HomeMy WebLinkAbout2010 CON (Notice of Restriction on Real Property) 404 E 8th Street/ 419 E 9th Street / 820 and 831 'D' AvenueRECORDING REQUESTED BY:
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Property Owner's Signature
WHEN RECORDED MAIL TO:
PLANNING DIRECTOR
City of National City -�
1243 National City Boulevard 11736
National City, CA 91950
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AUG 11, 2010 3:31 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 76.00
PAGES 21
1 Illill IIIII Hill III1I BIII IIIII IIIII IIIII IIIII illll IIIII IIIII IIIII IIIII IIIII IIII IIII
NOTICE OF RESTRICTION ON REAL PROPERTY
Address: 404 E. 8th Street, 419 E. 9th Street, and 820 and 831 D Avenue
Assessor's Parcel # 556-493-01, 02, 03, 04, 05
The real property located in the City of National City, County of San Diego, State of California
described as follows:
Lots 1, 2, 3, 4 and 5, in block 1 of T. Parson's Addition, being a Subdivision of ten acre Lot 16
in Quarter Section 154 Rancho De La Nacion, in the City of National City, County of San Diego,
State of California, according to Map thereof No. 57, filed in the office of the County Recorder
of San Diego County, April 26, 1881
is restricted by conditions of approval of City Council Resolution No. 2006-266 issued by the City of
National City. The obligations and restrictions imposed by City Council Resolution No. 2006-266
approving the Tentative Subdivision Map (S-2006-16) are binding on all present or future interest
holders or estate holders of the property. A copy of the City Council Resolution No. 2006-266 is on file
with the National City Development Services Department — Planning Division.
Dated: January 20, 2010
Ma
City
APPROVED AS TO FORM:
T ")•stic
GEORGE H. EISER, III,
City Attorney, City of National City
a aki,
National City
•
nient Services Director
11737
STATE OF INDIANA )
) SS
COUNTY OF HAMILTON )
Before me, the undersigned, a Notary Public in and for said County and State, this 10th
day of August, 2010, personally appeared Andrew J. Held, President of Agent for Owner, NC
Apartments, LLC, Village Capital Corporation and Harbor View Acquisition LLC, who executed
the above and foregoing for and on behalf of said companies.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
PAMELA J. pA^y.;
Boone ,,;
My Commissi n Expires
Augusi 30, 2014
My Commission Expires:
August 30, 2014
Pamela J. Park
Notary Public - Printed
My County of Residence Is:
Boone
11738
ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On January 20, 2010, before me, MICHAEL R. DALLA, City Clerk personally
appeared Maryam Babaki, Development Services Director, personally known to
me to be the person whose name is subscribed to on the attached instrument,
and acknowledged�to me thatShe executed the same in lafs&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.
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
ichael R. l alla — City Clerk
11739
RESOLUTION NO. 2006 — 266
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY APPROVING
A TENTATIVE SUBDIVISION MAP FOR HARBOR VIEW CONDOMINIUMS
LOCATION: 404 EAST 8TH STREET, 419 EAST 9TH STREET,
AND 829 AND 831 D AVENUE
APPLICANT: HARBOR VIEW CONDOS LLC / GULF UNLIMITED CORPORATION
CASE FILE NO. S-2006-16
WHEREAS, application was made for approval of a Tentative Subdivision Map
for the Harbor View Condominiums located at 404 East 8th Street, 419 East 9th Street, and 829
and 831 D Avenue within the City of National City on property generally described as:
LOTS 1, 2, 3, 4 AND 5, IN BLOCK 1 OF T. PARSON'S ADDITION, BEING A
SUBDIVISION OF TEN ACRE LOT 16 IN QUARTER SECTION 154 RANCH DE
LA NACION, IN NATIONAL CITY, IN THE COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 57, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 26,
1881.
WHEREAS, the Planning Commission considered said application at a public
hearing held on November 6, 2006, and by Resolution recommended conditional approval of
the application; and
WHEREAS, the City Council of the City of National City considered said
application at a public hearing held on December 19, 2006, at which time oral and documentary
evidence was presented; and
WHEREAS, at said public hearing the City Council considered the staff report
prepared for Case File No. S-2006-16, which is 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 and City taw; 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 City Council of the City of
National City that it hereby approves said Tentative Subdivision Map based on the following
findings:
1. The project is consistent with the Downtown Specific Plan for which an Environmental
Impact Report was certified and Mitigation Measures and a Mitigation Monitoring and
Reporting Program were adopted.
2. The proposed map is consistent with the General Plan since it is consistent with and
implements the Downtown Specific Plan, which is a further refinement of the goals and
objectives of the General Plan.
Resolution No. 2006 — 266
December 19, 2006
Page 2
11740
3. The site is physically suitable for the proposed type of development since the proposed
project and all required improvements can be provided on site, and the project would
comply with the applicable development standards or has been granted the appropriate
exemptions.
4. The site is physically suitable for the proposed density of development since the proposed
project and all required improvements can be provided on site, and the project would
comply with the applicable development standards or has been granted the appropriate
exemptions.
5. The design of the subdivision or the proposed improvements are not likely to cause
substantial environmental damage or substantially and avoidably injure fish or wildlife or
their habitat, since the site Is was previously developed and is located in a completely
urbanized area.
6. The design of the subdivision and the proposed/required improvements are not likely to
cause serious public health problems, since all necessary public services, facilities,
infrastructure, and utilities will be provided.
7. The design of the subdivision and the proposed/required improvements will not conflict with
easements, acquired by the public at large, for access through or use of the property within
the proposed subdivision, or such easements will be provided or relocated as required.
8. The discharge of sewerage waste from the subdivision into the City of National City sewer
system will not result in violation of existing requirements prescribed by the California
Regional Quality Control Board pursuant to Division 7 (commencing with Section 13000) of
the Water Code, as specified by Govemment Code Section 66474.6.
9. The subdivision has been considered by the Planning Commission with regard to its effect
on the housing needs of the region, and these needs are balanced by the public service
needs of the residents and available fiscal and environmental resources.
10. The design of the subdivision provides, to the extent feasible, for future passive and natural
heating and cooling opportunities in the subdivision, based on consideration of local
climate, topography, property configuration and other design and improvement
requirements without requiring reduction in allowable density or lot coverage.
BE IT FURTHER RESOLVED that the City Council has considered that the
certified Environmental Impact Report for the Downtown Specific Plan serves as adequate
environmental documentation, together with any comments received during the public review
process, and finds on the basis of the whole record that that the project was adequately
considered by the Environmental Impact Report, which reflects the City's independent judgment
and analysis, and hereby authorizes the filing of a Notice of Determination.
BE IT FURTHER RESOLVED that based on the findings hereinbefore stated,
that the City Council approves said Tentative Subdivision Map subject to the following
conditions:
Resolution No. 2006 — 266
December 19, 2006
Page 3
11741
1. Mitigation Measures. The Tentative Subdivision Map shall be subject to all applicable
mitigation measures of the adopted Mitigation Monitoring and Reporting Program of the
certified Environmental impact Report for the Downtown Specific Plan.
2. Approved Exhibit. The Tentative Subdivision Map authorizes the subdivision of the subject
property for condominium purposes in conformance with Exhibit (5-2006-16), dated
October 19, 2006, except as modified by the conditions of approval.
3. Consistency Review. The Tentative Subdivision Map shall be consistent with Downtown
Specific Plan Consistency Review (DSP-2005-5).
4 Landscape Plans. The applicant shall submit landscape and irrigation plans for approval
and shall install and construct all improvements pursuant to the approved plans prior to
occupancy.
5. Lighting Plans. The applicant shall submit lighting plans for approval and shall install and
construct all lighting pursuant to the approved plans prior to occupancy. Lighting shall be
designed to provide adequate illumination for safety, security, identification, and direction as
well as for landmark visibility of the primary buildings and/or significant features of the
project.
6. Sign Program. The applicant shall submit a sign program for approval, and all signs shall
be designed and installed pursuant to the approved sign program.
7. Public Art Program. The applicant shall submit a public art program for approval and shall
install, construct, or implement the approved public art program prior to occupancy.
8. Green Design. The applicant shall incorporate green design, energy efficiency, waste
reduction, recycling, conservation, and sustainable design in the project to the maximum
extent feasible.
9. Public Improvements. The applicant shall submit improvement plans for all adjacent public
rights -of -way for approval. The plans shall be consistent with the Downtown Specific Plan,
including the Open Space Framework, the Streetscape Master Plan, and the Design
Guidelines. The improvements shall include but not be limited to streets; alleys; curbs and
gutter, sidewalks; medians; parkways; landscape; street lights; street furniture; traffic
control; parking facilities; utilities; water, sewer, and drainage facilities; and other necessary
facilities and infrastructure. The applicant shall install and construct the improvements
pursuant to the approved plans prior to occupancy.
10. Engineering Requirements. The applicant shall comply with all engineering requirements,
including the listed requirements.
a) A Hydrology study (100 year flood) is required for the new project. The study should
consider the proposed project area to the closest municipal storm drain collection
point. The study should consider the adequacy of the existing storm drain system to
convey any additional run off. All Hydrology study findings and recommendations
are part of Engineering Department requirements.
11742
Resolution No. 2006 — 266
December 19, 2006
Page 4
b) The Priority Project Applicability checklist for the Standard Urban Storm -water
Mitigation Plan (SUSMP) is required to be completed and submitted to 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
c) National City Storm Water Best Management Practices of the Jurisdictional Urban
Runoff Management Program (JURMP), an approved SUSMP will be required prior
to issuance of an applicable engineering permit. The SUSMP shall be prepared by
a Registered Civil Engineer.
d) 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.
e) All surface run-off shall be collected by approved drainage facilities and directed to
the street by sidewalk underdrains or a curb outlet. Adjacent properties shall be
protected from surface run-off resulting from this development.
f) A grading and drainage plan shall be submitted showing all of the proposed and
existing on -site and off -site improvements. The plan shall be prepared in
accordance with the City's standard requirements by a Registered Civil Engineer.
All necessary measures for prevention of storm water pollution and hazardous
material run-off to the public storm drain system from the proposed parking lot or
development shall be implemented with the design of the grading. This shall include
the provision of such devices as storm drain interceptors, clarifiers, or filters. Best
Management Practices for the maintenance of the parking lot, including sampling,
monitoring, and cleaning of private catch basins and storm drains, shall be
undertaken in accordance with the National Pollution Discharge Elimination System
(NPDES) regulations. A private storm water treatment maintenance agreement
shall be signed and recorded. The checklists for preparation of the grading plan,
drainage plan, and Standard Urban Storm Water Mitigation Plan (SUSMP) are
available at the Engineering Department.
A National Pollutant Discharge Elimination System (NPDES) permit is required for
discharged of storm water runoff associated with construction activity where
clearing, grading, and excavation results in a land disturbance. A construction
stormwater permit shall be obtained from the Regional Water Quality Control Board.
A copy of the permit shall be given to the City of National City Engineering
Department prior to any work beginning on the project.
h) A sewer permit will be required. A sewer study shall consider the adequacy of the
existing sewer system. The sewer study recommendations shall be part of the
Engineering Department Requirements. The method of sewage collection and
disposal shall be shown on the grading/drainage plan. Any new sewer lateral in the
City right-of-way shall be 8-inch in size with a clean out and the installation of a
g)
Resolution No. 2006 — 266
December 19, 2006
Page 5
11743
manhole in the street. A sewer stamp "S" shall be provided on the curb to mark the
location of the lateral. A sewer main runs through the alley that shall be addressed
or relocated if building is to be constructed in this location.
A soils engineering report shall be submitted for the Engineering Department's
review, after Planning Commission approval. The report shall address the
adequacy of the budding pads, the criteria for any new retaining wall design, the
maximum allowable soil bearing pressure. As a minimum, the parking lot pavement
sections shall be 2 inch A.C. over 4 inch Class 11 aggregate base. The street
pavement sections shall be in accordance with National City modified Standard
Drawing G-34. All soils report findings and recommendations shall be part of the
Engineering Department requirements.
The deteriorated portions of existing street improvements (including sidewalks and
curbs) along the property frontages shall be removed and replaced.
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.
Street improvements shall be in accordance with City Standards. Abandoned
driveway aprons shall be replaced with curbs, gutters, and sidewalks.
A title report shall be submitted to the Engineering Department, after the Planning
Commission approval, for review of all existing easements and the ownership of the
property.
A cost estimate for all of the proposed grading, drainage, street improvements,
landscaping and retaining wall work shall be submitted with the plans. A
performance bond equal to the approved cost estimate shall be posted. Three
percent (3%) of the estimated cost shall also be deposited with the City as an initial
cost for plan checking and inspection services at the time the plans are submitted.
The deposit is subject to adjustment according to actual worked hours and
consultant services.
The Final Map shall meet all of the requirements of the Subdivision Map Act, and
the City of National City Municipal Codes including certification, acknowledgement,
complete boundary information and monumentation.
The subdivider shall submit an approval letter from Sweetwater Authority stating fire
flow requirements have been met. If additional improvements are needed, the
developer shall enter into an agreement for the water improvements with the
Authority prior to obtaining the Final Map approval.
q} The developer shall bond for the monumentation, the public improvements and the
on -site grading, drainage, landscaping, and other improvements through an
agreement with the City prior to the approval of the Final Map.
Resolution No. 2006 — 266
December 19, 2006
Page 6
11744
r) All utility distribution facilities within the boundaries of the subdivision, and within the
half street abutting the new subdivision, shall be placed underground.
s) The Final Map shall be recorded prior to issuance of any building permit.
t) All new property line survey monuments shall be set on private property, unless
otherwise approved.
u) The Final Map shall use the Califomia Coordinate System for its "Basis of Bearings"
and express all measured and calculated bearings in terms of the system. The
angle of grid divergence from a true meridian and the north point shall appear on
the map. Two measured ties from the boundary of the property to existing horizontal
control stations shall be shown.
11. Public Works Requirements. The applicant shall comply with all public works requirements.
a) The developer shall replace the existing sidewalks adjacent to the project.
b) Sewer facilities — The developer shall prepare a capacity study and upgrade the
sewer Tine as necessary.
c) The developer shall replace the existing street trees with a tree palette
commensurate with the building's architecture and adjacent landscaping theme.
d) The developer shall install streetlights along the project's frontages.
12. Fire Department Requirements. The applicant shall comply with all Fire Department
requirements.
a) Automatic fire sprinkler system will be required.
b) Wet standpipes will be required
c) Automatic and manual fire alarm system with communications system will be
required.
d) Estimated minimum fire flow will be 3,000 gpm measured at 20 psi residual with a
flow duration of 4 hours.
e) Underground parking area must have ready emergency access on both sides of
parking area.
13. Building Department Requirements. The applicant shall comply with all Building
Department requirements, and plans shall comply with the 2001 editions of the California
Building Code, the California Mechanical Code, the California Plumbing Code, the
California Electrical Code, and California Title 24 energy and handicapped regulations.
Resolution No. 2006 — 266
December 19, 2006
Page 7
11745
14. Police Department Requirements. The applicant shall comply with all Police Department
requirements.
a) The project shall comply with the crime free multi -housing criteria and crime
prevention through environmental design standards.
b) The project shall incorporate a camera system for security monitoring purposes of
the commonopen public spaces and retail areas of this project. Such camera
system should be compatible to operationally integrate with the current Police
Department security camera project scheduled for various areas throughout the
City.
15. National City Transit Requirements. The applicant shall comply with all National City
Transit requirements.
a) Evaluate existing bus stops for installation of shelters, benches, trash containers,
lighting, and CCTV security cameras with direct feed to NCPD if warranted. Cost
for these upgrades shall be bome by the developer.
b) NCT should be directly involved during the preliminary and ongoing evaluation of
any/all proposed shuttle services within National City. An evaluation should also be
undertaken to see if it would be more cost effective for NCT to directly operate this
proposed new service in conjunction with our existing fixed route service. One
benefit of this concept would be the leveraging component of Transit Capital funds
for equipment purchases (including vehicles) and possible availability of FTA and
Department of Homeland Security funding and grants as well.
c) Submit plans to MTS Planner Mike Daney (mike.daney@sdmts.com) for review and
comments.
16. Covenants, Conditions, and Restrictions. The applicant shall submit a declaration of
covenants, conditions, and restrictions for approval prior to approval of a final subdivision
map. The CC&Rs shall run with the land, clearly setting forth privileges and
responsibilities, including maintenance, involved in the common ownership of buildings,
streets, parking areas, walks, open spaces, recreation areas, utilities, and common areas
and facilities. The CC&Rs shall allow the City of National City the authority but not the
obligation to assume the maintenance of the property and assess the full cost, including
overhead costs, as a lien against the property if said property is not adequately maintained
pursuant to the CC&Rs. The CC&Rs shall include a determination that the funds provided
by the maintenance provisions will be sufficient to cover all contemplated costs. The
CC&Rs shall be approved as to form and content by the City Attorney of the City of
National City.
17. Property Owners Association. A corporation, association, property owners' group, or
similar entity shall be formed with the right to assess properties that are Jointly owned with
interests in the common areas and facilities in the entire development to meet the
expenses of such entity, and with authority to control, and the duty to maintain, all such
common areas and facilities. Such entity shall operate under recorded CC&Rs approved
Resolution No. 2006 — 266
December 19, 2006
Page 8
11746
by the City of National City, which shall include compulsory membership of all property
owners and flexibility of assessments to meet changing costs of maintenance, repairs, and
services.
18. Business Improvement District. Pursuant to the implementation Program of the Downtown
Specific Plan, the subject property shall be incorporated into the Morgan Square Business
Improvement District and assessed as provided for in the district for purposes for which the
district was formed.
19. Landscape Maintenance District. Pursuant to the Implementation Program of the
Downtown Specific Plan, all properties within the boundaries of the Downtown Specific
Plan shall be incorporated into a landscape maintenance district and assessed as provided
for in the district for purposes for which the district was formed.
20. Parking District. Pursuant to the Implementation Program of the Downtown Specific Plan,
all properties within the boundaries of the Downtown Specific Plan shall be incorporated
into a parking district and assessed as provided for in the district for purposes for which the
district was formed.
21. Acceptance of Conditions. The applicant and property owner shall sign and have notarized
an Acceptance Form acknowledging and accepting all conditions of approval of this permit.
Failure to return the signed and notarized Acceptance Form within 30 days of approval of
this permit shall automatically terminate this permit. The applicant shall record a Notice of
Restriction on Real Property with the San Diego County Recorder. The Notice of
Restriction shall provide that the conditions of approval of this permit are binding on all
present and future interest or estate holders of the property. The Notice of Restriction shalt
be approved as to form by the City Attomey of the City of National City and signed by the
City Manager of the City of National City prior to recordation.
22. Expiration. The approved Tentative Subdivision Map shall expire two years after the
effective date of approval unless prior to that date a request for a time extension not
exceeding three years has been filed as provided by Municipal Code Section 17.04.070.
BE IT FURTHER RESOLVED that copies of this Resolution shall be transmitted
forthwith to the applicant.
BE IT FURTHER RESOLVED that this Resolution shall become effective and
final on the day following the City Council meeting where the resolution is adopted. The time
within which judicial review of this decision may be sought is governed by the provisions of
Code of Civil Procedure Section 1094.6.
*** Signature Page to Follow ***
•
Resolution No. 2006 — 266
December 19, 2006
Page 9
PASSED and ADOPTED this 19th day of Decemb2006.
n, Mayor
ATTEST:
i ael R. Della City
M Clerk
APPROVED AS TO FORM:
George H.�iser, III
City Attorney
11747
11748
Passed and adopted by the Council of the City of National City, Califomia, on
December 19, 2006, by the following vote, to -wit:
Ayes: Councilmembers Morrison, Natividad, Parra, Ungab, Zarate.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
RON MORRISON
Mayor of the City of National City, California
CI k of the City of K
City ty ational City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2006-266 of the City of National City, California, passed and
adopted by the Council of said City on December 19, 2006.
City Clerk of the City of National City, California
By:
Deputy
11749
Please have this form signed and notarized, and return to the Development Services Department,
Planning Division, City of National City, 1243 National City Boulevard, National City, California,
91950
ACCEPTANCE FORM
S-2006-16
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss
ost- 'r>r- p�.e►�t r, t c
._ter 0 (J - E � "� r°
N{- cue„,, tnst 0,\\r~� �� t,,.. Cos -eon ado^ , being first duly sworn, deposes and
says; 0.) c4, •s
I am
We are the applicant(s) for / owner(s) of the property described in the above noted Tentative
Subdivision Map case.
I am
We are
aware of, and accept, all of the conditions of approval in the said Tentative Subdivision
Map case as set forth in City Council Resolution No. 2006-266, a copy of which I (we) have
received, read and accepted.
DATE:
Subscribed and sworn to before me
this 9 day of I ,. -j_ , 2010.
Notary Public in and for the Counly
aoi•JE
My Commissio'T'r expires
Ur. SE I.
S i �•�
(Signature)
770 3'4I
Address
GAY 64&.e i tJ `/ 6, 0 3 )—
City, State, Zip
c�F lrl�cw�...lA,
;w°' " PAMELA J PARK
Nnr,� Boone County
My Commission Expires
August 30, 2014
11750
(}I'\ll:N f NIA\:\(iii:vHA AcdavviEN1
I IIS DIM1.0I'1\41•N.I :AL\NAGI,A-11.N"fs entered into as nl' the
day of 2UO9. by and ztnlunust 1 Ir\R13OR 1 11:AV' '\C'Ql1ISITION, ITC. C. a California
limited liability company ("IIVA-) VII[ \(rI C',APLIAAl. CORPORATION. an Indiana
corporation ("VC(.). NC :AI'ART\IFNIS. I_L('_ a California limited liability company 1"NC' :
together with 11VA and V'('(' to be referred to as "OwnerHsl") and PI DOOR CO1111FRCIA1.
1)I:VI:LOP:`vI1 N"1'. ITC. an Indiana limited liability conlpum ( the "I),nieloper ").
\\ 1 1 N titil'S:
\Vlil:,Rh::AS. International City li:ull: ("I('13•.) mach a loan to Harbor View Condo
Project, L,LC (`Borru'vv'cr') in the amount of Fifteen Million •Iitco 1lundre1/41 I'hrlttsand and
N(} I OO Dollars (S15.200,00(1.00) ("Loan") pursuant to that certain Pronlissort Note. dated as t>1
Auuust 28. 200(i, ht and betttccn I('Ii and l orrow).er. as mar, he amended from time to time (the
"original Note'''. and secured ht that certain Construction I)eed of Trust, dated as or lu‘ust 28.
200O. by and hetvteen liorrotyer and 1(11. as the ;amc' may he amended Iron( bane to time (the
)eed of Trust"), together along tt ith all reiated document i Oje tlal NOR:, I )ee.l of l rust and
related documents hereinafter referred to as the • I -(;an 1)oeunlents"1:
\V'Il1I:I AS, hotted Fidelity 13_ulk ("L'Fli") hecatilc a participant in the Loan and Loan
Documents pursuant to that certain Construction Loan Participation tittle and Servicing
;11,reement, dated as of August 28. 2006. hv and het een Ul:l3 and IC13, ;IL.; the smile Ind t he
amended from time to time (.;Participation Agrecnlcnt"):
\VFII.:RFAS, United C`onlmearce Bank. a California hankinrt corporation ("l ('I3"I,
heewne a partietpanl in the L Lan and Loan Documents pursuant to that certain (otlitrtletinn
I_oati Participation tiale attld tierAice A,_'reeltletlt. dated as of August 28. 200O. ht and het�leell
and ICIi. as thereinafter untended:
\VI lI I l;1ti. NC became a participant in the loan and I Ilan Documents pursuant to that
certain Assignment of I'anlicipallinn Interest Without \VarruttV or Recourse and Bill of Sale.
dated as of Nlarch 25. 2(IO9. 1),1/4 an(.I between LI('lt (as Assignor) and NC (as \ssignee). under
tMich t (13 assigned a portion of its interest to N( and in a similar manner assigned the balance
of its interest to IJhli:
WI ILR1:.\S, I('l3 tiaii Iened its entire interest in the Loan and Loan I)oeunlcnts to IIVA
pursuant to that certain :Assignment of Participation Interest A1iithnut A\ arrantv or Recourse.
dated as of Nlarch 2`. 2009. h1 noel NC1vveeu It l3 cars assignor; and Ij\,A tau assi;_ineei Idle
"I 1VA Assignment- 1:
\VII1 RIa:AS. t'Iali transferred its entire interest in the Loan Documents to V('(pursuant
to that certain Assignment of Participation Interest Without AWarranty or Rccoursc.. dated as of
March 25, 2009, by and between L(hB3 (as assi(.cnor) and VC(' (as assignee):
11751
WHEREAS, during the development and construction of a 75-unit residential complex,
also to include approximately 12,500 square feet of commercial space, located in National City.
California (the "Project"), Borrower experienced an event of default pursuant to the terms and
conditions of the Loan Documents, causing the Owners to foreclose on the real property secured
by the Deed of Trust (the "Foreclosure");
WHEREAS, pursuant to a foreclosure sale occurring as of the 26th day of March, 2009,
Owners obtained title to certain real property located in San Diego County. State of California.
more commonly known as the Harbor View Development. and consisting of the real property
covered by the Deed of Trust;
WHEREAS, Owners now own and have title to the real property and desire to complete
the Project pursuant to the plans, specifications and contracts assigned to 1CB from Borrower,
pursuant to that certain Assignment of Construction Contracts, dated as of August 28, 2006 by
and between ICB, Borrower and Enterprise Construction Company, and later assigned to HVA
as successor in interest to ICB acting as lead lender;
WHEREAS, Developer has performed development services on behalf of the Owners.
and/or Owners' affiliates, and the parties hereto desire that the Developer continue to provide
development services to the Owners, in both cases acting as the Owners' agent, with respect to
the Project and to set forth an equitable compensation arrangement for Developer therefore;
WHEREAS, time is of the essence in order to complete the Project in conjunction with
all licenses, permits and certifications already acquired and obtained for the Project. and in order
10 prevent further delay as a result of the foreclosure sale, Owners desire to engage Developer to
finalize and complete the development of the Project;
WHEREAS, Developer has experience with retail and multi -family housing projects. is
familiar with the California market, is an affiliate of Owners, and can begin work on the Project
in an immediate capacity;
WHEREAS, the engagement of a third party developer would delay the construction
schedule and possibly cause the lapse or termination of various licenses, permits and/or
certifications that are already in place. Owners request Developer's involvement such that the
Project can be completed below the cost with which Owners could accomplish the same using
third party developers;
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants contained herein, the parties do hereby agree as follows:
1. Services of the Developer. The Developer hereby agrees to provide and/or
facilitate all necessary development services to the Owners with respect to the development of
the Project in order to bring Project to substantial completion. including without limitation:
11752
(a) Assisting the Owners in performing due diligence with respect to development and
construction services that have already been performed,
(b) Coordination of additional design and engineering necessary to complete the Project.
(c) Coordination and supervision of' additional construction of the Project on the Owners'
behalf and working with construction managers, contractors and subcontractors to
assure the Owners' best interests are being served,
(d) Assisting in arranging additional construction financing necessary to complete the
Project,
(e)
Coordinating all aspects of the development, construction and construction period
financing for the Project, including, but not limited to, negotiating, overseeing and
coordinating the work of all third parties and affiliates to be retained by the Developer
on behalf of the Owners to bring the Project to construction completion, and
(f) Negotiating and coordinating all contracts and agreements required on behalf of the
Owners to bring the Project to construction completion, including, but not limited to.
all contracts for architectural, engineering, construction, legal and accounting services
and construction period financing required therefor.
2. Compensation of Developer.
(a) In consideration of the services of the Developer pursuant to this Agreement, the
Owners agree to pay to the Developer a development management fee limited to and
inclusive of: (i) the hourly rate at which Developer's employees may charge from
time to time, which such fee shall be the actual cost of the employee to Developer and
shall not include profit; and (ii) any travel related expenses borne by Developer's
employees, with such total fees (described in subparts (i) and (ii)) not to exceed
Seventy -Five Thousand and NO/I00 Dollars ($75,000.00) (the "Development Fee").
(b) Pursuant to Section 2(a) above, any fees, charges, and/or expenses derived from
services provided by Bruce A. Cordingley, Phillip J. Stoffregen and/or Gerald K.
Pedigo shall not be reimbursed or submitted by Developer as employee charges
eligible to paid out of the Development Fee. Such fees, charges and/or expenses shall
not be paid by Owners in any way.
(c) Developer shall submit a monthly expense report detailing all time spent on the
Project as well as any qualified travel expenses that Developer requests to be
reimbursed ("Expense Report"). Owners shall timely review the Expense Report and
issue Developer funds sufficient to cover all qualified expenses.
3. Duration: Amendment. This Agreement shall continue until the date of payment
in full of all amounts due the Developer hereunder.
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11753
4. Notices. Any notice or demand which an) part)' is required to give to anv other
party shall be in writing and may he personally given or made by United States registered or
ccrtilied mail, addressed as follows:
To the Owner:
To the Owner:
I o the Owner:
To the Developer:
I larbor View Acquisition
249 Fast Ocean Boulevard
Long. Beach. CA 90802
iAIteltiom
Village Capital Corporation
18 N.A\ . Fourth St.
I vansville, � 477 18
Attention: IJoncd. tQtE.1
NC' Apartments. I .I
()tic l'edeur Square
770 3`�I Avenue, SW
Carmel. Indiana 46032
Attention: Andrew I Ield
pedcor Connnereial Development 1,1 C
(inc 1'cdeor Square
770 ;"' Avenue. S\V
ttnInclittta-IC Aettttion: f'klarlAjlesli
or to such other address as may he designated by the party. Any notice or demand shall he
deemed to have been made or given upon the earlier of either, (a) actual receipt thereof, or (lit on
the third (3rd) day after the same is deposited in the l mired States mail as required uhovc.
5. Sctetahility. The parties hereh) stipulate and agree that each and ever) paragraph.
sentence. term. and provision of this Agreement shall he considered severable and that. in the
event a court finds any paragraph. sentence. term. or provision to he invalid or unenforceable. the
validity and enforceability. operation. or effect of the remaininu paragraphs. sentences. terms or
provisions shall not be affected. and this <1grcement shall be construed in all respects as if the
invalid or unenforceable matter was omitted. Capitalized terms used herein and not othervmIse
defined shall have the meanings assigned thereto in the partnership agreement of the Owners.
6. _Assi ,nment. This \ereement shall be binding upon. and inure to the benefit ol.
the parties hereto and their successors and assigns. The I)e) eloper shall not assign its ohlit. anions
under this Agreement. in whole or in part. witht ut the written consent of the Owners. which
consent shall not be unreasonably denied. withheld or delayed: pro videdl. how cr. that the
I)evelope• may enter into agreements with such other parties as the Developer may determine in
its reasonable discretion providing for the performance by such other parties of any or all 01 the
4
11754
services to be provided by the Developer under this Agreement, so long as Developer remains
primarily liable to the Owners for the performance of such obligations and so long as the Owners
have no obligation for payment of compensation to such service providers (other than its
obligation to pay the Development Fee as specified herein). Neither the execution of such an
agreement with such other parties nor any permitted assignment shall relieve the Developer of
any of its obligations or liabilities hereunder or under applicable law.
7. Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
8. Entire Understanding. This Agreement states the entire understanding of the parties
on the subject matter hereof and shall be amended only by an instrument signed by the parties
hereto. It is understood and agreed that the Agreement supercedes in all respects any prior
agreement that pertains to the subject matter herein.
[This Space Intentionally Left Blank]
5
11755
IN WITNESS WHEREOF. the parties herein have executed this Development
N.Iiw ement Aurecment as or the day and year first ahave ritten.
IiARBOR Vir\V AC()IJISlT ION. f.1C
Bv:
Print name and tide
"( 11VNl:R"
VILLAGE( \' I. ('ORPORA'I'ION
Print name and title
NC APAR I MEN IS. LLC'
E}-kD
Print name and title
"I )I:VI:I.O1'F]:R'
PEI)C'C)I: C'O\-:VIER( III..\I. I)I:VI I OP\IENT. I.I.0
By.
11)rint name and title
6
11756
IN WITNESS WHEREOF, the parties herein have executed this Development
Management Agreement as of the day and year first above written.
"OWNER"
HAVIEW ACQUISITION, LLC
By:
LV
t)
[Print name and title]
"OWNER"
VILLAGE CAPITAL CORPORATION
By:
[Print name and title]
"OWNER"
NC APARTMENTS, LLC
By:
[Print name and title]
"DEVELOPER"
PEDCOR COMMERCIAL DEVELOPMENT, LLC
By:
[Print name and title]
6