HomeMy WebLinkAbout2014 CON SA Park Villas National City LP - Modification of ObligationsAGREEMENT FOR MODIFICATION OF OBLIGATIONS
This Agreement for Modification of Obligations ("Agreement") is made as of
March 1, 2014, by THE SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY, a public body, corporate and politic ("Agency"), and PARK VILLAS
NATIONAL CITY L.P., a California limited partnership ("Participant"). The parties state
as follows:
A. The City of National City formed the Community Development
Commission of the City of National City ("CDC"), which has continuously engaged in
both redevelopment activities under the Community Redevelopment Law (Health and
Safety Code sections 33000, et seq.) ("CRL") and housing authority activities under the
Housing Authority Law (Health and Safety Code sections 34200, et seq.).
B. At the time the City of National City formed the CDC, the City also
established the Housing Authority of the City of National City (Ordinance No. 1484,
dated October 14, 1975).
C. The Redevelopment Agency of the City of National City ("Redevelopment
Agency") was established by Ordinance No. 1164, dated April 11, 1967; and
D. The CDC was established to enable both the Agency and the Housing
Authority to operate under a single board and single entity; and
E. Sections 33334.2 and 33334.3 of the CRL require the Agency to use not
less than 20 percent of taxes allocated to the Agency pursuant to Section 33670 of the
CRL for the purpose of increasing, improving, and preserving the community's supply of
low and moderate income housing ("Low and Moderate Income Housing Fund").
F. The CDC has continuously utilized its Low and Moderate Income Housing
Fund for the purpose of increasing, improving and preserving the community's supply of
low- and moderate -income housing available at affordable housing cost.
G. By enactment of Part 1.85 of Division 24 of the Health and Safety Code,
Redevelopment Agency was dissolved as of February 1, 2012 such that the
Redevelopment Agency shall be deemed as a former redevelopment agency under
Health and Safety Code section 34173(a). Agency is the successor to CDC.
H. CDC and Participant entered into certain agreements with respect to a
$500,000 forgivable loan made by CDC to Participant as of August 19, 1997 (the
"Loan"), as follows:
A Regulatory Agreement and Declaration of Covenants and Restriction,
dated as of August 19, 1997, executed by CDC and Participant (the
"Agency Regulatory Agreement");
• An Owner Participation Agreement, dated as of August 19, 1997,
executed by CDC and Participant (the "Participation Agreement"); and
A Promissory Note, dated as of August 19, 1997, in the principal amount
of $500,000.00, executed by Participant to the order of Agency (the
"Note").
Said documents relate to the redevelopment and operation of the 268-unit multifamily
residential development commonly known as the Park Villas Apartments, 817 Eta
Street, National City, San Diego County, California (the "Project").
I. CDC, Participant and First Trust of California, National Association
entered into a certain Regulatory Agreement and Declaration of Restrictive Covenants,
dated as of June 1, 1997, and recorded on July 1, 1997 as Instrument No. 1997-
0311773 (the "Bond Regulatory Agreement"), relating to the Project.
J. Participant and the California Tax Credit Allocation Committee entered
into a certain Regulatory Agreement Federal Credits Tax -Exempt Bond Financed
Project dated as of July 31, 1998, and recorded on October 7, 1999 as Instrument No.
1999-0679835 (the "TCAC Regulatory Agreement"), relating to the Project.
K. Agency and Participant wish to enter into certain agreements to modify the
end date of the Note on the terms and conditions provided herein.
In consideration of the mutual promises contained herein, the parties agree as
follows:
M1-1. Amendment to Agency Regulatory Agreement. The Agency
Regulatory Agreement states in Section 2 "the Project is to be owned, managed and
operated as a project for residential rental purposes for a period of fifteen (15) years,
commencing upon the date this Regulatory Agreement is executed and continuing until
September 1, 2014." The Regulatory Agreement was entered into August 19, 1997.
Thus, there is an internal discrepancy in the sentence. Accordingly, this sentence is
hereby amended to provide that the term of the Agency Regulatory Agreement
continues "until September 1, 2012." The 15 year Bond reporting has effectively ended
as of September, 1 2012.
M1-2. Acknowledgment of Termination of Participation Agreement. Agency
and Participant acknowledge and agree that all matters to be performed, and all
obligations and undertakings of the parties, arising under or with respect to the
2
Participation Agreement have already been fully performed, and/or ceased to be
effective as of September 1, 2012 by reason of the termination of the Agency
Regulatory Agreement pursuant to paragraph M1-1 above.
M1-3. Modification of Note. Agency and Participant hereby agree that the Note
is modified and amended to provide that "Forgiveness Date" as defined in the Note will
be the final date of approval of this Agreement by Successor Agency, Oversight Board,
and California Department of Finance as provided in paragraph M1-6 hereof. Agency
and Participant hereby acknowledge and agree that no "Event of Default" has occurred
on or before the Forgiveness Date (as so modified), and accordingly all accrued interest
and all principal under and with respect to the Note and the loan evidenced thereby are
forgiven, and Participant has and will have no further debts or liabilities thereunder or
with respect thereto. The Note is hereby deemed to be fully and finally satisfied and
terminated, and is and will hereafter be null and void.
M1-4. Extension of Agreements in TCAC Regulatory Agreement. Agency
and Participant acknowledge that the TCAC Regulatory Agreement remains in full force
and effect as of the date of this Agreement, that the Compliance Period, as defined in
the TCAC Regulatory Agreement, began on January 1, 1998 and is currently scheduled
to end on December 31, 2027. Participant and its successors in title to the Project will
be subject to and will comply with all terms and provisions of the TCAC Regulatory
Agreement during the term thereof. In addition, in consideration of the agreements of
Agency as provided in this Agreement, Participant (or its successor in title to the
Project) and the Project will remain subject to, and will fully comply with, the provisions
of Section 4 of the TCAC Regulatory Agreement, for the period commencing on the last
day of the Compliance Period under the TCAC Regulatory Agreement (whether such
termination of the Compliance Period occurs under the currently -effective terms of the
TCAC Regulatory Agreement, or such termination occurs as of an earlier date pursuant
to any subsequent agreement among the parties to the TCAC Regulatory Agreement
(and/or their respective successors) and ending December 31, 2029 (the "Extension
Period"). During the Extension Period, the provisions of said Section 4 of the TCAC
Regulatory Agreement will be subject to enforcement by Agency. The provisions of the
TCAC Regulatory Agreement may be enforced by the Agency until the later of (a) the
effective date of termination of the TCAC Regulatory Agreement, or (b) December 31,
2029.
M1-5. Acknowledgement of Consent to Sale of Bonds and Release of
Claims. Participant acknowledges and reaffirms its consent to the sale of the
Bonds commonly referred to as the $11,860,000 outstanding principal amount of
Multifamily Housing Revenue Bonds (GNMA Collateralized — Park Villa Apartments,
Series 1997 Series A), and the waiver by Participant of all allegations and claims related
to or arising from the sale of the Bonds. Not in limitation of the foregoing, such consent
of Participant includes, but is not limited to, consent to the Direction to Sell letter,
consent to all fees and costs, such as past due amounts due to the CDC, transaction
costs, and fees, as listed in the Closing Memorandum and also referenced in the
Direction to Sell letter.
3
Participant fully and forever releases, acquits and discharges the Agency hereto
and their attorneys, sureties, agents, servants, representatives, employees, members,
Councilmembers, officers, trustees, subsidiaries, affiliates, partners, predecessors,
successors -in -interest, heirs, executors and assigns, and all persons acting by, through,
under or in concert with them, of and from any and all past, present, or future
claims, demands, obligations, actions, causes of action, damages, costs, attorney's
fees, losses of service, expenses, liabilities, suits, and compensation of any kind or
nature whatsoever, whether based on tort, contract, or other theory of recovery, claimed
by any of them which arise from or relate to facts or events occurring on or before the
date of this Agreement with respect to the Bonds.
Participant expressly acknowledges and agrees that this release shall extend to
any and all claims, whether judicial, administrative or otherwise, including, without
limitation, claims made with any court, commission, tribunal, board or administrative
body with jurisdiction to consider such claims related to the Bonds. This release
expressly extends to and bars any and all complaints, actions and/or proceedings,
whether judicial or administrative, actually instituted by the Participant, or which could
be instituted by the Participant with respect to the Bonds. Nothing in this Agreement
shall be construed to mean that any of the Parties is or are waiving any rights to enforce
this Agreement.
In furtherance of this intention, Participant expressly waives and relinquishes any
and all rights and benefits conferred on it by the provisions of Section 1542 of the
California Civil Code. Participant understands that California Civil Code Section 1542
provides as follows:
A general release does not extend to claims which a creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
It is expressly understood and agreed by Participant that the possibility of unknown
claims exists and has been explicitly taken into account in determining the
consideration to be given for this Agreement and that a portion of the consideration,
having been bargained for with full knowledge of the possibility of such unknown claims,
was given in exchange for the release and discharge of the matters, claims and/or rights
covered by this Agreement.
M1-6. Board Approval. Agency represents and warrants that Agency currently
holds the Note, and has not endorsed, transferred or otherwise granted any rights in or
to the Note to any other person. This Agreement and its amendments shall not be
effective until it has been approved by the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency, the Oversight
Board to the Successor Agency, and the California Department of Finance.
4
The parties have executed this Agreement for Modification of Obligations as of
April 1, 2014 by their duly authorized representatives.
ROVED AS TO FORM:
dia G.
City Atto
SUCCESSOR AGENCY TO THE
COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT
AGENCY CITY, a public body, corporate and
politic
B
PARK VILLAS NATIONAL CITY L.P., a
California limited partnership
By: Park Villas 'Dints LC, general partner
By:
5
Larry
Manager
RESOLUTION NO. 2014 — 46
RESOLUTION OF THE SUCCESSOR AGENCY
TO THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY
AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT
FOR MODIFICATION OF OBLIGATIONS WHICH WILL AMEND
THE REGULATORY AGREEMENT, FORGIVE
THE PROMISSORY NOTE, AND TERMINATE THE PARTICIPATION
AGREEMENT WITH PARK VILLAS NATIONAL CITY, L.P.
WHEREAS, the City of National City formed the Community Development
Commission of the City of National City ("CDC"), which has continuously engaged in both
redevelopment activities under the Community Redevelopment Law (Health and Safety Code
sections 33000, et seq.) ("CRL") and housing authority activities under the Housing Authority
Law (Health and Safety Code sections 34200, et seq.); and
WHEREAS, at the time the City of National City formed the CDC, the City also
established the Housing Authority of the City of National City (Ordinance No. 1484, dated
October 14, 1975); and
WHEREAS, the Redevelopment Agency of the City of National City ("Agency")
was established by Ordinance No. 1164, dated April 11, 1967; and
WHEREAS, the CDC was established to enable both the Agency and the Housing
Authority to operate under a single board and single entity; and
WHEREAS, by enactment of Part 1.85 of Division 24 of the Health and Safety
Code, the Agency, was dissolved as of February 1, 2012 such that the Agency was deemed as a
former redevelopment agency under Health and Safety Code section 34173(a); and
WHEREAS, the Agency was succeeded by the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency ("Successor
Agency"); and
WHEREAS, Agency and Park Villas National City, LP, ("Participant") entered into
certain agreements with respect to a $500,000 forgivable loan made by Agency to Participant as
of August 19, 1997 (the "Loan"), via Resolution Number 97-38, as follows:
• A Regulatory Agreement and Declaration of Covenants
and Restriction, dated as of August 19, 1997, executed by Agency and
Participant (the "Agency Regulatory Agreement");
• An Owner Participation Agreement, dated as of August 19,
1997, executed by Agency and Participant (the `Participation Agreement");
• A Promissory Note, dated as of August 19, 1997, in the
principal amount of $500,000.00, executed by Participant to the order of Agency
(the "Note"); and
WHEREAS, said documents relate to the redevelopment and operation of the
268-unit multifamily residential development commonly known as the Park Villas Apartments,
817 Eta Street, National City, San Diego County, California (the "Project"); and
Resolution No. 2014 — 46
Page Two
WHEREAS, Successor Agency, Participant and First Trust of California, National
Association entered into a certain Regulatory Agreement and Declaration of Restrictive
Covenants, dated as of June 1, 1997, and recorded on July 1, 1997 as Instrument No. 1997-
0311773 (the "Bond Regulatory Agreement"), relating to the Project; and
WHEREAS, Participant and the California Tax Credit Allocation Committee
entered into a certain Regulatory Agreement Federal Credits Tax -Exempt Bond Financed
Project dated as of July 31, 1998, and recorded on October 7, 1999 as Instrument No. 1999-
0679835 (the "TCAC Regulatory Agreement"), relating to the Project; and
WHEREAS, Successor Agency and Participant wish to enter into certain
agreements to modify the end date of the Note, clarify the termination dates of the Regulatory
Agreement, extend the length of the TCAC Regulatory Agreement affordability covenants to the
benefit of the Successor Agency, and acknowledge Participant's consent and waiver of claims
to the prior sale of GNMA Collateralized — Park Villa Apartments, Series 1997 Series A Bonds
on the terms and conditions provided in the Agreement for Modification of Obligations.
NOW, THEREFORE, BE IT RESOLVED, by the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency, that the
Chairman is hereby authorized to execute the Agreement for Modification of Obligations on file
with the Secretary of the Successor Agency.
PASSED and ADOPTED this 20th day of May, 2014.
ATTEST:
h
Mic -el R. Dalla, Cif' Clerk as
Secretary to the Successor Agency
OVED AS TO FORM:
1►1•
ess
Silva
ncy Counsel
on Morrison, Chairman
Passed and adopted by the Successor Agency to the Community Development
Commission as the Redevelopment Agency of the City of National City, California, on
May 20, 2014 by the following vote, to -wit:
Ayes: Boardmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman of the Successor Agency to the
Community Development Commission
as the Redevelopment Agency of the
City of National City, California
ity Clerk Servinas Secretary
to the Successor Agency
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2014-46 of the Successor Agency to the Community Development
Commission as the Redevelopment Agency of the City of National City, California,
passed and adopted on May 20, 2014.
City Clerk Serving as Secretary
to the Successor Agency
By:
Deputy
SUCCESSOR AGENCY TO
THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY
AGENDA STATEMENT
MEETING DATE: May 20, 2014
C\`\ t C \ COC
`\C E - 10-v:
AGENDA ITEM NO. 4
ITEM TITLE:
to the Community Development
the Chairman to execute an Agreement
forgive the Promissory
City, L.P.
DEPARTMENT:
APPROVED
Development Commission
(Owner) in the rehabilitation
CDC provided the owners
of Park Villas Apartments.
to restrict rents on 40% of
date of the Regulatory
the Owner is requesting
of the Regulatory Agreement
that all matters with respect to
performed, and/or ceased
is modified and amended to
Agency, Oversight Board,
Commission as the National City
for Modification of Obligations
Note, and terminate the Participation
Housing, Grants, and Asset
anagement
at 817
help
be
the
1, 2012
be the
Resolution of the Successor Agency
Redevelopment Agency authorizing
which will amend the Regulatory Agreement,
Agreement with Park Villas National
PREPARED BY: Alfredo Ybarra
PHONE: 619 336-4279
EXPLANATION:
_
BY.
(CDC) of the City of National City
of the property (268 units) located
with a $500,000 forgivable loan to
In consideration for the $500,000
the units for a fifteen (15) year period.
Agreement and Declaration of Covenants
that 1) the Regulatory Agreement
ended on September 1, 2012, 2)
the Owner Participation Agreement
to be effective as of September
provide the Forgiveness Date will
and California Department of Finance.
On August 19, 1997, the Community
assisted Park Villas Pointe, L.P.
Eta Street, National City, CA. The
cover the acquisition and rehabilitation
forgivable loan, the owners agreed
Due to discrepancy in the termination
and Restrictions (Regulatory Agreement),
amended to provide that the term
Agency acknowledge and agree
(Participation Agreement) have been
and 3) the Promissory Note (Note)
final date of approval by Successor
FINANCIAL STATEMENT:
APPROVED:
Finance
MIS
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
APPROVED:
IN/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt resolution
BOARD / COMMISSION RECOMMENDATION:
ATTACHMENTS:
of Covenants and Restrictions
'Q F., 7, '. ,, vi \ D \ ,
M `'t - `\ G
1. Agreement for Modification of Obligations
2. Regulatory Agreement and Declaration
3. Owner Participation Agreement
4. Promissory Note
Background
On August 19, 1997, the Community Development Commission (CDC) of the City of National
City assisted Park Villas Pointe, L.P. (Owner) in the rehabilitation of the property (268 units)
located at 817 Eta Street, National City, CA. The CDC provided the owners with a $500,000
forgivable loan to help cover the acquisition and rehabilitation of Park Villas Apartments. In
consideration for the $500,000 forgivable loan, the owners agreed to restrict rents on thirty
percent (30%) of the units for Low Income Tenants and ten percent (10%) of the units for Very
Low Income Tenants for a fifteen (15) year period.
The Regulatory Agreement states in Section 2 "the Project is to be owned, managed, and
operated as a project for residential rental purposes for a period of fifteen (15) years commencing
upon the date this Regulatory Agreement is executed and continuing until September 1, 2014."
The Regulatory Agreement was entered into August 19, 1997. Thus, there is an internal
discrepancy in the sentence. The owner is requesting to amend the Regulatory Agreement to
provide that the term of the Agency Regulatory Agreement continues until September 1, 2012
and that the Promissory Note be forgiven upon approval of the Successor Agency, Oversight and
the California Department of Finance.
The $500,000 forgivable loan was part of the August 1997 Tax Credit and Bond sale to
accommodate the purchase and renovation of the 268 unit apartment complex. The Owner of
Park Villa Apartments acknowledges that the Tax Credit Allocation Committee Regulatory
Agreement remains in full force and effect as of the date of this Agreement, the compliance
period, as defined in the TCAC Regulatory Agreement, began on January 1, 1998 and is
currently scheduled to end on December 31, 2027. In consideration for the forgiveness of the
loan, the Owner has agreed to extend the TCAC Regulatory Agreement to December 31, 2029.
As a result, Park Villas Apartments will continue to be operate as an affordable housing project
through 2029.
Attachment 1
AGREEMENT FOR MODIFICATION OF OBLIGATIONS
This Agreement for Modification of Obligations ("Agreement") is made as of
March 1, 2014, by THE SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY, a public body, corporate and politic ("Agency"), and PARK VILLAS
NATIONAL CITY L.P., a California limited partnership ("Participant"). The parties state
as follows:
A. The City of National City formed the Community Development
Commission of the City of National City ("CDC"), which has continuously engaged in
both redevelopment activities under the Community Redevelopment Law (Health and
Safety Code sections 33000, et seq.) ("CRL") and housing authority activities under the
Housing Authority Law (Health and Safety Code sections 34200, et seq.).
B. At the time the City of National City formed the CDC, the City also
established the Housing Authority of the City of National City (Ordinance No. 1484,
dated October 14, 1975).
C. The Redevelopment Agency of the City of National City ("Redevelopment
Agency") was established by Ordinance No. 1164, dated April 11, 1967; and
D. The CDC was established to enable both the Agency and the Housing
Authority to operate under a single board and single entity; and
E. Sections 33334.2 and 33334.3 of the CRL require the Agency to use not
Tess than 20 percent of taxes allocated to the Agency pursuant to Section 33670 of the
CRL for the purpose of increasing, improving, and preserving the community's supply of
low and moderate income housing ("Low and Moderate Income Housing Fund").
F. The CDC has continuously utilized its Low and Moderate Income Housing
Fund for the purpose of increasing, improving and preserving the community's supply of
low- and moderate -income housing available at affordable housing cost.
G. By enactment of Part 1.85 of Division 24 of the Health and Safety Code,
Redevelopment Agency was dissolved as of February 1, 2012 such that the
Redevelopment Agency shall be deemed as a former redevelopment agency under
Health and Safety Code section 34173(a). Agency is the successor to CDC.
H. CDC and Participant entered into certain agreements with respect to a
$500,000 forgivable loan made by CDC to Participant as of August 19, 1997 (the
"Loan"), as follows:
•
•
A Regulatory Agreement and Declaration of Covenants and Restriction,
dated as of August 19, 1997, executed by CDC and Participant (the
"Agency Regulatory Agreement");
An Owner Participation Agreement, dated as of August 19, 1997,
executed by CDC and Participant (the "Participation Agreement"); and
A Promissory Note, dated as of August 19, 1997, in the principal amount
of $500,000.00, executed by Participant to the order of Agency (the
"Note").
Said documents relate to the redevelopment and operation of the 268-unit multifamily
residential development commonly known as the Park Villas Apartments, 817 Eta
Street, National City, San Diego County, California (the "Project").
I. CDC, Participant and First Trust of California, National Association
entered into a certain Regulatory Agreement and Declaration of Restrictive Covenants,
dated as of June 1, 1997, and recorded on July 1, 1997 as Instrument No. 1997-
0311773 (the "Bond Regulatory Agreement"), relating to the Project.
J. Participant and the California Tax Credit Allocation Committee entered
into a certain Regulatory Agreement Federal Credits Tax -Exempt Bond Financed
Project dated as of July 31, 1998, and recorded on October 7, 1999 as Instrument No.
1999-0679835 (the "TCAC Regulatory Agreement"), relating to the Project.
K. Agency and Participant wish to enter into certain agreements to modify the
end date of the Note on the terms and conditions provided herein.
In consideration of the mutual promises contained herein, the parties agree as
follows:
M1-1. Amendment to Agency Regulatory Agreement. The Agency
Regulatory Agreement states in Section 2 "the Project is to be owned, managed and
operated as a project for residential rental purposes for a period of fifteen (15) years,
commencing upon the date this Regulatory Agreement is executed and continuing until
September 1, 2014." The Regulatory Agreement was entered into August 19, 1997.
Thus, there is an internal discrepancy in the sentence. Accordingly, this sentence is
hereby amended to provide that the term of the Agency Regulatory Agreement
continues "until September 1, 2012." The 15 year Bond reporting has effectively ended
as of September, 1 2012.
M1-2. Acknowledgment of Termination of Participation Agreement. Agency
and Participant acknowledge and agree that all matters to be performed, and all
obligations and undertakings of the parties, arising under or with respect to the
2
Participation Agreement have already been fully performed, and/or ceased to be
effective as of September 1, 2012 by reason of the termination of the Agency
Regulatory Agreement pursuant to paragraph M1-1 above.
M1-3. Modification of Note. Agency and Participant hereby agree that the Note
is modified and amended to provide that "Forgiveness Date" as defined in the Note will
be the final date of approval of this Agreement by Successor Agency, Oversight Board,
and California Department of Finance as provided in paragraph M1-6 hereof. Agency
and Participant hereby acknowledge and agree that no "Event of Default" has occurred
on or before the Forgiveness Date (as so modified), and accordingly all accrued interest
and all principal under and with respect to the Note and the loan evidenced thereby are
forgiven, and Participant has and will have no further debts or liabilities thereunder or
with respect thereto. The Note is hereby deemed to be fully and finally satisfied and
terminated, and is and will hereafter be null and void.
M1-4. Extension of Agreements in TCAC Regulatory Agreement. Agency
and Participant acknowledge that the TCAC Regulatory Agreement remains in full force
and effect as of the date of this Agreement, that the Compliance Period, as defined in
the TCAC Regulatory Agreement, began on January 1, 1998 and is currently scheduled
to end on December 31, 2027. Participant and its successors in title to the Project will
be subject to and will comply with all terms and provisions of the TCAC Regulatory
Agreement during the term thereof. In addition, in consideration of the agreements of
Agency as provided in this Agreement, Participant (or its successor in title to the
Project) and the Project will remain subject to, and will fully comply with, the provisions
of Section 4 of the TCAC Regulatory Agreement, for the period commencing on the last
day of the Compliance Period under the TCAC Regulatory Agreement (whether such
termination of the Compliance Period occurs under the currently -effective terms of the
TCAC Regulatory Agreement, or such termination occurs as of an earlier date pursuant
to any subsequent agreement among the parties to the TCAC Regulatory Agreement
(and/or their respective successors) and ending December 31, 2029 (the "Extension
Period"). During the Extension Period, the provisions of said Section 4 of the TCAC
Regulatory Agreement will be subject to enforcement by Agency. The provisions of the
TCAC Regulatory Agreement may be enforced by the Agency until the later of (a) the
effective date of termination of the TCAC Regulatory Agreement, or (b) December 31,
2029.
M1-5. Acknowledgement of Consent to Sale of Bonds and Release of
Claims. Participant acknowledges and reaffirms its consent to the sale of the
Bonds commonly referred to as the $11,860,000 outstanding principal amount of
Multifamily Housing Revenue Bonds (GNMA Collateralized — Park Villa Apartments,
Series 1997 Series A), and the waiver by Participant of all allegations and claims related
to or arising from the sale of the Bonds. Not in limitation of the foregoing, such consent
of Participant includes, but is not limited to, consent to the Direction to Sell letter,
consent to all fees and costs, such as past due amounts due to the CDC, transaction
costs, and fees, as listed in the Closing Memorandum and also referenced in the
Direction to Sell letter.
3
Participant fully and forever releases, acquits and discharges the Agency hereto
and their attorneys, sureties, agents, servants, representatives, employees, members,
Councilmembers, officers, trustees, subsidiaries, affiliates, partners, predecessors,
successors -in -interest, heirs, executors and assigns, and all persons acting by, through,
under or in concert with them, of and from any and all past, present, or future
claims, demands, obligations, actions, causes of action, damages, costs, attorney's
fees, losses of service, expenses, liabilities, suits, and compensation of any kind or
nature whatsoever, whether based on tort, contract, or other theory of recovery, claimed
by any of them which arise from or relate to facts or events occurring on or before the
date of this Agreement with respect to the Bonds.
Participant expressly acknowledges and agrees that this release shall extend to
any and all claims, whether judicial, administrative or otherwise, including, without
limitation, claims made with any court, commission, tribunal, board or administrative
body with jurisdiction to consider such claims related to the Bonds. This release
expressly extends to and bars any and all complaints, actions and/or proceedings,
whether judicial or administrative, actually instituted by the Participant, or which could
be instituted by the Participant with respect to the Bonds. Nothing in this Agreement
shall be construed to mean that any of the Parties is or are waiving any rights to enforce
this Agreement.
In furtherance of this intention, Participant expressly waives and relinquishes any
and all rights and benefits conferred on it by the provisions of Section 1542 of the
California Civil Code. Participant understands that California Civil Code Section 1542
provides as follows:
A general release does not extend to claims which a creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
It is expressly understood and agreed by Participant that the possibility of unknown
claims exists and has been explicitly taken into account in determining the
consideration to be given for this Agreement and that a portion of the consideration,
having been bargained for with full knowledge of the possibility of such unknown claims,
was given in exchange for the release and discharge of the matters, claims and/or rights
covered by this Agreement.
M1-6. Board Approval. Agency represents and warrants that Agency currently
holds the Note, and has not endorsed, transferred or otherwise granted any rights in or
to the Note to any other person. This Agreement and its amendments shall not be
effective until it has been approved by the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency, the Oversight
Board to the Successor Agency, and the California Department of Finance.
4
The parties have executed this Agreement for Modification of Obligations as of
April 1, 2014 by their duly authorized representatives.
SUCCESSOR AGENCY TO THE
COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT
AGENCY CITY, a public body, corporate and
politic
By:
PARK VILLAS NATIONAL CITY L.P., a
California limited partnership
By: Park Villa P.in L C, general partner
By:
5
Larry N. Gou• , Manager
Attachment 2
ORIGINAL
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
The Community Development Commission
of the City of National City
140 East 12th Street, Suite B
National City, CA
0
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND D CLARis TIeaONnOnteOVereAN oS tt AND
RESTRICTIONS ("Regulatory Agreement")
ins
19th day of August, 1997, by and between THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate
and politic ("Agency"), and PARK VILLAS POINTE LP, a California
limited partnership ("Participant"):
RECITAL S:
A. Participant is the owner of certain real property located
Count of San Diego, State of
in the City of National City, Y California more particularly described' in Attachment No. 1,
attached hereto and incorporated by reference herein (the "Site").
The Site is improved with a rental housing project consisting of
two hundred sixty-eight (268) units (hereinafter referred to as the
"Project").
B. Agency and Participant have
mered he into
a) Owner
Participation Agreement dated August
Pursuant to a tax-exempt multi -family housing bond
C. Participant, Agency and First Trust
issuance by Agency ("Bonds"),
of California have executed a Regulatory Agreement and Declaratione
1997 and recorded on July 1,
o
19 Restrictive instrument
N.Covenants997-003tedMay 73 in the Official Records of San
1ieg as Instrument No. „ and Developer and the Secretary
'Diego County ("Official Records")
of Housing and Urban Development have entered into a �
Projects dated July 1, 1997 and
Regulatory
Agreement for Multi Family Housing j
recorded July 1, 1997 as Instrument No. 1997-0311772 in the
PAGE 1 OF 14 PAGES
383i 01773 9-M7113078887.1 308170/ 97
which
ic_ia_ Records (collectively the "Bond Regulatory Agreement"),
wagreements provide for certain restrictions on the use of
the
Site as more particularly set forth therein.
D. Pursuant to an allocation of federal low-income housing
tax credits by the California Tax Credit Allocation Committee
("TCAC"), Participant and TCAC will execute and record a Regulatory
Agreement upon the completion of the rehabilitation
o s for f the Protect
ject
("TCAC Regulatory Agreement"), which acreement p-
ovfr
restrictions on the use of the Site as more particularly set forth
therein.
E. Pursuant to the terms of the CPA, Agency and Participant
now desire to place restrictions upon the use and operation of the
Project, in order to ensure that the Project shall be operated
continuously as a rental housing project available for rental by
low-income households for the term of this Regulatory Agreement.
The restrictions contained in this Regulatory
tAgreement Bond shall be
subordinate and junior to those contained
ry
Agreement and the TCAC Fegulatory Agreement.
NOW, THEREFORE, the Participant and Agency declare, covenant
and agree, by and for themselves, their heirs, executors,
administrators and assigns, and all persons claiming under or
through them, that the Site shall be held, transferred, encumbered,
used, sold, conveyed, leased and occup3_ed, subject to the covenants
and -restrictions hereinafter set forth, all of which are declared
to be in furtherance of a common plan forthe ubdiv Sian,
improvement and sale of the Site, and are established
shed
exclusively for the use and benefit of the and own teach
Sand
every.person and entity who may now orthe
or any part thereof.
1. DEFINITIONS.
1.1 As used herein, the term "Adjusted Income" means the
median income of the Area, adjusted for family size, as annually
estimated by the United States Department of Housing and Urban
Development pursuant to Section 8 of the United States Housing Act
of 1937, as amended, or if discontinued, pursuant co Section 50093
of the California Health and Safety Code.
1.2 For the purposes Metropolitans5 �atistical Area.
shall
Primary mean the San Diego
1.3 As used herein, the tern "Low Income Tenant"
shall
mean those tenants whose income does not exceed the qt
d
limits for very low income families as established and amended from
time to time pursuant to Section 8 of the United States Housing Act
of 1937, as amended, or., if discontinued, Pursuant Sectionas o50105
5
of the California Health and Safety Code
e (as in
effect Income o the
date hereof) , except that the perce_ntag. Adjusted
PAGE 2 OF 14 ?AGES
333'0i773"4000113078887. 4 a08/70/97
percent
(60%) rather
qualifies as vary low income shall be sixty
�
than fifty percent (50%).
1.4 As used herein, the term "Very Low income Tenant"
shall mean those tenants whose income does not exceed the qualified
limits for very low income families as established and amended from
time to time pursuant to Section 8 of the United States Housing Act
of 1937, as amended, or, if discontinued, pursuant to Section 50105
of the California Health and Safety Code (as in effect as of the
date hereof).
1.5 As used in this Agreement, the term "Eligible
Tenant" shall collectively refer to a Low Income Tenant and a Very
Low Income Tenant.
1.6 As used herein, the term "Low Income Affordable
Rent" shall mean annual rentals whose amount does not exceed thirty
percent (30%) of sixty percent (60%) of the Adjust ded ned come
adjusted for family size appropriate for the unit;. p
to the extent that the terms of thisdefinition financing
i ctfwithcthith e
terms of any federal, state or local,.
assistance, Low Income Affordable Rent shail.not exceed the level
prescribed by the terms of such financing or financial assistance.
Notwithstanding the foregoing, for those tenants who are permitted
to continue to occupy a unit pursuant to the terms hereof but whose
income exceeds the maximum to qualify as a Low Income Tenant, Low
Income Affordable Rent shall not exceed thirty percent (30%) of the
actual income of the persons occupying the unit. Low Income
Affordable Rent shall include a reasonable utility allowance.
et the term "Very Low income Affordable
1.7 As used he_Y__n,
Renting" shall mean annual rentals whose amount does not exceed
thirty percent (30%) of fifty percent (50%) of the Adjusted Income
adjusted for family size appropriate for the unit; provided that,
to the extent that the terms of this definition conflict with the
terms of any federal, state or local financing or financial assist-
ance, Very Low Income Affordable Rent shall not exceed the level
prescribed by the terms of such financing or financial assistance.
Very Low income Affordable Rents shall include a reasonable utility
allowance.
1.8 For purposes of determining Low Income Affordable
Rent and Very Low Income Affordable Rent, the term "adjusted for
family size appropriate for the unit" shall mean two (2) persons
for a one -bedroom unit, three (3) persons for a two -bedroom unit
and four (4) persons for a three -bedroom unit.
2. RESIDENTIAL RENTAL PROPERTY. The Participant hereby
agrees that the Project is to be owned, managed and operated as a
Project for residential rental purposes for a period of fifteen
(15) years, commencing upon the date this Regulatory Agreement is
executed and continuing until September 1, 2014. To that end, and
PAGE 3 OF 14 PAGES
383;017739-000V3079887.4 308;2UN97
for the term of this Regulatory Agreement, the Participant hereby
represents, covenants, warrants and agrees as follows:
2.1 Participant shall own, • manage and operate the
Project as a project to provide rental housing comprised of a
building or structure or several interrelated buildings or
structures, together with any functionally related and subordinate
facilities, and no other facilities.
2.2 All of the dwelling units in the Project will be
similarly constructed units, and each dwelling unit in the Project
will contain facilities for living, sleeping, eating, cooking and
sanitation for a single person or a family, which are complete,
separate and distinct from other dwelling units, including a
sleeping area, bathing and sanitation facilities and cooking
facilities equipped with a cooking range, refrigerator (to the
extent required by the Bond Regulatory Agreement) and sink.
2.3 None of the dwelling units in the Project will at
any time be utilized on a transient basis or will ever he used as
a hotel, motel, dormitory, fraternity house, sororiuy house,
rooming house, nursing home, hospital, sanitarium, or trailer court
or park.
2.4 No part of the Project will at any time be owned by
a cooperative housing corporation, nor shall the Participant take
any steps in connection with the conversion to such ownership or
uses, to condominiums, or to any other form of ownership, without
the prior written approval of Agency.
2.5 All of the dwelling units will be available for
rental on a continuous basis to members of the general public in
accordance with the terms of this Regulatory Agreement, and the
Participant will not give preference to any particular class or
group in renting the dwelling units in the Project, except to the
extent that the dwelling units are required to be leased or rented
to Eligible Tenants.
2.6 Two (2) units may be occupied by the Participant or
by persons related to or affiliated with the Participant such as a
resident manager or maintenance personnel and no more than four (4)
units (inclusive of the two (2) units referenced above) may be set
aside for administrative uses.
3. OCCUPANCY OF PROJECT BY ELIGIBLE TENANTS. Participant
hereby represents, warrants, and covenants as follows:
3.1 Except as expressly provided herein, throughout the
term of this Regulatory Agreement, thirty percent (300) of the
completed units in the Project shall be continuously occupied or
held vacant and available for occupancy by Low Income Tenants and
ten percent (1(n) of the completed units in the Project shall be
PAGE 4 OF 14 PAGES
383/017739-0001/3078887.4 a03:20.'97
continuously occupied or held vacant and available for occupancy by
Very low Income Tenants-; provided, however, that Participant shall
not be required to evict any tenant residing in the Project as of
the date hereof.
3.2 Participant hereby agrees to rent those units
occupied by Low Income Tenants at no greater than Low Income
Affordable Rent and to rent those units occupied by Very Low Income
Tenants at no greater than Very Low Income Affordable Rent. The
rent charged for a unit may be adjusted annually.
3.3 A unit occupied by a Low Income Tenant or a Very Low
Income Tenant (as applicable) who at the commencement of the occu-
pancy is a Low Income Tenant or a Very Low Income Tenant, respec-
tively, shall be treated as occupied by a Low Income Tenant or a
Very Low Income Tenant, respectively, until a recertification of
such tenant's income in accordance with Section 3.5 below demon-
strates that such tenant no longer qualifies as a Low Income Tenant
or a Very Low Income Tenant and thereafter any residential unit of
comparable size in the Project is occupied by a new resident other
than a Low Income Tenant or a Very Low Income Tenant. Moreover, a
unit previously occupied by a Low Income Tenant or a Very Low
Income Tenant and then vacated shall be considered occupied by a
Low Income Tenant or a Very Low Income Tenant until reoccupied,
other thanfor a temporary
period, at w
time the
character of
the unit shll beredetermied. Innoeventshalsuchtemporary
period exceed thirty-one (31) days.
3.4 Immediately prior to an Eligible Tenant's occupancy
of a unit, the Participant will obtain and maintain on file an
Income Computation and Certification form (which form shall be the
same as set forth on Exhibit "B" of the Bond Regulatory Agreement)
from each such Eligible Tenant dated immediately prior to the date
of initial occupancy in the Project by such Eligible Tenant. The
Participant shall make a good -faith effort to verify that the
income provided by an applicant is accurate by'taking one or more
of the following steps as a part of the verification process: (i)
obtain a pay stub for the most recent pay period; (ii) obtain a
federal income tax return for the most recent tax year; (iii)
obtain a written verification of income and employment from
applicant's current employer; (iv) obtain an income verification
form from the Social Security Administration and/or California
Department of Social Services if the applicant receives assistance
from either agency; or (v) if an applicant is unemployed or did not
file a tax return for the previous calendar year, obtain other
verification of such applicant's income as is reasonably
satisfactory to the Agency. A copy of each such Income Computation
and Certification shall be provided to the Agencywith Compliance
submission of a Certificate of Continuing Program
pursuant to Section 3.6.
PAGE 5 OF 14 PAGES
383/0i 7733C-0001/307 B887.4 a08120/97
3.5 Immediately prior to the first anniversary data o_
the occupancy of a unit by an Eligible Tenant and on each
anniversary date thereafter, the Participant shall recertify the
income of such Eligible Tenant by obtaining a completed Income
Computation and Certification based upon the current income of each
occupant of the unit. In the event the recertification
demonstrates that such household's income exceeds one hundred forty
percent (140%) of the income at which such household would qualify
as a Low Income Tenant or a Very Low Income Tenant, as applicable,
the next available unit of comparable size must be rented to (or
held vacant and available for immediate occupancy by) a Low Income
Tenant or a Very Low Income Tenant, as applicable. Participant
shall provide the Agency with a copy of each such recertification
with the next submission of a Certificate of Continuing Program
Compliance pursuant to Section 3.6.
3.6 Within fifteen (15) days of the last day of each
calendar quarter during the term of this Regulatory Agreement, the
Participant shall advise the Agency of the occupancy of the Project
by delivering a Certificate of Continuing Program Compliance (which
shall be as Exhibit "C" to the Bond Regulatory Agreement) stating
(i) the percentage of the dwelling units of the Project which were
occupied or deemed occupied, pursuant to subsection 3.3, by a Low
Income Tenant or a Very Low Income Tenant during such period and
(ii) that to the knowledge of Participant either (a) no unremedied
default has occurred under this Regulatory Agreement or the OPA, or
(b) a default has occurred, in which event the certificate shall
describe the nature of the default and set forth the measures being
taken by the Participant to remedy such default.
3.7 Participant shall maintain complete and accurate
records pertaining to the units, and will permit any duly
authorized representative of the Agency to inspect the books and
records of Participant pertaining to the Project including, but not
limited to, those records pertaining to the occupancy of the
dwelling units.
3.8 Participant shall accept as tenants on the same
basis as all other prospective tenants, persons who are recipients
of federal certificates for rent subsidies pursuant to the existing
program under Section 8 of the United States Housing Act pf 1937,
or its successor. Participant shall not apply selection criteria
to Section 8 certificate holders that is more burdensome than
criteria applied to all ocher prospective tenants.
3.9 Each lease shall contain a provision to the effect
that Participant has relied on the income certification and
supporting information supplied by the tenant in determining
qualification for occupancy of the unit, and that any material
misstatement in such certification (whether or not intentional)
will be cause for immediate termination of such lease.
• PAGE 6 OF 14 PAGES
383/017739-0001:3078887. 4 a08.'20!97
c. MAINTENANCE. Participan: shall maintain and operate the
Site, and all landscaping, easements, open space, common areas,
improvements and structures upon the Site in good order, condition
and repair, and shall keep the entire Site free from any
accumulation of debris or waste materials or other nuisances.
Participant shall also maintain all landscaping on the Site in a
healthy condition and replace any deteriorated or dead landscaping.
The Site shall be maintained in accordance with all City codes,
laws, regulations and ordinances, as they now exist or may be
amended. Participant shall maintain the Site in such a manner as
to avoid the reasonable determination of a duly authorized officer
of the Agency or City that a public nuisance has been created such
as to be detrimental to public health, safety or general welfare.
5. NON-DISCRIMINATION. The Participant covenants that
there shall be no discrimination against, or segregation of, any
persons, or group of persons, on account of race, color., creed,
religion, sex, marital status, age, physical or mental disability,
ancestry, or national origin in the rental, sale, lease, sublease,
transfer, use, occupancy or enjoyment of the Site, or any portion
thereof, nor shall Participant, or any person claiming under or
through Participant, 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 of the Site or any portion
thereof. The nondiscrimination and nonsegregation covenants
contained herein shall remain in effect in perpetuity.
6. FORM OF NONDISCRIMINATION CLAUSES IN AGREEMENTS.
Participant shall refrain from restricting the rental, sale, or
lease of any portion of the Sire on the basis of race, color,
creed, religion, sex, marital status, age, physical or mental
disability, ancestry, or national origin of any person. All such
deeds, leases, or contracts shall contain or be subject to substan-
tially the following nondiscrimination or nor_segregatior_ clauses:
6.1 Deeds: In deeds the following language shall
appear: "The grantee herein covenants by and for itself, its
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, age, physical or mental disability, ancestry,
or national origin in the sale, lease, rental, sublease,
transfer, use, occupancy, tenure, or enjoyment of the land
herein conveyed, nor shall the grantee itself, or any persons
claiming under or through it, 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 land herein conveyed. The foregoing covenants
shall run with the land."
PAGE 7 OF 14 PAGES
3 RU(1177_ 9-000113078387.1 208/20197
leases the following language shall
5 . 2 Teases: -'= `
appear: "They lessee herein Covenants by and for itself, its
irs,, CCe
heirs, executors, administrators, successors, and assigns, and
all persons claiming under or through them, 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, age,
physical or mental disability, ancestry, orrnatinational nal oorigin in
the leasing, subleasing, renting,
occupancy, tenure, or enjoyment of the land herein leased nor
shall the lessee itself, or any perk ningr under
or
or
through it, establish or permit any practice
of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants,
lessees, sublessees, subtenants, or vendees in the land herein
leased."
6.3 Contracts: In contracts the following language
shall appear: "'_here shall be no discrimination against or
segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, age,
Physical or mental disability, ancestry, or national origin in
the sale, lease, rental, sublease, transfer, use, occupancy,
tenure, or enjoyment of the land, nor shall the transferee
itself, or any person claiming under or through it, 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 of the land."
The foregoing covenants shall remain in effect in perpetuity.
7. ENFORCEMENT. In the event Participant defaults in the
Performance or observance of any covenant, agreement or obligation
of Participant set forth herein, and if such default remains
uncured period of thirty (30) days after written notice
thereoonf for aAgency,shall have been given by Agency, or,
in the event said
default cannot be cured within said time period, Participant has
failed to commence to cure such default within said thirty (30)
days and diligently prosecute said cure to completion, then Agency
shall declare an "Event of Default" to have occurred hereunder,
and, at its option, may take one or more of the following steps:
7.1 Sy mandamus or other suit, action or proceeding at
law or .in equity, require participant to perform its obligations
and covenants hereunder or enjoin any acts or things which may be
unlawful or in violation of this Regulatory Agreement; or
PAGE 8 OF 14 PAGES
;.6:1)1777u.00kl 30788F7. 4 aD8!'_0!9
7.2 Take such other action at law or in equity as may
appear necessary or desirable to enforce the obligations, covenants
and agreements of Participant hereunder.
Except as otherwise expressly stated in this Regulatory
Agreement, the rights and remedies of the parties are cumulative,
and the exercise by any party of one or more of its rights or
remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same
default or any other default by another party.
8. COVENANTS TO RUN WITH THE LAND. Participant hereby
subjects the Site to the covenants, reservations and restrictions
set forth in this Regulatory Agreement. The Agency and the
Participant hereby declare their express intent that all such
covenants, reservations and restrictions shall be deemed covenants
running with the land and shall pass to and be binding upon the
Participant's successors in title to the Site; provided, however,
that on the termination of this Regulatory Agreement said
covenants, reservations and restrictions shall expire, except for
Sections 5 and 6, which shall remain in perpetuity. All covenants
without regard to technical classification or designation shall be
binding for the benefit of the Agency, and such covenants shall run
in favor of the Agency for the entire term of this Regulatory
Agreement, without regard to whether the Agency is or remains an
owner of any land or interest therein to which such covenants
relate. Each and every contract, deed or other instrument
hereafter executed covering or conveying the Site or any portion
thereof shall conclusively be held to have been executed, delivered
and accepted subject to such covenants, reservations and
restrictions, regardless of whether such covenants, reservations
and restrictions are set forth in such contract, deed or other
instrument.
Agency and Participant hereby declare their understanding and
intent that the burden of the covenants set forth herein touch and
concern the land in that Participant's legal interest in the Site
is rendered less valuable thereby. Agency and Participant hereby
further declare their understanding and intent that the benefit of
such covenants touch and concern the land by enhancing and
increasing the enjoyment and use of the Project by Very Low Income
Tenants, the intended beneficiaries of such covenants, reservations
and restrictions, and by furthering the public purposes for which
the Agency was formed.
9. ATTORNEYS' FEES. In the event that a party to this
Regulatory Agreement brings an action against the other party
hereto by reason of the breach of any condition or covenant,
_representation or warranty in this Regulatory Agreement, or
otherwise arising out of this Regulatory Agreement, the prevailing
party in such action shall be entitled to recover from the other
reasonably attorney's fees to be fixed by the court which shall
PAGE 9 OF 14 PAGES
:8:2•0177:u.*)OI '3078887.4 a08%20'97
render a judgment, as well as the costs of suits. Attorney's fees
shall include attorney's fees on any appeal, and in addition a
party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, including the
conducting of discovery.
10. AMENDMENTS. This Regulatory Agreement shall be amended
only by a written instrument executed by the parties hereto or
their successors in title, and duly recorded in the real property
records of the County of San Diego.
11. NOTICE. Any notice required to be given hereunder shall
be made in writing and shall be given by personal delivery,
certified or registered mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other
addresses as may be specified in writing by the parties hereto:
If to Agency:
The Community Development Commission
of the City of National City
140 East 12th Street, Suite B
National City, CA 91950
Attn: Executive Director
If to Participant: Park Villas Pointe LP
c/o Gough & Gough, Inc.
1620 Country Club Road, Suite D
Valparaiso, IN 46383
Attn: Larry N. Gough, President
With Copy to:
Fairfield Properties, Inc.
5510 Morehouse Drive, Suite 200
San Dieco, CA 92121
Attn: Christopher E. Hashioka
The notice shall be deemed given three (3) business days after
the date of mailing, or, if personally delivered, when received.
12. SUBORDINATION TO REGULATORY AGREEMENTS AND LAWS.
Notwithstanding anything in this Agreement to the contrary, in the
event any provision in this Regulatory Agreement conflicts with,
contradicts, modifies, or in any way changes the terms of the Bond
Regulatory Agreement or the TCAC Regulatory Agreement, the terms of
the Bond Regulatory Agreement or the TCAC Regulatory Agreement (as
appropriate) shall control.
13. SEVERAPILITY/WAIVER/INTEGRATION.
13.1 If any provision of this Regulatory Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
PAGE 10 OF 14 PAGES
383rnm3o-uanroPa887.4 ,O8:2Q 97
13.2 A waiver by either party of the performance of anv
covenant or condition herein shall not invalidate this Agreement
nor shall it
be considered a waiver of any other covenants or
conditions, nor shall the delay or forbearance by either party in
exercising any remedy or right be considered a waiver of, or an
estoppel against, the later exercise of such remedy or right.
13.3 This Agreement contains the entire Agreement between
the parties and neither party relies on any warranty or
representation not contained in this Agreement.
3.1 PARTICIPANT'S BREACH -NOT TO DEFAULT MORTGAGE LIEN.
Declarant's breach of any of the covenants or restrictions
contained in this Regulatory Agreement or the OPA shall not defeat
or render invalid the lien of any mortgage or deed of trust made in
good faith and for value as to the Site or any part thereof or
interest therein, whether or not said mortgage or deed of trust is
subordinated to this Regulatory Agreement or the OPA; but, unless
otherwise herein provided, the terms, conditions, covenants,
restrictons and reservations of this Regulatory Agreement and the
OPA shall be binding and effective against the holder of any such
mortgage or deed of trust and any owner or any of the Site or any
part thereof whose title thereto is acquired by foreclosure,
trustee's sale, or otherwise.
3.2 AMENDMENTS OR MODIF=CATIONS TO REGULATORY AGREEMENT. NO
purported rule, regulation, modification, amendment and/or
termination of this Regulatory Agreement or the OPA shall be
binding upon or affect the rights of any mortgagee holding a
mortgage or deed of trust upon the Site that is recorded in the
Office of the San Diego County Recorder prior to the date anv such
rule, regulation, modification, amendment or termination is
recorded in such office, without the prior written consent of such
mortgagee.
14. FUTURE ENFORCEMENT. The parties hereby agree that should
the Agency cease to exist as an entity at any time during the term
of this Regulatory Agreement, the City of National City shall have
the right to enforce all of the terms and conditions herein, unless
the Agency had previously specified another entity to enforce this
Regulatory Agreement.
[THE REMAINDER OF THiS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
PAGE 11 OF la PAGES
383;0 7739.0001-3078887.4 a08i20/97
IN WITNESS WHEREOF, the Agency and Participant have executed
this Regulatory Agreement and 3Declaratiovesof Covenantsfiand
Restrictions by duly authorized rep -
written hereinabove.
ATTEST:
ApP:.VED AS TO FORM:
Agency Coun e
THE COMMUNITY REDEVELOPMENT COMMISSION OF
THE CITY OF NATIONAL CITY, a public body,
corporate and politic
By:
Chai.rperso
"Agency"
PARK VILLAS POINTE LP, a California
limited partnership
By: PARK VILLAS POINTE LLC, a California
limited liability company, General
Partner
By:
Larry'. Gou Managing Member
By: FF PARK VILLAS, LLC, a California
limited liability company, General
Partner
Sy:
FAIRFIELD INVESTMENTS, INC.,
a California corporation,
Managing Member
By:
Patrick J. Gavin, Vice
President
PAGE 12 OF 14 PAGES
"Participant"
WA)17739-00U113073387 4 a08:70!97
IN WITNESS WHEREOF, the Agency and Participant have executed
this Regulatory Agreement and Declaration .of Covenants and
Restrictions by duly authorized representatives on the date first
written hereinabove.
ATTEST:
THE COMMUNITY REDEVELOPMENT COMMISSION OF
THE CITY OF NATIONAL CITY, a public body,
corporate and politic
By: By:
Secretary
APPROVED AS TO FORM:
Agency Counsel
7739d001i:*78887.1 a08.20,97
Chairperson
"Agency"
PARK VILLAS POINTE LP, a California
limited partnership
By: PARK VILLAS POINTE LLC, a California
limited liability company, General
Partner
By:
Larry N. Gough, Managing Member
By: FF PARK VILLAS, LLC, a California
limited liability company, General
Partner
By:
FAIRFIELD INVESTMENTS, INC.,
a California corporation,
Managing Member
President
PAGE 12 OF 14 PAGES
"Participant"
STATE OF CALIFORNIA�%�
COUNT"� OF EarlZA0
slab i
On
satisfactory personally for
known me the person(
personalty evidence) to be n` an
the within instrument
h
satisfactory
iz-er
s�bscr �tytoexecuted the
/ and that
capacity( he person- the instrument
persom acted executed
person( seal.
Witness my hand and official
zI
[SEAL•
-t
before me, eMr9
4a' of
proved to whose the basis
me name W . /
cknowledgea to me that
me c r authorized
is/he os Cam) on the
signatur- the
of which
/ci�rr behalf
e entity upon
NORMAP. URIAS )
COMM.
# 1117200 Z
C!1
NOTARY PUBLIC-CALIFORNIA
SAtI DIEGO. CA
MY COMMISSION EXPIRES O C B. 2000
STATE OF CALIFORNIA
COUNTY OF
On s of saris
appeared he basis is/are
p>rsonally roved to me on t o name(s) to whose to me that
Hors no alley known } to b or the person(s) authorized
acknowledged Instrument his/her/their on
factory within_the
to the same his/her/their signatures(s)
the
the
subscribed hey executed by his/her/ behalf of
in she/ and that the entity upon
capacity(ies) , instrument.
executed the inst_
instrument the person(s) °
o=_rson(s) acted,
Witness my
hand and official seal-
Notary Public
[SEAL.]
)
ss.
)
before me,
PAGE 13 OF 14 PAGES
:83I()I 139-0(10 I/3018881.4 a0SI"-(I'9'
STATE Ort.NiA )
ss.
COUNTY OF )
Or.
personally appeared
before
11�, m� , . �/7� ✓� �i BLS
personally known to me (or proved to me on the basis of satis-
factory evidence) to be the persons) whose name(s) isle
subscribed to the within instrument and acknowledged to me that
he/c`rif-they executed the same in his/her/their authorized
capacity(ies), and that by his/ er/thcl_ signatures(s) on the
instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
22, 200E
Notary Public
STATE OF CALTFORNIA )
ss.
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satis-
factory evidence) to be the persons) whose name(s) is/are
subscribed to the within instrument and acknowledced to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
PAGE 14 OF 14 PAGES
.I )I0I7 3-nmino78ZS7.t :10wz11/97
STATE OF CALIFORNIA
ss.
COUNTY OF
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satis-
factory 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 signatures(s) on the
instrument, the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On August 21, 1997
personally appeared
Notary Public
ss.
, before me,
Patrick 1 Gavin
I inda Blackwell, Notary Public
personally known to me (or proved to me on the basis of satis-
factory evidence) to be the person whose name.,-s4—
subscribed to the within instrument and acknowledged to me that
he/ e/t executed the same in his/3 /th y. authorized
capacity, and that by his/>,lt signatures < on the
instrument the person(. or the entity upon behalf of which the
person X1_acted, executed the instrument.
Witness my hand and official sea'
y Public
[SEAL]
LINDA BLACKWELL
Comm. # 1097970 'n
NOTARY PUBLIC • CALIFORNIA '
San Diego CGuety �a
My Comm, Expires May li, 2000
PAGE 14 OF is PAGES
383%017779-0001;3073837.4 ,08i20'97
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF SITE
PARCEL A:
THAT PORTION OF LOT 69 OF A PORTION OF EX —MISSION LANDS OF SAN DIEGO,
(COMMONLY CALLED HORTON'S PURCHASE), IN THE CITY OF NATIONAL CITY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2E3, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAE DIXCO COUNTY, MARLS 9, 1B78, DESCRIBED AS
FOLLOWS:
BEGINNING AT TEZ NORTHEAST CORNER OF LAND DESCRIBED IN DSED TO MC MIEEEN
CONSTRUCTION COMPANY, INC., RECORDED NOVEMBER 4, 1971 AB FILE NO. 255743 OF
OFFICIAL RECORDS, SAID NORTHEAST CORNER BEING HEST 50.00 FEET AND SOUTH 367.75
FEET ALONG THE EAST LINE OF SAID LOT 69 FROM TEE NORTHEAST CORNER THEREOF;
THENCE ALONG THE NORTIZTRLY LINE OF SAID LAND SOUTH 89° 36' 55" WEST, 250.00
FENT TO THE NORTHWEST CORNER THEREIN; BEING ALSO A POINT ON THE EASTERLY LINE
OF LAND DESCRIBED IN DEED TO MC MILLIE CONSTRUCTION COMPANY, INC., RECORDED
NOVEMBER 4, 1971 AS FILE N0. 255778 OF.OFFICIAL RECORDS; TPENCS ALONG TEE
BOUNDARY OF SAID LAND'NORTH 00° 23' 05" WEST, 129.95 Y.GJak•r TO A POINT ON THE
SOUTH RICHT OF WAY OF DELTA STREET AS GRANTED TO THE COUNTY OF SAN DIEGO ON
AUGUST 20, 1907 IN BOOK 310, PAGE 423 OF DEEDS; THENCE ALONG SAID RIGHT OF WAY
SOUTH B9° 36' 55" WEST 51.00 FEET TO A POINT ON SAID MC MILLIN LAND; THENCE
ALCNG THE BOUNDARY OF SAID MC MILLIN LAND AS FOLLOWS: SOUTH 00° 23' 05" EAST
129.95 FEET TO AN ANGLE POINT; SOUTH B9° 36' 55" WEST 168.25 FEET TO THE MOST
WESTERLY, NORTHWESTERLY CORNER OF SAID LAND AND BEING A POINT ON TEE EAST LINE
OF LAND DESCRIBED IN DEED TO MC MILLIN CONSTRUCTION COMPANY, INC RECORDED
DECEMEER 1, 1971 AS FILE NO. 278706 OF OFFICIAL RECORDS; THENCE ALONG TH2
BOUNDARY OF SAID LAST MENTIONED DEED AS FOLLOWS:
NORTH 00° 23' 05" WEST, 45.00 FEET TO THE MOST EASTERLY, NORTHEAST CORNER,
SOUTH 89° 36' S5" WEST, 41.75 FEET TO A POINT DISTANT THEREON WEST, 561,00 FEET
FROM THE EAST LINE OF SAID LOT 69, NORTH 000 22' 05" WEST, 84.95 FEET TO A
POINT ON THE pREVICUSLY,REFMEN= SOUTH RIGHT OF WAY LINE OF DELTA STREET;
THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 89° 36' S5" WEST, 8.25 FEET TO A
POINT ON THE WE'$T LINE OF SAID MC MILLIN'S LAND DESCRIBED IN LAST REFERL..SICED
DEED; ALONG T2 WESTERLY LINE OF SAID MC MILLTN'S LAND, 50CTH 00° 23' OS" EAST,
289.38 FEET TO TEE NORTHEAST CORNER OF LAND, DESCRIBED IN DEED TO MC MILLIN
CONSTRUCTION COMPANY, INC., RECORDED DECEMBER 1, 1971 AS FILE NO. 278752 OF
OFFICIAL RECORDS, SAID NORTHEAST CORNER TEER.EOF, BEING. A POINT THAT IS 527.175
FEET SOUTH AND 569.25 EEET WEST OF THE NORTHEAST CORNER OF SAID LOT 69 BEING
ALSO TE2 NORTHEAST CORNER OF LAND DESCRIBED IN DEED TO CH.RLES 0. POWERS,
RECORDED NOVEMBER 5, 7.921 IN BOOK 855, PAGE 428 OF OF=8 , IN THE OFFICE OF THE
caurITY RECORDER OF SAN DIEGO COUNTY; TNENC3 ALONG THE NORTHERLY LINE OF SAID
POWERS LAND WEST SOUTH 89° 36' S5" WEST, 465.00 FEET TO THE NORTHWEST CORNER OF
SAID MC MILLIE LAND; 1.'j.NCE ALONG TEE SOUTHWESTERLY LINE OF SAID LAND AND TEE
SOETIMASTERLY PROLONGATION THEREOF SOUTH 16° 33' 37" EAST, 217.00 FEET TO A
LINE WRICH IS PARALLEL WITH AND 12.00 Yr:i;'1 SOUTEEA3TERLY OF AND MEASURED AT
RIGHT ANGLES TO THE NORTHWESTERLY LINE OF LAND DESCRIBED IN DEED TO ROBERT P.
HARVEY, ET UE, RECORDED NOVEMBER 18, 1968 AS FILE NO. 201274 OF OFFICIAL
ATTACHMENT NO. 1
38J/017739-W01/3078887.4 a08/11/97 PAGE 1 OF 3 PAGES
•
RECORDS; THENCE ALONG SAID PAPATJ FL LINE SOUTH 73° 26' 23" WEST, 252.86 FEET TO T=:...
EASTERLY RIGHT OF WAY LINE OF HIGHLAND AVENUE; THENCE ALONG SAID RIGHT OF WAY LINE
SOUT:3 16° 52' 35" EAST, 157.90 FEET TO A POINT OF CURVATUs5, SAID POINT BEING ON T4=
NORTHERLY LINE OF TEAT PROPERTY GRANTED TO THE CITY OF NATIONAL CITY BY DEED RECORDED
NOV—EMBER 18, 1971 AS FILE NO. 269345 0? OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY
OF SAID PROPERTY, AND ALONG TEE BOUNDARY OF THAT PROPERTY GRANTED TO TH£ CITY OF
NATIONAL CITY BY DEEDS RECORDED APRIL 25, 1972 AS FILE NO. 102516 AND 102517 OF
OFFICIAL RECORDS AS FOLLOWS`
ALONG THE ARC 0? A CURVE TO TELL LEFT, RAVING A RADIUS OF 20.00 FEET AND A CENTRAL.
ANGLE OF 73° 30' 30", 25.66 FEET TO A POINT OF TANGENCY; NORTH 89. 36'
PPS"AEASTT,, 1600.32
FEET TO A POINT OF CURVE; ALONG TEM ARC OF BALD CURVZ TO THE LEFT,
375.00 FEET AND A CENTRAL ANGLE OF 09:° 04' 08", 59.36 FEET TO A POINT OF REVERSE
CURVE; ALONG THE ARC OP SAID CURVE TOTES RIGHT, HAVING A RADIUM OF 425.00 FEET AND A
CENTRAL ANGLE OF 09° 04' 08", 67.27 FEET TO A POINT OF TANGENCY; NORTE.89° 36' 55"
EAST, 412.92 FEET; SOUTH 00° 23' 05" EAST, 20.00 FEET TO A POINT ON THE NORTH LINE OF
TEM LAND DE2CRIBE07 MN DEED TO ELIMUR STEALE, RECORDED FEBRL7ARY 14, 1877, ITT B002 29,
PAGE 338 OF DEEDS; THENCE NORTH 890 36' 55" EAST ALONG THE NORTH LINE OF SAID STEAi.E
LAND 447.25 FELT TO THE EAST LINE OF SAID LOT 69; T=C5 NORTE 00° 23' 05" WEST ALONG
THE EAST LINE OF SAID LOT 69, 379.50 FEET TO THE NORTHsAST CORNER OF SAID STEAL&
LAND; THENCE ALONG THE NORTHERLY LINE OF SAID ST3ALE LAND SOUTH 89" 36'.555" WEST.
'50.00 FEET TO THE SOUTHEAST CORNER OF SAID MC MIL.IN LAND DESCRIBED
N DEEDNOVEMBER 4, 1971 AS FILE NO. 255778 OF OFFICIAL RECORDS; THENCE ALON'3 TEE EASTERLY
LINE OF SAID LAND NORTH OD° 23' 05" WEST 234.50 FEET TO THE POINT OF BEGINNING.
PARCEL B :
THAT PORTION OF LOT 69 OF A PORTION OF EX -MISSION LANDS OF SAN DIcEGO, (COMMONLY
GALLED HORTON' s PURCHASE), IN TEE CITY OF NATIONAL CT_2^i, COUNTY OF SAN .`DISCO, STATE
OF CALIFORNTA, ACCORDING TO MAP THEREOF NO. 283, Fr = IN TEE OFFICE OF TEE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCT'1 9, 1878, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 69; 1==NCE SOUTH 00° 23'. 05" FAST,
217.80 FEET ALONG THE FAST LINK OF SAID LOT 69 TO THE TER LINE OF A:COUNTY ROAD
(DELTA STREET) AS SHOWN ON RECORD OF SURVEY NO. 1378, RECORDED NOVEMBRE 14, 1946 AS
FILE NO. 12510 OF OFFICIAL RECORDS; THENCE SOUTH 89° 36' 55" WEST, 300.00 FEET ALONG
SAID CENTER LINE TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 89° 36' 55" WEST, 51.00 FEET ALONG SAID CENTERLINE;
THENCE
SOUTH 00' 23' 05" 7'10T, 20.00 FEET; THENCE NORTH 89° 36' 55" EAST, 51.00 FEET; THENCE
NORTH 00° 23' 05" WEST, 20.00 FIST TO THE TRUE POINT OF BEGINNING.
PARCEL C:
THAT PORTION OF LOT 69 OF A PORTION OF EX -MISSION LANDS OF SAN DIEGO, (COMMONLY
MT.r,T.D HORTON'9 PURCHASE), IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 253, FILED IN TEE OFFICE OF THE COUNTY
RECORDER DF BAN DIEGO COUNTY, MARCH 9, 1878, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 69; THENCE SOUTH 00° 23 05" EAST,
217.80 1,.ts1 ALONG THE EAST LINE OF SAID LOT 69 TO TEE CENTER LINE OF A. COUNTY ROAD
14 1946 AS
(DELTA STREET) AS SHOWN ON RECORDS P' 2U9.VSY THENCE SNO. P 896,36'C55" WEST 00 T ALONG
NO. 12510 OF OFFICIAL RE R3a ;
SAID CENTER LINE TO THE TRUE POINT OF BEGINNING.
383/017739-W0113073887.4 a08111/97
ATTACHMENT NO. 1
PAGE 2 OF 3 PAGES
•
THENCE CONTINUING SOUTH 89' 35' S5" WEST, 8.25 FEET ALONG SAID CENTER LINE; THENCE
SOUTH 00° 23' 05" FLST, 20.00 FEET; TFSSCE NORTH 88° 16' S5" EAST, 8.25 FEET; HENC,"
NORTH 00° 33' 05" WEST, 20.00 FEET TO THE TR= POINT OF BEGINNING.
PARCEL D:
TEAT PORTION OF LOT 69 OF A PORTION OF EX -MISSION LANoS OF SAN DIEGO, (COMMONLY
CALL.= aoRTON'6 PURCHASE), IN TFLE CITY OF NATIONAL CITY, COUNTY OF 8AN DI&GO, sTAT5
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 283, Fn.x'r1 IN THE OFFICE OF TEE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCE 9, 1878, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 69; T TLMICE SOUTH H 00° 23' OS" EAST,
-1,001.75 FEET; THENCE SOUTH 89° 36, 55" WEST, 1;100.42 FEET TO A POINT ON -TEE WEST
LINE OF SAID SECTION 69, SAID POINT BEING THE TRUE POINT OF BfiGZNZTING.
THENCE NORTH 16° 52' 35" WEST, 192.22 FEET ALONG SAID WEST LINE; THENCE NORTH 73° 07'
25" EAST, 40.00 F11.a4; THENCE SOUTH 16° 52' 35" EAST, 204.12 FEET; THENCE SOUTH 89° 36'
55" WEST 41.72 FEET TO THE TRUE POINT OF BEGINNING.
ExcEpTING THE INTEREST CONVE ED 23 THE CITY OF NATIONAL CITY 8Y DEED RECORDED
DECEM ER 3, 1991 AS FILE NO. 1991-0621683 OF OFFICIAL RECORDS.
383/017739-0001/3078887.4 °08I11/97
ATTACHMENT NO. 1
PAGE 3 OF 3 PAGES
Attachment
R1 �'�L
OWNER PARTICIPATION AGREEMENT
By and Between
THE COMMUNITY DEVELOPMENT NATIONAL OMY ISSION
OF THE CITY OFCIT
AND
PARK VILLAS POINTS LP
3
TABLE OF CONTENTS
Page
1
1. DEFINITIONS. . . . • • • . • . • . . . 1
1.1 Agency Loan. . . . . . . . . . . , 1
1.2 Certificate of Completion
1.3 City . 1
1.4 Note 1
1.5 Project Costs. - . . • • • • . • 1
1.6 Project . . . . . . . . . . . • . . . 1
1.7 Redevelopment Plan . . • • • • . . - 1
1.8 Regulatory Agreement . • . . • • . 2
1.9 Schedule of Performance 2
1.10 Site 2
1.11 Transfer . • • • • . . . . .
2
2. PURPOSE OF AGREEMENT ..
3. DEVELOPMENT OF THE SITE . . • 2 . 2
3.1 Plans and Specifications 2
3.2 Permits . . . . . . . . . . _ . . . cc_o 3
3.3 Commencement and Completion of Constr'. n 3
3.4 Right of Access • • - . • . . . 3
3.5 Nondiscrimination During Construction 3
3.6 Agency Loan • • . . . • . . . . . . . 3
3.7 Certificate of Completion . • . a
3.8 Sale or Transfer of the Project 5
3.9 insurance and Indemnification
7
a. USE OF THE SITE • - • . . . " . . 7
4.1 Use of the Site . • • . . • . . . 7
4.2 No Inconsistent Uses . . . .. " • • . • • 7
4.3 Obligation to Refrain from Discrimination 8
a a Effect of Covenants " . •
5. ENFORCEMENT . . • . . . . . . . . . _ 8
S.1 Termination by Agency - • .. 8
.2 Events of Default . . . . • 8
5.3 Remedies 8
5.4 No Waiver . . . . . . . . . . .. 9
5.5 Rights and Remedies are Cumulative. . 9
5.5 Attorneys' Fees
c
J
G. MISCELLANEOUS . . . - 9
6.1 Governing Law .. . . . . . , " . . . 9
6.2 Notices . • . . • . . . . . . . . . • . . 10
6.3 Conflicts of Interest . . . . . . 10
6.4 Non1=ability of Agency Offi ia.s and Employees ,0
6.5 Socks and Records . . . . . . • . 6.6 Modifications ••• • 10
and e _...dings
6.
7 ;nergea- of ?r, or Agreements -- 1,
6.8 Dind_ng Effect of Agreement . . . . 1,
6.9 Assurances to Act in Good Faith
i;i�01771,°-0A!I%3078887 4 a0812.0,?,
6.10 Severability
6.11 Exhibits.
EXHIBIT "A"
EXHIBIT "B'I
EXHIBIT "C"
EXHIBIT 'ID"
EXHIBIT II
SCHEDULE OF EXHIBITS
Pace
11
11
LEGAL DESCRIPTION OF THE SITE
SCOPE OF DEVELOPMENT
PROMISSORY NOTE
REGULATORY AGREEMENT AND DECLARATION OF COVENANTS
AND RESTRICTIONS
CERTIFICATE OF COMPLETION
EXHIBIT "F" PROJECT COSTS
?:i}I)! :V.1GII,A)7333;.4
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered
into this I9th day of August, 1997 (the "Effective Date") by and
between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
NATIONAL CITY, a public body, corporate and politic ("Agency"), and
PARK VILLAS POINTE LP, a California limited partnership
("Participant").
NOW, THEREFORE, Agency and Participant hereby agree as
follows:
1. DEFINITIONS.
1.1 Aaencv Loan. The term "Agency Loan" shall
Agency anta
Five Hundred Thousand Dollar ($500,000.00)
Participant to pay for Project Costs evidenced by the Note.
1.2 Certificate of Completion. The term "Certificate
or Completion" shall mean that certain Certificate of Completion
attached hereto as Exhibit "E".
1.3 City. The term "City" shall mean the CITY OF
NATIONAL CITY, a municipal corporation, having its offices at 140
East 12th Street, Suite B, National City, CA 91950.
Note. The term "Note" shall mean that certain
promissory Note in the form attached hereto as Exhibit "C"_
1.5 project Costs. The term "Project Costs" shall
mean those costs incurred or to be incurred by Developer in connec-
tion with the acquisition and rehabilitation_ of the Project more
particularly described on Exhibit "F" attached hereto.
1.6 Proect. The term "Project" shall mean the
acquisition and rehabilitation or the two hundred sixty -sight (268)
unit apartment project located on the Site commonly known as the
Park Villas Pointe Apartments, which -e a.'._1 _ati on work is more
particularly described in the Scope of Development attached hereto
as Exhibit
1.7 Redevelopment Plan. The term "Redevelopment Plan"
shall mean the Redevelopment Plan for the National City Downtown
Redevelopment Project Area ("Project Area") which was adopted by
Ordinance Number 1762 of the City Council of City on December 1,
1981. A copy of the Redevelopment Plan is on file in the Office of
the City Clerk of the City. The Redevelopment Plan is incorporated
herein by this - =erence as though fully se: forth herein.
1.5 Reculatcry Agreement. The term "Reaulatory
Aarecn^ shall mean that certain Yea�u_aCOry Agreement and
Declarationon ofCovenants and Restrictions in the form attached
i RI'')1777:0,: Hll,ill7yAK'_1
hereto as Exhibit "D" to be executed byAgency and Participant and
recorded against the Site.
1.9 Schedule of Performance. - The term "Schedule of
Performance" shall mean that certain Schedule attached hereto as
Exhibit "B".
1.10 Site. The term "Site" shall mean that certain
real property currently owned by Participant located within the
Project Area commonly known as 817 Eta Street, National City,
California and more particularly described on Exhibit "A" attached
hereto.
1.11 Transfer. The term "Transfer" shall have the
meaning set forth in Section 3.8.
2. PURPOSE OF AGREEMENT. The purpose of this Agreement is
to effectuate the Redevelopment Plan for the Project Area by
assisting in providing adequate housing affordable to low-income
households within the City by preserving the affordability of the
Project. The fulfillment generally of this Agreement is in the
best interests of the City and the welfare of its residents and are
in accordance with the public purposes and provisions of applicable
federal, state, and local laws and regulations, under which the
Project has been undertaken and is being assisted_
ThisAgreement is entered into by the Agency pursuant to its
authority under the Community Redevelopment Law of the State of
California, Health and Safety Code Sections 33000 et sea. (all
statutory references herein are to the Health and Safety Code
unless otherwise provided); which authorizes the Agency to make
agreements with owners, purchasers and lessees of property in the
Project Area providing for the rehabilitation of property in
conformity with the Redevelopment Plan, and providing that the
Agency retain controls and establish restrictions or covenants
running with the
land so that the property will be developed,
operated, and used in conformity with this Agreement and the
Redevelopment Plan (see Sections 33380, 33381, 33437-33439 and
33339).
3. DEVLLOPMENT OF THE SITE.
3.1 Plans and Soecifications. Participant shall
rehabilitate the Project upon the Site in accordance with the Scope
of Development and the construction drawings and specifications
previously submitted to and approved by the Building Department of
City in order to obtain building permits for the Project.
3.2 Permits. Before commencement of the
Site, -
rehabilitation of the Project on the, carticLpant shall obtain
_�- City
any and all permits and approvals which. may be required by the Cty
e l agency with ju__s�..-ction. Participant
or any other cove_n,:�_ata_ ay..nc ✓
3'33,017734-U A)1 30733UT 4 0?-]0 r -2
shall comply withenvironmental the proje mitigation measures imposed as
conditions o_rapproval
3.3 Commencement and Completion of Construction. The
rehabilitation of the Project commenced prior to the execution of
this Agreement and shall be completed within two (2) years ofpthe
date of this Agreement except mutually
ledeemedcomplete upon the
lbagreed
1n writing byu
ticipant and Agency- The Project
issuance of a Certificate of Completion as provided in Section 3.7.
3.4 Right of Access. .Representatives of Agency and
City shall have the reasonable right of access to the Site during
the period of construction for the purposes of this Agreement,
including, but not limited to, the inspection of the work being
performed.
3.5 Nondiscrimination Durina Construction.
Participant, for itself and its successors and assigns, agrees that
during the rehabilitation of the Project, Participant will not
discriminate against any employee or applicant for employment
because of race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin.
3.5 Aaencv Loan.
(a) Loan. Subject to the terms of this Agreement,
Agency agrees to make and Participant agrees to accept the Agency Loan no reimburse Participant for the Project Costs.
(b) Conditions Precedent to Disbursement. Agency
Loan to Participant upon the
shall disburse the AgI�ncY
satisfaction of the following conditions precedent:
(i) Participant has submitted evidence
reasonably satisfactory to Acency that the Project Costs
have been incurred by Participant.
(ii) The Regulatory Agreement has been recorded
against the Site;
(iii) Participant has executed and delivered the
Noce to Agency;
(iv) There exists no condition, event, act or
omission which constitutes a breach, default or event of
default under this Agreement, the Note or the Regulatory
Agreement or with notice, the passage of time, or both,
would constitute a default hereunder or thereunder.
(v) Delivery to and approval by Agency of the
evidence of insurance coverage as r cuired Pursuant to
Section 3.9 (a)
3. nl 7 0-t X;Olno7S387 1 :OS O - 3 -
3.7 Certificate of Completion. Upon written request
by Participant, and upon satisfactory completion of the Project,
Agency shall issue to Participant a Certificate of Completion. The
Certificate of Completion shall be, and shall so state, a
conclusive determination of satisfactory completion.of the Project
required by this Agreement, and a full compliance with the terms of
this Agreement relating to. commencement and completion of the
Project. After the date Participant is entitled to issuance of the
Certificate of Completion, and notwithstanding any other provision
of this Agreement to the contrary, any Party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the Site or the Site shall not (because of any such ownership,
purchase, lease, or acquisition) incur any obligation or liability
under this Agreement, except that such party shall be bound by the
covenants that survive the issuance of the Certificate of
Completion, as set forth in the Regulatory Agreement. The
Certificate of Completion is not a notice of completion as referred
to in California Civil Code section 3093.
3.8 Sale or Transfer of the Project. The Participant
covenants that prior to the date which is ten (10) years after :he
Effective Date, Participant shall not transfer this Agreement or
any of Participant's rights hereunder or any interest in the Site
or in the Improvements thereon, directly or indirectly, voluntarily
or by operation of law, without the prior written approval of
Agency which approval may be withheld in Agency's sole and
absolute discretion subsequent to such ten (10) year period but
prior to fifteen (15)
years after the dace of this Agreement,
Participant shall not assign this Agreement or transfer the Site or
any of its interests therein except as provided in this Section.
(a) Transfer Defined. As used in this Section,
the term "Transfer" shall include any assignment, conveyance,
or transfer of this Agreement, the Site, or the improvements
thereon (but specifically excluding any transfer, assignment,
pledge, hypothecation or mortgage for financing purposes). A
Transfer shall also include the transfer tO any person or
group of persons acting in concert of more than twenty-five
(25%-(in the a recate) of the present ownership
percent ) 5g and/or control of any person or entity constituting Partici-
pant, takinc all transfers into account on a cumulative basis,
except transfers of such ownership or control interest between
1
members of the same immediate family, or transfers to a trust,
testamentary or otherwise, in which the beneficiaries are
limited to members of the transferor's immediate family, or
among the entities constituting Participant or its general
partners or their respective partners, members or share-
holders. In the event Participant or any successor of
Participant, is a corporation or trust, such transfer shall
refer to the transfer of the issued and outstanding capital
bens al 4nterests of such
stock of such corporation, or O.. any SUCCESSOr of
i -• -:fie event that Participant or
trust;-- - is a _ such transfer
Participant Limited or general partnership,
S ha' 1 rai' tC the transfer of more than twenty-five percent
'�
' transfer
-C-
(25a) Of
the general partnership interests of such
partnership; in the event that Participant or any successor of
Participant is a joint venture, such transfer shall refer to
the transfer of more than twenty-five percent (259s) of the
ownership and/or control of any such joint venture partner,
taking all transfers into account on a cumulative basis.
(b) Aaencv Approval of Transfer Reauired. Prior
to the date which is ten (10) years after the Effective Date,
Participant shall not Transfer this Agreement or any of
Participant's rights hereunder or any interest in the Site or
in the Improvements thereon, directly or indirectly,
voluntarily or by operation of law, without the prior written
approval of Agency, which approval may be withheld in Agency's
sole and absolute discretion. Subsequent to such ten (10)
year period but prior to the date which is fifteen (15) years
after the Effective Date, Participant shall not Transfer this
Agreement or any of Participant's rights hereunder, or any
interest in the Site or in the improvements thereon, directly
or indirectly, voluntarily or by operation of law, without the
prior written approval of Agency, which approval will not be
unreasonably withheld and any such purported Transfer without
such approval shall be null and void. In considering whether
it will grant approval to any Transfer by Participant, which
Transfer requires Agency approval, Agency shall consider
factors such as (i) whether the completion of the Project is
jeopardized; (ii) the financial credit, strength and
capability of the proposed transferee to perform Participant's
obligations hereunder; and (iii) the proposed transferee's
experience and expertise in the planning, financing,
rehabilitation, development,
ownership, and operation of
similar projects. The provisions of this Section shall not
apply to the leasing of the Project in compliance with the
terms of the Regulatory Agreement.
(c) Release; Assumption. In the absence of
specific written agreement by Agency, no Transfer by
Participant of all or any portion of its interest in the Site
shall be deemed to relieve Participant or any successor party
from the Obligation to complete the Project or any other
obligations under this Agreement. In addition, no attempted
Transfer of any of Participant's obligations hereunder shall
be effective unless and until the successor party executes and
delivers to Agency an assumption agreement in a form approved
by the Agency assuming such obligations.
3.9 Insurance and Indemnification.
(a) Insurance. Participant shall procure and
maintain, at its sole cost and expense, during the entire term
off construct -On, the following policies of insurance:
(' ) :omnrehe^sivrLiabi l; tV Insurance.
A policy of comprehensive c=neral liability insurance
written on a per occurrence basis in an amount not less
than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.00) per occurrence, ONE
MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(ii) Workers' Compensation Insurance. A policy
of workers' compensation insurance in such amount as
will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for both the Participant, Agency, and the
City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any
worker employed by or any persons retained by the
Participant in the course of carrying out the work or
services contemplated in this Agreement.
(iii) Automobile Insurance. A policy of
automobile liability insurance in an amount not less
than Five Hundred Thousand Dollars ;$500,000.00)
combined single limit.
(iv) Builder's Risk Insurance. A policy of
"builder's risk" insurance covering the full replacement
value of all of the Project.
A11 of the above policies of insurance shall be primary
insurance and shall name Agency, City, and their officers,
employees, and agents as additional insureds. All of said
policies of insurance shall provide that said insurance may
not be amended or cancelled without providing thirty (30) days
prior written notice by registered mail to Agency and City.
In the event any of said policies of insurance are cancelled,
Participant shall, prior to the cancellation date, submit new
evidence of insurance in conformance with this Section to the
Executive Director.
insurance require d by this Agreement
r1 Y�
The policies oL
shall be satisfactory only if issued by companies Qualified to
do business in California, rated "B+" or better in the most
recent edition of Best Rating Guide, The Kev Ratina Guide or
in the Federal Reaiscer, and only if they are of a financial
category Class VII or better, unless such reauirements are
waived by the Risk Manager of the City ("Risk Manager") due to
unique circumstances.
The Participant agrees that the provisions of this
'ct be construed _= Taiti g in any way L'ne
Section shall ��� -- -_ Participantfor
-held responsible for
extent to which she may be
the payment cf damages to anv Persons or property resultin4
from the Participant's activities or the activities of any
person or persons for which the Participant is otherwise
responsible.
(b) Indemnification. During the period of any
construction of the improvements pursuant to this Agreement
and until such time as is issued a Certificate of Completion
for the Project, Participant agrees to defend and shall
indemnify and hold the Agency and the City harmless from and
against all liability, loss, damage, cost, or expense
(including reasonable attorneys' fees and court ) or an
y
from or as a result of the death of any persony
accident, injury, loss, or damage whatsoever caused to any
person or to the property of any person which shall occur on
the Site and which shall be directly or indirectly caused by
the negligent acts done thereon or any negligent errors or
omissions of the Participant or its agents, servants,
employees, or contractors. Participant shall not be
responsible for (and such indemnity shall not apply to) any
negligent acts, errors, or omissions of the Agency or the City
or their respective agents, servants, e<<,ployees, or
contractors. Agency and City shall not be responsible for any
acts, errors, or omissions of any person or entity except
Agency and City and their respective agents, servants,
gp. Y
employees, or contractors. The provisions of this Section
shall survive the termination_ of this Agreement.
4 USE OF THE SITE.
4.1 Use of the Site. Participant hereby covenants and
agrees, for itself and its successors and assigns, to use and
maintain the Project only as a housing project to be rented to low-
income households as more fully set forth in the Regulatory
Agreement. Participant shall have sole and exclusive
responsibility and financial liability for any and all construction
or works of improvement on the Site as may be necessary in order to
use the Site for the Project.
4.2 No Inconsistent Uses. Pa- n pant covenants and
agrees that it shall not devote the Site to uses inconsistent with
the Redevelopment Plan, the applicable zoning restrictions, this
Agreement, or the Regulatory Agreement.
4.3 Obligation to Refrain from Discrimination.. _here
shall be no discrimination against, or segregation of, any persons,
or group of persons, on account of race, color, creed, religion,
sex, marital status, age, physical or mental disability, ancestry,
or national origin in the rental, sale, lease, sublease, transfer,
use, occupancy, or enjoyment of the Sits, or any portion thereof,
no: shall participant, or any person claiming under or through
Participant, 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,
-7-
subtenants, sublessees, or vendees of the Site or any portion
thereof. The nondiscrimination and nonsegregation covenants
contained herein and in the Regulatory Acreement shall remain in
effect in perpetuity.
4.4 Effect of Covenants. Agency is deemed a
beneficiary of the terms and provisions of this Agreement and of
the restrictions and covenants running with the land, whether or
not appearing in the Regulatory Agreement for and in its own right
and for the purposes of protecting the interests of the community
in whose favor and for whose benefit the covenants running with the
land have been provided. The covenants in favor of the Agency
shall run without regard to whether Agency has been, remains or is
an owner of any land or interest therein in the Site, or in the
Project Area, and shall be effective as sg both
ncy scoalenants have and
and
equitable servitudes against the Site.
right, if any of the covenants set forth in this Agreement which
are provided for its benefit are breached, co exercise all rights
and remedies and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such
breaches to which it may be entitled. with the iexception ononce the
City, no other person or entity shall have any right
terms of this Agreement under a theory of third -party beneficiary
or otherwise. The covenants running with the land and their
duration are set forth in the Regulatory Agreement.
5 ENFORCEMENT.
5.1 terminate
Termination by Aaencv. The Agency may
this Agreement, in its sole and absolute discretion, if Participant
fails to begin construction of the Project by the date specified in
the Schedule of Performance (or some 72r�r date if an extension cf
time has been granted pursuant to the terms of this Agreement).
5.2 Events of Default. In the event either party
defaults in the performance or observance of any covenant, agreement or obligation set forth in thisAgreement, ment, and if such
default remains uncured for a period of thirty (30) days after
written notice thereof shall have been given by :he non -defaulting
party, or, in the event said default cannot be cured within said
failed period, the defaulting party
has to commence to cure
such default within said thirty (30) days and diligently prosecute
said cure to completion, then the non -defaulting party shall
declare an event of default to have occurred hereunder.
5.3 Remedies. In addition to any ocher rights cr
remedies that may be available and subject to the requirements of
Section 5.1 above, either party to this Agreement may institute a
legal or equitable action to cure, co -re,-' or ,-Pmedv any default,
to recover damaaes for any default, or to 'obtain any other remedy
cement If either party
consistent with the purposes O�c this rg- _
defaults hereunder byfailingto Perform anv of its obligations
be entitledto the
�-�ee
herein, each party a�- s that the other -all
-8-
judicial remedy of spP.-ific performance, and each party agrees
(subject to its reserve right to contest Phetherin act a teness default au
does exist) not to challenge or contest the pp-
pria
remedy- In this regard, Participant specie_ ally acknowledges that
Agency is entering into this Agreement for the purpose of assisting
in the redevelopment of the Site and not for the purpose of
enabling Participant to speculate with land.
5.4 No Waiver. Waiver by either party of the
performance of any covenant, condition, or promise shall not
invalidate this Agreement, nor shall it be considered a waiver of
any other covenant, condition, or promise. Waiver by either party
of the time for performing any act shall not constitute a waiver of
time for performing any other act or an identical act required to
be performed at a later time. The del
as ay cr
fan orb earance default b y either
party in exercising any remedy or righty operate as a waiver of any other default ort
ans or.
ti rights
and
remedies or to deprive suchparty of its rigdeem necessary d
maintain any actions or proceedings
redings whichmay
protect, assert, or enforce any such rights or remedies.
5.5 Richts and Remedies are Cumulative. Except as
otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by any
party of one or more of its rights or remedies shall not preclude
the exercise by it, at the same or dif-e"=nt times, of any other
rights or remedies for the same default or any other default by
another party.
s_ In the event
5.5 Attorneys' Fee of litigation
.,o prevailing
between the parties arising out of this Agreement, th�
party shall be entitled to recover its reasonable attorneys' fees
and other costs and expenses incurred, including such fees and
costs incurred on appeal, in addition to whatever other relief to
which it may be entitled.
6 MISCELLANEOUS.
The
Ta.vs c= the State of
6.1 C-overn;nc Law. �� - - his
California shall govern the interpretation and enforcement of t
Agreement.
6.2 Notices. Formal notices, demands, and'communica-
lions between Agency and Participant shall be sufficiently g_✓ive
�n if
Personally delivered or disoatched by registered or certified mail,
postageprepaid, receipted to the following
return requ..st_ ,
addresses:
If to Agency
The Community Development Commission
of the City of National City
140 East =2th Street, Suite ..
National City, CA 91950
Attn: Executive Directcr
3?;0!7'30-1XA)1 i3073887_!: a08120;9'
-9-
L to Partic
ipant: Park Villas Pointe LP
c/o Gough &Gough, Inc.
1620 Country Club Road, Suite D
Valparaiso, IN 46383 President
Attn: Larry N. Cough,
With Copy t0: Fairfield Propertjes, Inc.
5510 Morehouse Drive, Suite 200
San Diego, CA 92121
Attn: Christopher E. Hashioka
as
f the
er
All notices shallbe
deemed to. addressee thereoe or received the oexpirataon1of
actual receipt by in the United States Postal
forty-eight (48) hours after depositing
System
in demands manner and communications may beed in this ssenton. in Such written manner
to mayfrom time to time designate
to such other addresses as a party
by mail.
6.3 Conflicts of Interest. No member, official, or
employee of Agency shall have any personal interest, direct or
or
indirect, in this Agreement nor decll ision lln any
r such
meg mber
o rh os ff icia1 , Agreement
employee participate in any
which affects his personal interests or the interests of any cor-
poration, partnership, or association in which he is, directly or
indirectly, interested.
Agency Officials and Employees.
6.4 Nonliability of No member, official, employee, of gent or City
1 ee or consultantA successor in
shall be personally liable to Participant o_rany
in the event
interest of Participant,of any default or breach by a Participant or to
Agency or for any amount which may becomedue to
its successor, or on any obligations under the terms of this
Agreement.
6.5 Books and Records.
(a) Maintenance of Books and Randticipant
shall prepare and maintain all books, records,
reorts
necessary to substantiate "- the
hc_nant's compliance with
art - - e fired by the Agency -
terms of this Agreement or reasonably q'
(b) Rich` to Inspect. The Agency shall have the
right, upon not less than seventy-two (72) hours' notice, at
all reasonable times, to inspect the books and records of the
Participant pertinent to the purposes of this Agreement. privileged
right of inspection shall not extend tovdlcuments p
under attorney -client or other such pr-
alteration, change or modifi-
cation 6 ^�?odif i cat i ons . Anyshall
cation Of or t0 this Agreement, in order co become effective, e,nd �ha
instrument or endorsement thereon
be made by written - :s-_�.
such instance executed on behalf of each party hereto.
-10-
:r 77:,t%-IX01JI'.078387 4 aO .7n c
6.7 Merger of Prior Aareements and Understandinas.
This Agreement and all documents incorporatedherein coastain the
to the
entire understanding among the parties ereto or contemgporaneous
the
transactions contemplated herein and all pre
agreements, understandings, representations, and statements, oral
or written, are merged herein and shall be of no further force or
effect.
6.8 Bindina Effect of Aareement. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto, their legal representatives, successors, and assigns. This
Agreement shall likewise be binding upon and obligate the Site and
the successors in interest, owner or owners thereof, and all of the
tenants, lessees, sublessees, and occupants of such Site.
6.9 Assurances to Act in Good Faith. Agency .and
Participant agree to execute all documents and instruments and to
take all action and shall use their besteffortsefforParts to accomplish
tc� plishallethe
the
purposes of this Agreement. Agency and
diligently and in good faith pursue the satisfaction of any
conditions or contingencies subject Le their approval.
6.10 Severabilitv. Wherever possible, each provision
of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If, however, any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Agreement.
6 ; "A" through "F", inclusive,
1" Exhibits. Exhibits in full.
attached hereto, are incorporated herein as set forth
IN WITNESS WHEREOF the Agency and Participant have executed
this Agreement as of the dace first written above.
ATTEST: THE COMMUNITY REDEVELOPMENT COMMISSION
O' THE CITY OF NATIONAL CITY, a public
body, corporate and pol=tic
By
SecreturY
5v:
"Agency"
APPROVEAS TO FORM:
arncy CounAel
[Signatures continue on next n gel
., 1
[Signatures continued from preceding page]
s3O(7T9-rnu l',r7853Za a08/2097
PARK VILLAS POINTE LP, a California
limited partnership
By: PARK VILLAS POINTE LLC, a California
limited liability company, General
Partner
By:
Lar
Managing Member
By: FF PARK VILLAS, LLC, a California
limited liability company, General
Partner
By: FAIRFIELD INVESTMENTS, INC., a
California corporation,
Managing Member
By:
Patrick J. Gavin, Vice
President
"Participant"
[Signatures continued from preceding page]
PARK VILLAS POINTE
limited partnership
By: PARK VILLAS POINTE LLC, a California
limited liability company, General
Partner
By:
LP, a California
Larry N. Gough, Managing Member
By: FF PARK VILLAS, LLC, a California
limited liability company, General
Partner
By: FAIRFIELD INVESTMENTS, INC., a
Ca1i`ornia corporation,
Managing Member
Bv: o
Patrick
President
S _ 7..03 17., 97
Gavin, Vice
"Participant"
Attachment 4
$500,000.00
PROMISSORY NOTE
August 19 , 1997
San Diego County, California
FOR VALUE RECEIVED, the undersigned ("Maker") hereby promises
to pay to THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
NATIONAL CITY, a public body, corporate and politic ("Holder"), at
a place designated by Holder, the principal sum of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) or such lesser amount which shall
from time to time be owing hereunder on account of unpaid advances
made by Holder to or for the benefit of Maker. The principal sum
hereof shall be disbursed pursuant to the terms and conditions set
forth in that certain Owner Participation Agreement dated
August 19, 1997 by and between Maker and Holder ("OPA"). Interest
shall accrue on all principal advanced hereunder at era e of six
and seventy-five one hundredths percent (6.750) per
annu1. Repayment by Maker. No payments of principal and
interest shall be payable hereunder unless and until an "Event of
Default" shall have been declared hereunder pursuant to Section 3
below. If no Event of Default shall have occurred hereunder on or
before September 1, 2014 ("Forgiveness Date"), all accrued interest
and all principal advanced hereunder shall be forgiven on the
Forgiveness Date. If an Event of Default is declared prior to the
Forgiveness Date, Maker shall commence repayment of the outstanding
principal balance of this Note, together with all accrued and
unpaid interest hereunder, on a monthly basis commencing on the
fifteenth day of the month succeeding the date the Event of Default
occurs and continuing on the fifteenth day of each succeeding month
solely from "Surplus Cash" (as such term is defined in that certain
Regulatory Agreement for Multifamily Housing Projects between Maker
and the Secretary of Housing and Urban Development dated July 1,
1997 and recorded on July 1, 1997 as Instrument No. 1997-00311772 by
in
the Official Records of San Diego
defined intheCalifornia)
OPA)gene during the
the Project (as such term
preceding month. If not sooner paid, all unpaid and unforgiven principal under this Note and all accrued, unpaid and unforg_ven
interest, if any, shall be due and payable on March 1, 2039
("Maturity Date"). Any payments made by Maker in payment of this
Note shall be applied first to the interest then accrued and then
to the unpaid principal balance under this Note.
2. Prebavment. This Note may be prepaid in whole or in part
at any time without penalty.
3. Event of Default. If (i) a default occurs under the OPA
or the Regulatory Agreement [as defined in the OPA]) which is not
cured within the time period set forth therein; (ii) Maker commits
PAGE 1 OF 4 PAGES
363/017739-0001/3076887. 4 aD8/20/97
��' ation in this Note which
a material breach of any promise or obligation
ys of receiving e which
is not cured by Maker within thirtYor 0) (ill.) a default occurs under
noticeny Holder of such default; period set
the time
any other instrument
iso notereafter cured within ring the indebtedness
forthonthe hereby then,and in any of such events, Holder may, at its
option,
therein,"Event of Default" to have occurred hereunder.
option, declare an
principal owing hereunder
4. by
e entire1unpaid andl nforgiven pf Default to six hereunnd ra r
shall mtme entire
shall commence to accrue interest umt a rate equal
quarters percent (6.75%) p
5. Collection Costs. Attorneys' Fees. If any attorney is
engaged by Holder because of anyisevent
hof defaulttunder rrthis
NoNote
reasonable
or
it
enforce or defend any
shall pay upon demand togetherawithe
is filed hereon, Holder
attorneys' fees and all costs so incurred
rate of interest
interest thereon until paid at the app.
payable hereunder, as if such fees and costs had been added to the
principal owing hereunder.
6 wa_vers b zr. Maker and all endorsers, guarantors
and p notice of protest, demand and
persons liable or to become liable on this Note waive
presentment, protest and demand, and all other notices
of this Note and any and all renewals
doishonor and nonpayment nature, and consent to any enewals
and mattersxof a like hereof and agree he terms of
extensions near the time of payment
that at any time and from time to time
lSe°uritynotice,
described in any
payment herein may
be modified orr art, or
documents securing this Note released meat between in whole Holder and any
or exchanged by g this
increased,nrchangedo said documents securing tos
Note, wofithout
the premises affected by
Note,
without in any way affecting the liability of any party this Nate or any persons btedress evidencedable or hereby.to become liable withrespect to
any in
�rovislens of this Note as to any persons or
7. geverabilit'. The unenforceability or invalidity of any
provision or provision or those provisions
ucnenforceable shall not render that to any other provisions or circum-
stances, and or lrovisionsalid shereof, in all other respects,
shall
stances, and all p
remain valid and enforceable- term hereof may
8. Modifications . Neither this Note nor any
discharged, modified, changed or terminated
be waived, amended, waiver of any provision hereof be effective
or
except nor shall any signed by Maker and Holder.aNo
delayt or m instrument onnt in writing s lny rigright
omission the part of Holder in exercising
or o any hereunder shall operate as a waiver of such rig
right under this Note.
PAGE 2 OF 4 PAGES
73il0 L7739-0001 3078387.4 s08r=0;97
•
9. No Waiver by Holder. No waiver of any breach, default or
failure of condition under the terms of this Note or the Deed of
Trust or the obligation secured thereby shall be implied from any
failure of the Holder of this Note to take, or any delay be implied
from any failure by the Holder in taking action with respect to
such breach, default or failure from any prior waiver of any
similar or unrelated breach, default or failure.
10. Usury. Notwithstanding any provision in this Note, Deed
of Trust or other document securing same, the total liability for
payment in the nature of interest shall not exceed the limit now
imposed by applicable laws of the State of California.
11. Governing Law. This Note has been executed and delivered
by Maker in the State of California and is to be governed and
construed in accordance with the laws thereof.
12. Non -Recourse Loan. Notwithstanding any provision or
obligation to the contrary contained in this Note, the liability of
Maker under this Note to Holder and its successors and assigns is
limited to the Surplus Cash generated by the Project and Holder
shall look exclusively thereto, or to such other security as may
from time to time be given for the payment of obligations arising
out of this Note or any other agreement securing the obligations of
Maker under this Note.
IN WITNESS WHEREOF, Maker has executed this Note as of the
date and year first above written.
PARK VILLAS POINTE LP, a California
limited partnership
By: PARK VILLAS POINTE LLC, a California
limited liability company, General
Partner
By:
Larry NManaging Member
(Signatures continue on next page]
383I017739-0O01/3078387.1 00817.0;97
PAGE 3 OF 4 PAGES
(Signatures continued from preceding page]
By: FF PARK VILLAS, LLC, a California
limited liability company, General
Partner
By: FAIRFIELD INVESTMENTS, INC.,
a California corporation,
Managing Member
r
By:
Patrick avin, Vice
President
PAGE 4 OF 4 PAGES
3834017739-0001li078887 4 :0812197
"Maker"
RESOLUTION NO. 2014 — 46
RESOLUTION OF THE SUCCESSOR AGENCY
TO THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY
AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT
FOR MODIFICATION OF OBLIGATIONS WHICH WILL AMEND
THE REGULATORY AGREEMENT, FORGIVE
THE PROMISSORY NOTE, AND TERMINATE THE PARTICIPATION
AGREEMENT WITH PARK VILLAS NATIONAL CITY, L.P.
WHEREAS, the City of National City formed the Community Development
Commission of the City of National City ("CDC"), which has continuously engaged in both
redevelopment activities under the Community Redevelopment Law (Health and Safety Code
sections 33000, et seq.) ("CRL") and housing authority activities under the Housing Authority
Law (Health and Safety Code sections 34200, et seq.); and
WHEREAS, at the time the City of National City formed the CDC, the City also
established the Housing Authority of the City of National City (Ordinance No. 1484, dated
October 14, 1975); and
WHEREAS, the Redevelopment Agency of the City of National City ("Agency")
was established by Ordinance No. 1164, dated April 11, 1967; and
WHEREAS, the CDC was established to enable both the Agency and the Housing
Authority to operate under a single board and single entity; and
WHEREAS, by enactment of Part 1.85 of Division 24 of the Health and Safety
Code, the Agency, was dissolved as of February 1, 2012 such that the Agency was deemed as a
former redevelopment agency under Health and Safety Code section 34173(a); and
WHEREAS, the Agency was succeeded by the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency ("Successor
Agency"); and
WHEREAS, Agency and Park Villas National City, LP, ("Participant") entered into
certain agreements with respect to a $500,000 forgivable loan made by Agency to Participant as
of August 19, 1997 (the "Loan"), via Resolution Number 97-38, as follows:
• A Regulatory Agreement and Declaration of Covenants
and Restriction, dated as of August 19, 1997, executed by Agency and
Participant (the "Agency Regulatory Agreement");
• An Owner Participation Agreement, dated as of August 19,
1997, executed by Agency and Participant (the "Participation Agreement");
• A Promissory Note, dated as of August 19, 1997, in the
principal amount of $500,000.00, executed by Participant to the order of Agency
(the "Note"); and
WHEREAS, said documents relate to the redevelopment and operation of the
268-unit multifamily residential development commonly known as the Park Villas Apartments,
817 Eta Street, National City, San Diego County, California (the "Project"); and
Resolution No. 2014 — 46
Page Two
WHEREAS, Successor Agency, Participant and First Trust of California, National
Association entered into a certain Regulatory Agreement and Declaration of Restrictive
Covenants, dated as of June 1, 1997, and recorded on July 1, 1997 as Instrument No. 1997-
0311773 (the "Bond Regulatory Agreement"), relating to the Project; and
WHEREAS, Participant and the California Tax Credit Allocation Committee
entered into a certain Regulatory Agreement Federal Credits Tax -Exempt Bond Financed
Project dated as of July 31, 1998, and recorded on October 7, 1999 as Instrument No. 1999-
0679835 (the "TCAC Regulatory Agreement"), relating to the Project; and
WHEREAS, Successor Agency and Participant wish to enter into certain
agreements to modify the end date of the Note, clarify the termination dates of the Regulatory
Agreement, extend the length of the TCAC Regulatory Agreement affordability covenants to the
benefit of the Successor Agency, and acknowledge Participant's consent and waiver of claims
to the prior sale of GNMA Collateralized — Park Villa Apartments, Series 1997 Series A Bonds
on the terms and conditions provided in the Agreement for Modification of Obligations.
NOW, THEREFORE, BE IT RESOLVED, by the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency, that the
Chairman is hereby authorized to execute the Agreement for Modification of Obligations on file
with the Secretary of the Successor Agency.
PASSED and ADOPTED this 20th day of May, 2014.
Ron Morrison, Chairman
ATTEST:
Michael R. Dalla, City Clerk as
Secretary to the Successor Agency
APPROVED AS TO FORM:
Claudia Gacitua Silva
Successor Agency Counsel
CITY OF NATIONAL CITY
Office of the City Clerk
1243 National City Blvd., National City, California 91950
619-336-4228 phone / 619-336-4229 fax
Michael R. Dalla, CMC - City Clerk
PARK VILLAS NATIONAL CITY
Agreement for Modification of Obligations
Alfredo Ybarra (Housing & Grants) Forwarded Copy of
Agreement to Park Villas National City