other City employee charged with enforcing the provisions of this section. (1) For purposes of this section, a commercial establishment is defined as any for -profit business enterprise, including a sole 4 proprietorship engaged in retail or wholesale commerce related to dogs, cats, and rabbits, including grooming parlors, canine day care, and boarding facilities. (2) For purposes of this section, a non-profit rescue organization is defined as any California non-profit corporation that is exempt from taxation under Internal Revenue Code section 501(c)(3), whose mission and practice is, in whole or in significant part, the rescue and placement of dogs, cats, or rabbits; or any non-profit organization that is not exempt from taxation under Internal Revenue Code section 501(c)(3) but is currently an active rescue partner with a City or County of San Diego shelter or humane society, whose mission is, in whole or in significant part, the rescue and placement of dogs, cats, or rabbits. (3) For purposes of this section, a certificate of source is defined as any document from the source city or county animal shelter or animal control agency, humane society, or non-profit rescue organization declaring the source of the dog, cat, or rabbit on the premises of the pet shop, retail business, or other commercial establishment (b) This section shall not apply to the display, offer for sale, delivery, bartering, auction, giving away, transfer, or sale of dogs, cats, or rabbits from the premises on which they were bred and reared. (b) This section shall not apply to the display, offer for sale, delivery, bartering, auction, giving away, transfer, or sale of dogs, cats, or rabbits from the premises on which they bred and reared. (c) Nothing in this section shall prevent the owner, operator, or employees of a pet shop, retail business, or other commercial establishment located in the City of San Diego from providing space and appropriate care for animals owned by a city or county animal shelter or animal control agency, humane society, or non-profit rescue organization and maintaining those animals at the pet shop, retail business, or other commercial establishment for the purpose of public adoption. CARLSBAD REVERSED DECISION The City of Carlsbad adopted an ordinance to ban animal sales at pet stores within their city limits. About a month later, the Carlsbad City Council reversed their decision. The following is taken from their agenda bill as to the reasons (Agenda Bill -AB# 21,430): 5 On October 8, 2013, the City Council considered the issue of the inhumane treatment of dogs and cats bred in puppy mills and kitten factories and passed an urgency ordinance to prohibit the retail sale of dogs and cats which may be bred in puppy mills and/or kitten factories and/or new retail pet stores which could located in the City at any time and sell animals bred in such conditions. On November 5, 2013, the City Council heard additional public comment and reconsidered the issue of prohibiting the retail sale of dogs and cats. City Council determined that prohibiting the retail sale of dogs and cats is not the most effective way to stop the practice of breeding and raising dogs and cats in inhumane conditions such as those found in puppy mills and kitten factories. instead, the most effective manner of preventing the harms caused by puppy mills or kitten factories many of which are located out of state is for stronger regulation and enforcement of animal breeding regulations by the State and Federal government. Prohibiting the retail sale of dogs and cats may harm legitimate business owners who do obtain their dogs and cats from puppy mills and kitten factories, and allowing an exemption for the only business engaged in the retail sale of dogs and cats in the City of Carlsbad would create a monopoly. FACTORS The following factors may be considered by policy makers when evaluating whether to implement changes to the existing National City ordinance(s) on animal sales: Status Quo: No Change in City Ordinance • Additional pet stores may move to National City from other cities that prohibit the retail sale of non -rescue animals. • Animal activist may picket pet stores in National City. • Not prohibiting pet sales provides consumers a local choice to purchase pets. • Breeder Oversight: Large and well established breeding companies are regulated by the US Department of Agriculture. Some pet stores work with these types of breeders. New City Ordinance: Prohibiting Retail Sale of non -rescue animals • Financial setback for current and future pet stores. • Deter new pet stores from moving into City. 6 • Grandfathering current pet stores from the ban will create a monopoly in the City for pet sales. • Prohibiting the sale of non -rescue animals will help control the pet population in City. • Additional oversight of pet stores by Humane Society or animal shelters as a result of rescue animals being sold in stores. • Possible litigation by pet store owners opposing the ordinance. CONCLUSION The decision to enact or not enact a ban on the sale of animals in our City is not without controversy, but in the final analysis it is a policy decision. The points presented in this report are a summary of the information that can be obtained from both sides of the issue. The goal is to provide decision makers with a review of the issues in order to make an informed decision. Retail Animal Sales in San Diego County December 17, 2013 Pet Stores in National City 0- Fiesta Pet Shop —1145 Highland Avenue, Suite A Pet Market #3 — 1536 Sweetwater Road, Suite F 0. Pending: National City Puppy — 1430 East Plaza Blvd I► Currently Fiesta Pet Shop and Pet Market #3 sell dogs and cats, along with other small animals and pet supplies R. National City does not have ordinances regulating the retail sale of animals in stores but the sale of animals in public places is prohibited (NCMC 8.32.050) Summary: ► Those in favor of prohibiting the retail sale of animals believe there is insufficient oversight because retail stores usually obtain their dogs and cats from a number of sources. Animal Advocates, believe that pet stores obtain many of their animals from "puppy mills" and "kitten factories, places where dogs and cats are bred and raised in cramped, unhealthy, and inhumane conditions. (OLR Research Report August 2013) ► Pet store owners and some mass breeders say the criticisms are overblown. They contend the ban limits consumer choice, threatens the long-term viability of dog breeding and encourages the "underground" sale of animals. Additionally, store owners and breeders assert they purchase / obtain animals for resale from reputable licensed breeders. Some retail stores deal with larger and established breeders that are inspected by the U.S. Department of Agriculture and the American Kennel Club. Guarantees for the consumer regarding the health of the animals varies from store to store. ► Two cities in San Diego County (San Diego and Chula Vista) have banned pet stores in their communities from selling dogs-nd cats. Where are these pets acquired? ► Retail stores usually obtain their animals from a ,, number of sources: ► Established breeders (regulated by the US Department of Agriculture) ► Small "hobby" breeders (not subject to regulation or oversight) 0-Brokers that find specific animals for pet stores ow -Individuals that seek out pet stores to sell their litter of puppies or kittens 4 Pet Store Owners / Breeders: Viewpoint 0► Pet Stores owners and breeders claim the criticism is overstated and bans are not good: O► Bans limit consumer choices 0► Threatens the long-term viability of animal breeding 0► Encourages "underground" sales of animals. 0- Many Stores deal with larger established breeders tha are inspected by the US Dept. of Agriculture. Animal Advocates: Viewpoint 1P- Humane Society of the United States and similar organizations believe that pet stores obtain many of their animals from "puppy mills" or "kitten factories"', I► There is Limited regulations on smaller breeders / animal brokers �► Animals that are raised in these conditions usually have to live in cramped, unhealthy and inhumane conditions Some animals are in poor health when they arrive - the pet stores Cities in San Diego County that prohibit retail animal sales ® City of Chula Vista and City of San Diego Prohibit the retail sales of animals in pet store (Chula Vista Public or Private property opened to the public) 01- Except if the animals were obtained from a city or county animal shelter or animal control agency, a humane society or a non-profit rescue organization R- City of Carlsbad 01- Adopted a similar ordinance to prohibit the sale of animals however reversed their decision about a month later (November 2013) Other Cities: Oceanside and others City of Carlsbad Decision City Council determined that prohibiting the retail sale of dogs and cats is not the most effective way to stop the practice of breeding and raising dogs and cats in inhumane conditions such \ as those found in puppy mills and kitten factories ► The most effective manner of preventing the harms caused by puppy mills or kitten factories many of which are located out of state is for stronger regulation and enforcement of animals breeding regulations by the State and Federal government 0- Prohibiting the retail sale of dogs and cats may harm legitima business owners who do obtain their dogs and cats from mills, factories, and allowing an exemption for current businessgs" create a monopoly CONSIDERATIONS The following factors may be considered when evaluating whether to implement cha to the existing National City ordinance(s) on animal sales: ► No New City Ordinance: ► Additional pet stores may move to National City from other cities that prohibit the' retail sale of non -rescue animals ► Activist may picket pet stores in National City ► Provides consumers a choice for pet purchases ► Breeder Oversight: Large and well established breeding companies are regulatedxy by USDA ► New City Ordinance: Prohibiting Retail Sales of non -rescue animals ► Financial setback for current and future pet stores ► Deter pet stores from moving to National City ► Grandfathering current pet stores will create monopoly ► Help control the pet population in City ► Possible litigation by pet store owners opposing ordinance QUESTIONS? CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY COUNCIL AGENDA STATEMENT IEETING DATE: December 17, 2013 AGENDA ITEM NO.18 ITEM TITLE: Resolution of the Community Development Commission- Housing Authority of the City of National City authorizing the Executive Director to execute a Subordination Agreement and an Amendment to the Project Deed of Trust securing the Declaration of Covenants, Conditions, and Restrictions for 372 affordable rental units at 2721 Plaza Boulevard in National City /,�1 a�// Housing, Grants, & Asset PREPARED BY: Carlos Aguirre, Community Dev. Manager(DEPARTMENT: management PHONE: 619 336-4391 EXPLANATION: Summercrest Apartments, also known as Plaza Manor, located at 2721 Plaza Blvd is being sold to Affordable Housing Associates, L.L.C. ("Buyer") for $46,250,000. In 2001, the Community Development Commission ("CDC - HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to Plaza Manor Preservation, L.P. ("Seller") to assist the Seller in the rehabilitation the 372-unit complex. The CDC -HA loan is owed an outstanding balance of approximately $481,341.26. The Buyer has requested to pay off the loan completely through Escrow. The Buyer is has secured commitment on a new mortgage loan to complete the purchase of property from Citibank ("Lender") for $33,000,000. In order to provide the loan, the Lender requires the subordination of the Project Deed of Trust ("Deed of Trust") that currently secures the Declaration of Covenants, Conditions, and Restrictions ("Declaration") which restricts the affordability of units as stated in said Declaration through April 15, 2032. Since the Deed of Trust secures both the loan that will be paid off through Escrow and the Declaration, an Amendment will be made to the Deed of Trust reflecting the full satisfaction of the loan but continuing to secure the Declaration. The Buyer will execute an Assignment and Assumption of the affordability restrictions and other performance requirements of said Declaration as part of the Escrow Instructions provided by the CDC -HA. APPROVED BY: FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. APPROVED: MIS There is no fiscal impact for the CDC -HA by executing the Subordination Agreement and Amendment to the Project Deed of Trust ENVIRONMENTAL REVIEW: Entering into the subordination agreement is exempt from environmental review. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: 1Staff recommends the adoption of a resolution to execute the Subordination Agreement and Amend the Project Deed of Trust.; BOARD / COMMISSION RECOMMENDATION: There is no board or commission recommendation required for the Subordination Agreement. j ATTACHMENTS: 1. Subordination Agreement 5. Declaration of Covenants, Conditions, & 2. Amendment to the Deed of Trust Restrictions 3. Assignment and Assumption 6. Real Estate Purchase Agreement 4. Escrow Instructions Attachment No. 1 Freddie Mac Loan Number: 708202314 Property Name: Summercrest Apartments SUBORDINATION AGREEMENT (CME AND PORTFOLIO) GOVERNMENTAL ENTITY (Revised 5-25-2012) THIS SUBORDINATION AGREEMENT ("Agreement") is entered into this day of December, 2013, by and between (i) CITIBANK, N.A., a national banking association ("Senior Mortgagee") and (ii) COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY acting in its capacity as the Housing Authority of the City of National City ("Subordinate Mortgagee"). RECITALS A. Summercrest Apartments, L.P., a Delaware limited partnership ("Borrower") is the owner of certain land located in San Diego County, California, described in Exhibit A hereto ("Land"). The Land is or will be improved with a multifamily rental housing project ("Improvements"). B. The Senior Mortgagee has made or is making a loan to the Borrower in the original principal amount of $33,000,000 ("Senior Loan") upon the terms and conditions of a certain Multifamily Loan and Security Agreement dated the date hereof between the Senior Mortgagee and the Borrower ("Senior Loan Agreement") in connection with the Mortgaged Property. The Senior Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated the date hereof ("Senior Mortgage") encumbering the Land, the Improvements and related personal and other property described in the Senior Mortgage and defined therein as the "Mortgaged Property." C. Subordinate Mortgagee is the holder of a certain Declaration of Covenants and Restrictions (Tenant Restrictions) ("Regulatory Agreement") dated December 18, 2001, and executed by Plaza Manor Preservation, L.P. and recorded June 19, 2002, in the office of the County Recorder of San Diego County, California as Document Number 2002- 0518422 and assumed by Borrower pursuant to a certain Assignment and Assumption of Declaration of Covenants and Restrictions and Deed of Trust dated December and recorded or intended to be recorded in the office of the County Recorder of San Diego County, California (the "Assumption Agreement"), which Regulatory Agreement is secured by that certain Project Deed of Trust encumbering all or a portion of the Mortgaged Property. ("Subordinate Mortgage") dated December 18, 2001, and 12603564-v3 a Attachment No. 1 executed by Plaza Manor Preservation, L.P. and recorded June 19, 2002, in the office of the County Recorder of San Diego County, California as Document Number 2002- 0518423, as assumed by Borrower pursuant to the Assumption Agreement. D. The Senior Mortgage will be recorded in the office of the County Recorder of San Diego County, California ("Recording Office"). E. The execution and delivery of this Agreement is a condition of Senior Mortgagee's making of the Senior Loan and the Borrower's granting of the Subordinate Mortgage. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Defined Terms. The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), will have the following meanings. (a) The terms "Condemnation," "Imposition Deposits," "Impositions," "Leases," "Rents" and "Restoration," as well as any term used in this Agreement and not otherwise defined in this Agreement, will have the meanings given to those terms in the Senior Loan Agreement. (b) `Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or custodianship action or proceeding under any federal or state law with respect to the Borrower, any guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their respective partners, members, officers, directors, or shareholders. (c) "Borrower" means all persons or entities identified as `Borrower" in the first Recital of this Agreement, together with their successors and assigns, and any other person or entity who acquires title to the Mortgaged Property after the date of this Agreement; provided that the term "Borrower" will not include the Senior Mortgagee in the event that the Senior Mortgagee may acquire title to the Mortgaged Property. (d) "Casualty" means the occurrence of damage to or loss of all or any portion of the Mortgaged Property by fire or other casualty. (e) "Enforcement Action" means any of the following actions taken by or at the direction of the Subordinate Mortgagee: the acceleration of all or any part of the Subordinate Indebtedness, the advertising of or commencement of any foreclosure or trustee's sale proceedings, the exercise of any power of sale, the acceptance of a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the obtaining of or seeking of the appointment of a receiver, the seeking of default interest, the taking of possession or control of any of the Mortgaged Property, the commencement of any suit or other legal, administrative, or arbitration Subordination Agreement (CME and Portfolio) — Governmental Entity Page 2 Attachment No. 1 (fl (g) proceeding based upon any Subordinate Documents, the exercising of any banker's lien or rights of set-off or recoupment, or the exercise of any other remedial action against the Borrower, any other party liable for any of the Subordinate Indebtedness or obligated under any of the Subordinate Documents, or the Mortgaged Property. "Enforcement Action Notice" means a written notice from the Subordinate Mortgagee to the Senior Mortgagee, given following one or more Subordinate Mortgage Default(s) and the expiration of any notice or cure periods provided for such Subordinate Mortgage Default(s) in the Subordinate Documents, setting forth in reasonable detail the Subordinate Mortgage Default(s) and the Enforcement Actions proposed to be taken by the Subordinate Mortgagee. "Loss Proceeds" means all monies received or to be received under any insurance policy, from any condemning authority, or from any other source, as a result or any Condemnation or Casualty. (h) "Senior Indebtedness" means the "Indebtedness" as defined in the Senior Loan Agreement. (i) "Senior Loan Documents" means the "Loan Documents" as defined in the Senior Loan Agreement. (j) "Senior Mortgage Default" means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an "Event of Default" as defined in the Senior Loan Agreement. (k) "Senior Mortgagee" means the "Lender" as defined in the Senior Mortgage. When any other person or entity becomes the legal holder of the Senior Note, such other person or entity automatically will become the Senior Mortgagee. (1) "Senior Note" means the promissory note or other evidence of the Senior Indebtedness referred to in the Senior Loan Agreement and any replacement of the Senior Note. (m) "Subordinate Indebtedness" means all sums evidenced or secured or guaranteed by, or otherwise due and payable to the Subordinate Mortgagee pursuant to, the Subordinate Documents. (n) "Subordinate Documents" means the Subordinate Mortgage, the Regulatory Agreement and all other documents at any time evidencing, securing, guaranteeing, or otherwise delivered in connection with the Subordinate Indebtedness, as the same may be amended from time to time. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 3 Attachment No. 1 (o) "Subordinate Mortgage Default" means any act, failure to act, event, condition, or occurrence which allows (but for any contrary provision of this Agreement), or which with the giving of notice or the passage of time, or both, would allow (but for any contrary provision of this Agreement), the Subordinate Mortgagee to take an Enforcement Action. (p) "Subordinate Mortgagee" means the person or entity named as such in the first paragraph of this Agreement. 2. Subordination of Subordinate Indebtedness. (a) The Subordinate Indebtedness is and will at all times continue to be subject and subordinate in right of payment to the prior payment in full of the Senior Indebtedness. (b) The Subordinate Mortgagee acknowledges that a Subordinate Mortgage Default constitutes a Senior Mortgage Default. Accordingly, upon the occurrence of a Subordinate Mortgage Default, the Subordinate Mortgagee will be deemed to have actual knowledge of a Senior Mortgage Default. (c) If (i) the Subordinate Mortgagee receives any payment, property, or asset of any kind or in any form on account of the Subordinate Indebtedness (including, without limitation, any proceeds from any Enforcement Action) after a Senior Mortgage Default of which the Subordinate Mortgagee has actual knowledge (or is deemed to have actual knowledge as provided in 2(b) above) or has been given notice, or (ii) the Subordinate Mortgagee receives, voluntarily or involuntarily, by operation of law or otherwise, any payment, property, or asset in or in connection with any Bankruptcy Proceeding, such payment, property, or asset will be received and held in trust for the Senior Mortgagee. The Subordinate Mortgagee will promptly remit, in kind and properly endorsed as necessary, all such payments, properties, and assets to the Senior Mortgagee. The Senior Mortgagee will apply any payment, asset, or property so received from the Subordinate Mortgagee to the Senior Indebtedness in such order, amount (with respect to any asset or property other than immediately available funds), and manner as the Senior Mortgagee will determine in its sole and absolute discretion. (d) Without limiting the complete subordination of the Subordinate Indebtedness to the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon any payment or distribution (whether in cash, property, securities, or otherwise) to creditors (i) the Senior Indebtedness will first be paid in full in cash before the Subordinate Mortgagee will be entitled to receive any payment or other distribution on account of or in respect of the Subordinate Indebtedness, and (ii) until all of the Senior Indebtedness is paid in full in cash, any payment or distribution to which the Subordinate Mortgagee would be entitled but for this Agreement (whether in cash, property, or other assets) will be made to the Senior Mortgagee. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 4 Attachment No. 1 (e) The subordination of the Subordinate Indebtedness will continue in the event that any payment under the Senior Loan Documents (whether by or on behalf of the Borrower, as proceeds of security or enforcement of any right of set-off or otherwise) is for any reason repaid or returned to the Borrower or its insolvent estate, or avoided, set aside or required to be paid to the Borrower, a trustee, receiver or other similar party under any bankruptcy, insolvency, receivership or similar law. In such event, the Senior Indebtedness or part thereof originally intended to be satisfied will be deemed to be reinstated and outstanding to the extent of any repayment, return, or other action, as if such payment on account of the Senior Indebtedness had not been made. 3. Subordination of Subordinate Documents. (a) Each of the Subordinate Documents is, and will at all times remain, subject and subordinate in all respects to the liens, terms, covenants, conditions, operations, and effects of each of the Senior Loan Documents. (b) The subordination of the Subordinate Documents and of the Subordinate Indebtedness will apply and continue notwithstanding (i) the actual date and time of execution, delivery, recording, filing or perfection of each of the Senior Loan Documents and of each of the Subordinate Documents, and (ii) the availability of any collateral to the Senior Mortgagee, including the availability of any collateral other than the Mortgaged Property. (c) By reason of, and without in any way limiting, the full subordination of the Subordinate Indebtedness and the Subordinate Documents provided for in this Agreement, all rights and claims of the Subordinate Mortgagee under the Subordinate Documents in or to the Mortgaged Property or any portion thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable with respect thereto, are expressly subject and subordinate in all respects to the rights and claims of the Senior Mortgagee under the Senior Loan Documents in or to the Mortgaged Property or any portion thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits therefrom and the Loss Proceeds payable with respect thereto. (d) If the Subordinate Mortgagee, by indemnification, subrogation or otherwise, will acquire any lien, estate, right or other interest in any of the Mortgaged Property, that lien, estate, right or other interest will be fully subject and subordinate to the receipt by the Senior Mortgagee of payment in full of the Senior Indebtedness, and to the Senior Loan Documents, to the same extent as the Subordinate Indebtedness and the Subordinate Documents are subordinate pursuant to this Agreement. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 5 Attachment No. 1 4. Additional Representations and Covenants. (a) The Subordinate Mortgagee represents and warrants each of the following: (i) The Subordinate Mortgagee is now the owner and holder of the Subordinate Documents. (ii) The Subordinate Documents are now in full force and effect. (iii) The Subordinate Documents have not been modified or amended. (iv) To the actual knowledge of the Subordinate Mortgagee, as of the date of this Agreement, no Subordinate Mortgage Default has occurred. (v) None of the rights of the Subordinate Mortgagee under any of the Subordinate Documents are subject to the rights of any third parties, by way of subrogation, indemnification or otherwise. (b) Without the prior written consent of the Senior Mortgagee in each instance, the Subordinate Mortgagee will not do any of the following: (i) Amend, modify, waive, extend, renew or replace any provision of any of the Subordinate Documents. (ii) Pledge, assign, transfer, convey, or sell any interest in the Subordinate Indebtedness or any of the Subordinate Documents. (iii) Take any action which has the effect of increasing the Subordinate Indebtedness. (iv) Appear in, defend or bring any action to protect the Subordinate Mortgagee's interest in the Mortgaged Property. (v) Take any action concerning environmental matters affecting the Mortgaged Property, except as otherwise set forth in Section 5, below. (c) The Subordinate Mortgagee will deliver to the Senior Mortgagee a copy of each default notice received or delivered by the Subordinate Mortgagee pursuant to the Subordinate Documents or in connection with the Subordinate Indebtedness, simultaneously with the Subordinate Mortgagee's delivery or receipt of such notice. The Senior Mortgagee will deliver to the Subordinate Mortgagee in the manner required in Section 5(b) a copy of each notice of a Senior Mortgage Default delivered to the Borrower by the Senior Mortgagee. Neither giving nor failing to give a notice to the Senior Mortgagee or Subordinate Mortgagee pursuant to this Section 4(c) will affect the validity of any notice given by the Senior Mortgagee or Subordinate Mortgagee to the Borrower, as between the Subordination Agreement (CME and Portfolio) — Governmental Entity Page 6 Attachment No. 1 Borrower and such of the Senior Mortgagee or the Subordinate Mortgagee as provided the notice to the Borrower. (d) Without the prior written consent of the Senior Mortgagee in each instance, the Subordinate Mortgagee will not commence, or join with any other creditor in commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy Proceeding, the Subordinate Mortgagee will not vote affirmatively in favor of any plan of reorganization or liquidation unless the Senior Mortgagee has also voted affirmatively in favor of such plan. In the event of any Bankruptcy Proceeding, the Subordinate Mortgagee will not contest the continued accrual of interest on the Senior Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of such Bankruptcy Proceedings. (e) [Intentionally Omitted]. (0 All requirements pertaining to insurance under the Subordinate Documents (including requirements relating to amounts and types of coverages, deductibles and special endorsements) will be deemed satisfied if the Borrower complies with the insurance requirements under the Senior Loan Documents and of the Senior Mortgagee. All original policies of insurance required pursuant to the Senior Loan Documents will be held by the Senior Mortgagee. Nothing in this Section 4(f) will preclude the Subordinate Mortgagee from requiring that it be named as a mortgagee and loss payee, as its interest may appear, under all policies of property damage insurance maintained by the Borrower with respect to the Mortgaged Property, provided such action does not affect the priority of payment of Loss Proceeds, or that the Subordinate Mortgagee be named as an additional insured under all policies of liability insurance maintained by the Borrower with respect to the Mortgaged Property. (g) In the event of a Condemnation or a Casualty, all of the following provisions will apply: (i) The rights of the Subordinate Mortgagee (under the Subordinate Documents or otherwise) to participate in any proceeding or action relating to a Condemnation or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Condemnation or a Casualty, will be and remain subordinate in all respects to the Senior Mortgagee's rights under the Senior Loan Documents with respect thereto, and the Subordinate Mortgagee will be bound by any settlement or adjustment of a claim resulting from a Condemnation or a Casualty made by the Senior Mortgagee. (ii) All Loss Proceeds will be applied either to payment of the costs and expenses of Restoration or to payment on account of the Senior Subordination Agreement (CME and Portfolio) — Governmental Entity Page 7 Attachment No. 1 Indebtedness, as and in the manner determined by the Senior Mortgagee in its sole discretion. (iii) In the event the Senior Mortgagee applies or releases Loss Proceeds for the purposes of Restoration of the Mortgaged Property, the Subordinate Mortgagee will release for such purpose all of its right, title and interest, if any, in and to such Loss Proceeds. If the Senior Mortgagee holds Loss Proceeds, or monitors the disbursement thereof, the Subordinate Mortgagee will not do so. Nothing contained in this Agreement will be deemed to require the Senior Mortgagee to act for or on behalf of the Subordinate Mortgagee in connection with any Restoration or to hold or monitor any Loss Proceeds in trust for or otherwise on behalf of the Subordinate Mortgagee, and all or any Loss Proceeds may be commingled with any funds of the Senior Mortgagee. (iv) If the Senior Mortgagee elects to apply Loss Proceeds to payment on account of the Senior Indebtedness, and if the application of such Loss Proceeds results in the payment in full of the entire Senior Indebtedness, any remaining Loss Proceeds held by the Senior Mortgagee will be paid to the Subordinate Mortgagee unless another party has asserted a claim to the remaining Loss Proceeds. (h) The Subordinate Mortgagee will enter into attornment and non -disturbance agreements with all tenants under commercial or retail Leases, if any, to whom the Senior Mortgagee has granted attornment and non -disturbance, on the same terms and conditions given by the Senior Mortgagee. Regardless of any contrary provision in the Subordinate Documents, the Subordinate Mortgagee will not collect payments for the purpose of escrowing for any cost or expense related to the Mortgaged Property or for any portion of the Subordinate Indebtedness. (i) (j) Within 10 days after request by the Senior Mortgagee, the Subordinate Mortgagee will furnish the Senior Mortgagee with a statement, duly acknowledged and certified setting forth the then -current amount and terms of the Subordinate Indebtedness, confirming that there exists no default under the Subordinate Documents (or describing any default that does exist), and certifying to such other information with respect to the Subordinate Indebtedness as the Senior Mortgagee may request. (k) The Senior Mortgagee may amend, waive, postpone, extend, renew, replace, reduce or otherwise modify any provisions of the Senior Loan Documents without the necessity of obtaining the consent of or providing notice to the Subordinate Mortgagee, and without affecting any of the provisions of this Agreement. Notwithstanding the forgoing, Senior Mortgagee may not modify any provision of the Senior Loan Documents that increases the Senior Indebtedness, except for Subordination Agreement (CME and Portfolio) — Governmental Entity Page 8 Attachment No. 1 increases in the Senior Indebtedness that result from advances made by the Senior Mortgagee to protect the security or lien priority of the Senior Mortgagee under the Senior Loan Documents or to cure defaults under the Subordinate Documents. 5. Default Under Loan Documents. (a) For a period of 90 days following delivery to the Senior Mortgagee of an Enforcement Action Notice, the Senior Mortgagee will have the right to cure any Subordinate Mortgage Default, provided if such Subordinate Mortgage Default is a non -monetary default and is not capable of being cured within such 90-day period and the Senior Mortgagee has commenced and is diligently pursuing such cure to completion, the Senior Mortgagee will have such additional period of time as may be required to cure such Subordinate Mortgage Default or until such time, if ever, as the Senior Mortgagee (i) discontinues its pursuit of any cure and/or (ii) delivers to the Subordinate Mortgagee the Senior Mortgagee's written consent to the Enforcement Action described in the Enforcement Action Notice. The Senior Mortgagee will not have any obligation whatsoever to cure any Subordinate Mortgage Default. The Senior Mortgagee will not be subrogated to the rights of the Subordinate Mortgagee under the Subordinate Documents by reason of the Senior Mortgagee having cured any Subordinate Mortgage Default. However, the Subordinate Mortgagee acknowledges that all amounts advanced or expended by the Senior Mortgagee in accordance with the Senior Loan Documents or to cure a Subordinate Mortgage Default will be added to and become a part of the Senior Indebtedness and will be secured by the lien of the Senior Mortgage. (b) The Senior Mortgagee will deliver to the Subordinate Mortgagee a copy of any notice sent by the Senior Mortgagee to the Borrower of a Senior Mortgage Default within 5 Business Days of sending such notice to the Borrower. Failure of the Senior Mortgagee to send notice to the Subordinate Mortgagee will not prevent the exercise of the Senior Mortgagee's rights and remedies under the Senior Loan Documents. The Subordinate Mortgagee will have the right, but not the obligation, to cure any monetary Senior Mortgage Default within 30 days following the date of such notice; provided, however, that the Senior Mortgagee will be entitled during such 30-day period to continue to pursue its remedies under the Senior Loan Documents. The Subordinate Mortgagee may have up to 90 days from the date of the notice to cure a non -monetary Senior Mortgage Default if, during such 90-day period, the Subordinate Mortgagee keeps current all payments required by the Senior Loan Documents. In the event that such a non -monetary Senior Mortgage Default creates an unacceptable level of risk relative to the Mortgaged Property, or Senior Mortgagee's secured position relative to the Mortgaged Property, as determined by the Senior Mortgagee in its sole discretion, then the Senior Mortgagee may exercise during such 90-day period all available rights and remedies to protect and preserve the Mortgaged Property and the Rents, revenues and other proceeds from the Mortgaged Property. The Subordinate Mortgagee will not be subrogated to the rights of the Senior Mortgagee under the Senior Loan Documents by reason of the Subordinate Mortgagee having cured any Senior Mortgage Default. However, the Subordination Agreement (CME and Portfolio) — Governmental Entity Page 9 Attachment No. 1 Senior Mortgagee acknowledges that all amounts paid by the Subordinate Mortgagee to the Senior Mortgagee to cure a Senior Mortgage Default will be deemed to have been advanced by the Subordinate Mortgagee pursuant to, and will be secured by the lien of, the Subordinate Mortgage. Notwithstanding anything in this Section 5(b) to the contrary, the Subordinate Mortgagee's right to cure any Senior Mortgage Default will terminate immediately upon the occurrence of any Bankruptcy Proceeding. (c) In the event of a Subordinate Mortgage Default, the Subordinate Mortgagee will not commence any Enforcement Action until 90 days after the Subordinate Mortgagee has delivered to the Senior Mortgagee an Enforcement Action Notice with respect to such Enforcement Action, provided that during such 90-day period or such longer period as provided in Section 5(a), the Subordinate Mortgagee will be entitled to seek specific performance to enforce covenants and agreements of the Borrower relating to income, rent, or affordability restrictions contained in the Regulatory Agreement, subject to the Senior Mortgagee's right to cure a Subordinate Mortgage Default set forth in Section 5(a). The Subordinate Mortgagee may not commence any other Enforcement Action, including but not limited to any foreclosure action under the Subordinate Documents, until the earlier of (i) the expiration of such 90-day period or such longer period as provided in Section 5(a) or (ii) the delivery by the Senior Mortgagee to the Subordinate Mortgagee of the Senior Mortgagee's written consent to such Enforcement Action by the Subordinate Mortgagee. The Subordinate Mortgagee acknowledges that the Senior Mortgagee may grant or refuse consent to the Subordinate Mortgagee's Enforcement Action in the Senior Mortgagee's sole and absolute discretion. At the expiration of such 90-day period or such longer period as provided in Section 5(a) and, subject to the Senior Mortgagee's right to cure set forth in Section 5(a), Subordinate Mortgagee may commence any Enforcement Action. Any Enforcement Action on the part of the Subordinate Mortgagee will be subject to the provisions of this Agreement. The Subordinate Mortgagee acknowledges that the provisions of this Section 5(c) are fair and reasonable under the circumstances, that the Subordinate Mortgagee has received a substantial benefit from the Senior Mortgagee having granted its consent to the Subordinate Mortgage, and that the Senior Mortgagee would not have granted such consent without the inclusion of these provisions in this Agreement. (d) The Senior Mortgagee may pursue all rights and remedies available to it under the Senior Loan Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by the Subordinate Mortgagee. No action or failure to act on the part of the Senior Mortgagee in the event of a Subordinate Mortgage Default or commencement of an Enforcement Action will constitute a waiver on the part of the Senior Mortgagee of any provision of the Senior Loan Documents or this Agreement. (e) In the event that the Enforcement Action taken by the Subordinate Mortgagee is the appointment of a receiver for any of the Mortgaged Property, all of the Rents, Subordination Agreement (CME and Portfolio) — Governmental Entity Page 10 Attachment No. 1 issues, profits and proceeds collected by the receiver will be paid and applied by the receiver solely to and for the benefit of the Senior Mortgagee until the Senior Indebtedness will have been paid in full. (f) The Subordinate Mortgagee hereby expressly consents to and authorizes the release by the Senior Mortgagee of all or any portion of the Mortgaged Property from the lien, operation, and effect of the Senior Loan Documents. The Subordinate Mortgagee hereby waives to the fullest extent permitted by law, all equitable or other rights it may have (i) in connection with the release of all or any portion of the Mortgaged Property, (ii) to require the separate sale of any portion of the Mortgaged Property, (iii) to require the Senior Mortgagee to exhaust its remedies against all or any portion of the Mortgaged Property or any combination of portions of the Mortgaged Property or any other collateral for the Senior Indebtedness, or (iv) to require the Senior Mortgagee to proceed against the Borrower, any other party that may be liable for any of the Senior Indebtedness (including any general partner of the Borrower if the Borrower is a partnership), all or any portion of the Mortgaged Property or combination of portions of the Mortgaged Property or any other collateral, before proceeding against all or such portions or combination of portions of the Mortgaged Property as the Senior Mortgagee determines. The Subordinate Mortgagee waives to the fullest extent permitted by law any and all benefits under California Civil Code Sections 2845, 2849 and 2850.] The Subordinate Mortgagee hereby expressly consents to and authorizes, at the option of the Senior Mortgagee, the sale, either separately or together, of all or any portion of the Mortgaged Property. The Subordinate Mortgagee acknowledges that without notice to the Subordinate Mortgagee and without affecting any of the provisions of this Agreement, the Senior Mortgagee may (i) extend the time for or waive any payment or performance under the Senior Loan Documents; (ii) modify or amend in any respect any provision of the Senior Loan Documents; and (iii) modify, exchange, surrender, release and otherwise deal with any additional collateral for the Senior Indebtedness. (g) If any party other than the Borrower (including the Senior Mortgagee) acquires title to any of the Mortgaged Property pursuant to a foreclosure of, or trustee's sale or other exercise of any power of sale under, the Senior Mortgage conducted in accordance with applicable law, the lien, operation, and effect of the Subordinate Mortgage and other Subordinate Documents automatically will terminate with respect to such Mortgaged Property. 6. Miscellaneous Provisions. (a) In the event of any conflict or inconsistency between the terms of the Subordinate Documents and the terns of this Agreement, the terms of this Agreement will control. (b) This Agreement will be binding upon and will inure to the benefit of the respective legal successors and permitted assigns of the parties to this Agreement. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 11 Attachment No. 1 No other party will be entitled to any benefits under this Agreement, whether as a third -party beneficiary or otherwise. (c) This Agreement does not constitute an approval by the Senior Mortgagee of the terms of the Subordinate Documents. (d) Each notice, request, demand, consent, approval or other communication (collectively, "notices," and singly, a "notice") which is required or permitted to be given pursuant to this Agreement will be in writing and will be deemed to have been duly and sufficiently given if (i) personally delivered with proof of delivery thereof (any notice so delivered will be deemed to have been received at the time so delivered), or (ii) sent by a national overnight courier service (such as FedEx) designating earliest available delivery (any notice so delivered will be deemed to have been received on the next Business Day following receipt by the courier), or (iii) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent will be deemed to have been received on the date of delivery as confirmed by the return receipt), addressed to the respective parties as follows: (i) Notices intended for the Senior Mortgagee will be addressed to: Citibank, N.A. c/o Berkadia Commercial Mortgage LLC 118 Welsh Road P.O. Box 8-9 Horsham, Pennsylvania 19044 Attention: Servicing — Account Manager Telephone: (215) 328-3866 Facsimile: (215) 328-3478 (ii) Notices intended for the Subordinate Mortgagee will be addressed to: Community Development Commission - Housing Authority of the City of National City 140 East 12th Street, Suite B National City, CA 91950 Attn: Executive Director Any party, by notice given pursuant to this Section, may change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses, for its notices, but notice of a change of address will only be effective upon receipt. Neither party will refuse or reject delivery of any notice given in accordance with this Section. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 12 Attachment No. 1 (e) (f) Nothing in this Agreement or in any of the Senior Loan Documents or Subordinate Documents will be deemed to constitute the Senior Mortgagee as a joint venturer or partner of the Subordinate Mortgagee. Upon notice from the Senior Mortgagee from time to time, the Subordinate Mortgagee will execute and deliver such additional instruments and documents, and will take such actions, as are required by the Senior Mortgagee in order to further evidence or effectuate the provisions and intent of this Agreement. (g) This Agreement will be governed by the laws of the State in which the Land is located. (h) If any one or more of the provisions contained in this Agreement, or any application thereof, will be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, and any other application thereof, will not in any way be affected or impaired thereby. (i) The term of this Agreement will commence on the date of this Agreement and will continue until the earliest to occur of the following events: (i) the payment of all of the Senior Indebtedness; provided that this Agreement will be reinstated in the event any payment on account of the Senior Indebtedness is avoided, set aside, rescinded or repaid by the Senior Mortgagee as described in Section 2(e) of this Agreement, (ii) the payment of all of the Subordinate Indebtedness other than by reason of payments which the Subordinate Mortgagee is obligated to remit to the Senior Mortgagee pursuant to this Agreement, (iii) the acquisition by the Senior Mortgagee or by a third party purchaser, of title to the Mortgaged Property pursuant to a foreclosure of, deed in lieu of foreclosure, or trustee's sale or other exercise of a power of sale or similar disposition under, the Senior Mortgage; or (iv) with the prior written consent of the Senior Mortgagee, without limiting the provisions of Section 5(d), the acquisition by the Subordinate Mortgagee of title to the Mortgaged Property subject to the Senior Mortgage pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale under) the Subordinate Mortgage. (j) No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy under this Agreement. (k) Each party to this Agreement acknowledges that in the event any party fails to comply with its obligations hereunder, the other parties will have all rights available at law and in equity, including the right to obtain specific performance of the obligations of such defaulting party and injunctive relief. Subordination Agreement (CME and Portfolio) — Governmental Entity Page 13 Attachment No. 1 (1) (0) Nothing in this Agreement is intended, nor will it be construed, to in any way limit the exercise by the Subordinate Mortgagee of its governmental powers (including but not limited to police, regulatory and taxing powers) with respect to the Borrower or the Mortgaged Property to the same extent as if it were not a party to this Agreement or the transactions contemplated by this Agreement. This Agreement may be assigned at any time by the Senior Mortgagee to any subsequent holder of the Senior Note. This Agreement may be amended, changed, modified, altered or terminated only by a written instrument or written instruments signed by the parties to this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. [Signature and acknowledgment pages follow] Subordination Agreement (CME and Portfolio) — Governmental Entity Page 14 Attachment No. 1 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. SENIOR MORTGAGEE: CITIBANK, N.A. By: Name: Bryan Barker Title: Vice President STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN FRANCISCO ) On December , 2013 before me, , Notary Public, personally appeared Bryan Barker, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person 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 of Notary Public (Seal) Subordination Agreement (CME and Portfolio) — Governmental Entity Page 15 Attachment No. 1 SUBORDINATE MORTGAGEE: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ACTING IN ITS CAPACITY AS THE HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY By: Brad Raulston, Executive Director Approved as to Form: By: Claudia Gacitua Silva General Counsel STATE OF CALIFORNIA ) ss. COUNTY OF SAN DIEGO On December , 2013 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person 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 of Notary Public (Seal) Subordination Agreement (CME and Portfolio) — Governmental Entity Page 16 Attachment No. 1 CONSENT OF BORROWER The Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated December , 2013, by and between CITIBANK, N.A. and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY acting in its capacity as the Housing Authority of the City of National City and consents to the agreement of the parties set forth in this Agreement. SUMMERCREST APARTMENTS, LP, a Delaware limited partnership By: AOF Summercrest LLC, a Delaware limited liability company Its: Managing General Partner By: AOF / Pacific Affordable Housing Corp., a California nonprofit public benefit corporation Its: Sole Member By: Name: Philip J. Kennedy Title: Vice President By: Summercrest Apartments Co -General Partner, LLC, a Delaware limited liability company Its: Co -General Partner By: BLF Holdings, LLC, a Washington limited liability company Its: Sole Member By: The Brian L. Fitterer Revocable Trust, a California trust Its: Sole Member By: Name: Brian L. Fitterer Title: Trustee Subordination Agreement (CME and Portfolio) — Governmental Entity Page 17 Attachment No. 1 STATE OF CALIFORNIA ) ss. COUNTY OF On December , 2013 before me, , Notary Public, personally appeared Philip J. Kennedy, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person 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 of Notary Public (Seal) STATE OF CALIFORNIA ) ss. COUNTY OF On December , 2013 before me, , Notary Public, personally appeared Brian L. Fitterer, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person 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 of Notary Public (Seal) Subordination Agreement (CME and Portfolio) — Governmental Entity Page 18 r Attachment No. 1 - EXHIBIT A LEGAL DESCRIPTION Subordination Agreement (CME and Portfolio) — Governmental Entity Page 19 Attachment No. 2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Community Development Commission - Housing Authority of the City of National City 140 East 12th Street, Suite B National City, CA 91950 Attn: Executive Director Free Recording Requested per Government Code Sec. 6103 AMENDMENT TO DEED OF TRUST (Plaza Manor) THIS AMENDMENT TO DEED OF TRUST ("Amendment") is dated as of the 18th day of December, 2013, by Summercrest Apartments, L.P., a Delaware limited partnership,("Trustor"), whose address is , and First American Title Company ("Trustee") and the Community Development Commission of the City of National City acting in its capacity as the Housing Authority of the City of National City ("Beneficiary"), whose address is 140 East 12th Street, Suite B, National City, California 91950. RECITALS A. Trustor's successor -in -interest, Plaza Manor Preservation, L.P., made that certain Project Deed of Trust, dated December 21, 2001, and recorded in the Office of the Recorder of San Diego County on June 19, 2002, as Instrument No. 2002-0518423 ("Deed of Trust"). Concurrently with the recordation of this Amendment, the Trustor is acquiring the "Property," as defined in the Deed of Trust, and is assuming the Deed of Trust. B. Concurrently with the recordation of this Amendment, the Trustor is repaying, in - full the "Note," as defined in the Deed of Trust. The Trustor and Beneficiary desire to amend the Deed of Trust, as set forth herein. In the event of any conflict between the Deed of Trust and this Amendment, the terms of this Amendment shall control. NOW, THEREFORE, in furtherance of the recitals stated above and the mutual covenants set forth below, Trustor and the Beneficiary hereby amend the Deed of Trust, and agree, promise and declare as follows: 1. Deletion of Paragraphs (1)-(4) on Pages 1 and 2. Under the heading "For the Purpose of Securing" on Page 1 and continuing onto Page 2 of the Deed of Trust: (i) the paragraphs numbered (1), (2), (3) and (4) are hereby deleted in their entireties; and (ii) paragraph (5) (on Page 2 of the Deed of Trust) is renumbered as (1). Therefore, following the heading "For the Purpose of Securing," there shall be only one paragraph, which shall provide as follows: 1 Attachment No. 2 (1) The performance of each agreement and covenant of Trustor under that certain Declaration of Covenants, Conditions and Restrictions ("Restrictions" or "Declaration," the terms being synonymous) of even date herewith and recorded concurrently herewith affecting the Property. 2. Confirmation of Obligations. Except to the extent modified by this Amendment, Trustor hereby confirms each of the covenants, agreements and obligations of Trustor set forth in the Deed of Trust. 3. General Provisions. (a) Severability. If any provision of this Amendment is deemed to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be severed from the rest of this Amendment and the remaining provisions shall continue in full force and effect. (b) Recitals Incorporated. The Recitals to this Amendment are hereby incorporated into this Amendment by this reference. (c) No Affect on Priority. The parties agree that this Amendment is not in any way intended to, and does not, affect any of the terms, conditions or priority of the Declaration, or any other document executed in connection with any of the foregoing, nor enforcement of the same, except as specifically set forth herein. (d) Counterparts. This Amendment may be executed in any number of counterparts and, as so executed, the counterparts shall constitute one and the same agreement. The parties agree that each such counterpart is an original and shall be binding upon all the parties, even though all of the parties are not signatories to the same counterpart. (e) Conflicts. In the event of any conflict between the Deed of Trust and this Amendment, this Amendment shall control. (f) Capacity and Authority. All individuals signing this Amendment for a party which is a corporation, partnership, limited liability company or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the other parties hereto 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. TRUSTOR: SUMMERCREST APARTMENTS, L.P., a Delaware limited partnership, By:AOF Summercrest LLC, a Delaware limited liability company, Its: Managing General Partner By: AOF/Paci fic Affordable Housing Corp., a California nonprofit public benefit corporation 2 Attachment No. 2 Its: Sole Member By: Name: Title: By: Summercrest Apartments Co -General Partner, LLC a Delaware limited liability company Its: Co -General Partner By:BLF Holdings, LLC, a Washington limited liability company Its: Sole Member By:The Brian L. Fitterer Revocable Trust, a California Trust Its: Sole Member By: Name: Title: BENEFICIARY: Community Development Commission of the City of National City acting in its capacity as the Housing Authority of the City of National City By: Brad Raulston, Executive Director Approved as to Form: By: Claudia Gacitua Silva General Counsel 3 Attachment No. 2 State of California County of ACKNOWLEDGMENT On , 2013, before me, , notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 4 Attachment No. 2 ACKNOWLEDGMENT State of California County of On , 2013, before me, , notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 5 Attachment No. 2 ACKNOWLEDGMENT State of California County of ) ) ) On , 2013, before me, , notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 6 Attachment No. 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Community Development Commission - Housing Authority of the City of National City 140 East 12th Street, Suite B National City, CA 91950 Attn: Executive Director Free Recording Requested per Government Code Sec. 6103 ASSIGNMENT AND ASSUMPTION OF DECLARATION OF COVENANTS AND RESTRICTIONS (TENANT RESTRICTIONS) AND DEED OF TRUST THIS ASSIGNMENT AND ASSUMPTION OF DECLARATION OF COVENANTS AND RESTRICTIONS AND DEED OF TRUST ("Assignment"), made as December , 2013, by and between PLAZA MANOR PRESERVATION, L.P., a California limited partnership ("Assignor") and SUMMERCREST APARTMENTS, L.P., a Delaware limited partnership ("Assignee"). RECITALS A. Assignor and Assignee have entered into that certain Real Estate Purchase Agreement, dated as of September 9, 2013 ("Agreement"), for the purchase and sale of certain real property known as the Summercrest Apartments located at 2721 Plaza Boulevard in the City of National City, County of San Diego, California ("Property"). B. The Assignor and Assignee is -are requesting the consent of the CDC -HA to this Assignment is being made as requirederby: (i) Section 17 of that certain Declaration of Covenants and Restrictions (Tenant Restrictions) ("Declaration") dated December 18, 2001, and executed by Assignor (as "Declarant") and recorded June 19, 2002, in the office of the County Recorder of San Diego County, California as Document Number 2002-0518422; and (ii) that certain Project Deed of Trust ("Deed of Trust") dated December 18, 2001, and executed by Assignor (as "Trustor") and recorded June 19, 2002, in the office of the County Recorder of San Diego County, California as Document Number 2002-0518423. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows: 1. Assignment of Obligations Under Declaration and Deed of Trust. Assignor hereby assigns to Assignee all of its rights, interests, benefits and privileges and all of its obligations in and under the Declaration, as Declarant thereunder, and Deed of Trust, as Trustor thereunder., and Assignee hereby accepts such assignment. National City Assignment - Summercrest 1 Attachment No. 3 2. Assumption of Obligations. By acceptance of this Assignment, Assignee hereby assumes and agrees to perform and to be bound by all of the terms, covenants, conditions and obligations of Assignor, as Declarant, under the Declaration, and as Trustor, under the Deed of Trust for the benefit of the City of National City. This assumption shall have application only to those obligations under the Declaration or Deed of Trust arising after the transfer of the Property to Assignee. 3. Mortgagee Protection. Notwithstanding anything herein to the contrary, no violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in the Declaration shall defeat or render invalid or in any way impair the lien or charge of any provision of that certain deed Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (California) among Summercrest Apartments, LP, a Delaware limited liability company, First American Title Insurance Company as Deed of Trust Trustee, and Citibank, N.A., a national banking association as Beneficiary as assigned by Beneficiary to the Federal Horne Loan Mortgage Corporation pursuant to Assignment of Security Instrument, both of even date herewith (as assigned, the "Freddie Mac Deed of Trust"). The Declaration shall be subordinate to the Freddie Mac Deed of Trust, notwithstanding the prior recordation of the Declaration. 4. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the successors, assigns, personal representatives, heirs and legatees of the respective parties hereto. 5. Governing Law. This Assignment shall be governed by, interpreted under, and construed and enforceable with, the laws of the State of California. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first written above. ASSIGNOR: PLAZA MANOR PRESERVATION, L.P., a California limited partnership, By: Plaza Manor Development Co., LLC, a California limited liability company, Its General Partner By: Nicholas Real Estate Investments, LLC, a California limited liability company, Its Managing Member By: Name: William A. Witte Title: President National City Assignment - Summercrest 2 Attachment No. 3 By: Las Palmas Foundation, a California nonprofit public benefit corporation, Its General Partner By: Name: Joseph Michaels Title: President ASSIGNEE: SUMMERCREST APARTMENTS, L.P., a Delaware limited partnership, By: AOF Summercrest LLC, a Delaware limited liability company, Its Managing General Partner By: AOF/Pacific Affordable Housing Corp., a California nonprofit public benefit corporation, Its Sole Member By: Name: Title: By: Summercrest Apartments Co -General Partner, LLC, a Delaware limited liability company, Its Co -General Partner By: BLF Holdings, LLC, a Washington limited liability company, Its Sole Member By: The Brian L. Fitterer Revocable Trust, a California Trust, Its Sole Member By: Name: Title: National City Assignment - Summercrest 3 Attachment No. 3 On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. National City Assignment - Summercrest 4 Attachment No. 3 Notary Public On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. National City Assignment - Summercrest 5 Attachment No. 3 Notary Public National City Assignment - Summercrest 6 Attachment No. 4 ESCROW INSTRUCTIONS (Plaza Manor Loan Repayment) December , 2013 TO: First American Title Company 1250 Corona Pointe Court, Suite 201 Corona, CA 92879 Attn: Order No. NHSC-4349486 (50) 1. Opening of Escrow. The Community Development Commission -Housing Authority of the City of National City ("CDC -HA") has been advised that Summercrest Apartments, L.P., a Delaware limited partnership ("Summercrest") has opened the above -referenced escrow ("Escrow") with First American Title Company ("Escrow Agent") and hereby authorize and instruct Escrow Agent as set forth herein. In the event any date, deadline or due date set forth in these Escrow Instructions falls on a day that is not a "business day," then such deadline or due date shall automatically be extended to the next business day. Any capitalized term that is not defined in these Escrow Instructions shall have the meaning set forth in the Grant Agreement, as defined below. In the event of a conflict between any term or provision of the Grant Agreement and any term or provision of these Escrow Instructions, the term or provision of these Escrow Instructions shall control. 2. Deposit of Documents. Enclosed herewith are the following documents: (a) Assignment and Assumption of Declaration of Covenants and Restrictions (Tenant Restrictions and Deed of Trust ("Assumption Agreement"), to be executed by the Purchaser and Plaza Manor Preservation, L.P., a California limited partnership. (b) Amendment to Deed of Trust (Plaza Manor) executed by the CDC -HA and to be executed by the Purchaser. (c) Subordination Agreement executed by the CDC -HA and to be executed by Citibank, N.A., a national banking association. 3. Conditions to Closing. Escrow Agent may close the Escrow as set forth in Section 4 of these 4 Escrow Instructions, when, and only when all conditions to Closing set forth in this Section 3 are satisfied: (a) All parties required to sign the Assumption Agreement, Amendment to Deed of Trust and Subordination Agreement have submitted original signature pages (notarized where necessary) to Escrow Agent. 1 Attachment No. 4 (b) Escrow Agent has received, and is prepared to deliver to the CDC -HA $ as payment -in -full of the "Note," as defined in the deed of trust, which is being amended by the Amendment to Deed of Trust. (c) Escrow Agent is prepared and obligated to issue or cause to be issued in the CDC - HA favor, a California Land Title Association lender's policy in the amount of $100,000.00, insuring that title to the property as defined in that certain Project Deed of Trust, dated December 21, 2001, and recorded in the Office of the Recorder of San Diego County on June 19, 2002, as Instrument No. 2002-0518423 ("Deed of Trust"), is vested in the Summercrest and that the Deed of Trust is an encumbrance against such property that is subject and subordinate only to: (i) the deed of trust and instruments securing a loan to Summercrest from Citibank, N.A., a national banking association, as more particularly set forth in the Subordination Agreement; and (ii) items 1, 3-16 and 18-19a shown as exceptions to coverage on that certain Preliminary Report, issued by you, Order Number NHSC-4349486 (50), dated July 31, 2013. 4. Procedure for Closing. Once all of the conditions set forth in Section 3, above, have been satisfied, Escrow Agent shall close the Escrow as set forth in this Section 4, by: (a) Recording the Assumption Agreement, Amendment to Deed of Trust and Subordination Agreement in the Office of the Recorder of San Diego County. (b) Issuing the California Land Title Association lender's policy described in Section 3(c), above, to the CDC -HA. (c) Disbursing $ to the CDC -HA. 5. Escrow Fees and Costs Paid by Summercrest. All Escrow fees and costs charged by the Escrow Agent for escrow services shall be paid by Summercrest. 6. Delivery of Funds, Instruments and Documents. All funds that are to be disbursed or delivered to the CDC -HA shall be delivered as provided in wiring instructions from the CDC -HA. All notices, instruments and documents that are to be delivered by Escrow Agent to the CDC -HA shall be personally delivered or mailed to the CDC -HA at: Community Development Commission - Housing Authority of the City of National City 140 East 12a' Street, Suite B National City, CA 91950 Attn: Executive Director 7. Sole Instructions; Amendment. These Escrow Instructions constitute the complete and only escrow instructions of the CDC -HA and shall revoke and supersede any prior oral or written instructions Escrow Agent may have received from the CDC -HA. The CDC -HA may revoke, cancel, waive, amend, supplement or permit deviations from, any term or condition of these Escrow Instructions in writing or by email. Any purported oral revocation, cancellation, waiver, amendment, supplement or deviation of these Escrow Instructions, shall be ineffective and invalid. 2 Attachment No. 4 CDC -HA: Community Development Commission -Housing Authority of the City of National City By: Brad Raulston, Executive Director Approved as to Form: By: Claudia Gacitua Silva General Counsel 3 Attachment No. %ems NF 005887 • /a1� -' REQUESTED BY: COMI TH ANDTITLECC. NO CHARGE ON THIS DOCUMENT FOR THE BENEFIT OF A STATE AGENCY FORMED BY THE CITY OF NATIONAL CITY Recording Requested By: DETISCH & CHRISTENSEN 444 W, "C" Street, Suite 200 San Diego, CA 92101 And When Recorded Mail To: Attn: Executive Director Community Development Commission of the City of National City 140 East 12th Street, Suite B National City, California 91950 IOC It 2002-0518422 J1JN 19 p 2002 11 23 AM OFFICIAL. RECORDS SAN DIECORM RECORDER'S OFFICE GWEORY J. SFUTH, MINTY FEWER FEB: 0.00 iiii rriiiiiii DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (TENANT RESTRICTIONS) THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (hereafter "Declaration") is made as of December 18, 2001, by PLAZA MANOR PRESERVATION, L.P., a California limited partnership, (hereinafter "DECLARANT") in connection with that certain parcel of real property ("PROPERTY") located in the City of National City, County of San Diego, California, described in Exhibit "A" attached hereto and incorporated herein by reference. RECITALS DECLARANT has acquired title to the PROPERTY with the aid of a Loan obtained from the Community Development Commission of the City of National City (hereafter the "CDC"), and intends to operate a three hundred seventy-two (372) unit project referred to as "Plaza Manor" as a very low and low income housing project. Concurrent with the recordation of this Declaration, the CDC is partially funding, by loan secured by deed of trust on the PROPERTY, the acquisition, rehabilitation and permanent financing of a Project described in the Owner Participation Agreement ("AGREEMENT" or "Loan Agreement" or "Owner Participation Dumber 20. 2001 PN[a Moor CC&&,122001.dx I Attachment No. 5 005888 Agreement," the terms being synonymous) dated December 18, 2001. This loan is to assist DECLARANT in rehabilitating, maintaining and holding the PROPERTY and operating the PROJECT using federal HOME PROGRAM funds and local funds of the CDC. The Loan Agreement and Project Trust Deed by the CDC were conditioned in part upon the recordation of a document setting forth certain restrictions upon the use and sale of the PROPERTY. NOW, THEREFORE, DECLARANT hereby declares that the PROPERTY shall be subject to the covenants, conditions and restrictions set forth below: 1. Restrictive Covenants and Terms. DECLARANT agrees and covenants on behalf of itself and its successors and assigns, and each successor in interest to the PROPERTY, that at all times during the term of this Declaration set forth, three hundred seventy (370) of three hundred seventy-two (372) units of the PROJECT shall be set aside and reserved as "Affordable Units." As used herein, the term "Affordable Units" shall refer to those residential units in the PROJECT that are owned or held available strictly in accordance with the terms and conditions set forth below. Two (2) two bedroom units shall be set aside as Managers' Units. 2. Affordable Unit Restrictions. The following restrictions shall apply to the three hundred seventy-two (372) units. The units shall be rent and occupancy restricted in accordance with Section 8, TCAC/CDLAC, CHFA and HOME Program requirements. The restrictions set forth in the Table attached as Exhibit "1" hereto, hereinafter "Table," shall establish the rental rate, after the required reduction for utilities, and tenant income calculation criteria as follows: Maximum rents (Column 1); Unit Size and Type (Column 2); Number of Affordable Units (Column 3); and Limit in Income of Eligible Tenants based upon percentage of the Median Area Income (Column 4); Years of Restriction (Column 5); and Type of Unit (i.e. Section 8, TCAC/CDLAC and CHFA) (Column 6): "Eligible Tenants" are those tenants whose aggregate gross annual income does not exceed the respective percentages set forth in the table above of annual median income, as adjusted for family size. These units shall be the "Affordable Units." For purposes of this Declaration, the current annual median income shall be the median income defined by the Department of Housing and Urban Development (HUD) as the then current median income for the San Diego Standard Metropolitan Statistical Area, established periodically by HUD and published in the Federal Register, as adjusted for family size, and as shown on the Maximum Income/Affordable Rent Table attached as Exhibit "D-1." However, for the purpose of calculating maximum rents and deducting 2 Mamba 19. 2W1 Plus Moor CC&Rs.12b70tdos Attachment No. 5 005889 for utilities, Exhibit "D-2" is attached. Both exhibits shall be deemed adjusted, from time to time, in accordance with any adjustments that are authorized by HUD or any successor agency. In the event HUD ceases to publish an established median income as aforesaid, the CDC may, in its sole discretion, use any other reasonably comparable method of computing adjustments in median income. Notwithstanding anything to the contrary herein, the rent and income restrictions set forth herein shall not be applicable until such time as the HUD Housing Assistance Contract is no longer in full force and effect. At .that time, these rent and income restrictions shall be fully applicable and effective. The eligibility of each prospective tenant under the restrictions set forth in 1 above shall be certified by DECLARANT who shall submit such certification and all supporting documentation on forms acceptable to the CDC, in its sole discretion, for a determination of tenant eligibility, prior to tenant occupancy. No Affordable Unit (Section 8, TCACICDLAC, CHFA and HOME) may be rented to a prospective tenant or occupied by any person unless and until the CDC has determined that the prospective tenant or occupant is an eligible tenant (defined above) as determined in accordance with the provisions set forth below [Sections 3 through 14, inclusive], provided, however, that the failure of the CDC to timely act upon the submission within five (5) business days of submission shall be deemed an approval of such prospective tenant. 3. Affordable Marketing Plan Compliance. Eligible Tenants shall be any tenants, provided that DECLARANT has and continues to comply with the terms of its approved affirmative marketing plan and rents to those person(s) referenced in said approved plan, as may be amended from time to time, and as approved by the CDC. 4. Determination: Annual Requalification. The CDC's determination of eligibility shall be based upon an application completed by the prospective tenant (including backup documentation such as employment and income verification documents) in accordance with the CDC's normal procedures then in effect, and submitted by DECLARANT to the CDC for review and determination of eligibility. Failure of the CDC to respond within five (5) business days of submission of complete income information shall be deemed approval. Further, tenants shall be requalified as Eligible Tenets according to the above -described process annually. Such requalification process shall be performed by DECLARANT as part of the annual certification of DECLARANT's compliance as set forth in Paragraph 4 below. Failure by DECLARANT to tiniely comply with the tenant qualification and requalification process described in this Paragraph 3 shall constitute a material default under this Declaration. 3 Damitar20. 1001 Pius Nazar CC&W.112001.doc Attachment No. 5 OOS894 5. DECLARANT Certification: Annual Recertification. Upon the completion of the PROJECT, the occurrence of which shall be determined by the CDC, in its sole discretion, and on the anniversary date thereof in each year of the term of this Declaration, DECLARANT shall certify to the CDC, under penalty of perjury, utilizing such forms and providing such backup documentation as the CDC may require, that DECLARANT is complying with all provisions of this DECLARATION. Failure to timely complete the annual certification process described in this Paragraph 4 shall constitute a material default under this DECLARATION. The CDC may resort to the remedies set forth in this DECLARATION upon such material default, as well as any and all other remedies available at law or in equity andlor contained in the CDC Loan, as defined in the Agreement (all terms that are undefined in this Declaration shall have the meaning as used in the AGREEMENT. 6. Operating and Replacement Reserves. The DECLARANT shalt, during the time of the affordability of the PROJECT as referenced in this DECLARATION, maintain operating and replacement reserves for the PROJECT, pursuant to the terms of the Partnership Agreement and any requirements of the senior lenders, as approved by the CDC. Failure to maintain such reserves shall constitute a material default under the terms of this DECLARATION. For the purpose of this DECLARATION, operating reserves required under the terms of the CHFA loans shall be deemed acceptable during the term of the CHFA loans. In addition to the operating reserve, during the term of the DECLARATION, replacement revenues shall be maintained in an amount of not less than that required under the terms of the CHFA loans. These reserve amounts are subject to revision upward as determined by the Executive Director of the CDC, annually, based upon an increase in the consumer price index for the San Diego Metropolitan Area. The operating reserve shall be maintained in a separate account in anticipation of and as a contingency against unbudgeted and/or unforeseen expenses in the operation and maintenance of the Project. No disbursements from the operating reserve or replacement account(s) shall be made without the express written consent of the Executive Director of the CDC, or designee, which consent shall not be unreasonably withheld or denied. Annually, the sums required under the terns of the CHFA loans shall be set aside as a reserve for replacements. DECLARANT shall account to the CDC for any monies expended from the operating reserves andlor replacement account(s), in such form as approved by the CDC. After the CHFA loans are no longer outstanding, the amount of the replacement and operating reserves shall be determined by the Executive Director of the CDC, in his/her reasonable discretion, which approval shall not be unreasonably withheld. 4 Dxemlar 20, 2001 Play Maur CUR,. 1220314o. i T Attachment No. 5 i 005801 7. Relationship with DECLARANT. The term "Eligible Tenant" shall not include DECLARANT or any individuals who are partners or shareholders in DECLARANT or in any entity having an interest in DECLARANT or in the PROPERTY, or officer, employee, agent or consultant of the owner, developer or sponsor, or otherwise violate applicable state or federal conflict regulations. 8. No Student Dependents. The term "Eligible Tenant" shall not include any student dependent as defined in the U.S. Internal Revenue Code, unless the taxpayer (upon whom the student in question is dependent) resides in the same dwelling unit. 9. Income of Co -tenants. etc, The income of all co -tenants and/or non- dependent occupants shall be taken into account in determining whether a household is an Eligible Tenant hereunder. 10. Over income Tenants. In the event that a tenant who was properly certified as an Eligible Tenant at the commencement of such tenant's occupancy ceases to be eligible, for any reason other than a Tenant being over income, the DECLARANT shall give sixty (60) days written notice to such Tenant to vacate the Unit. The vacated Unit shall be rented to an Eligible Tenant. Notwithstanding anything to the contrary in this Declaration, no occupant of a HOME Program Affordable Unit or Affordable Unit who previously and properly qualified as an Eligible Tenant Shall be evicted by DECLARANT because such occupant fails to requalify as an Eligible Tenant, because such occupant exceeds the income limits of Exhibit "D-2," as in the case of increased income, except as provided for in Section 92.252, as amended from time to time. Rather, the next available Unit shall be designated as a HOME Program Affordable Unit or Affordable Unit to replace the Unit of the occupant in question. Further, subject to the fair market limitations set forth in HOME Regulation 92.252, such occupant shall commence paying rent equal to thirty percent (30%) of such occupant's Adjusted Income (as that term is defined in 24 C.F.R. ' 813.102), effective from and after the date of such failure to requalify, as further described herein. The over income tenant shall continue to be considered as an "Eligible Tenant" until evicted, provided this continued occupancy complies with all applicable regulations. a. CDC Local Program Funds Only. Be given one hundred eighty (180) days notice to vacate the affordable unit, effective from and after the date of such failure to requalify (i.e., the re -certification date, provided the tenant was properly certified originally). During the time the over -income tenant resides in the Affordable Unit, the tenant shall continue to pay the restricted rent. The tenant shall continue to be 5 Omuta * 2631 Pima Manor CC&R7.122001.doc Attachment No. 5 i 00589,2 considered an "eligible tenant" until evicted, provided this continued occupancy complies with all applicable HOME Program requirements. b. HOME Program Funds Only. When a HOME Eligible Tenant's gross income exceeds the "low income" definition as defined in CFR 92.252(i), i.e., over eighty percent (80 %) of area median income, then the tenant shall commence paying rent equivalent to thirty percent (30 %) of the Tenant's adjusted income, subject to the fair market rent ceiling as set forth in HOME Regulation 92.252(i) and the next available comparable sized and configured unit shall be designated as a HOME Affordable Unit. The tenant shall continue to be considered an "eligible tenant" until evicted, provided this continued occupancy otherwise complies with all applicable HOME Program requirements. c. HOME and CDC Local Funds. If residing in a HOME unit, shall be subject to the HOME provisions described above; the remaining units shall be subject to the CDC Local Funds provisions. d. HOME, CDC and Tax Credit Funds. When HOME, CDC and Tax Credit funds are involved, a]1 units subject to the Tax Credit Program, Rules and/or the Bond Regulatory Agreement shall be governed by the Tax Credit Provisions and the Bond Regulatory Agreement for so long as tax credits are involved. Thereafter, the HOME and CDC rules shall apply. 11. Bond and/or Tax Credit Program Funds Only. Be permitted to continue to reside in the assisted unit at the reduced rental rate, unless the over -income Tenant reaches one hundred and forty percent (140%) of the applicable income limit, whereupon the Tenant shall be given one hundred eighty (180) days notice to vacate the affordable unit, effective from and after the date of such income determination. The tenant shall continue to be considered an "eligible tenant" until evicted, provided this continued occupancy complies with all applicable tax -credit and/or bond requirements. 12. Accessibility Standards. DECLARANT represents and warrants that it will comply with all federal, state and local requirements and regulations concerning access to the units by the disabled and handicapped persons. 13. Physical Condition of Affordable Units. After completion of the PROJECT, DECLARANT shall continually maintain the Affordable Units and the landscaping and grounds in a condition which satisfies the Housing Quality Standards promulgated by HUD under its Section 8 Program, as such standards are interpreted Decanter 20.1001 r,.:. Manor o&N,3220b,.4,e 6 i Attachment No. 5. 005893 and enforced by the CDC under its normal policies and procedures. The CDC shall have the right to inspect the Affordable Units from time to time, on reasonable notice and at reasonable times, in order to verify compliance with the foregoing maipti.nance covenant. Further, each Affordable Unit shall be requalified annually, as to the foregoing maintenance covenant, as part of the annual tenant requalification process described in Paragraph 4 above. Any failure to comply with Housing Quality Standards of an Affordable Unit shall be corrected by DECLARANT at DECLARANT's expense within thirty (30) days of the identification of such deficiency by the CDC. 14. CDC Monitoring Functions. It is contemplated that, during the term of this DECLARATION, the CDC will perform the following monitoring functions: (A) preparing and making available to DECLARANT any general information that the CDC possesses regarding income limitations and restrictions which are applicable to the Affordable Units; (B) reviewing the applications of prospective occupants of the Affordable Units, and determining eligibility of such persons as Eligible Tenants; (C) reviewing the documentation submitted by DECLARANT in connection with the annual certification process for Eligible Tenants described in paragraph 1 and 2 above; and (D) inspecting the Affordable Units to verify that they are being maintained in accordance with the terms of this DECLARATION above; (E) inspecting the Project to verify that the Property is being maintained in accordance with the approved Property Management Plan, as amended annually during the term of the Declaration. Notwithstanding the foregoing description of the CDC's functions, DECLARANT shall have no claim or right of action against the CDC based on any alleged failure to perform such function, except that DECLARANT may reasonably rely upon the CDC's tenant eligibility determination and shall not be liable to the CDC for any damages, as set forth in Loan Agreement, attributable to the CDC's sole negligence or willful misconduct in conducting any such tenant eligibility determinations. 15. Designation of Affordable Units. The Affordable Units, described in the "Table of Rent and Income Restriction Criteria" (the "Table") will be initially designated as referenced in the Table, but shall be floating. Such designations may only be changed with the prior written consent of the CDC, which consent may be granted or withheld in the CDC's sole and absolute discretion, provided, however, that the units before and after the change in designation are of the same unit types, size, and features. 16. Compliance with Applicable Regulations. DECLARANT chnU comply with all regulations, policies and procedures promulgated by H.U.D. including but not 7 December 20.:2001 Mara Men" CaRs.12X,01.doc i Attachment No. 5 005894 !united to the HOME Program Regulations as contained with the Owner Participation Agreement, which provisions are incorporated herein by reference, and by the CDC, in connection with the Loan which is being made to DECLARANT. DECLARANT's failure to so comply shall constitute a material default hereunder, entitling the CDC to the remedies set forth in Paragraph 23 below. 17. Successors Bound. DECLARANT covenants, for itself and its successors and assigns, not to sell, transfer, assign or otherwise dispose of ownership of the PROPERTY, unless the prospective purchaser, transferee or assignee expressly promises in writing to be bound by all of the provisions hereof, including the covenant in this Paragraph 13 to require successors to expressly assume the obligations herein. It is expressed acknowledged that the covenants and restrictions set forth herein shall survive any repayment of the CDC Loan referenced in the AGREEMENT. Further, the obligations of DECLARANT hereunder shall be deemed independent of DECLARANT's obligations under the Loan Agreement. 18. Maximum Rent To Be Collected by DECLARANT. In no event, shall the "Total Rent" including the portion paid by the Resident Tenant and any other person or entity, collected by DECLARANT for any rent restricted unit exceed the amount of rent set forth in the Table referenced in Section 1. Total Rent includes all payments made by the Resident Tenant and all subsidies received by the DECLARANT. In the case of persons receiving Section 8 benefits, who are Resident Tenants, the DECLARANT acknowledges that it shall not accept any subsidy or payment that would cause the Total Rent received for any restricted unit that exceeds the maximum rents allowed in the above -referenced Table, for any rent restricted unit. Should the DECLARANT receive Total Rent in excess of the allowable maximum rent set forth in the Table, DECLARANT agrees to immediately notify the AGENCY and reimburse the AGENCY for any such overpayment. Acceptance by DECLARANT or its successors in interest, of Total Rent in excess of the maximum rent set forth in the Table shall constitute a material breach of this DECLARATION, unless said excess rent is reimbursed to the AGENCY after receipt by DECLARANT of a ten (10) day notice from the AGENCY to the DECLARANT of the overpayment. 19. Loan Payments. If and when provided for in the NOTE, as defined in the AGREEMENT, the annual loan payments shall be made to the CDC. 20. Term. This Declaration and the covenants and restrictions contained herein shall be effective upon the earlier of April 15, 2002, or the completion of the a Dwember 20. 2001 Mao Maw CC&R4, 1224 1.O% i Attachment No. 5 005895 rehabilitation of the units, and shall remain in full force and effect up through and including April 15, 2032. 21. Covenant Against Discrimination. DECLARANT covenants on behalf of itself and its successors and assigns, and each successor in interest to the PROPERTY, not to discriminate against any tenant or prospective tenant of the PROJECT on the basis of their race, age, sexual orientation, marital status, color, religion, sex, handicap, or national origin, or any other basis prohibited by law, as referenced in all applicable state, local and federal law, and the Loan Agreement and Loan Documents. 22. Conflicts of Interest. Interest of current or former members, . officers or employees. DECLARANT represents and warrants that no member, officer, or employee of the DECLARANT, no member of the governing body of the locality in which the CDC was activated, and no other public official of such locality or localities who exercises any functions or responsibilities with respect to this DECLARATION, shall, during his or her tenure, or for one year thereafter, have any interest direct or indirect, in this DECLARATION or the proceeds thereof. Any violation of this section may, at the option of the CDC, result in unilateral and immediate termination of this DECLARATION by the CDC. Further, the Contractor, who constructs the Project, agrees to comply with all of the Conflict of Interest provisions contained in 24 CH( 92.356. 23. Inspections. The CDC shall be entitled to review, inspect and approve, without liability, all of the construction being performed pursuant to the terms of the CDC Loan and the operation of the Project after the completion of the Project. All construction and management and maintenance of the Project shall be performed to the satisfaction of the CDC, without liability to the CDC for review and observation of the construction and/or the operation of the Project after completion. Any deficiencies in construction and/or management of the Project after completion, shall be corrected by the Contractor, and/or the DECLARANT, upon written notice from the CDC to the DECLARANT, prior to any additional funding of the Loan. If funding has been completed, then correction in deficiencies in construction and/or operation shall be accomplished within thirty (30) days of written notice from the CDC to the DECLARANT. 24. Records and reports. DECLARANT shall supply the CDC, annually, on November 15th of each year during the term of this DECLARATION, with such records and reports as are required and are requested by CDC to aid it in complying with the reports and record keeping provisions, terms and conditions of 24 CFR 92.508 9 Deceather20, 2O1 Plea !Amor OC&R1. i1t001.Eae Attachment No. 5 0058.96 and 92.509, as amended from time to time, and any and all other requirements of this DECLARATION. The records and reports include, but are not limited to the following: applicable; a. Amount of funds expended pursuant to the AGREEMENT; b. Eligible Tenant information, including yearly income verifications; c. Housing payments charged to resident tenants, to the extent d. On -site inspection results; e. Sale and resale information; f. Affirmative marketing records; g. Insurance policies and notices; h. Equal Employment Opportunity and Fair Housing records; i. Labor costs and records; j. An audited income and expense statement and balance sheets for DECLARANT; k. An audited income and expense statement and balance sheets for the PROJECT; 1. A Management Plan for the calendar year in which the report is prepared showing anticipated rental income, other income, expenses, anticipated repairs and replacements to the Project, timing of such repairs and replacements, maintenance of the Project, insurance maintained on behalf of the Project, and such other matters as the CDC shall require, in its sole discretion; m. Federal and State income tax returns for the calendar year, ending on the preceding December 3lst; n. Annual analysis of reserves for repair and replacement; 10 December 20. 2001 Plan Manor 12.1 1.doe Attachment No. 5 o. Annual certification and representation regarding status of all Loans, encumbrances and taxes; p. Annual statement regarding condition of the Property and disclosing any known defects and a proposed method of repairing the same; q. An OMB A-133 financial audit; r. A report or reports, certifying compliance with the terms and provisions of the Section 3 requirements, as set forth in the AGREEMENT and certifying compliance with the provisions of federal law as it relates to Section 3 whether or not specifically set forth in the AGREEMENT; and, s. Such other and further information and records as the CDC and/or HUD shall request in writing from the DECLARANT. The parties agree that a fee of $25.00 per day, per report and/or information is a reasonable estimation of the damages that will accrue to the CDC as a result of the failure of the DECLARANT to timely submit the required information and/or reports and that said fees shall be treated as liquidated damages by the parties, in anticipation of the damages that will be incurred by the CDC as a result of a breach by the DECLARANT. The parties further agree that it would be difficult, if not impossible, to determine the exact actual amount of damages suffered by the CDC in the event of a breach by the DECLARANT in the reporting requirements of this DECLARATION, including, but not limited to, Section 24 hereof. Notwithstanding the foregoing or anything to the contrary contained herein, the CDC shall give the DECLARANT prior written notice of any report and/or information that the DECLARANT has failed to provide the CDC pursuant to this Section 24 and the DECLARANT shall have ten (10) days to provide such report and/or information to the CDC prior to the assessment of any liquidated damages. 25. Participation. DECLARANT shall cause the fact that the CDC has provided funds to the Project to be referenced in all advertisement(s), press release(s), brochure(s), information sheet(s), and all Project Designation Placards placed on the Project site or other site(s), as approved in advance, by the CDC. The design, content and format of the press release(s), advertisement(s), information sheet(s), brochure(s), and Project Placard(s) are subject to the written approval of the Chief Executive Officer of the CDC. CDC, at its sole option, reserves the right to request, in writing, that the references to the participation of the CDC in the Project not be included in any, or all, 11 December20. 2001 Plaza Muour OCR,. ez200e.dee Attachfnent No. 5 005898 advertisements, press releases, brochures, information sheets, and/or Project Designation Placards. 26. Enforcement. DECLARANT expressly agrees and declares that the CDC or any successor public agency is a proper party and shad have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such default may have actually been suffered by some other person or the public at large. Further, the CDC, or any successor public agency, shall be the proper party to waive, relinquish, release or modify the rights, covenants, obligations or restrictions contained in or arising under this Declaration. 27. Attorney's Fees. In the event that any litigation for the enforcement or interpretation of this Declaration, whether an action at law or arbitration or any manner of non judicial dispute resolution to this Declaration by reason of the breach of any condition or covenant, representation or warranty in this Declaration, or otherwise arising out of this Declaration, the prevailing party in such action shall be entitled to recover from the other reasonable attorneys' fees to be fixed by the court which shall render a judgment, as well as the costs of suit. 28. Severability. In the event that any provision or covenant of this Declaration is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the remaining portions of this Declaration, which shall remain in full force and effect. 29. Covenants to Run With the Land. The covenants contained herein shall constitute "covenants running with the land," and shall bind the PROPERTY and every person having an interest therein during the term of this Declaration. DECLARANT agrees for itself and its successors that, in the event that, for any reason whatsoever, a court of competent jurisdiction determines that the foregoing covenants do not run with the land, such covenants shall be enforced as equitable servitudes against the PROPERTY. 30. Recordation. This Declaration shall be recorded in the Office of County Recorder of San Diego, California. 31. CDC Not Liable for Acts of Omissions of DECLARANT or Others. CDC shall in no way be liable for any acts or omissions of DECLARANT, any agent 12 December 10.2031 flm Manor ocan..Iswoi.eec Attachment No. 5 0VS899 or contractor employed by DECLARANT, or any person furnishing labor and/or materials used in or related to the construction of said improvements 32. Remedies. a. Contract governed by law of State of California. This Declaration, its performance, and all suits and special proceedings under this Declaration, shall be constituted in accordance with the laws of the State of California and Federal law, to the extent applicable. In any action, special proceeding, or other proceeding that may be brought arising out of, under or because of this Declaration, the laws of the State of California and the United States, to the extent applicable, shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which the action or special proceeding may be instituted. b. Standing, equitable remedies: cumulative remedies. DECLARANT expressly agrees and declares that the CDC, or any successor or public agency, shall be the proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, . notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large, Further, DECLARANT expressly agrees that receivership, injunctive relief and specific performance are proper pre-trial and/or post -trial remedies hereunder, and that, upon any default, and to assure compliance with this Declaration. Nothing in this subparagraph, and no recovery to the CDC, shall restrict or limit the rights or remedies of persons or entities other than the CDC, against DECLARANT in connection with the same or related acts by DECLARANT. The remedies set forth in this Section are cumulative and not mutually exclusive, except the extent that their award is specifically determined to be duplicative by final order of a court of competent jurisdiction. c. Remedies at law for breach of tenant restrictions. In the event of any material default under the applicable terms of, this DECLARATION regarding restrictions on the operation and the transfer of the PROPERTY, the CDC shall be entitled to, in addition to any and all other remedies available at law or in equity: (i) declare the Loan to be all due and repayable; and (ii) recover compensatory damages. If the default in question involves the violation of the affordability and occupancy provisions above, the amount of such compensatory damages shall be the product of multiplying: (A) the number of months that the default in question has continued until the time of trial by (B) the result of subtracting (i) the rents properly chargeable 13 Decanter 20.2031 Pim M,nsr OCARs.122001 Aec Attachment No. 5 i 005900 hereunder for the Affordable Unit(s) in question from the amount actually charged. DECLARANT and the CDC agree that it would be extremely difficult or impracticable to ascertain the precise amount of actual damages accruing to the CDC as a result of such a default and that the foregoing formula is a fair and reasonable method of approximating such damages. The CDC shall be entitled to seek and to recover damages in separate actions for successive and separate breaches that may occur. Further, interest shall accrue on the amount of such damages from the date of the breach in question at the rate of seven percent (7%) per annum or the maximum rate than allowed by law, whichever is less. Nothing in this Section shall preclude the award of exemplary damages as allowed by law. d. Expert witness. attorney's fees. and costs. The parties agree that the prevailing party in litigation for the breach and/or interpretation and/or enforcement of the terms of the Loan Agreement shall be entitled to their expert witness fees, if any, as part of their costs of suit, and reasonable 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. 33. Mortgagees Protection. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Declaration shall defeat or render invalid or in any way impair the lien or charge of any permitted deed of trust recorded on the PROPERTY provided, however, that any subsequent owner of the PROPERTY shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Declaration, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 34. CDC's Approval of Property Manager. At all times during which these Restrictions are in full force and effect the Property shall be managed by a professional management company, as approved by the CDC, in its reasonable discretion. Further, at all times that these Restrictions are in force and effect, and CDC has served a thirty (30) day written notice of deficiencies in the Property management for the project, whether or not there has previously been a Property Management Company involved with the Project, which deficiencies have not been rectified by the DECLARANT, within the thirty (30) day period, or, if the deficiencies are not curable within thirty (30) days, if no cure has been commenced within thirty (30) days and prosecuted with diligence thereafter, then, CDC shall have the right, in its sole discretion, and upon thirty (30) days written notice: (i) to require the retention of a different professional property management firm to manage the Property; (ii) to approve, in advance and in December 20.2031 Men Mawr CC&Rt.12i0Dtdee 14 Attachment No. 5 i 005901 writing, the retention of any such property management firm, including the terms of the contract governing such retention; and (iii) to require DECLARANT to terminate any such property management firm, provided that such termination shall comply with the termination provisions of the management contract in question. DECLARANT shall cooperate with the CDC to effectuate the CDC's rights. 35, CDC Approval of Management Plan. Prior to the funding of the CDC Loan, the DECLARANT shall submit to the CDC a detailed plan for the management of the Project, including the name and qualifications of the Property Manager, including references and experience of the Property Manager in managing projects similar to the Project for the approval of the CDC. The CDC shall approve or reject the Property Manager and Plan within seven (7) days after receipt of the same by the CDC. In the event that the CDC fails to object to the Property Manager and/or the Management Plan, they shall be deemed approved. Each year thereafter on November 15th, the DECLARANT shall submit a Management Plan for the Project for the following year. The Plan shall include details covering payment of expenses of the Project, physical condition of the Project, reserves for repair' and replacement of the components of the Project, Project income and expenses and all other matters reasonably requested by the CDC. The Plan shall also set forth the services that will be provided for the tenants on the Property. Failure of the CDC to approve said Plan shall constitute a material default under the terms of this DECLARATION. 36. Lease Provisions. DECLARANT agrees that it will include in all of its leases and cause its successors in interest to include in all of their leases, those provisions set forth in Addendum to Lease attached hereto, the following provisions: a. Additional Lease Provisions/Annual Income Verification. TENANT agrees to, upon written request from the Landlord or the CDC, certify under penalty of perjury the accuracy of all information provided in connection with the examination or reexamination of annual income of the tenant's household. Further, tenant agrees that the annual income and other eligibility requirements are substantial and material obligations of the tenancy and that the tenant will comply promptly with all requests for information with respect to the tenancy from the landlord and/or the CDC. Further, tenant acknowledges that tenant's failure to provide accurate information regarding such requirements (regardless of whether such inaccuracy is intentional or unintentional) or the refusal to comply with the request for information with respect thereto, shall be deemed a violation of this lease provision, and a material breach of the tenancy and shall constitute cause for immediate termination of the tenancy. Dccembe. 20: 2001 Alm Mew CCAP3. 122001.dos 15 Attachment No. 5 005902 b. Term of Lease for Restricted Units. TENANT has been made aware by Landlord that the unit being leased was assisted with Section 8, TCAC/CDLAC, HOME and/ or CHFA funds. A lease must be for a period of not less than one (1) year unless the parties agree by mutual agreement that the term of the lease be less. The LESSEE acknowledges by initialing in the space below that it has been made aware of these provisions. 37. HUD Requirements. During the time the Project is encumbered by a HUD insured deed of Trust or Use Agreement, the following provisions shall be effective: a. Superiority of HUD Provisions. Notwithstanding anything in this Declaration to the contrary, in the event any provision in this Declaration contradicts, modifies, or any in any way changes the terms of the Use Agreement, as amended, encumbering the Project, the terms of the Use Agreement, as amended, shall prevail and govern or if any provision of the Declaration limits the Secretary of Housing and Urban Development, his successors or assign and/or the Federal Housing Commission (Secretary), in his administration of the National Housing. Act, as amended, or the regulations made pursuant thereto or the Use Agreement, as amended, this Declaration shall be deemed amended so as to comply with the Act, regulations, or Use Agreement, as amended, (FHA requirements). In the event of .a conflict between the TCAC/CDLAC or CHFA requirements and FHA requirements, the conflict shall be resolved by the Secretary. b. Subordination. This Declaration, and the restrictions contained herein, shall be subordinate to all deeds of trust in favor of the United States of America acting by and through the Secretary of Housing and Urban Development ("HUD") and recorded in the Official Records of San Diego County, California, (the "HUD Deed of Trust") against the Property in connection with the Project and the Amended and Restated Use Agreement (the "Use Agreement") executed by and between the DECLARANT and HUD in connection with the Project, and recorded in said Official Records, and subordinate to the CHPA Note and Deed of Trust, the CHFA Regulatory Agreement, and the CHFA Second Deed of Trust, referenced in the CDC Loan Agreement, and notwithstanding anything in this Declaration to the contrary, the provisions of this Declaration shall be subordinate to the HUD Deed of Trust, if any, the HUD Use Agreement and any applicable HUD regulations. In the event of any conflicts between any of the provisions of this Declaration and the provisions of the HUD Deed of Trust, HUD Use Agreement or any applicable HUD regulations or requirements, the HUD Deed of Trust, HUD Use Agreement or HUD Deceedter20, 2001 Nm MUM CC&b. 12200I,4o 16 Attachment No. 5 • 005903 regulations shall control. Compliance by DECLARANT with such HUD requirements shall be deemed compliance with this Declaration. In the event of foreclosure under the HUD Deed of Trust, this Declaration and the provisions contained herein shall automatically terminate. 38. DECLARANT's Compliance With Health & Sammy Code Section 33436. DECLARANT agrees to include the following nondiscrimination and non -segregation clauses required by Health & Safety Code Section 33436, in all leases, subleases, deeds, contracts, and other agreements affecting the Property, as applicable: (1) In deeds: "The grantee herein covenantsby 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 premises 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, sublessees, or vendees in the premises 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, 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, Daembe, 20, 2001 Pl= Mum CC&R,.122001dOc 17 Attachment No. 5 005904 subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself, 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, sublessees, subtenants, or vendees in the premises herein leased." Further, pursuant to the provisions of Health & Safety Code Section 33436(c), the DECLARANT agrees that the provisions set forth in subparagraphs (1) and (2) above shall be binding upon and shall obligate the DECLARANT, their subcontractors and their successors and assigns concerning the Project and the Property, if the same is acquired from DECLARANT. 39. Time of the Essence. Time is of the essence of this DECLARATION and of each and every provision hereof. The waiver by CDC of any breach or breaches hereof shall not be deemed, nor shall the same constitute, a waiver of any subsequent breach or breaches. DECLARANT: PLAZA MANOR PRESERVATION, L.P., a California limited partnership GENERAL PARTNERS: Las Palmas Foonprofit corporation By: JoM. Michaels, President [Signatures continued on next page.] 18 December 20. 2001 Plus Mow CCkw.122001.dce Attachment No. 5' 005905 Plaza Manor Development Co., LLC, a California limited liability company By: The Nicholas Company, Inc., a Delaware corporation, managing mem P By: William A. Witte CDC: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public agency By: George H. Waters, Chairman Approved as to Form: DETISCH & CHRISTENSEN By: Charles B. Christensen Special Counsel for the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY pe®her 20. 2001 Plaza Minot CC&R$.t22001.doe 19 Attachment No. 5 005906 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange On April 22. 2002 before me, Grenia A. Harbin. Notary Public, personally appeared Joseph M. Michaels, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that, by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. GREMA A. HARBIN COMM. # 1243253 .7173 NOTARY POeUO•CALIFOaN&A ORANGECOUNTY N My COMMFbil Ifu N0v.23, 2000 G enia A. Harbin, Notary Public Description of Attached Document OPTIONAL DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (TENANT RESTRICTIONS) Attachment No. 5 CALIFORNIA ALL—PURPOSE ACKNOWLEDGMENT State of California County of Orange 005907 On April 22. 2002 before me, Grenia A. Harbin. Notary Public, personally appeared William A. Witte, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that, by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. GRENIA A. HARBIN COMM. # 1243253 NOTARY peauC-CALIFoRtaA,S ORANGE COUNTY N )O@mnLExpko Nov.23, 2003 is A. Harbin, Notary Public OPTIONAL Description of Attached Document DECLARATION OF COVENANTS, cONDTTIONS, AND RESTRICTIONS (TENANT RESTRICTIONS) eZ� Attachment No. 5 ACKNOWLEDGMENT State of California County of San Diego 00590E On , 2001, before me, personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument "DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (TENANT RESTRICTIONS)" 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 on behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seat) 22 December 20, 2001 Plea Maw tTk4 i2200Ldoc Attachment No. Exhibit "1" Table of Rent and Income Restrictions Criteria 23 Ikea*, X.200I Plan moot cc&R.1220014oe Attachment No. 5 005910 Exhibit "1" TABLE OF RENT AND INCOME RESTRICTION CRITERIA 1 2 3 4 5 6 MAXIMUM INITIAL RENTS (NOTE: These rents include Declarant's payment of all utilities) UNIT SIZE/UNIT TYPE NO. OF AFFORDABLE UNITS ELIGIBLE TENANTS WHOSE INCOME DOES NOT EXCEED % MEDIAN AREA INCOME BELOW YEARS OF RESTRICTION TYPE OF UNIT (i.e., Section 8, TCACI CDLAC. and CHFA and HOME) $468 Efficiency 26 50% 30 Section 8 $468 Efficiency 58 60% 30 Section.8 $521 1 BR/1 BA 17 50% 30 Section 8 $521 1 BR/1 BA 39 60% 30 Section 8 $684 2 BR/1 BA 2 50% 30 HOME $684 2 BR/1 BA 40 50% 30 Section 8 $684 1 2 BR/1 BA 95 60% 30 Section 8 $748 2 BR/1.5 BA 10 50% 30 Section 8 $748 2 BR/1.5 BA 21 60% 30 Section 8 $838 3 BR/2 BA 2 50% 30 HOME **Not Restricted 3 BR/2 BA 2 N/A N/A N/A $838 3 BR/2 BA 18 50% 30 Section 8 $838 3 BR/2 BA 42 60% 30 Section 8 TOTAL 372 ** Managers' units Attachment No. 5 DetanDa 20, 2001 Plaza Maar cC&R+. 1220D1.do Exhibit "D-I" Rent Restrictions 24 Attachment No. 5 Deambcr 20. 2061 Flea Wow CCARs.I22001.doc Exhibit "D-2" Utility Restrictions 25 'OO5912' 0 0 z _ c -5 SUMMARY OF CRL RENT RESTRICTIONS, 2001 CITY OF NATIONAL CITY Q C INCOME RESTRICT ONS (1 Family Size Very Low income At or Below 50% AMI Low Income Between 51% to 80% AMI Moderate Income Between 81% to 120% AMI 1 Person $19,900 $31,850 $47,800 2 Persons $22,750 $36,400 $54,600 3 Persons $25,600 $40,950 $61,450 4 Persons $28,450 $45,500 $68,300 5 Persons $30,750 $49,150 $73,750 ,` ` , (1) 2001 HUD income limits. RENT RESTRICTIONS (2) Unit Size Very Low Income (30% of 50% AMI) Low -Income (30% of 60% AMI) Moderate Income (30% of 110% AMI) Studio $440 $539 $1,037 One Bedroom $511 $625 $1,193 Two Bedroom $559 $687 $1,327 Three Bedroom $620 $763 $11,474 Four Bedroom $651 $805 $1,573 (2) California Redevelopment Law (CRL) rents less appropriate Community. Development Commission of the City of National City utility allowances. Prepared by: Keyser Marston Associates, Inc. Filename: i:Library Datatresidential\Exhibit D-1.xIs112120/01; ema Attachment No. 6 REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (this "Ag,,reement"), dated as of S tember 20(3 the "Et%ctrve Date" MSY,...,.. . y... .,.,..: q , ( ), is entered into b and between PLAZA MANOR PRESERVATION, L.P., a California limited partnership ("Seller"), and AFFORDABLE HOUSING ASSOCIATES, LLC, a California limited liability company ("Buyer"). 1. Background. Seller is the owner of a 372-unit apartment development (the "Apartment Development") commonly known as "Summercrest Apartments" located at 2721 Plaza Boulevard, in the City of National City, County of San Diego, State of California. The Apartment Development was allocated low-income housing tax credits (the "Tax Credits") as provided in Section 42 of the Internal Revenue Code of 1986, as amended (the "Code"). Buyer has expressed an interest in purchasing the Apartment Development on the terms provided in this Agreement, and Seller has indicated that it is willing to sell the Apartment Development to Buyer on such terms. 2. Agreement to Purchase. Buyer agrees to purchase from Seiler, and Seller agrees to sell to Buyer, all of the following property (collectively, the "Property"): (1) the tract or tracts of land described in Exhibit A to this Agreement and all right, title, interest and estate of Seller in and to all related rights, easements, privileges, and appurtenances (the "Land"); (2) all right, title, interest and estate of Seller in and to all buildings, structures, parking areas, sidewalks, landscaping and other improvements located on the Land (collectively, the "Improvements" and with the Land, collectively, the "Real Property"); (3) all right, title, interest and estate of Seller in and to all furniture, fixtures, equipment, including computer hardware, machinery, building materials, supplies, inventory and other tangible property, in each case, owned or leased by Seller and located on the Real Property (collectively, "Personalty"); (4) all right, title, interest and estate of Seller in, to and under all leases and rental agreements permitting occupancy or use of any apartment unit or other space in the Improvements (collectively, "Leases"), including unapplied refundable security deposits plus any interest earned thereon to the extent required to be maintained by applicable law and unapplied refundable tenant fees, if any, all guaranties of Leases; and advance payments of and all rents due under Leases (collectively, "Rents") allocable to the period after Close of Escrow; (5) all right, title and interest of Seller in and to (a) all transferable permits, licenses, approvals, utility rights, development rights and similar rights related to the Property, if any, whether granted by governmental authbrjties or 1 Summer ,cst v3 Attachment No. 6 private persons, (b) all telephone numbers and hot lines now serving the Apartment Development, (c) all assignable warranties and guaranties covering all or any part of the Property, excluding warranties and guaranties provided by any atltate of eller, (d� the Heine Snmmercrest Apartments and related domain names, if any (collectively, the "Intangibles"), and (e) all Service Contracts (defined below); (6) all tenant files and other tenant records for any period from and after the placed in service date of the Apartment Development (the "Tenant Records" and collective with the Tax Credit Documents, the "Records"). Notwithstanding anything to the contrary contained in this Agreement, without limitation, the following are not included in the Property: (a) any lump sum or upfront payments heretofore paid to Seller or its predecessors under any of the Service Contracts, (b) any unearned insurance premiums, (c) any insurance policies or insurance contracts owned or held by Seller or its affiliates in connection with the Property, (d) any and all deposits, cash and other accounts owned or held by Seller or its affiliates, except as may otherwise be provided herein, and except for any unapplied refundable tenant deposits plus legally required interest and prepaid rents, (e) the existing property management contract in connection with the Property, (f) any and all reserves currently maintained by Seller pursuant to loan documents, the HAP Contract or other project documents, which shall remain the property of Seller at the Close of Escrow, to the extent HUD or any other applicable regulatory does not prohibit such release, and (g) the computer software systems and programs utilized by Seller or its property manager in connection with the Property, provided, however, Seller shall provide to Buyer a print-out of the Rent Roll and operating statements prior to Closing, and subject to any licensing issues, Seller shall reasonably cooperate with Buyer in an attempt to provide the Rent Roll and operating statements in electronic format prior to Closing. As used herein, "Service Contracts" means all contracts to which Seller or Property Manager is a party relating to the operation, maintenance or management of the Property, including any agreements for electric, gas, telephone, cable television, security alarm monitoring, sewer, trash collection or similar services, supply contracts, equipment leases, and leasing brokerage agreements. The transfer of the Property contemplated by this Agreement is referred to in this Agreement as the "Transaction." 3. Purchase Price. The purchase price to be paid by Buyer for the Property (the "Purchase Price") is FORTY-SIX MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($46, 250, 000.00). 4. Deposit, (A) Initial Deposit. Buyer shall deliver to the Escrow Agent (as hereinafter defined) a deposit in the amount of TWO HUNDRED FIFTY THOUSAND ONE HUNDRED DOLLARS ($250,100.00) within three (3) Business Days of the Effective Date, $100 of which shall be nonrefundable and immediately released to Seller as independent consideration for this Agreement, and the remaining $250,000.00 shall be considered the Initial Deposit (the "Initial Deposit"). The Initial Deposit and all other sums to be paid by Buyer to Escrow Agent pursuant to this Agreement shall be delivered by wire transfer in accordance with the wiring instructions 2 Summercrest v3 Attachment No. 6 provided by the Escrow Agent. The term "Business Day," as used in this Agreement, means any day of the week other than a Saturday, Sunday or a legal holiday in California. 1Bi. Ai:WM-WM fJepbStf. Unless .in& A ' eritdiff it terinii Iea' on ` or "before the— -- expiration of the Feasibility Period (defined in Section 7 below), pursuant to the provisions of Section 7(B) hereof, then, within one (I) Business Day of the end of the Feasibility Period, Buyer shall deposit the additional amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) (the "Additional Deposit" and, together with the Initial Deposit, the "Deposit") with the Escrow Agent. (C) Timely Payment of Initial Deposit and Additional Deposit. If the Initial Deposit is not received by Escrow Agent in a timely manner as provided herein, Seller shall have the right to terminate this Agreement upon written notice to Buyer as provided herein. If the Additional Deposit is not received by Escrow Agent in a timely manner as provided herein, Buyer shall be deemed to have terminated the Agreement during the Feasibility Period and thereafter the Initial Deposit previously made pursuant to this Section 4 shall be released to the Buyer. (D) Non -Refundable Deposit. Unless this Agreement is terminated before the expiration of the Feasibility Period, Buyer shall not be entitled to a return of the Initial Deposit except (i) as a result of a material default by Seller under this Agreement, (ii) in the event of a casualty or condemnation event as described in Section 15 hereof, or (iii) Buyer is unable to obtain all consents and approvals described in Sections 5 (B), (C), (D) and (E); provided, however, with respect to the items listed in (D)(iii) above, Buyer (a) shall exercise good faith efforts to secure the consents and approvals prior to the expiration of the Contingency Approval Date defined in Section 5(A) below, and (b) shall not be entitled to the return of the Initial Deposit pursuant to (D)(iii) above unless Buyer provides Seller with a written denial of consent or approval from the applicable governmental agency prior to the Closing Date set forth in Section 6 below. In the event of termination of this Agreement for any reason following the expiration of the Feasiblity Period, the Additional Deposit shall be returned to Buyer. (E) Balance. On the Closing Date (as hereinafter defined), Buyer shall deposit into escrow an amount equal to the Purchase Price, decreased by the Deposit, and increased or decreased by the amount of any items chargeable or any credits due to Buyer under this Agreement ("Seller Proceeds"). (F) Interest. Alt funds received from or for the account of Buyer shall be deposited by the Escrow Agent in a money market fund that invests in short term US Treasury bills and/or US agency notes with a federally insured state or national bank, to the extent such option is available to the Escrow Agent. Except as provided in Section 4(D), all interest accrued on the Deposit shall become part of the Deposit. All interest earned on the Deposit shall be reported to the Internal Revenue Service, and to any other taxing authority with jurisdiction (if any), as income of the party ultimately entitled to the Deposit. Seller and Buyer, as appropriate, shall promptly execute all forms reasonably required by the other party to effectuate the intent of this Section 4(F), including Form W-9. (G) Escrow Agent. Escrow Agent (es defined in Section 6 below) shall hold and disburse the Deposit in escrow pursuant to the terms of this Agreement. If the Closing does not 3 Summercrest v3 Attachment No. 6 occur on or before the Closing Date, Escrow Agent shall distribute the Deposit in accordance with this Agreement and all additional mutual instructions as the parties may provide. In the event of any dispute between Buyer and Seller regarding the disposition of the Deposit, Escrow Agent may withhi5ici'such`disposition`unt`iTsucti di puteis reso)ve or may mterp!ead the Deposit into a court of competent jurisdiction within Orange County, California. Escrow Agent shall not be liable for any damage, liability or loss arising out of or in connection with the services rendered by Escrow Agent pursuant to this Agreement, except in the event of a breach by Escrow Agent of its obligations hereunder or the gross negligence or willful misconduct of Escrow Agent. 5. Financing Commitment, Assumption of the HAP Contract, Ca1HFA Approval and TCAC Consent (A) Buyer's Financing. Buyer shall have a period of seventy-five (75) days from the Effective Date ("Financing Approval Period") to obtain an irrevocable, binding commitment from its lender(s) in an amount sufficient to finance the acquisition of the Property (the "Financing Commitment"). Provided that Buyer complies with each of its obligations under this Agreement, Buyer's obligations hereunder shall be expressly contingent upon Buyer obtaining the Financing Commitments on or prior to the expiration of the Financing Approval Period (the "Contingency Approval Date"). If, prior to the expiration of the Financing Approval Period, Buyer fails to notify Seller that Buyer has obtained the Financing Commitment, including evidence of same reasonably satisfactory to Seller, then this Agreement shall be deemed terminated as of the expiration of the Financing Approval Period and the Deposit, less the Initial Deposit, shall be returned to Buyer; otherwise, the Purchase Agreement shall remain in full force and effect. If this Agreement is terminated pursuant to this Section 5(A), Seller shall provide written notice of such termination to Buyer and Escrow Agent within three(3) business days from the date of termination; provided, however, Seller's failure to provide such notice shall not effect or rescind the termination of this Agreement. (B) Assumption of HAP Contract. Buyer shall submit to the U.S. Department of Housing and Urban Development ("HUD") (i) a HUD Form 2530 Previous Participation Certification, and (ii) a request for an Assignment, Assumption and Amendment Agreement Section 8 Housing Assistance Payments Preservation Renewal Contract (Uninsured Project) (the "Section 8 Assignment") to gain approval for the assignment of that certain Section 8 Housing Assistance Payments Contract from Seller to Buyer, identified as HAP Contract Number CA-331:,000011 (the "HAP Contract") no later than the Contingency Approval Date. Buyer, at its sole cost and expense and on or prior to the date which is seven (7) days after the expiration of the Feasibility Period, shall submit to HUD the Form 2530 Previous Participation Certification, a request for the Section 8 Assignment and all documents and information required in connection therewith (collectively the "Section 8 Assignment Packet"), and shall thereafter diligently pursue using commercially reasonable efforts the administrative processing of the Section 8 Assignment Packet to completion with HUD and obtaining 2530 clearance on or prior to the Contingency Approval Date. Buyer shall deliver to Seller copies of all correspondence Buyer transmits to HUD or any other entities associated with the approval of the Section 8 Assignment within three (3) business days of such transmittal. 4 Summcrcrest v3 Attachment No. 6 (C) CaIHFA (Fannie Mae) Approval. Seller entered into that certain Regulatory Agreement, dated December 6, 2000, by and between Seller and the California Housing Finance Agency ("CaIHFA"), and recorded against the Pro in the Official Records of San Diego ...pr . �..rr+eme•,oa . a,:-.:..c-.-+n�..> .:..,..--.....r �nx. v.-.-...ry..:: � r w: r..�, ' - ....,>yx 4...k.-+r. County, Caf ifornta on 1eember 12, 200CS, as Document No. 2b0o-U674$34 as a nencded by that certain First Amendment to Regulatory Agreement dated as of June 1, 2002, by and between Seller and CaIHFA, recorded on June 20, 2002, as Document No. 2002-05233684 in the Official Records of said County (as amended, the "CaIHFA Regulatory Agreement"), which CaIHFA Regulatory Agreement was assigned by CaIHFA to Citibank, N.A. pursuant to that certain Assignment of Regulatory Agreement dated December 16, 2011 and recorded in the Official Records of said County on December 20, 2011 as Document No. 2011-0683663, and was subsequent assigned by Citibank, N.A. to Fannie Mae pursuant to that certain Assignment of Regulatory Agreement dated December 16, 2011 and recorded in the Official Records of said County on December 20, 2011 as Document No. 2011-0683664. Buyer acknowledges that pursuant to the CaIHFA Regulatory Agreement, transfer of ownership of the Property to Buyer is subject to Ca1HFA's approval, and may further require the approval of such transfer by Fannie Mae. Buyer, at its sole cost and expense and on or prior to the date which is seven (7) days after the expiration of the Feasibility Period, shall submit to CaIHFA (and, if required, to Fannie Mae) a request for approval of the conveyance of the Property to the Buyer in accordance with the terms of the CaIHFA Regulatory Agreement, and all documents and information required in connection therewith (collectively, the "CaIHFA Regulatory Agreement Assignment Packet"), and shall thereafter diligently pursue using commercially reasonable efforts the administrative processing by CaIHFA (and, if required, by Fannie Mae) of the CalHFA Regulatory Agreement Assignment Packet and Ca1HFA's approval (and, if required, Fannie Mae's approval) thereof to completion on or prior to the Contingency Approval Date. Buyer shall deliver to Seller copies of all correspondence Buyer transmits to CalHFA or any other entities associated with the approval of the conveyance of the Property within three (3) business days of such transmittal. (D) HUD and CaIHFA Approval. Notwithstanding anything to the contrary in this Section S, Buyer shall have until the Contingency Approval Date to obtain (i) HUD's approval of Buyer's assumption of the Section 8 Assignment Packet and the assignment of the HAP Contract to Buyer ("HAP Contract Approval"), and (ii) CaIHFA's (and, if required, Fannie Mae's) approval of the transfer and conveyance of the Property to Buyer as required by the CaIHFA Regulatory Agreement (the "CaIHFA Transfer Approval"). If Buyer has not secured HAP Contract Approval and CaIHFA Transfer Approval (or obtained such approvals with material adverse conditions) or has not secured the TCAC Consent (as defined below) (or obtained such approvals with material adverse conditions), in each case, on or prior to the Contingency Approval Date, then in such event, Buyer shall have the right to terminate this Agreement by providing written notice of such termination to Seller no later than three (3) Business Days after the Contingency Approval Date (provided, that, Buyer's right to terminate this Agreement hereunder shall only apply if Buyer has complied in all material respects with its obligations under Section 5) and, thereafter, this Agreement shall be terminated and of no further force or effect subject to and except for those provisions that expressly survive termination of this Agreement, and Escrow Agent shall promptly return the Deposit to Buyer. For purposes of this Section (D), the term "material adverse conditions" shall mean the imposition of one or more conditions on either or both of the HAP Contract Approval or CaIHFA Transfer Approval that are reasonably likely in the 5 Summcvcrest v3 Attachment No. 6 future to significantly and negatively impact or decrease the financial performance of the Apartment Development. f 1CAt c onserit, tfizyer "acltnowiedet that"Obi suant""LO' tlia't ceitain "Regurafo'ry"' Agreement dated February 15, 2001 (the "TCAC Regulatory Agreement") between Seller and the California Tax Credit Allocation Committee ("TCAC"), the consent of TCAC is required to transfer the Apartment Development to Buyer (the "TCAC Consent"). Buyer, at its sole cost and expense and promptly and no later than seven (7) business days after the end of the Feasibility Period and Buyer's deposit of the Additional Deposit, shall submit a request to TCAC for consent to the conveyance of the Property to Buyer in accordance with the terms of the 'fCAC Regulatory Agreement. Buyer shall use its commercially reasonable efforts to obtain the TCAC Consent on or prior to the Contingency Approval Date. Seller and Buyer acknowledge that Seller and Buyer shall be required to execute an assignment and assumption of the Regulatory Agreement (the "TCAC Regulatory Assumption Agreement"). Seller shall cooperate with Buyer's reasonable requests to assist in obtaining the TCAC Consent and shall be entitled, in Seller's reasonable discretion, to actively participate in the process. Buyer shall deliver to Seller copies of all correspondence Buyer transmits to TCAC and any entities associated with the approval of the conveyance of the Property within three (3) business days of such transmittal. (F) Assumption of CC&Rs. A Declaration of Covenants, Conditions and Restrictions (Tenant Restrictions) dated December 18, 2001 ("CC&Rs"), was recorded against the Property on June 19, 2002, as Document No. 2002-0518422, in the Official Records of San Diego County, California, in connection with a loan to Seller from the Community Development Commission of the City of National City. Section 17 of the CC&Rs requires that any transferee of the Property expressly assume and be bound by all of the provisions of the CC&Rs. Buyer agrees to execute an assumption of the CC&Rs in a form reasonably acceptable to Seller and Buyer prior to the expiration of the Contingency Approval Date. 6. Close of Escrow. (A) Escrow. The purchase of the Property will be completed through an escrow ("Escrow") to be opened with First American Title Insurance Company, 18500 Von Karman Avenu, Suite 600, Irvine, California 92612 ("Escrow Agent"). The Escrow will be opened within two (2) Business Days of the Effective Date by delivering to the Escrow Agent a fully executed copy of this Agreement. The Close of Escrow will occur no later than fourteen (14) days following the last to occur of Buyer's receipt of (1) HUD Contact Approval, (3) the TCAC Consent, (4) the Ca1HFA Transfer Approval, or (4) the Financing Commitment; provided, however, in no event shall the Close of Escrow occur later than January 31, 2014, or such earlier date as may be mutually acceptable to Buyer and Seller (the "Closing Date"). Notwithstanding any of the foregoing to the contrary, due to the prepayment requirements of the existing financing, the loan may not be prepaid between the 27th and 310 days of a calendar month and a result, the Closing Date shall not fall on such dates. As used in this Agreement, "Close of Escrow" means the recording of the Deed (as defined below) by the Escrow Agent and payment to Seller of the Purchase Price (net of adjustments allowed by this Agreement). 6 Summercrest v3 Attachment No. 6 (B) Conditions to Seller's Obligation to Close. Seller's obligation to dose Escrow hereunder is conditioned upon the satisfaction of all of the conditions set forth in this Section 6(B), which conditions are for the benefit of Seller, in addition to the other conditions to Seller's M_. ,. .,.L.<..,,.,.r... F g ns provided for elsewh3ere in flies 1�`"eement::" "`" Br' (1) Deposit; Buyer's timely payment of the Deposit, and the Additional (2) Buyer's timely payment of the Purchase Price and any other amounts which are to be paid by Buyer under this Agreement; (3) Buyer's representations and warranties set forth in Sections 10(B)(1), (2), (3), (5), (6), (7), (8), (9) and (10) of this Agreement shall remain true, correct and complete in all material respects as of the Closing Date and Buyer shall have complied in all material respects with all of its obligations and covenants under this Agreement; provided, however, such condition shall be deemed satisfied unless the failure of any such representations and warranties to remain true, correct and complete in all material respects as of the Closing Date, or Buyer's failure to comply in all material respects with its obligations and covenants is reasonably likely to result in a material and adverse effect on the Transaction; (4) Buyer's execution of an agreement whereby Buyer assumes all obligations of Seller under, and agrees to be bound by, the CC&Rs described in Section 5(F) above; (5) below; and (6) Section 6(E) Buyer's timely payment of the closing costs set forth in Section 9 Buyer's delivery to Escrow of Buyer's Deliveries as set forth in below. If any of the foregoing Seller's conditions to Closing have not been satisfied or performed on or prior to the Closing Date, then Seller shall have the right, at Seller's option, to either (a) waive, in writing, compliance with any one or more of said conditions to Closing and proceed with the Closing without adjustment to the Purchase Price, (b) extend the Closing Date to provide the parties with additional time to satisfy the condition(s), or (c) terminate this Agreement by written notice to Buyer, whereupon the Deposit (excluding the Released Deposit) shall be returned to Buyer and, thereafter, this Agreement shall be terminated and of no further force or effect subject to and except for those provisions that expressly survive termination of this Agreement; provided, however, if and only if such failure of condition constitutes a default by Buyer under this Agreement, Seller shall be entitled to the Deposit as and to the extent provided in Section 12(A). (C) Conditions to Buyer's Obligation to Close. Buyer's obligation to close Escrow hereunder is conditioned upon the satisfaction of all of the conditions set forth in this Section 6(C), which conditions are for the benefit of Buyer, in addition to the other conditions to Buyer's obligations provided for elsewhere in this Agreement. 7 Summcrcrut v3 Attachment No. 6 (1) Seller's delivery to Escrow of Seller's Deliveries as set forth in Section 6(D) below. " represeritaiions aid warranties -set With to this Agreemerii shall remain true, correct and complete in all material respects as of the Closing Date and Seller shall have complied in all material respects with all its obligations and covenants under this Agreement; provided, however, such condition shall be deemed satisfied unless the failure of any such representations and warranties to remain true, correct and complete in all material respects as of the Closing Date, or Seller's failure to comply in all material respects with its obligations and covenants is reasonably likely to result in a material and adverse effect on the Transaction. (3) The title insurance company shall be prepared to issue the Title Policy in accordance with Section 8(D) and Seller shall have cured or removed, within the time period for cure or removal, any title or survey matter that Seller has agreed in writing prior to the end of the Feasibility Period to cure or remove, if any. If any of the foregoing Buyer's conditions to Closing have not been satisfied or performed on or prior to the Closing Date, then Buyer shall have the right, at Buyer's option, to either (a) waive, in writing, compliance with any one or more said conditions to Closing and proceed with the Closing without adjustment to the Purchase Price, or (b) terminate this Agreement by written notice to Seller, provided, to the extent the Deposit (including the Additional Deposit and the Released Deposit, subject to the provision set forth below) has been previously released to Seller or is required to be released to Seller pursuant to the terms of Section 4(D), the Deposit shall be retained by Seller. Thereafter, this Agreement shall be terminated and of no further force or effect subject to and except for those provisions that expressly survive termination of this Agreement; provided, however, if and only if such failure of condition constitutes a material default by Seller under this Agreement, Buyer shall be entitled to the return of the Deposit as and to the extent provided in Section 12(B). (D) Seller's Deliveries. Prior to Close of Escrow, Seller will deposit with the Escrow Agent the following items (collectively, the "Seller Documents"): (1) a grant deed (the "Deed"), executed and acknowledged by Seller, conveying to Buyer fee simple title to the Real Property; (2) a bill of sale and general assignment, executed by Seller, conveying the Personalty to Buyer free of any liens or encumbrances, the Intangibles, Records, and Service Contracts that Buyer is obligated to assume as provided in Section 7(D); (3) an assignment of leases and rents, executed and acknowledged by Seller, conveying to Buyer all right, title, interest and estate of Seller in, to and under all Leases and all Rents allocable to the period after Close of Escrow; (4) such documents as the Escrow Agent may reasonably require to establish the authority of Seller to complete the Transaction; (5) an affidavit, dated as of the date of Close of Escrow and executed by an appropriate representative of Seller under penalty of perjury, stating that Seller is not a person with respect to whom withholding is required under Section 1445 of the Internal Revenue Code and, if factually accurate, a California Form 593 C certifying that an exemption from withholding related to California income tax is applicable to Seller; (6) a termination of the current property management contract, (7) an updated Rent Roll dated no sooner than five (5) Business Days prior 8 Summercrest v3 Attachment No. 6 to the Closing Date; (8) the TCAC Regulatory Assumption Agreement, executed by Seller; (9) an operating statement for the Property for the month immediately preceding the month of Closing and an interim operating statement for the month to date of Closing; and (10) a standard form owner s atiidavtt for the benefit of fhetitle company. (E) Buyer's Deliveries. Prior to Close of Escrow, Buyer will deposit with the Escrow Agent the following: (1) the Seller Proceeds and any other amounts required to be paid by Buyer under this Agreement at or prior to the Close of Escrow; (2) such documents as the Escrow Agent may reasonably require to establish the authority of Buyer to complete the Transaction; (3) the Section 42 Indemnification Agreement in the form attached hereto as Exhibit D executed by Buyer and [ndemnitor; (4) assumption agreements, in form and content acceptable to Seller and Buyer, executed by Buyer, assuming Seller's obligations under the HAP Contract, the CaIHFA Regulatory Agreement, and all Leases and Service Contracts that Buyer is obligated to assume as provided in Section 7(D) from Seller; (5) the TCAC Regulatory Assumption Agreement executed by Buyer; (6) a California preliminary change of ownership form (PCOR); and (7) countersigned pages to any of the documents set forth in Sections 6(D)(2), and 6(D)(3). (F) Return of Documents. Documents and any refundable funds deposited in escrow under Section 4 will be returned to the person who deposited them if the Seller or Buyer terminates its obligation to complete the Transaction under circumstances permitted by this Agreement. (G) Close of Escrow. Escrow Agent will accomplish the Close of Escrow on the Closing Date by recording the Deed (and such other documents as may be necessary to procure the Title Policy), and delivering funds and documents to the parties WHEN AND ONLY WHEN each of the conditions set forth in Sections 6(B) and 6(C) above have been satisfied or waived, and First American Title Insurance Company ("Title Company") irrevocably commits to issue the Title Policy with liability in the amount of the Purchase Price, insuring fee title to the Real Property in Buyer subject only to and otherwise in compliance with Section 8(D): a. General and special real estate taxes and assessments that are, as of the Close of Escrow, not delinquent; b. Supplemental taxes, if any, pursuant to California Revenue and Taxation Code section 75, et seq., that are assessed and pertain to the period of time after the Close of Escrow; c. The Permitted Exceptions; and d. Any encumbrance voluntarily imposed by Buyer. (H) Contracts, Leases, etc. Simultaneously with the Close of Escrow, Seller will deliver to Buyer, outside of the Escrow, originals or, if originals are not in Seller's possession, copies of (1) documents evidencing other permits, licenses, approvals, utility rights, development rights and similar rights related to the Property, if any, that are transferred to Buyer, (2) all Leases, other Tenant Records, and all guaranties of Leases, (3) all assignable warranties and guaranties covering all or any part of the Property that are transferred to Buyer; and (4) all Service Contracts that Buyer is obligated to assume as provided in Section 7(D) and Tax Credit Documents. 9 Summererest v3 Attachment No. 6 (1) Tenant Notification. Immediately following Close of Escrow, Buyer will deliver to each tenant of the Property a letter (in a form approved by Seller, which approval shall not be unreasonably withheld), which Seller shall sign along with Buyer, notifying the tenants of the flanker .: .: .,, �...:. .�..-, �.. yvr�»v �.. .-c...-.. - t. .:. .. .Buyer, ..... ..: ..... .. ...r......r...r,..r flanster of the lsroperiy and ad"vtsmg ttie (enantsthd buyer has assumed responsif»lity tnr `enant Deposits (as defined below) made by such tenants. (.1) Section 42 Indemnification Agreement. Buyer acknowledges that Seller has developed, owned and operated the Apartment Development as a project intended to generate low-income housing tax credits under Section 42 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. As a material inducement to Seller's agreement to enter into this Agreement and sell the Property to Buyer, at the Close of Escrow (and as a condition thereto) Buyer shall execute and deliver to Seller, and shall cause the indemnitor described in Section 10.B.(2) below ("Indemnitor") to execute and deliver to Seller, the Section 42 lndenuufication Agreement in the form attached hereto as Exhibit D (the "Section 42 Indemnification Agreement"). 7. Feasibility Period. (A) Seller, to the extent not already delivered to Buyer, shall deliver to Buyer copies of the following documents ("Seller Documents") to the extent they are actually in Seller's possession or under Seller's reasonable control: (1) Rent Rolls — Current, and for the months that occur between the Effective Date and the month of Closing; (2) Historical Occupancy — For current year to date, and the previous three full years; (3) List of vacant units (employee/model); (4) Financials — Trailing 12 and the three full years prior to the current year; (5) (6) (7) years; Audited Financials — For the previous three years; List of capital expenditures for the past 3 years and current YTD; Copies of real estate and/or personal property taxes for the past 2 (8) Sample Tenant Lease — currently used at the Property; (9) Service Contracts & Leases; (10) Site plan and floor plans (for all unit types); (11) All commercial leases; (12) Current year operating budget; (13) Architectural, mechanical, electrical, plumbing, drainage, construction, and similar plans, specifications and blueprints relating to the construction and/or improvements; 10 Summercrest v3 Attachment No. 6 (14) Any private or governmental inspection report (REAC, MOR, etc.) relating to the Property; y. L_ ..�,....< r. j ). ,...., �{lA... tttlyt,v.. l?.tll .for..,the—Priverty.„.. for. ,thi- . s ..COY.. (6),4,541e tlnr;..:. ..., .,. months; (16) Termite inspection reports; (17) ALTA Survey; (18) Engineering reports; (19) Phase I environmental and/or any environmental reports and any written notice of environmental violations which Seller has received from any governmental entity; (20) Mold and Asbestos plans, if applicable; (21) Most recent appraisal and rent comp study; (22) Current Insurance bill(s) for the property including a 3 year loss run and the declaration pages; (23) Certificates of Occupancy; (24) Fire inspection reports, building permits, pool permits, and any fire zoning, pool, and or health violations; (25) Personal property list to be transferred with the sale; (26) A list of staff names, positions, benefits, salary and length of employment; (27) 8609's; (28) Any outstanding 8823's; (29) Most recent inspection report from the local multifamily housing administrator; (30) Zoning letter or report; (31) Current Financing; (32) HAP Contract and the past two renewals, plus any regulatory agreements; (33) Most recent rent schedule; (34) LIHPRHA Plan of Action; (35) LIHPRHA Use Agreement; (36) Payroll summary for on -site employees, noting whether full or part-time and what, if any, rent reduction they receive if they live on site/list of staff names, positions, benefits, salary and length of employment; 11 Summercrest v3 Attachment No. 6 (37) HUD Regulatory Agreement and amendments thereto, HUD Use Agreement, HUD Plan of Action, HUD-50059 Tenant Income Certifications (available for review at the Property site). (AA) All tenant files and tenant records shall be made available to Buyer at the Property. Buyer acknowledges that, except as may otherwise be expressly provided in Section 10(A), all materials made available by Seller and its affiliates or any officer, director, trustee, agent, employee or other person acting or purporting to act on behalf of Seller or any of its affiliates, including the materials described in this Section 7, are provided to Buyer without representation or warranty as to the accuracy thereof or sufficiency for the purposes for which Buyer uses such materials. (B) Feasibility Period. Buyer shall have a period expiring at 5:00 PM (Pacific Time) on the thirtieth (30th) day from the Effective Date (the "Feasibility Period") to conduct its due diligence investigation of the Property and determine if Buyer wishes to proceed with the Transaction. Buyer may terminate its obligation to complete the Transaction at any time during the Feasibility Period if Buyer, in its sole discretion, is not satisfied for any reason whatsoever with the Property or any matter relating to the Property. Buyer may exercise its right under this Section 7(B) to terminate the Transaction by delivering notice to Seller at any time during the Feasibility Period, in which event the Deposit shall be refunded to Buyer. Buyer may conduct a "Mock" REAC Inspection of the Property during the Feasibility Period. Seller shall reasonably cooperate with Buyer to allow Buyer to conduct the Mock REAC Inspection, including making all areas of the Property available to Buyer for purposes of conducting the inspection, subject to the provision of reasonable advance notice to Seller by Buyer. (C) Inspections. Buyer and its representatives, consultants and contractors may enter upon the Property upon reasonable notice to make such inspections and tests regarding the Property as Buyer deems necessary or desirable, subject to rights of tenants to exclude or limit such inspections and tests. Buyer shall obtain Seller's approval before undertaking any intrusive, destructive or invasive testing or any soil borings, which approval Seller may withhold in its reasonable discretion. Damages to the Property resulting from any inspection or testing conducted by or at the direction of Buyer will be repaired by Buyer so that the Property is restored to substantially the same condition as of the Effective Date. Buyer will indemnify, defend and hold harmless Seller, its property manager and the Lender against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including, without limitation, reasonable fees and disbursements of attorneys and other professionals and court costs) that are actually incurred by any of the indemnified parties or which adversely affect the Property (excluding consequential, punitive, and special damages), in connection with or arising out of any such inspections or tests; provided, however, Buyer shall not be liable for the mere discovery of any pre-existing conditions which are not exacerbated by Buyer or its agents, representatives, consultants or contractors or the mandatory reporting thereof to applicable state or federal agencies. Prior to any entry onto the Property, Buyer shall provide Seller with evidence that Buyer maintains liability insurance with coverage in an amount not less than S1,000,000 and that Seller, its property manager and the Lender have been named as additional insureds under such insurance. 12 Summercrest v3 Attachment No. 6 (D) Service Contracts. Within twenty (20) days of the Effective Date, Buyer shall review all of the Service Contracts, and within such 20-day period notify Seller in writing of its request that Seller terminate any or all of such Service Contracts by the Close of Escrow (the `'1lisapproved Service`[ oatracfs'fif buyer'saiiure'to'proviiie sizch'written'riotice'wtfin stick y 20-day period shall be deemed to constitute Buyer's approval of, and election to assume, all Service Contracts. Within five (5) days following Seller's receipt of Buyer's notice to terminate the Disapproved Service Contracts, Seller may notify Buyer in writing whether Seller will terminate any or all of the Disapproved Service Contracts by the Close of Escrow. Seller's failure to provide any such response within such 5-day period shall be deemed to constitute Seller's election not to terminate any of the Disapproved Service Contracts. Notwithstanding anything to the contrary contained in this Agreement, except for Seller's property management agreement, Seller shall have no obligation to terminate any of the Disapproved Service Contracts. Unless Seller agrees in writing to terminate all of the Disapproved Service Contracts by the Close of Escrow, Buyer shall elect in a written notice delivered to Seller no later than the end of the Feasibility Period, either (i) to waive its objection to all Disapproved Service Contracts (except any Disapproved Service Contracts that Seller has agreed in writing to terminate), in which case Buyer shall be obligated to assume all of such Disapproved Service Contracts as well as all other Service Contracts, or (ii) to terminate its obligation to complete the Transaction, in which case the Deposit with accrued interest will be refunded to Buyer. If Buyer fails to deliver written notice of its election to waive its objections to all Disapproved Service Contracts (except any Disapproved Service Contracts that Seller has agreed in writing to terminate), Buyer will be deemed to have elected to assume all of such Disapproved Service Contracts (except any Disapproved Service Contracts that Seller has agreed in writing to terminate) as well as all other Service Contracts. S. Title Insurance. (A) Within twenty (20) days of the Effective Date, Buyer shall examine the Title Report and, if obtained by Buyer at its sole cost and expense, a survey of the Property (the "Survey"), and within such 20-day period notify Seller in writing of its approval of or its objections to any exceptions to title reflected by the Title Report or matters reflected in the Survey, a copy of which shall be provided to Seller. Exceptions to which Buyer objects shall be "Disapproved Exceptions." Exceptions which are approved or not disapproved by Buyer shall be "Permitted Exceptions." If Buyer fails to so notify Seller of Buyer's objection to or approval of any exceptions to title set forth in the Title Report or Survey within such period, Buyer shall be deemed to have approved the Title Report and Survey. (B) Within five (5) days following Seller's receipt of Buyer's notice of any Disapproved Exceptions, Seller shall notify Buyer in writing whether Seller elects to remove the same (for purposes of the foregoing, obtaining affirmative insurance coverage over a Disapproved Exception shall not be deemed removal). Seller shall have no obligation to remove any Disapproved Exception, except as provided below with respect to Monetary Liens. Unless Seller agrees to remove all Disapproved Exceptions, Buyer shall elect, in a written notice delivered to Seller no later than the end of the Feasibility Period, either (1) to waive its objection to all Disapproved Exceptions (except any Disapproved Exception that Seller has agreed to remove), in which case those Disapproved Exceptions covered by the waiver shall become Permitted Exceptions, or (2) terminate its obligation to complete the Transaction, in which case the Deposit Summercrest v3 13 Attachment No. 6 with accrued interest will be refunded to Buyer. If Buyer fails to deliver written notice of its election to waive its objection to all Disapproved Exceptions (except any Disapproved Exception that Seller has agreed to remove), Buyer will be deemed to have elected to waive its ob"ections to rsapprov ors excepTitU isa p ve�ce r ion ` e er a��remove . If Seller agrees to remove any Disapproved Exception and then is unable or fails to remove such Disapproved Exceptions prior to Close of Escrow, and Buyer, within five (5) business days of the scheduled Closing Date, does not then elect to deem all such Disapproved Exceptions to be Permitted Exceptions and proceed with the transactions cxmtemplated under this Agreement with a reasonable postponement of the Closing Date (not to exceed fifteen (15) days) then the provisions of Section 12(B) below shall apply. Notwithstanding the foregoing, Seller shall cause all monetary liens and encumbrances, including any mortgages, and excluding real estate taxes and assessments not yet delinquent or payable ("Monetary Liens') to be removed prior to Close of Escrow. Seller shall be responsible for the payment of any prepayment penalty or yield maintenance amount charged by the existing lenders. (C) If any exception to title to the Property not shown on the Title Report or Survey is discovered prior to Close of Escrow ("New Exceptions") Seller shall immediately give written notice to Buyer and Escrow Agent of each such New Exception. Buyer shall, within three (3) Business Days of receiving such notice, provide written notice to Seller and Escrow Agent of any New Exceptions which Buyer (1) approves, and such approved New Exceptions shall be deemed to be Permitted Exceptions, and/or (2) disapproves, and such disapproved New Exceptions shall be deemed to be Disapproved Exceptions. Buyer's failure to respond to Seller's notice of New Exceptions within three (3) Business Days of receipt of Seller's notice shall be deemed to be Buyer's approval of such New Exceptions. Any New Exception which becomes a Disapproved Exception pursuant to this Section shall be handled in accordance with the notice provisions and within the number of days in the time frames established in Section 8(11) above; provided that if the Closing Date is within five (5) days after the date a New Exception becomes a Disapproved Exception pursuant to this Section, the parties shall agree on a reasonable postponement of the Closing Date (not to exceed five (5) days) for the purposes of handling such Disapproved Exceptions in accordance with Section 8(73). (D) Buyer's obligation to purchase the Property is conditioned on the Escrow Agent issuing to Buyer an ALTA Extended Title Policy upon the Close of Escrow pursuant to the terms of this Agreement (the "Title Policy") insuring that Buyer holds fee simple title to the Real Property. The Title Policy must be in the amount of the Purchase Price, must contain as exceptions only Permitted Exceptions and additional exceptions for matters created by Buyer, and without mechanic's lien, survey, encroachment, and other standard exceptions (to the extent the title company shall have agreed in writing prior to the end of the Feasibility Period to eliminate such matters), and shall contain those endorsements to the Title Policy that the title company (First American Title Insurance Company) has agreed in writing to issue prior to the end of the Feasibility Period, which shall be paid for by Buyer. Seller will pay the premium for the Standard Title Policy (excluding endorsements) issued in the amount of the Purchase Price. If Buyer requires an ALTA Extended Title Policy, or a binder in lieu of a policy of title insurance, then Seller cha1l pay only the cost of the ALTA Standard Title Policy and Buyer shall pay all additional costs of obtaining the ALTA Extended Title Policy or binder including, without limitation, any survey costs. Seller shall provide such customary information and standard owner's affidavits as 14 Summacrest v3 Attachment No. 6 of Closing as may be required by the title insurance company to enable the title insurance company to issue the Title Policy as required herein. y.` i,3iu v�fis; P tii hulls Simi `iirp�s`iul: (A) Closing Costs. Seller shall pay any and all defeasance and prepayment fees, to the extent applicable, due in connection with its prepayment of the existing loan secured by the Apartment Development. Seller shall pay one-half of the escrow fees charged by the Escrow Agent, the county real property transfer tax on the Deed, and the recording costs for the Deed. Buyer shall pay one-half the escrow fees charged by Escrow Agent, the cost of a current survey, and all other customary closing costs. Buyer and Seller each will pay its own attorneys' fees. Other costs will be paid by Seller or Buyer, as applicable, as specified by other provisions of this Agreement. (B) Prorations. Seller and Buyer will prorate, effective as of 11:59 p.m. on the Closing Date (i.e., Seller will be charged with expenses and credited with income up to and including the Closing Date), ail collected Rents and all expenses of operation of the Property (including utilities and real property assessments, based upon the official tax bill(s) for the current tax year, if available), except for insurance premiums. If such bills are not available, the proration shall be based upon the last ascertainable tax bills. If any expenses cannot be determined finally as of Close of Escrow, such expense will be prorated on the best available information. Adjustments to the prorations will be made from time to time after Close of Escrow to take account of final information as to expenses estimated as of Close of Escrow that were not included in the prorations calculated at the Close of Escrow, and Buyer or Seller, as applicable, will pay the other on demand such amounts as may be appropriate based on such adjustments, together with interest at 10% per annum from the date of demand if such amount remains unpaid more than ten (10) days after demand. Buyer and Seller shall use reasonable efforts to complete any reproration of expenses within one hundred eighty (180) days after Close of Escrow or, in the case of real property assessments, within ninety (90) days after the 2013-2014 tax bills are issued. Notwithstanding any of the foregoing to the contrary, in no event shall Seller be responsible for the payment of any supplemental real estate taxes assessed as a result of the sale of the Property to Buyer. (C) Delinquent Rents or Other Income. Rents or other income delinquent as of Close of Escrow will not be prorated. Rents or other income collected after Close of Escrow by Buyer for any tenant or other party must be applied first against Rents and other income due and payable by that tenant or other party for the period after Close of Escrow, until all of such Rents and other income due and payable have been collected, and then to Rents and other income attributable to the period before Close of Escrow. Buyer shall use its commercially reasonable efforts to collect all delinquent Rents and other income from tenants residing at the Property or current contracting parties, but without any obligation to pursue judicial or other action to collect any such past amounts. Buyer will remit to Seller any Rents or other income actually collected, less collection costs, by Buyer that, in accordance with this Section 9(C) are owed to Seller allocable to the period before Close of Escrow. (D) Deposits and Reserves; Rent Ready Units. Seller shall convey to Buyer all unapplied refundable security deposits, plus any interest earned thereon to the extent required to be 15 Summercrest v3 Attachment No. 6 maintained by law, and all advance payments of Rent allocable to the period after Close of Escrow by providing Buyer with a credit through the Close of Escrow for all such amounts (collectively, "Tenant Deposits") held by Seller as of Close of Escrow. All reserves currently maintained by Seiler pursuant to loan documents, they TAP Contract or other project documents s ia(l remain with the Seller at the Close of Escrow unless specifically prohibited by a regulatory agency with jurisdiction over such reserves. Seller shall provide Purchaser a credit of $1000 for any units not in "rent ready" condition as of the Closing Date. Purchaser shall have the right to perform a walk-through of all units in the Apartment Development at least five (5) days prior to Closing. 10. Representations and Warranties. (A) Seller Representations and Warranties. In order to induce Buyer to enter into this Agreement and to complete the Transaction, Seller represents and warrants to Buyer that as of the Effective Date: (1) Seller is a limited partnership duly organized and validly existing under the laws of the State of California. Seller is the owner of the fee simple title to the Land and Improvements. Seller has the authority and power to enter into this Agreement, to perform its obligations under this Agreement and to complete the Transaction as contemplated by this Agreement. Seller has taken all action necessary to authorize the execution and delivery of this Agreement, the performance by Seller of its obligations under this Agreement and the completion of the Transaction as contemplated by this Agreement; (2) this Agreement has been duly executed and delivered by Seller and constitutes a valid, binding and enforceable obligation of Seller, subject to bankruptcy and other debtor relief laws and principles of equity; (3) the execution and delivery of this Agreement by Seller and the performance by Seller of its obligations under this Agreement and the completion of the Transaction as contemplated by this Agreement will not result in (a) a breach of, or a default under, any contract, agreement, commitment or other document or instrument to which Seller is party or by which Seller or the Property is bound except (i) Service Contracts, as to which Seller makes no representation or warranty, (ii) the HAP Contract (unless the HAP Contract Approval is properly obtained), (iii) the CaLHFA Regulatory Agreement (unless the Ca1I-IFA Transfer Approval is properly obtained), and (iv) the TCAC Consent, or (b) a violation of any law, ordinance, regulation or rule of any governmental authority applicable to Seller or any judgment, order or decree of any court or governmental authority that is binding on Seller; (4) except as disclosed on Exhibit B, there is no action, suit, proceeding, inquiry or investigation pending or, to the knowledge of Seller, threatened by or before any court or governmental authority (a) against or affecting the Property or arising out of the development, construction, financing, operation, leasing, maintenance or management of the Property or (b) that would prevent or hinder the performance by Seller of its obligations under this 16 Summercrest v3 Attachment No. 6 Agreement or the completion of the Transaction as contemplated by this Agreement; ( 7..i__...,....iMira.:.i`ecftiifeXf-iitYtieF`-Srrrvidd`"'et5inii1W"i-TAP-.".", Contract Approval and CalHFA Transfer Approval, consents required by the Agency Agreements listed on Exhibit C attached hereto and the TCAC Consent, and approvals, authorizations and filings already completed, Seller is not required to obtain any consent, approval or authorization from, or to make any filing with, any person (including any governmental authority) in connection with, or as a condition to, the execution and delivery of this Agreement, the performance by Seller of its obligations under this Agreement or the completion of the Transaction as contemplated by this Agreement; (6) to Seller's knowledge, the Seller Documents are true, accurate and complete in all material respects; (7) Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property other than normal regulatory correspondence from HUD, as applicable, and, to the best of Seller's knowledge, no event or condition has occurred which if not corrected would result in such notice; (8) Seller has not received any written notice of any material default by Seller under any assigned Service Contracts. As of the Effective Date, to the best of Seller's knowledge, there are no Service Contracts other than those made available to Buyer; (9) Except as may otherwise be disclosed in writing by Seller to Buyer no later than three (3) Business Days prior to the end of the Feasibility Period, Seller has not received any written notice of any outstanding default by Seller under the HAP Contract, the CalHFA Regulatory Agreement, the TCAC Regulatory Agreement, and the CC&Rs and, to the best of Seller's knowledge, there is no outstanding material default, or any event or condition that with notice or the passage of time would constitute a material default, under the HAP Contract, the CalHFA Regulatory Agreement, the TCAC Regulatory Agreement or the CC&Rs, and, to the best of Seller's knowledge, Seller has not received any outstanding written notice asserting that Seller has failed to operate the Apartment Development in compliance in all material respects with Section 42 of the Code, and all federal and TCAC regulations applicable thereto, Seller has not received written notice of any outstanding noncompliance or IRS Form 8823 issued by TCAC or written notice of any outstanding IRS proceeding, and, to the best of Seller's knowledge, there are no facts or circumstances that could reasonably be expected to result in a loss or recapture of any Tax Credits. 17 Swnmercrest v3 Attachment No. 6 (10) Except as may be set forth in the tax bills for the Property, Seller has received no written notice of any additional special assessments of any kind being levied against all or part of the Property after Closing. (11) No bankruptcy, insolvency, rearrangement or similar action involving the Property, Seller, or Seller's general partners, whether voluntary or involuntary, is pending or, to Seller's knowledge, threatened. (12) Except for this Agreement, Seller has not entered into any outstanding contract to sell the Property of any part thereof. (13) Seller is not a foreign person, corporation, partnership, trust or estate for purposes of Section 1445 of the Internal Revenue Code, as amended. (14) Seller has provided or will provide to Buyer complete copies of all of the documents described in Sections 7(A) which are in Seller's possession or reasonably available to Seller. As used in this Section 10(A), the term "to the best of Seller's knowledge" means the actual knowledge (as opposed to imputed or constructive knowledge) of William Witte and Steve Sherman, after due inquiry of the on -site property manager (collectively, the "Seller Knowledge Parties"), who are familiar with the Property and have information with respect to the Property sufficient for purposes of the representations and warranties of Seller in Section 10(B). The parties hereby agree that recourse under this Agreement is limited to Seller and no claim will be made against the Seller Knowledge Parties. (B) Buyer Representation and Warranties. In order to induce Seller to enter into this Agreement and to complete the Transaction, Buyer represents and warrants to Seller that, as of the Effective Date: (1) Buyer is a limited liability company duly organized and validly existing under the laws of the State of Nevada and is qualified to do business in the State of California. Buyer has the corporate or other power to enter into this Agreement, to perform its obligations under this Agreement and to complete the Transaction as contemplated by this Agreement. Buyer has taken all corporate or other action necessary to authorize the execution and delivery of this Agreement, the performance by Buyer of its obligations under this Agreement and the completion of the Transaction as contemplated by this Agreement; (2) Indemnitor will be a special purpose entity, duly organized and validly existing under the laws of the State of its formation and will be qualified to do business in the State of California. Indemnitor will have the corporate or other power to enter into the Section 42 Indemnification Agreement and to perform its obligations under the Section 42 Indemnification Agreement. Indemnitor will take all corporate or other action necessary to authorize the execution and delivery of the Section 42 Indemnification Agreement and the performance by Indemnitor of its obligations under the Section 42 Indemnification Agreement. The name of 18 Summercnst v3 Attachment No. 6 Indemnitor will be inserted in the Section 42 Indemnification Agreement following execution of this Agreement and prior to the expiration of the Feasibility Period; (3) this Agreement has been duly executed and delivered by Buyer and constitutes a valid, binding and enforceable obligation of Buyer, subject to bankruptcy and other debtor relief laws and principles of equity; (4) the execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations under this Agreement and the completion of the Transaction as contemplated by this Agreement will not result in (a) a breach of, or a default under, any contract, agreement, commitment or other document or instrument to which Buyer is party or by which Buyer is bound or (b) a violation of any law, ordinance, regulation or rule of any governmental authority applicable to Buyer or any judgment, order or decree of any court or governmental authority that is binding on Buyer; (5) the execution and delivery of the Section 42 Indemnification Agreement by Indemnitor and the performance by Indemnitor of its obligations under the Section 42 Indemnification Agreement will not result in (a) a breach of, or a default under, any contract, agreement, commitment or other document or instrument to which Indemnitor is party or by which Indemnitor is bound or (b) a violation of any law, ordinance, regulation or rule of any governmental authority applicable to Indemnitor or any judgment, order or decree of any court or governmental authority that is binding on Indemnitor; (6) there is no action, suit, proceeding, inquiry or investigation (including any bankruptcy or other debtor relief proceeding), pending or to the knowledge of Buyer threatened, against Buyer or Indemnitor by or before any court or governmental authority that would challenge, impair, prevent or hinder (i) the Buyer's ability to execute or perform its obligations under this Agreement or the completion of the Transaction as contemplated by this Agreement, or (ii) the Indemnitor's ability to execute or perform its obligations under the Section 42 Indemnification Agreement; (7) except for (i) the consents, approvals, authorizations and filings already completed, (ii) the consents expressly disclosed on Exhibit C hereto (which consents on Exhibit C are governed by Section 11(1)), Buyer is not required to obtain any consent, approval or authorization from, or to make any filing with, any person (including any governmental authority) in connection with, or as a condition to, the execution and delivery of this Agreement, the performance by Buyer of its obligations under this Agreement or the completion of the Transaction as contemplated by this Agreement; (8) Neither Buyer nor Indemnitor has (A) made a general assignment for the benefit of its creditors, (B) instituted any proceeding to be adjudicated bankrupt or insolvent or consented to the institution of bankruptcy or insolvency 19 Summercrest v3 Attachment No. 6 proceedings against it, (C) filed a petition, answer or consent seeking reorganization or relief under any applicable Federal or state bankruptcy law or consented to the filing of any such petition or to the appointment of a receiver, fiquuiator; assignee; trustee; sequestrator'ar other similar official of it or of any part of its property, (D) admitted in writing its inability to pay its debts generally as they become due, or (E) taken any action in furtherance of any of the foregoing; (9) The certified financial statements and resumes/statements of experience for Indemnitor delivered or to be delivered to Seller are complete and accurate in all material respects, and there has been no material adverse change in any fact or circumstance that would make any such information incomplete or inaccurate; (10) Each of the representations and warranties set forth in the Section 42 Indemnification Agreement is true, correct and complete, in all material respects; (11) Buyer has not been debarred, suspended, or voluntarily excluded from participation in any program of a State government or agency, or has been the subject of a limited denial of participation issued pursuant to 24 CFR Part 24, Subpart G; and (12) Buyer has not been denied approval of participation in a HUD project or failed to obtain approval of a form HUD-2530 Previous Participation Certificate submitted to HUD. (C) Buyer acknowledges that it is knowledgeable and experienced about properties similar to the Property and that, except for Seller's express representations and warranties set forth herein, it is relying entirely on its own experience, expertise, inspection and study regarding the condition (including, without limitation, title, physical and environmental) and prospects for development of the Property. Buyer agrees that it is purchasing and accepting the Property "AS IS" and, subject to all faults of every kind and nature whatsoever, whether latent or patent, whether now or hereafter existing, and Buyer has based its purchase decision solely upon Buyer's inspection of the Property. Buyer shall acquire the Property subject to any and all laws, ordinances, requirements, limitations, restrictions, regulations and codes which are or may be imposed on the Property by any governmental or quasi -governmental authority having any jurisdiction thereof. Seller makes no representations or warranties in this Transaction, except as expressly set forth in this Agreement. Except for Seller's express representations and warranties set forth herein, Buyer further agrees that Buyer has not relied, and will not rely, upon any other representation or statement, or the failure to make any representation or statement, by Seller or Seller's agents or employees or by any person acting, or purporting to act, on behalf of Seller. Except as specifically set forth herein, Buyer specifically agrees that Seller shall not be obligated to do any work in connection with the Property and that Seller shall not be responsible for any work or improvement necessary to cause the Property to meet any applicable law, ordinance, regulation and code or to be suitable for any particular use. As of the Closing Date, Buyer releases Seller from any and all liability in connection with any claims Buyer may have against Seller for 20 Summercrest vl Attachment No. 6 damage, loss, compensation, contribution, cost recovery or otherwise, whether in tort, contract or otherwise, relating directly or indirectly to the physical condition of the Property (or any part of it) or its fitness for any particular use, except for claims arising out of Seller's fraud, a breach of a Seder representation; warrarify; or coveiiarit set forth herein whielc apressly Seller's. the Closiirg, or a third -party claim arising out of events occurring on or before the Closing. Buyer further acknowledges that Buyer shall be entitled to conduct an environmental investigation of the Property, and that Buyer will rely upon the results of such environmental investigation in making its decision whether or not to purchase the Property. As of the Closing Date, Buyer releases Seller from any and all liability in connection with any claims which Buyer may have against Seller, for damage, loss, compensation, contributions, cost recovery or otherwise, whether in tort, contract, or otherwise, relating directly or indirectly to the existence of Hazardous Substances (as defined below) at, on, under or about the Property, or arising under any Environmental Laws (as defined below), or relating in any way to the quality of the indoor or outdoor environment at the Property, including, without limitation, any right of contribution under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et sue., as amended ("CERCLA"), except for claims arising out of Seller's fraud, a breach of a Seiler representation, warranty, or covenant set forth herein which expressly survives the Closing, or a third -party claim arising out of events occurring or or before the Closing. As used herein, the term "Hazardous Substances" means (i) hazardous wastes, hazardous materials, hazardous substances, hazardous constituents, toxic substances or related materials, whether solids, liquids or gases, including but not limited to substances defined as "hazardous wastes," "hazardous materials," "hazardous substances," "toxic substances," "pollutants," "contaminants," "radioactive materials," or other similar designations in, or otherwise subject to regulation. under, CERCLA, the Toxic Substance Control Act, 15 U.S.C. § 2601 et sec .; the Hazardous Materials Transportation Act, 49 U.S.C. § 1802; the Resource Conservation and Recovery Act, 42 U.S.C. § 9601, et sue.; the Clean Water Act, 33 U.S.C. § 1251 et Egg.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Clean Air Act), 42 U.S.C. § 7401 et seq.; and in any permits, licenses, approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the preceding laws or other federal, state or Local laws, regulations, rules or ordinance now or hereafter in effect relating to environmental matters (collectively, the "Environmental Laws"); and (ii) any other substances, constituents or wastes subject to any applicable federal, state or local law, regulation or ordinance, including any Environmental Law, now or hereafter in effect, including but not limited to petroleum, refined petroleum products, waste oil, waste aviation or motor vehicle fuel, asbestos, lead in water, paint or elsewhere, radon, Polychlorinated Biphenyls (PCB's), microbial materials, and urea formaldehyde. Buyer expressly acknowledges to Seller that Seller has complied with the disclosure requirements, if any, of California Government Code §§ 8589.3 (special flood hazard area), 8589.4 (dam failure inundation area), and 51183.5 (high fire severity area) and California Public Resources Code §§ 2621.9 (earthquake fault zone), 2694 (seismic hazard zone) and 4136 (wildland fire area), regarding the possible presence of certain natural hazards (the "Disclosures"). Seller and Buyer acknowledge and agree that any such Disclosures are made based on maps or other information that is provided by various governmental agencies and that Seller shall have no liability for the accuracy or completeness of any such information and that such disclosures are for informational purposes only and may not be relied upon by any party. Buyer ACKNOWLEDGES AND AGREES THAT: 21 Summercrest v3 Attachment No. 6 THESE HAZARDS MAY LIMIT THE ABILITY OF BUYER TO DEVELOP THE REAL PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AF1 ER A DISASTER. THE MAPS ON WHICH THE DISCLOSURES ARE BASED ESTIMATE WHERE NATURAL HAZARDS MAY EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY. Buyer expressly represents to Seller that, as a material inducement to the execution and delivery of this Agreement by Seller, Buyer, on its own behalf and for its affiliates, partners, officers, directors, members, agents, heirs, representatives, legatees, successors and assigns (collectively, the "Releasing Parties"), hereby fully and forever releases, discharges and acquits Seller, and each of its partners, officers, directors, members, agents, heirs, representatives, legatees, successors and assigns, and each of their respective successors, heirs and assigns and each of them (collectively, the "Released Parties"), of, from and against any and all claims, demands, obligations, duties, liabilities, damages, expenses, indebtedness, debts, breaches of contract, duty or relationship, acts, omissions, misfeasance, malfeasance, causes of action, sums of money, accounts, compensation, contracts, controversies, promises, damages, costs, losses and remedies therefor, choses in action, rights of indemnity or liability of any type, kind, nature, description or character whatsoever, and irrespective of how, why or by reason of what facts, whether known or unknown, whether heretofore now existing or hereafter arising, whether liquidated or unliquidated (collectively, "Claims"), excluding Claims arising from a breach of a Seller representation, warranty, or covenant set forth herein which expressly survives the Closing, or arising from Seller's fraud, which any party comprising the Releasing Parties may now have, or heretofore have had or hereafter have against any party comprising the Released Parties by reason of, arising out of or based upon the Disclosures, Released Parties acts, statements, conduct, representations and omissions made in connection with the Disclosures or the performance or non-performance by Released Parties of their obligations, if any, regarding the Disclosures. IN CONNECTION WITH THE FOREGOING, BUYER DOES HEREBY, KNOWINGLY AND WITH THE ADVICE OF COUNSEL OF BUYER'S SELECTION, WAIVE, RELEASE AND DISCHARGE ANY CLAIMS UNDER OR PURSUANT TO CALIFORNIA CIVIL CODE § 1102.13, CALIFORNIA GOVERNMENT CODE §§ 8589.3(e), 8589.4(e) OR 51183.5(e) OR CALIFORNIA PUBLIC RESOURCES CODE §§ 2621.9(f), 2694(f) OR 4136(f) OR ANY REPLACEMENT OR SUCCESSOR STATUTE THERETO THAT BUYER MAY NOW OR HEREAFTER HAVE OR HAVE HAD WITH RESPECT TO ANY DISCLOSURES MADE BY OR ON BEHALF OF SELLER. Except for the breach of Seller's representations and warranties or the performance of Seller's covenants under this Agreement which expressly survive the Closing, Buyer hereby waives, as of the Closing, any and all rights which it may have under or pursuant to (1) the provisions of Section 1542 of the Civil Code of the State of California and/or (2) the provisions of 22 Summercresi v3 Attachment No. 6 any other similar statutory, regulatory or common law of any state, or of the United States. Section 1 542 of the Civil Code of the State of California provides: CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING} THE RELEASES, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Buyer understands fully the statutory language of Section 1542 of the Civil Code of the State of California and, having been so apprised, nevertheless releases all unknown claims as provided above. Buyer hereby acknowledges and agrees that the provisions of this Section 10(C) are material and included as a material portion of the consideration given to Seller by Buyer in exchange for Seller's performance under this Agreement and that Seller has given Buyer material concessions regarding this transaction in exchange for Buyer agreeing to the provisions of this Section 10(C). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 10(C) shall survive the Closing. Buyer and Seller each have separately initialed this provision to indicate its agreement to such waiver. Seller: U6 Buyer. (D) Survival. The representations and warranties in Sections 10(A) and 10473) will survive Close of Escrow, but only for a period of six (6) months, and no claim shall be allowed on any such representation or warranty unless notice of the claim and a detailed statement of the basis for the claim is delivered by the claimant to the other party within such 6-month period. The foregoing shall not impact Buyer's rights to recover from Seller with respect to a third -party claim arising out of events occurring or or before the Closing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Buyer be entitled to sue, seek, obtain or be awarded any damages from Seller for a breach of a representation or warranty, unless and until the aggregate amount of damages for which Seller is liable to Buyer exceeds the sum of Twenty Five Thousand Dollars ($25,000) (the "Rase Amount"), whereupon Seller shall be liable to Buyer for all damages accruing above the Base Amount, but in no event will Seller be liable to Buyer to the extent that the aggregate damages to Buyer exceed the sum of Five Hundred Thousand Dollars ($500,000) ("Seller's Maximum Liability"), except such Maximum Liability shall not apply to Seller's fraud. Notwithstanding anything to the contrary contained in this Agreement, to the extent that Buyer or any of its agents, employees or consultants obtain actual knowledge prior to Closing that any of Seller's representations or warranties were untrue when made in any material respect, or if Seller has delivered or made available to Buyer or any of its agents, employees or consultants information with respect to the Property at any time prior to the Closing Date, and such information indicates that any such representations or warranties were not true when made in any material respect, Buyer shall be deemed to have knowledge of such misrepresentation, and 23 summcaest v3 Attachment No. 6 waiver. any other similar statutory, regulatory or common law of any state, or of the United States. Section 1542 of the Civil Code of the State of Calif A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASES, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Buyer understands fully the statutory language of Section 1542 of the Civil Code of the State of California and, having been so apprised, nevertheless releases all unknown claims as provided above. Buyer hereby acknowledges and agrees that the provisions of this Section 10(C) are material and included as a material portion of the consideration given to Seller by Buyer in exchange for Seller's performance under this Agreement and that Seller has given Buyer material concessions regarding this transaction in exchange for Buyer agreeing to the provisions of this Section 10(C). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 10(C) shall survive the Closing. Buyer and Seller each have separately initialed this provision to indicate its agreement to such Se11 Buyer: ,( (D) Survival. The representations and warranties in Sections 10(A) and 10(B) will survive Close of Escrow, but only for a period of six (6) months, and no claim shall be allowed on any such representation or warranty unless notice of the claim and a detailed statement of the basis for the claim is delivered by the claimant to the other party within such 6-month period. The foregoing shall not impact Buyer's rights to recover from Seller with respect to a third -party claim arising out of events occurring or or before the Closing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Buyer be entitled to sue, seek, obtain or be awarded any damages from Seller for a breach of a representation or warranty, unless and until the aggregate amount of damages for which Seller is liable to Buyer exceeds the sum of Twenty Five Thousand Dollars ($25,000) (the "Base Amount"), whereupon Seller shall be liable to Buyer for all damages accruing above the Base Amount, but in no event will Seller be liable to Buyer to the extent that the aggregate damages to Buyer exceed the sum of Five Hundred Thousand Dollars ($500,000) ("Seller's Maximum Liability"), except such Maximum Liability shall not apply to Seller's fraud. Notwithstanding anything to the contrary contained in this Agreement, to the extent that Buyer or any of its agents, employees or consultants obtain actual knowledge prior to Closing that any of Seller's representations or warranties were untrue when made in any material respect, or if Seller has delivered or made available to Buyer or any of its agents, employees or consultants information with respect to the Property at any time prior to the Closing Date, and such information indicates that any such representations or warranties were not true when made in any material respect, Buyer shall be deemed to have knowledge of such misrepresentation, and Summemmt v3 23 i Attachment No. 6 IN CONNECTION WITH 7y111? FOREGOING,BUYER DOES Jll;R03Y... kNOWINGLY AND WITH THE ADVICE OF COUNSEL OF BUYER'S SELECTION, WAIVE, RELEASE AND DISCHARGE ANY CLAIMS UNDER OR PURSUANT To CALIFORNIA CIVIL CODE §II02.13, CALIFORNIA GOVERNMENT COD[: §§ 8589.3(e), R5K9.4(e) ()R 511$3.5(e) OR CALIFORNIA PUBLIC RESOURCES CODE §§ 2621.9(t). 2694(0 OR 4136(f) OR ANY RF:;PE AC'EMENT ()R SUC'CESSOR STATUTE THERETO 'THAT BUYER MAY NOW OR HEREAFTER HAVE OR HAVE HAD WITH RESPECT TO ANY DISCLOSURES MADE BY OR ON BEHALF OF SELLER. Except fix the breach of Seller's representations and warranties or the performance of Seller's covenants under this Agreement which expressly survive the Closing, Buyer hereby waives, as of the Closing. any and all rights which it may have under or pursuant to (1) the provisions of Section 1542 of the Civil Code of the State of California and/or (2) the provisions of any other similar statutory, regulatory or common law of any state, or of the United States, Section 1542 of the Civil Code of the State ofCalitbrnia provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASES, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Buyer understands fully the statutory language of Section 1542 of the Civil Code of the State of California and, having been so apprised, nevertheless releases all unknown claims as provided above, Buyer hereby acknowledges and agrees that the provisions of this Section 10(C) are material and included as a material portion of the consideration given to Seller by Buyer in exchange for Seller's performance under this Agreement and that Seller has given Buyer material concessions regarding this transaction in exchange for Buyer agreeing to the provisions of this Section 10(C). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 10(C) shall survive the (losing. Buyer and Seller each have separately initialed this provision to indicate its agreement to such waiver. Seller' Buyer: (D) Survival. The representations and warranties in Sections 10(A) and /0(8) will survive Close of Escrow, but only for a period of six (6) months, and no claim shall he allowed on any such representation or warranty unless notice of the claim and a detailed staternent of the basis for the claim is delivered by the claimant to the other party within such 6-month period. The foregoing shall not impact Buyer's rights to rtco“cr from Seller with respect to a third -party 2:; Attachment No. 6 Buyer's sole and exclusive remedy as a result thereof shall be to terminate this Agreement and receive a return of the Deposit and thereafter, Buyer and Seller shall have no further rights or obligations under this Agreement except for those that are expressly provided in this Agreement to tit•vive"the—tentiitiatiati fiefeoff' ana'it; tior Gi?tti§rtthiditi 'Sheri ureachi '6i a re resetitataon, Buyer elects to close the transactions contemplated by this Agreement, Buyer shall be deemed to have waived its rights to recover damages from Seller following the Closing. Nothing in this Section 10(D) limits the disclaimers, waivers and releases in Section 10(C) or indemnities set forth in this Agreement or the Section 42 Indemnification Agreement, all of which will survive Close of Escrow without limit as to time. 11. Pre -Closing Obligations. (A) Maintenance of Insurance. Seller agrees that it will maintain all insurance in effect as of the Effective Date with respect to the Property (or comparable insurance) until the earlier of the Close of Escrow or the termination by Buyer or Seller of its obligation to complete the Transaction. (B) Service Contracts and Liens. Until the earlier of the Close of Escrow or the termination by Buyer or Seller of its obligation to complete the Transaction, without Buyer's consent, which consent shall not be unreasonably withheld or delayed, Seller will not (I) other than in the ordinary course of business, enter into any new Service Contract that will be binding upon Buyer or the Property after Close of Escrow, or amend or otherwise modify any existing Service Contract that will not expire prior to Close of Escrow, (2) grant, create or allow the creation of any easement, right-of-way, encumbrance, lien, restriction, condition, assessment or other cloud on title which affects the Property except for Leases executed in the ordinary course of business, (3) except in the ordinary course of business and except as contemplated by the Transaction, make any material commitments to any applicable governmental authorities, any adjoining or surrounding property owners, any utility or any other person or entity that would in any manner be binding upon Buyer or the Property after Closing, (4) make or allow any material physical changes or alterations to the Property or the building or any part thereof, except in the ordinary course of business, except as required as the result of an emergency or governmental order or except as required under the Seller's existing Loan Documents or covenants binding upon the Seller or the Property, (5) amend, extend or otherwise modify the terms of any existing license, permit, easement, right-of-way, encumbrance, lien, restriction, condition, assessment or other cloud on title which affects the Property, except in the ordinary course of business. (C) From the Effective Date until the Closing, Seller shall manage and operate the Property, including rental operations and inventory levels, in a manner consistent with Seller's historical practices and shall conduct and complete all scheduled repairs, maintenance and replacements. Seller shall endeavor to keep the Apartment Development fully leased consistent with its ordinary course of business. (D) Seller shall use its commercially reasonable efforts in a manner consistent with Seller's historical practices to continue to maintain in full force and affect all permits, licenses and related items relating to the Property or any part thereof. 24 Summercrest v3 Attachment No. 6 (E) Seller shall terminate as of the Closing Date all Disapproved Service Contracts which Seller has agreed to terminate prior to the Closing pursuant to the terms of Section 7(D). l °°c' ft lam" r f EfF a r w f r'p' -- Seller's historical practices to pay in a timely fashion all taxes, payables in connection with Service Contracts, water bills and other public charges against the Property. (G) Seller shall provide Buyer, within five (5) days after receipt, with copies of any written notices ofdefault, written notices of violation and written material correspondence relating to the Property or the consents described on Exhibit C which Seller receives with respect to the Property. (H) Subject to the tenns.ofSection 7(1), Seller shall provide Buyer continued access to the Property and the Records through the date of Closing. (I) Consents. With respect to consents required under the Agency Agreements listed on Exhibit C. Buyer shall provide all information reasonably required of a buyer under the provisions of such agreements or by the governing agency in time to allow consents to be obtained on or prior to Contingency Approval Date and shall execute an assignment and assumption agreement for each such agreement wherein Buyer agrees to assume and observe all duties and obligations set forth in such agreements following the Close of Escrow. Seller shall cooperate with Buyer's reasonable requests to assist in obtaining the foregoing consents, at Buyer's cost. Each of Buyer and Seller shall provide the other all written material correspondences received by Buyer or Seller, as applicable, with respect thereto. Seller and Buyer shall join in any requests and submissions reasonably required by the other for the consents within five (5) days of being requested to do so. (J) Managing General Partner. Promptly after the Effective Date, Buyer will enter into due diligence and negotiations to determine whether to retain the Seller's existing managing general partner, Las Patinas Foimdation, and complete such discussions prior to the Contingency Approval Date. Prior to the Contingency Approval Date, Buyer will also work with Las Palmas on negotiating an extension of the social service contract for the Property. 12. Remedies. (A) Liquidated Damages. IF BUYER FAILS TO PURCHASE THE PROPERTY IN VIOLATION OF THIS AGREEMENT, THE PARTIES HAVE DETERMINED AND AGREED THAT THE ACTUAL AMOUNT OF DAMAGES THAT WOULD BE SUSTAINED BY SELLER AS A RESULT OF SUCH BUYER'S DEFAULT UNDER THIS AGREEMENT IS DIFFICULT OR IMPOSSIBLE TO ASCERTAIN AND THAT IN SUCH EVENT SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, MAY TERMINATE ITS OBLIGATION TO COMPLETE THE TRANSACTION AND, UPON SO DOING, WILL BE ENTITLED TO RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES. BY PLACING THEIR INITIALS BELOW, BUYER AND SELLER ACKNOWLEDGE THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION. IT IS AGREED THAT SELLER SHALL NOT HAVE ANY CAUSE OF ACTION OR CLAIM WHATSOEVER AGAINST BUYER BECAUSE OF A DEFAULT OF THIS AGREEMENT BY BUYER, AND SELLER'S SOLE 25 Suannarc, t v3 Attachment No. 6 AND EXCLUSIVE REMEDY SHALL BE THE RECEIPT OF THE ABOVE REFERENCED SUM AS LIQUIDATED DAMAGES. PAYMENT TO SELLER OF THE ABOVE REFERENCED SUM IS NOT INTENDED 'AS A FORFEITURE OR PENALTY, BUT INSTEAD', lN"! EN iEO i V 1 ON'STi I U 1 E IQCJ1i A`I.ED iAM GES'i`i S LLER': NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTIONI2 SHALL LIMIT ANY RECOVERY BY SELLER UNDER THE INDEMNITY MADE BY BUYER IN SECTION 7(C) HEREIN OR IN THE SECTION 42 INDEMNIFICATION AGREEMENT, OR SELLER'S RIGHTS TO ANY ATTORNEYS' FEES OR COSTS RECOVERABLE BY SELLER HEREUNDER. BUYER'S INITIALS: SELLER'S INITIALS: (i-Le2 (B) Buyer's Remedy. If Seller breaches a representation or warranty in Section 10(A) in any material respect or fails to perform any of its obligations under this Agreement in any material respect, then Buyer (provided that Buyer is not then in a material default under this Agreement), as its sole and exclusive remedy, may either (1) terminate its obligation to complete the Transaction, in which case Buyer may recover the Deposit, or (2) enforce specific performance of Seller's obligation to sell the Property pursuant to this Agreement, in which case the provisions of Section 17(C) shall apply. Buyer waives all remedies for Seller's failure in performance (including any right to obtain damages from Seller), except those specifically provided for in this Agreement. In the event Buyer elects to obtain specific performance of Seller's obligations hereunder, Buyer and Seller shall each be entitled to their rights under Section 17(C). If seeking to recover or receive the Deposit, Buyer and Seller shall be entitled to their rights under Section 17(C). (C) Cumulative Remedies. Except as otherwise specifically provided in this Agreement, all remedies provided for in this Agreement or available as a matter of law (whether at law, in equity, by statute or otherwise) are cumulative and may be exercised concurrently or consecutively, in such order as a party may elect. Limitations on remedies apply only to the obligations specifically referenced to be limited. 13. Brokerage. Seller will pay Marcus & Millichap ("Broker") a commission in accordance with Seller's agreement with Broker. Subject to the preceding sentence, Seller and Buyer each agree to indemnify and defend the other and hold the other harmless against any claim for a commission, finder's fee or similar compensation asserted by any person retained by or claiming through the indemnifying party in connection with the Transaction or the execution of this Agreement and all related loss, damage, liability, obligation, claim, suit, cause of action, judgment, settlement, penalty, fine or cost or expense (including fees and disbursements of attorneys and other professionals and court costs). The parties acknowledge that Broker represents the Seller. 26 Summer cst v3 Attachment No. 6 AND EXCLUSIVE REMEDY SHALL BE THE RECEIPT OF THE ABOVE REFERENCED .S"'I AS. :. YL1DArnr1. 'A AArE.S. . .PdYMETIT.. T.A... 1 ..T.:�t;.a._(1F T,.1-1T ABOVE REFERENCED SUM IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTIONI2 SHALL LIMIT ANY RECOVERY BY SELLER UNDER THE INDEMNITY MADE BY BUYER IN SECTION 7(C) HEREIN OR IN THE SECTION 42 INDEMNIFICATION AGREEMENT, OR SELLER'S RIGHTS TO ANY ATTORNEYS' FEES OR COSTS RECOVERABLE BY SELLER HEREUNDER. BUYER'S INITIALS: / SELLER'S INITIAL (B) Buyer's Remedy. I Seller breaches a representation or w in Section 10(A) in any material respect or fails to perform any of its obligations under this Agreement in any material respect, then Buyer (provided that Buyer is not then in a material default under this Agreement), as its sole and exclusive remedy, may either (1) terminate its obligation to complete the Transaction, in which case Buyer may recover the Deposit, or (2) enforce specific performance of Seller's obligation to sell the Property pursuant to this Agreement, in which case the provisions of Section 17(C) shall apply. Buyer waives all remedies for Seller's failure in performance (including any right to obtain damages from Seller), except those specifically provided for in this Agreement. In the event Buyer elects to obtain specific performance of Seller's obligations hereunder, Buyer and Seller shall each be entitled to their rights under Section 17(C). If seeking to recover or receive the Deposit, Buyer and Seller shall be entitled to their rights under Section 17(C). (C) Cumulative Remedies. Except as otherwise specifically provided in this Agreement, all remedies provided for in this Agreement or available as a matter of law (whether at law, in equity, by statute or otherwise) are cumulative and may be exercised concurrently or consecutively, in such order as a party may elect. Limitations on remedies apply only to the obligations specifically referenced to be limited. 13. Brokerage. Seller will pay Marcus & Millichap ("Broker") a commission in accordance with Seller's agreement with Broker. Subject to the preceding sentence, Seller and Buyer each agree to indemnify and defend the other and hold the other harmless against any claim for a commission, finder's fee or similar compensation asserted by any person retained by or claiming through the indemnifying party in connection with the Transaction or the execution of this Agreement and all related loss, damage, liability, obligation, claim, suit, cause of action, judgment, settlement, penalty, fine or cost or expense (including fees and disbursements of attorneys and other professionals and court costs). The parties acknowledge that Broker represents the Seller. 26 Sumntercrest v3 Attachment No. 6 1 2. Remedies. (A) Liquidated Damages. IF BUYER FAILS TO PURCHASE T1IE PROPERTY IN VIOLATION OF 11IIS AGREEMENT, THE PARTIES HAVE DETERMINED ANI) AGREED 'ITfA'T TIDE ACTUAL AMOUNT OF DAMAGES THAT WOULD I3E SUSTAINED BY SELLER AS A RESULT OF SUCH BUYER'S DEFAULT UNDER 'CRIB AGREEMENT IS DIFFICULT OR IMPOSSIBLE T() ASCERTAIN AND THAT IN SUCH EVENT SELLER. AS ITS SOLE AND EXCLUSIVE REMEDY. MAY TERMINATE ITS OBLIGATION '10 C'OMPLETE THE TRANSACTION AND, UPON SO DOING. WILL I3E ENTITLED TO RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES. BY PLACING THEIR INITIALS BEI._OW, BUYER AND SELLER ACKNOWLEDGE THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION. FI' IS AGREED THAT SELLER SHALL NOT HAVE ANY CAUSE OF ACTION OR CLAIM WHATSOEVER AGAINST BUYER BECAUSE OF A DEFAULT OF THIS AGREEMENT BY BUYER, AND SELLER'S SOLE. AND EXCLUSIVE REMEDY SHALL BE THE RECEIPT OF THE ABOVE REFERENCED SUM AS LIQUIDATED DAMAGES, PAYMENT TO SELLER OF THE ABOVE REFERENCED SUM IS NOT INTENDED AS A FORFEITURE OR PENALTY, 13W' INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. NOTWITHSTANDING TIIE FOREGOING, NOTHING IN THIS SECTION 12 SHALL LIMIT ANY RECOVERY BY SELLER UNDER THE INDEMNITY MADE BY BUYER IN SECTION 7(C) HEREIN OR IN TI-IE SECTION 42 INDEMNIFICATION AGREEMENT, OR SELLER'S RIGHTS 7'O ANY ATTORNEYS' FEES OR COSTS RECOVERABLE 13Y SELLER HEREUNDER, BUYER'S INITIALS: SELLER'S INITIALS: (B) Buyer'sRetnedy. If Seller breaches a representation or warranty in Section 10(A) in any material respect or fails to perform any of its obligations under this Agreement in any material respect, then Buyer (provided that l3uyer is not then in a material default under this Agreement), as its sole and exclusive remedy, may either (I) terminate its obligation to complete the Transaction, in which case Buyer may recover the Deposit, or (2) enforce specific performance of Seller's obligation to sell the Property pursuant to this Agreement, in which case the provisions of Section 17(C) shall apply. Buyer waives all remedies for Seller's failure in perfomtance (including any right Io obtain damages from Seller). except those specifically provided for in this Agreement. In the event Buyer elects to obtain specific performance of Seller's obligations hereunder, Buyer and Seller shall each he entitled to their rights under Section 17(C). If seeking to recover or receive the Deposit. Buyer and Seller shall he entitled to their rights under Section 17((). (C) Cumulative Remedies. Except as otherwise specifically provided in this Agreement. ail remedies provided for in this Agreement or available as a matter of law (whether at law, in equity, by statute or otherwise) are cumulative and may be exercised concurrently or consex.:utively, in such order as a party may elect. Limitations on remedies apply only to the obligations specifically referenced to he limited. linunocitAl Attachment No. 6 14. Possession. M� Seller will deliver possession of the Property to Buyer at the time of Close of Escrow, and (B) the Permitted Exceptions. 15. Casualty and Condemnation. (A) Notice to Buyer. Seller will notify Buyer within five (5) days after receiving notice of, or otherwise becoming aware of (1) any Casualty Loss (as defined below), or (2) the commencement of any proceedings for the taking by eminent domain of all or any part of the Property. (B) Casualty Loss. If, prior to Close of Escrow, the Property is damaged by fire, windstorm, rioting or other civil disturbance, acts of war, earthquake or other casualty or the environmental condition of the Property has adversely changed from the condition existing as of the expiration of the Feasibility Period (i.e., a new environmental condition which first arises after the expiration of the Feasibility Period) and the cost to repair or remediate the related damage is more than five percent (5%) of the Purchase Price or, regardless of the amount, such loss is uninsured and Seller does not agree to pay the cost of repair or remediation (a "Casualty Loss"), then Buyer, at its option, may terminate its obligation to complete the Transaction, in which case the Deposit with accrued interest will be returned to Buyer. If, prior to Close of Escrow, the Property is damaged by fire, windstorm, rioting or other civil disturbance, acts of war, earthquake or other casualty and the cost to repair the related damage is less than five percent (5%) of the Purchase Price and is an insured loss (or in the event of an uninsured loss, Seller does not agree to pay the cost of repair) (a "Minor Casualty Loss'), then Buyer shall be obligated to proceed with Closing. if Buyer elects to complete the Transaction notwithstanding a Casualty Loss, or if this Agreement requires Buyer to purchase the Property despite a Minor Casualty Loss, then, unless Seller repairs the damage prior to the Close of Escrow, Seller will deliver to Buyer at Close of Escrow, through Escrow, all casualty insurance proceeds previously received by Seller, an amount equal to the deductible under Seller's casualty insurance in respect of the damage and an assignment of Seller's rights with respect to all uncollected casualty insurance proceeds (in either case, net of proceeds of rental loss and business interruption insurance allocable to the period through the Closing Date, amounts expended by Seller to stabilize or repair the Property and costs incurred by Seller in making proof of loss or settling claims with insurers), and Seller will cooperate with Buyer after Close of Escrow in making claim for, and collecting, all available insurance proceeds. (C) Eminent Dornain. If, prior to Close of Escrow, all or a material part of the Property is taken by eminent domain or any proceedings for the taking by eminent domain of all or a material part of the Property is commenced, then Buyer, at its option, may terminate its obligation to complete the Transaction, in which case the Deposit (with accrued interest) will be returned to Buyer. For purposes of this Section 1S(C), a taking by eminent domain chat' be deemed to be for a "material part of the Property" if the portion of the Property subject to eminent domain shall require the reduction of the number of residential units in the Apartment Development. If Buyer elects to complete the Transaction notwithstanding any taking by eminent domain or proceeding Stutnnergest v3 27 Attachment No. 6 therefore (material or non -material), Seller will deliver to Buyer at Close of Escrow, all condemnation proceeds previously received by Seller and an assignment of Seller's rights with res to all uncollected condemnation in either case, net of proceeds allocable to loss o use a1tieFropenry ror the pen oa tnrougn me t;Iosu guate an costs me y eller in connection with such proceedings) and such documents as Buyer may reasonably request to substitute itself for Seller in any pending eminent domain proceedings. 16. Consequences of Termination. If Buyer or Seller terminates its obligation to complete the Transaction under circumstances permitted by this Agreement, neither Buyer nor Seller will have any further obligation under this Agreement, except release and indemnity obligations under this Agreement. Nothing in this Section 16 is intended to limit the obligations of the Escrow Agent or the provisions of this Agreement dealing with the disposition of funds or documents held in escrow following termination of the obligations of Buyer or Seller. if Buyer or Seller terminates its obligation to complete the Transaction (other than as a consequence of Seller's default), Buyer will deliver to Seller (A) all materials related to the Property provided to Buyer by Seller, and (B) copies of all reports and studies prepared for Buyer by third -party consultants (other than attorneys) relating to the Property, without any representation or warranty, and to the extent Buyer's proposed lender does not prohibit release of such reports and studies. 17. Miscellaneous. (A) Survival. Subject to Sections 7(C) and 10(D), all covenants, undertakings and obligations under this Agreement and all representations and warranties contained in this Agreement will survive the Close of Escrow and will not be merged into the Deed or other documents delivered pursuant to this Agreement. (B) Interpretation. When the context so requires in this Agreement, words of one gender include one or more other genders, singular words include the plural, and plural words include the singular. Use of the words "include" and "including" are intended as an introduction to illustrative matters and not as a limitation. Refe,c,ices in this Agreement to "Sections" are to the numbered subdivisions of this Agreement, unless another document is specifically referenced. The word "party" when used in this Agreement means either Buyer or Seller unless another meaning is required by the context. The word "person" includes individuals, entities and governmental authorities. The word "governmental authority" is intended to be construed broadly and includes governmental agencies, instrumentalities, bodies, boards, departments and officers and individuals acting in any official capacity. The word "laws" is intended to be construed broadly and includes all codes, statutes, case law, rules, regulations, pronouncements, requirements, orders, directives, decisions, decrees, judgments and formal or informal guidance or interpretations of any court or governmental authority. (C) Attorneys' Fees. If litigation is commenced by Buyer or Seller against the other party in connection with this Agreement or the Transaction, the party prevailing in the litigation will be entitled to collect from the other party the expense (including reasonable fees and disbursements of attorneys and other professionals and court costs) incurred in connection with the litigation. 28 sUITIMPUCStv Attachment No. 6 (D) Notice. Any notice or other communication to any party given under this Agreement will be effective only if in writing delivered to whichever of the following addresses is applicable: If to Seller: Plaza Manor Preservation, L.P. 18201 Von Karman Avenue, Suite 900 Irvine, California 92612 Attention: William A. Witte Fax: (949) 660-7273 With a copy to: The Related Companies of California 18201 Von Karman Avenue, Suite 900 Irvine, California 92612 Attention: Steve Sherman Fax: (949) 660-7273 If to Buyer: Affordable Housing Associates, LLC 19772 Mac Arthur Boulevard, Suite 200 Irvine, California 92612 Attention: Gary Grant Fax: (949) 440-2311 With a copy to: Dan Vaughn Law 3480 W. Marginal Way SW Seattle, Washington 98106 Attention: Daniel C. Vaughn Fax: (949) 440-2311 and a copy to: Escrow and Title Company First American Title Company 5 First American Way Santa Ana, California 92707 Attention: Jeanne Gould Fax: (714) 250-5381 Any notice or other communication will be deemed received only upon delivery to the address provided for in this Section 17(D) or rejection of delivery at such address. Notice may be given by facsimile transmission, and confirmation of transmission generated by the sender's equipment will be prima facie evidence of receipt. The addresses and addressees to which notice is to be given may be changed by written notice given in the manner specified in this Section 17(D) and actually received by the addressee. (E) Successors and Permitted Assigns. Subject to Section 17(K) below, this Agreement will be binding upon and will inure to the benefit of Buyer and Seller and their respective successors and permitted assigns. Any indemnity in favor of a party also will benefit Summercrest v3 29 Attachment No. 6 each person who holds a direct or indirect ownership interest in such party and the respective officers, directors, trustees, agents, employees and affiliates of such party and such owners, and all such persons are third -party beneficiaries of this Agreement to the extent of their rights to tndetitnity millet' the retatea provision aria MAY entbfaelhat provtsioii against Buyer or Seller, as applicable. The Escrow Agent and the Broker are not third -party beneficiaries of this Agreement, nor may the Escrow Agent or the Broker enforce this Agreement or any obligation under this Agreement. (F) Headings. The Section headings contained in this Agreement are for convenience of reference only and are not intended to delineate or limit the meaning of any provision of this Agreement or be considered in construing or interpreting the provisions of this Agreement. (G) Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which, taken together, will constitute one instrument. (H) Entire Agreement. This Agreement embodies the entire agreement and understanding between Buyer and Seller with respect to its subject matter and supersedes all prior agreements and understandings, written and oral, between Buyer and Seller related to that subject matter. This Agreement and the obligations of the parties under this Agreement may be amended, waived and discharged only by an instrument in writing executed by the party against which enforcement of the amendment, waiver or discharge is sought. Joinder of the Escrow Agent and the Broker will not be necessary to make any amendment, waiver or discharge effective between Buyer and Seller. (I) Severability. The determination that any provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of the remaining provisions or of that provision under other circumstances. Any invalid or unenforceable provision will be enforced to the maximum extent permitted by law. (J) Limited Liability. No limited partner or general partner of the limited partnership comprising Seller, nor an officer, director or shareholder of any partner comprising, nor any employee or agent of, Seller or of Seller's partners, shall have any personal liability directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or in connection with this Agreement, and Buyer and Buyer's successors and assigns shall look solely to Seller's interest in the Property or Seller's interest in the net sales proceeds from the sale of the Property following a transfer thereof, for the payment of any claim or for any performance hereunder, and Buyer hereby waives any and all claims for personal liability against any limited partner, manager or member, or general partner of Seller, and any officer, director or shareholder of any partner comprising Seller, and any employee or agent of Seller or of any of Seller's partners. (K) Assignment. Neither Buyer nor Seller may assign this or its rights under this Agreement without the approval of the other party, which approval may be withheld in such other party's discretion, except that Buyer may assign its rights to a related or affiliated limited partnership including an affiliate having a nonprofit managing general partner, without Seller's approval, provided, however that if Buyer makes such an assignment, Buyer shall, 30 Summcrcrest v3 Attachment No. 6 notwithstanding the assignment, remain obligated under this Agreement. No such assignment shall affect, release or otherwise reduce the liability of Buyer or Indemnitor under the Section 42 Indemnity Agreem ent. (L) Confidentiality. Buyer and Seller will treat this Agreement as confidential and will not disclose the existence of this Agreement or the terms of this Agreement without the consent of the other party, except for (1) disclosure necessary to allow a party's employees, representatives, advisors, attorneys and consultants to perform their duties or to conduct due diligence regarding the Property or to obtain the approvals and consents described in Section 5; (2) disclosure required by law or by regulators and other governmental entities described in Exhibit C (e.g., TCAC will require a copy of this Agreement), including in response to a subpoena or similar process or as part of a filing required to be made under securities laws; (3) disclosure to Buyer's partners, investors and lenders, including the nonprofit managing general partner, and (4) disclosure in connection with litigation to enforce the terms of this Agreement. (M) Governing Law. This Agreement will be governed by the laws of the State of California without giving effect to principles of conflicts of law. (N) Exclusivity. Unless this Agreement is terminated and so long as Buyer is not in default hereunder, Seller shall cease to actively market the Property and shall not enter into any other written agreements, including letters of intent, for or related to the sale of the Property; provided, however, the foregoing shall not prohibit Seller from having discussions with other potential buyers. (0) Natural Hazard Disclosure Statements. Promptly after the Effective Date, Seller shall instruct the Escrow Agent to provide Buyer with the natural hazard disclosure statements customarily provided in similar transactions, at Seller's cost. SIGNATURES ON FOLLOWING PAGE 31 Summercresl v3 Attachment No. 6 IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase Agreement as of the Effective Date. SELLER: PLAZA MANOR PRESERVATION, L.P., a California limited partnership, By: Plaza Manor Development Co., LLC, a California limited liability company, its General Partner By: Nicholas Real Estate Investments, LLC a California limi 'lity company, its Managing Member By: William A. Witte President By: Las Palmas Foundation, a California nonprofit public benefit corporation, its General Partner By: S-1 sumr emmst v) 10016113 9 Joseph Michaels, President Attachment No. 6 IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase ARIVInextt.as of tbe Effective Dote.. Summercrest v3 1 50054113.1 SELLER: PLAZA MANOR PRESERVATION, L.P., a California limited partnership, By: Plaza Manor Development Co., LLC, a California limited liability company, its General Partner By: Nicholas Real Estate Investments, LLC a California limited liability company, its Managing Member By: William A. Witte President By: Las Palmas Foundation, a Califomia nonprofit public benefit corporation, its General Partner By: S - I Attachment No. 6 BUYER: ,WFORDABLE MUSING ASSOCIATES, 1,1_,C, a California Jim' ed liability company, 13y: Name: ).".;•e_lei itle: Managing Member S-2 ,i1,1c11C1.11:0 1. RESOLUTION NO. 2013 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A SUBORDINATION AGREEMENT AND AN AMENDMENT TO THE PROJECT DEED OF TRUST SECURING THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR 372 AFFORDABLE RENTAL UNITS AT 2721 PLAZA BOULEVARD IN NATIONAL CITY WHEREAS, Summercrest Apartments, also known as Plaza Manor, located at 2721 Plaza Boulevard is being sold to Affordable Housing Associates, LLC, ("Buyer") for $46,250,000; and WHEREAS, in 2001, the Community Development Commission ("CDC -HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to Plaza Manor Preservation, LP, ("Seller") to assist the Seller in the rehabilitation the 372-unit complex; and WHEREAS, the CDC -HA loan is owed an outstanding balance of approximately $481,341.26, and the Buyer has requested to pay off the loan completely through Escrow; and WHEREAS, the Buyer has secured commitment on a new mortgage loan to complete the purchase of property from Citibank ("Lender") for $33,000,000; and WHEREAS, in order to provide the loan, the Lender requires the subordination of the Project Deed of Trust ("Deed of Trust") that currently secures the Declaration of Covenants, Conditions, and Restrictions ("Declaration") which restricts the affordability of units as stated in said Declaration through April 15, 2032; and WHEREAS, since the Deed of Trust secures both the loan that will be paid off through Escrow and the Declaration, an Amendment will be made to the Deed of Trust reflecting the full satisfaction of the loan but continuing to secure the Declaration; and WHEREAS, the Buyer will execute an Assignment and Assumption of the affordability restrictions and other performance requirements of said Declaration as part of the Escrow Instructions provided by the CDC -HA. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission -Housing Authority of the City of National City hereby authorizes the Executive Director to execute a Subordination Agreement, an Amendment to the Project Deed of Trust securing the Declaration of Covenants, Conditions and Restrictions, and other Escrow related documents as necessary. After being recorded by the County of San Diego, said Subordination Agreement and Amendment to the Deed of Trust will be on file in the office of the City Clerk. [Signature page to follow) Resolution No. 2013 — Page Two PASSED and ADOPTED this 17th day of December, 2013. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia Gacitua Silva CDC General Counsel ITEM # 19 12/17/13 ENTERPRISE ZONE PROGRAM (HOUSING, GRANTS & ASSET MANAGEMENT)