HomeMy WebLinkAboutProposed Agreement-CHWGRANT AGREEMENT
[Transit -Oriented Infill Affordable Housing and Paradise Creek Enhancement Project]
THIS GRANT AGREEMENT, dated as of June 21, 2011 for identification purposes only (the
"Grant Agreement"), is made and entered into by and between the COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("Commission"),
a public body, corporate and politic (the "Commission"), and COMMUNITY
HOUSINGWORKS, a California non-profit, public benefit corporation (hereinafter "CHW"),
with reference to the following:
RECITALS
A. WHEREAS, Commission is a California community development commission,
acting pursuant to the Community Redevelopment Law, to increase the supply of housing
affordable to persons and families of very low, low and moderate -income in the community;
B. WHEREAS, CHW is a California nonprofit, public benefit corporation whose
purposes include development and operation of such affordable housing in, among other areas,
the County of San Diego;
C. WHERAS, Commission, at the same meeting of its Board as it considers
approval of this Grant Agreement, expects to enter into that certain "Disposition and
Development Agreement," dated as of even date herewith with Paradise Creek Housing Partners,
L.P. (the "Developer");
D. WHEREAS, pursuant to the DDA and as more particularly provided therein,
Developer will construct, in two (2) Phases, the Project on the Site, including, without limitation,
a total of two hundred one (201) affordable rental housing units, certain community facilities for
the use of the residents of both Phase I and Phase II, and certain offsite improvements including,
without limitation, (i) improvement of the Paradise Creek Parcel, and (b) improvement and
expansion, for the benefit of the entire community, of Paradise Creek Educational Park;
E. WHEREAS, Commission holds, within its Low and Moderate -Income Housing
Fund, the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to
be used to finance development of affordable housing projects such as the Project (the "Funds");
F. WHEREAS, the Funds are proceeds of that certain "$39,660,000 Community
Development Commission of the City of National City (San Diego County, California) (National
City Redevelopment Project) 2011 Tax Allocation Bonds;"
G. WHEREAS, Commission desires also to foster the development of private
nonprofit, community -based, service organizations with the capacity to develop and/or finance
affordable housing projects in National City such as the Project; and
H. WHEREAS, accordingly, Commission, on the terms and conditions set forth in
this Grant Agreement,_ intends to grant the sum of Fourteen Million Nine Hundred Fifty -Seven
Thousand Dollars ($14,957,000 to CHW for the dual purpose of peiiiiitting CHW to provide part
of the financing for Phase I of the Project and to build CHW's capacity to participate in the
development of future affordable housing projects in the community.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, Commission and CHW agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. Capitalized words and terms used in this Grant
Agreement and not defined in this Grant Agreement (including, without limitation, in the
Recitals above) shall have the meanings ascribed thereto in the DDA. Other capitalized words
and terms used in this Grant Agreement shall have the meanings ascribed thereto where first used
or as set forth in this Section [1.1]. Capitalized terms used in an exhibit attached hereto and not
defined therein shall also have the meanings set forth in this Section [1.1].
"CHW Third Trust Deed Loan Note" means the promissory note to be made by
Developer to evidence the CHW Third Trust Deed Loan.
"DDA" shall mean that certain Disposition and Development Agreement, dated
as of June 21, 2011, by and between Commission and Developer, as such document may be
amended and implemented by the parties thereto.
"Grant for Phase I" has the meaning set forth in Section [5.1] of this Grant
Agreement.
1.2 Singular and Plural Terms. Any defined term used in the plural in this
Grant Agreement shall refer to all members of the relevant class and any defined term used in the
singular shall refer to any number of the members of the relevant class.
1.3 Accounting Principles. Any accounting term used and not specifically
defined in this Grant Agreement shall be construed in conformity with, and all financial data
required to be submitted under this Grant Agreement shall be prepared in conformity with,
generally accepted accounting principles applied on a consistent basis or in accordance with such
other principles or methods as are reasonably acceptable to Commission.
1.4 References and Other Terms. References herein to Articles, Sections
and Exhibits shall be construed as references to this Grant Agreement unless a different
document is named. References to subparagraphs shall be construed as references to the same
Section in which the reference appears. The terms "including" and "include" mean "including
(include) without limitation".
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1.5 Exhibits Incorporated. All attachments to this Grant Agreement, as now
existing and as the same may from time to time be modified, are incorporated herein by this
reference.
2. PARTIES
2.1 Commission. Commission is the Community Development Commission
of the City of National City and any successor to its rights, powers and responsibilities. The
principal offices of Commission are located at 1243. National City Boulevard, National City,
California 91950.
2.2 CHW. CHW is Community HousingWorks, a California nonprofit, public
benefit corporation. The principal offices of CHW are located at 4305 University Avenue, Suite
550, San Diego, California, 92105.
3. CONDITION PRECEDENT TO EFFECTIVENESS
It shall be a condition precedent to the effectiveness of this Grant Agreement that
the DDA be approved by Commission not later than June 21, 2011, and go into force and effect.
4. COMMISSION RIGHT TO TERMINATE
If the DDA terminates prior to the Close of Escrow for Phase I, then Commission,
in addition to any and all other rights it may have to terminate this Grant Agreement, shall have
the right to terminate this Grant Agreement by notice to CHW.
5 GRANT
5.1 Amount and Purpose. Subject to the terms and conditions of this Grant
Agreement, Commission agrees to make a grant to CHW for Phase I (the "Grant for Phase I") in
the amount of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000 to be
used for the sole purpose of CHW making the CHW Third Trust Deed Loan for Phase I to
Developer.
5.2 Conditions to Grant for Phase I. Commission's obligation to make and
disburse the Grant for Phase I shall be subject to satisfaction of the following conditions
precedent:
(a) Loan Agreement. CHW, as lender, and Developer, as
borrower, enter into a loan agreement, approved by the Executive Director (including, without
limitation, all underlying loan documents), pursuant to which CHW uses the Grant for Phase I
proceeds for the purpose of making the CHW Third Trust Deed Loan to Developer on terms and
conditions consistent with the DDA (the "CHW Third Trust Deed Loan Agreement"). Among
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other things, the CHW Third Trust Deed Loan Agreement shall provide that neither it, nor any of
its underlying documents (including, without limitation, the promissory note evidencing and/or
the deed of trust securing the CHW Third Trust Deed Loan) may be amended, modified or
rescinded without the prior written approval of the Executive Director, which approval shall not
be unreasonably withheld.
(b) Close of Escrow for Phase I. Escrow for Phase I must close
concurrently.
(c) Disbursement Agreement. CHW, the Phase I Construction
Lender and Commission have entered into an agreement for disbursement of the Grant for Phase
I substantially similar to the Construction Lender/Commission Disbursement Agreement for
Phase I and such agreement has been approved by Developer and the Tax Credit Partner for
Phase I.
(d) Insurance. Commission has received satisfactory evidence that
the insurance required pursuant to Article [9] of the Ground Lease for Phase I is in full force and
effect.
(e) Representations and Warranties. The representations of CHW
contained in this Grant Agreement shall be correct in all material respects as of the Close of
Escrow for Phase I as though made on and as of that date and, if requested by the Executive
Director, Commission shall have received a certificate to that effect signed by CHW.
(f) No Default. No default by CHW under this Grant Agreement shall
then exist, and no event shall then exist which, with the giving of notice or the passage of time or
both, would constitute such a default by CHW and, if requested by the Executive Director,
Commission shall have received a certificate to that effect signed by CHW.
5.3 Disbursement of Grant for Phase I. The Grant for Phase I shall, subject
to the terms and conditions of this Grant Agreement, be deposited into the Phase I Escrowin time
to permit the close thereof and shall be disbursed therefrom at Close of the Phase I Escrow (a) to
pay closing costs and expenses shown on the closing statement for the Phase I Escrow, and (b) to
the Construction Lender for Phase I for deposit into a construction account from which
disbursements shall be made periodically by the Construction Lender only to pay Phase I Project
Costs in accordance with the Final Project Budget for Phase I.
6. PROGRAM INCOME
6.1 Defined. For the purposes of this Grant Agreement, "Program Income"
shall mean all funds collected by CHW in repayment of the CHW Third Trust Deed Loan.
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6.2 Use of Program Income. CHW shall use the Program Income to fund
social and educational programming and activities for the benefit of the Project, its residents and
the residents of the community of which the Project is a part (the "Paradise Creek -Related
Programs and Activities"). Such programs and activities could include, without limitation:
(a) resident and/or community -based cleanup efforts in and around the
Project, including, without limitation, in and around the Paradise Creek Parcel and/or Paradise
Creek Education Park; provided, however, such efforts may not include routine and/or regular
maintenance of such property;
(b) youth environmental education programming;
(c) job corps -type training programs;
(d) as matching funds for individual development accounts to assist
people of modest means save for the purchase of a lifelong asset, such as a home; or to obtain
education and/or job training; and education and coaching programs related to personal finance
and credit management;
(e) to make first-time homebuyer down payment loans and related
homebuyer education and coaching programs; and/or
(f) other activities as approved in advance by the Executive Director.
6.3 Submission of Annual Plan. Not later than thirty (30) days after first
receipt by CHW of Program Income and every year thereafter for which CHW receives any
Program Income, CHW shall submit to the Executive Director for approval (which approval shall
not be unreasonably withheld) a plan and budget for the Paradise Creek -Related Programs and
Activities that CHW proposes to fund and operate over the ensuing one (1)-year period (the
"Annual Plan"). That notwithstanding, the Executive Director shall be under no obligation to
allow use of the Program Income to fund programs and activities otherwise obligated to be
provided by the Tenant under the Ground Lease for Phase I.
Additionally, if the Program Income received by CHW for any year or succession of years
is insufficient to fund and operate any meaningful Paradise Creek -Related Programs and
Activities for the ensuing year, CHW may, with the written consent of the Executive Director
(which consent shall not be unreasonably withheld) accumulate funds until sufficient by holding
such funds (unless de minimis) in an interest -bearing account, with such interest to become
Program Income.
6.4 Implementation of Annual Plan. Promptly after approval of any Annual
Plan, CHW shall implement that Annual Plan.
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6.5 Acknowledgment of City. Any and all Paradise Creek -Related Programs
and Activates printed and/or digital materials, including signage, shall acknowledge, in a manner
reasonably satisfactory to the Executive Director, the contribution of the City of National City to
the funding of the subject program and/or activity.
6.6 Enforcement of CHW Third Trust Deed Loan Note. In order to
reasonably maximize Program Income, CHW shall reasonably enforce payment of the CHW
Third Trust Deed Loan Note.
7. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 CHW's Formation, Qualification and Compliance. CHW (a) is validly
existing and in good standing under the laws of the State of California, (b) has all requisite
authority to conduct its business, and has all requisite authority to execute and perform its
obligations under this Grant Agreement.
7.2 Litigation. CHW represents and warrants that there are no material
actions, lawsuits or proceedings pending or, to the best of CHW's knowledge, threatened against
or affecting CHW, the adverse outcome of which could have a material adverse affect on CHW's
ability to perform its obligations under this Grant Agreement.
8. RETENTION OF RECORDS
CHW shall maintain all books, documents, papers, accounting records, and other
evidence pertaining to this Grant Agreement and shall make such materials available at its office
at all reasonable times during the term of this Grant Agreement and for three (3) years from the
date of Close of Escrow for Phase I for inspection by Commission and for furnishing of copies to
Commission, if requested.
9. INDEPENDENT CONTRACTOR
Both parties hereto in the performance of this Grant Agreement will be acting in
an independent capacity and not as agents, employees, partners or joint venturers with one
another. Neither CHW nor CHW's employees are employees of Commission and are not entitled
to any of the rights, benefits, or privileges of Commission's employees, including but not limited
to retirement, medical, unemployment, or workers' compensation insurance.
10. CONTROL
Neither Commission nor its officers, agents or employees shall have any control
over the conduct of CHW or any of CHW's employees except as herein set forth, and CHW
expressly agrees not to represent that CHW or CHW's agents, servants, or employees are in any
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manner agents, servants or employees of Commission, it being understood that CHW, its agents,
servants, and employees are as to Commission wholly independent contractors and that CHW's
obligations to Commission are solely such as are prescribed by this Grant Agreement.
11. COMPLIANCE WITH APPLICABLE LAW
CHW, in the performance of this Grant Agreement, shall comply with all
applicable State and Federal statutes and regulations, and all applicable ordinances of the City of
National City, whether now in force or subsequently enacted. CHW, and each of its
subcontractors, shall obtain and maintain a current City of National City business license prior to
and during performance of any work pursuant to this Grant Agreement.
12. NON-DISCRIMINATION PROVISIONS
In the performance of this Agreement, CHW shall: (a) not discriminate against
any employee or applicant for employment because of age, race, color, ancestry, religion, sex,
sexual orientation, marital status, national origin, physical handicap, or medical condition; and
(b) take positive action to insure that applicants are employed without regard to their age, race,
color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical
handicap, or medical condition. Such action shall include but not be limited to the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and selection for training, including
apprenticeship.
13. INDEMNIFICATION AND HOLD HARMLESS
CHW agrees to defend, indemnify, and hold harmless Commission and the City of
National City, and their officers and employees, against and from any and all liability, loss,
damages to property, injuries to, or death of any person or persons, and all claims, demands,
suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature,
including workers' compensation claims, of or by anyone whomsoever, resulting from or arising
out of CHW's negligent performance of this Grant Agreement.
14. INSURANCE
CHW, at its sole cost and expense, shall purchase and maintain, and shall require
its contractors, if any, to purchase and maintain, until issuance of the Certificate of Completion
for Phase I, the following insurance policies:
A. Automobile insurance covering all bodily injury and property damage
incurred during the performance of this Grant Agreement, with a minimum coverage of
$1,000,000 combined single limit per accident. Such automobile insurance shall include owned,
non -owned, and hired vehicles ("any auto").
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B. Commercial general liability insurance, with minimum limits of
$1,000,000 per occurrence/ $2,000,000 aggregate, covering all bodily injury and property damage
arising out of its operations under this Grant Agreement.
C. Workers' compensation insurance in an amount sufficient to meet
statutory requirements covering all of CHW employees and employers' liability insurance with
limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver
of subrogation in favor of Commission. Said endorsement shall be provided prior to
commencement of work under this Grant Agreement.
D. The aforesaid policies shall constitute primary insurance as to
Commission, its officers, employees, and volunteers, so that any other policies held by
Commission shall not contribute to any loss under said insurance. Said policies shall provide for
thirty (30) days prior written notice to Commission of cancellation or material change.
E. Said policies, except for the professional liability and workers'
compensation policies, shall name Commission and the City of National City, and their officers,
agents and employees as additional insureds, and separate additional insured endorsements shall
be provided.
F. If required insurance coverage is provided on a "claims made" rather
than "occurrence" form, CHW shall maintain such insurance coverage for three years after
expiration of the term (and any extensions) of this Grant Agreement. In addition, the "retro" date
must be on or before the date of this Grant Agreement.
G. Any aggregate insurance limits must apply solely to this Grant
Agreement.
H. Insurance shall be written with only California admitted companies
which hold a current policy holder's alphabetic and financial size category rating of not less than
A VIII according to the current Best's Key Rating Guide, or a company equal financial stability
that is approved by Commission's Risk Manager. In the event coverage is provided by non -
admitted "surplus lines" carriers, they must be included on the most recent California List of
Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements.
I. This Grant Agreement shall not take effect until certificate(s) or other
sufficient proof that these insurance provisions have been complied with, are filed with and
approved by Commission's Risk Manager. If CHW does not keep all of such insurance policies
in full force and effect at all times required under this Grant Agreement, Commission may elect
to treat the failure to maintain the requisite insurance as a breach of this Grant Agreement and,
subject to the right to notice and cure set forth in Section [17.A], terminate this Grant Agreement
as provided herein.
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J. All deductibles and self -insured retentions in excess of $10,000 must be
disclosed to and approved by Commission.
15. LEGAL FEES
If any party brings a suit or action against the other party arising from any breach
of any of the covenants or agreements or any inaccuracies in any of the representations and
warranties on the part of the other party arising out of this Grant Agreement, then in that event,
the prevailing party in such action or dispute, whether by final judgment or out -of -court
settlement, shall be entitled to have and recover of and from the other party all reasonable costs
and expenses of suit, including reasonable attorneys' fees.
For purposes of determining who is to be considered the prevailing party, it is
stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not
be considered in determining the amount of the judgment or award.
16. MEDIATION/ARBITRATION
If a dispute arises out of or relates to this Grant Agreement, or the breach thereof,
the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego,
California, in accordance with the Commercial Mediation Rules of the American Arbitration
Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne
equally by the parties. Any controversy or claim arising out of, or relating to, this Grant
Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration
in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then
existing. Any award rendered shall be final and conclusive upon the parties, and a judgment
thereon may be entered in any court having jurisdiction over the subject matter of the
controversy. The expenses of the arbitration shall be borne equally by the parties to the
arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence
and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof
against a specified party as part of the arbitration award.
17. TERMINATION
A. This Grant Agreement may be terminated by Commission for cause in
the event of a material breach of this Grant Agreement and failure by CHW to cure such breach
within thirty (30) days after the giving of notice by Commission. If, however, by its nature the
failure cannot reasonably be cured within thirty (30) days, CHW may have such longer period of
time as is reasonably necessary to cure the failure, provided, however, that CHW commence said
cure within said thirty (30)-day period, and thereafter diligently prosecute said cure to completion
within one hundred eighty (180) days.
B. Termination with cause shall be effected by delivery of written Notice
of Termination to CHW as provided for herein.
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18. NOTICES
All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like);
or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by
ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy,
facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the
date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail,
the business day following its deposit in such overnight mail facility, (iii) if mailed by registered,
certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of
California) after the date of deposit in a post office, mailbox, mail chute, or other like facility
regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable,
when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy,
facsimile or fax, when sent. Any notice, request, demand, direction or other communication
delivered or sent as specified above shall be directed to the following persons:
To the Commission:
To CHW:
Community Development Commission
of the City of National City
1243 National City Blvd.
National City, California 91950
Attn: Executive Director
Community HousingWorks
4305 University Ave, Suite 550
San Diego, California 92105
Attn: Anne B. Wilson
Sr. VP of Housing & Real Estate Development
Notice of change of address shall be given by written notice in the manner specified in
this Section. Rejection or other refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to constitute receipt of the notice, demand,
request or communication sent. Any notice, request, demand, direction or other communication
sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by
letter mailed or delivered as specified in this Section.
19. MISCELLANEOUS PROVISIONS
A. Computation of Time Periods. If any date or time period provided for in this
Grant Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such
date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a
Saturday, Sunday or federal, state or legal holiday.
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B. Counterparts. This Grant Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute but one and the same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of this
Grant Agreement are solely for the convenience of the parties hereto, are not a part of this Grant
Agreement, and shall not be used for the interpretation or determination of the validity of this
Grant Agreement or any provision hereof.
D. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Grant Agreement shall not be deemed to confer any
rights upon, or obligate any of the parties hereto, to any person or entity other than the parties
hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes.
F. Amendment to this Grant Agreement. The terms of this Grant Agreement may
not be modified or amended except by an instrument in writing executed by each of the parties
hereto.
G. Waiver. The waiver or failure to enforce any provision of this Grant
Agreement shall not operate as a waiver of any future breach of any such provision or any other
provision hereof.
H. Applicable Law. This Grant Agreement shall be governed by and construed in
accordance with the laws of the State of California.
I. Entire Agreement. This Grant Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement between the
parties as to the subject matter hereof. No subsequent agreement, representation, or promise
made by either party hereto, or by or to an employee, officer, agent or representative of any party
hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby.
J. Successors and Assigns. This Grant Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties hereto.
K. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Grant Agreement, (iii) each such party has consulted with or has had the
opportunity to consult with its own, independent counsel and such other professional advisors as
such party has deemed appropriate, relative to any and all matters contemplated under this Grant
Agreement, (iv) each party and such party's counsel and advisors have reviewed this Grant
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Agreement, (v) each party has agreed to enter into this Grant Agreement following such review
and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply in the interpretation of this Grant
Agreement, or any portions hereof, or any amendments hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Grant
Agreement on the date and year first above written.
APPROVED AS TO FORM:
LAW OFFICES OF LANCE E. GARBER,
Commission Special Counsel
By:
COMMUNI. HOUSINGWORKS, a California
nonprofit, . i . c benefitoration
r
By:
Its: >g_• uicu f S 1.�::.,u7--
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY, a public
body, corporate and politic
By:
Lance E. Garber
Its:
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