HomeMy WebLinkAboutJamboree Housing Corporation - 2019-11-04 i
y
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
RECORDING REQUESTED BY II I I II II I II I II III I I I I CI I I II NO FEE
AND WHEN RECORDED RETURN TO. * $ R 0 0 1 1 4 4 5 6 1 6 $ *
2020000038046 8:00 am 01129/20
THE CITY OF HUNTINGTON BEACH 9 503A NO3 6
2000 Main Street 0.00 0.00 0.00 0.0015.00 0.00 0.000.000.00 0.00
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 27383
Notice of Affordability Restrictions on Transfer of Property
NOTICE IS HEREBY GIVEN that pursuant to Health & Safety Code
Section 33334.3(f), BEACH HOUSING PARTNERS LP, a California limited
partnership is recording this Notice of Affordability Restrictions on Transfer of
Property (hereinafter the "Notice") with regard to certain real property located in
the City.of Huntington Beach more particularly described in Exhibit "A" which is
attached hereto and incorporated herein by this reference (the "Property").
The Property is subject to the Agreement Containing Covenants (the
"Covenants") recorded concurrently herewith, which 'restricts the use of the
Property as follows:
Thirty-three (33) one bedroom Affordable Units (hereinafter
defined) that are reserved for occupancy by Extremely Low Income
Households (hereinafter defined) at an Affordable Rent (hereinafter
defined) and six (6) one bedroom and three (3) two-bedroom
Affordable Units that are reserved for occupancy by Very Low
Income Households (hereinafter defined) at an Affordable Rent.
"Affordable Unit" shall mean one of the forty-two (42) rental
dwelling units developed on the Property restricted to occupancy by
V3 1-22-20 execution
Notice of Affordability Restrictions
Page 1 of 4
I
RECORDING REQUESTED BY =h
AND WHEN RECORDED RETURN TO:
THE CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 27383
Notice of Affordability Restrictions on Transfer of Property
NOTICE IS HEREBY GIVEN that pursuant to Health & Safety Code
Section 33334.3(f), BEACH HOUSING PARTNERS LP, a California limited
partnership is recording this Notice of Affordability Restrictions on Transfer of
Property (hereinafter the "Notice") with regard to certain real property located in
the City of Huntington Beach more particularly described in Exhibit "A" which is
attached hereto and incorporated herein by this reference (the "Property").
The Property is subject to the Agreement Containing Covenants (the
"Covenants") recorded concurrently herewith, which restricts the use of the
Property as follows:
Thirty-three (33) one bedroom Affordable Units (hereinafter
defined) that are reserved for occupancy by Extremely Low Income
Households (hereinafter defined) at an Affordable Rent (hereinafter
defined) and six (6) one bedroom and three (3) two-bedroom
Affordable Units that are reserved for occupancy by Very Low
Income Households (hereinafter defined) at an Affordable Rent.
"Affordable Unit" shall mean one of the forty-two (42) rental
dwelling units developed on the Property restricted to occupancy by
V3 1-22-20 execution
Notice of Affordability Restrictions
Page 1 of 4
Very Low Income Households and Extremely Low Income
Households at an Affordable Rent. The term "Affordable Unit" and
"Affordable Units" shall be used as the context mandates and shall be
reasonably interpreted in light of the context in which the term
appears.
"Extremely Low Income Household" shall mean persons and
families whose income does not exceed the income limits for
Extremely Low Income households in Orange County, published
approximately annually by California's Housing and Community
Development Department. If California's Housing and Community
Development Department discontinues publishing such income limits,
the term "Extremely Low Income" shall mean a household income
that does not exceed 30% of the Area Median Income, adjusted for
family size.
"Very Low Income Household" shall mean persons and
families whose income does not exceed the income limits for Very
Low Income households in Orange County, published approximately
annually by California's Housing and Community Development
Department. If California's Housing and Community Development
Department discontinues publishing such income limits, the term
"Very Low Income" shall mean a household income that does not
exceed 50% of the Area Median Income, adjusted for family size.
"Affordable Rent" shall mean rental rates not to exceed the
following:
a. In the case of an Extremely Low Income Unit, the
product of 30 percent times 30 percent of the Area Median Income
adjusted for family size appropriate for the unit.
b. In the case of a Very Low Income Unit, the product of 30
percent times 50 percent of the Area Median Income adjusted for
family size appropriate to the unit.
V3 1-22-20 execution
Notice of Affordability Restrictions
Page 2 of 4
For purposes of determining Affordable Rent, household size
appropriate to the unit shall mean two persons in the case of a 1-
bedroom unit and three persons in the case of a 2-bedroom unit.
Affordable Rent shall include a reasonable utility allowance for
tenant-paid utilities based on the Orange County Housing Authority's
published utility schedules.
"Area Median Income" shall mean the area median income of
the Orange County metropolitan statistical area (PMSA), with
adjustments for household size, as estimated annually by the United
States Department of Housing and Urban Development pursuant to
Section 8 of the United States Housing Act of 1937 as amended and
published by California's Housing and Community Development
Department pursuant to Health and Safety Code Section 50093.
The affordability restrictions imposed on the Property by the Covenants are
scheduled to expire on the date that is fifty-five (55) years from the date of the
Covenants.
This Notice is recorded for the purpose of providing notice only and it in no
way modifies the provisions of the Covenants.
[Remainder of Page Intentionally Left Blank; Signatures on Following Page]
V3 1-22-20 execution
Notice of Affordability Restrictions
Page 3 of 4
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC, a California limited
liability company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public
benefit corporation
Its: Man) r
By ..---
Name: Michael Massie
Title: Chief Development
Officer
V3 1-22-20 execution
Notice of Affordability Restrictions
Page 4 of 4
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF
On �tA ,JAL before me, /��►L'I't
personally appeared "ff/F who proved to me on the basis of satisfactory
evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/sheAhey executed the same in his/hc;Ah@ir authorized capacity(4 s),
and that by his/her/dT&signature(g)on the instrument the person(, or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. emy
JUDI LOWENTHAL
NOTARY
#2273342 ►^
1(JNOTARY PUBLIC-CALIFORNIAORANGE COUNTY COMM,EXP,JAN.25,
Signature (Seal)
Exhibit "A"
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of
California, described as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 76,
PAGE 4 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
APN: 159-031-18
1
&PR6VED 6- a-l
t
City of Huntington Beach
File #: 19-1024 MEETING DATE: 11/4/2019
REQUEST FOR CITY COUNCIUHOUSING AUTHORITY ACTION
SUBMITTED TO: Honorable Mayor/Chair and City Councilmembers/Commissioners
SUBMITTED BY: Oliver Chi, City Manager/Executive Director
PREPARED BY: Kellee Fritzal, Deputy Director of Economic Development
Subject:
Approve and authorize execution of an Acquisition Loan Agreement between the City and
Jamboree Housing Corporation for development of up to 43 senior apartment units located at
18431 Beach Boulevard; and approve allocation of funds
Statement of Issue:
Jamboree Housing Corporation ("Jamboree") has entered into a purchase and sale agreement for
the acquisition of an approximately .78 acre parcel of vacant land located at 18431 Beach Boulevard
(Site), with the intent to develop an affordable housing project. Based on the merits of the project,
coupled with the City's availability of restricted housing funds, staff is recommending approval of a $3
million property acquisition loan to help facilitate the affordable housing development project. Of
note, the proposed property acquisition loan would only be to help facilitate acquisition of the Site. If
Jamboree is unable to secure financing for the project, or if Jamboree fails to entitle their proposed
project, the Site would have to then be transferred back to the City.
Financial Impact:
The funding will be through the Inclusionary Housing Fund of $2.1 million (Fund 217) and LMIHAF
Fund of $900,000 (Fund 352); the former Redevelopment Agency housing funds. Both of these
funds are restricted for the purpose of developing affordable housing within the City. Adequate fund
balance is available in both funds.
Recommended City Council and Housing Authority Action:
A) Approve the Loan Agreement (as defined later in this Staff Report) by and between the City of
Huntington Beach, the Housing Authority and JHC-Acquisitions LLC. Authorize the City
Manager/Executive Director and City Attorney/Authority Counsel to make non-substantive changes if
required; and,
B) Authorize and direct the City Manager/Executive Director, after City Attorney/Authority Counsel
review, to sign any necessary documents to implement the Agreement; and,
C) Appropriate funds of$2.1 million from Fund 217 and $900,000 from Fund 352 for this purpose.
City of Huntington Beach Page 1 of 3 Printed on 10/31/2019
powere935 LegistarT'"
File #: 19-1024 MEETING DATE: 11/4/2019
Alternative Action(s):
Do not approve the Agreement and provide Staff direction.
Analysis:
Jamboree has entered into a purchase and sale agreement to acquire the Site for $3 million. As part
of their proposed development plan, the developer has been engaged in discussions with the City
regarding a possible subsidy to facilitate their acquisition of the identified property. After review and
analyzing the issue in great detail, staff and Jamboree have developed for City Council consideration
an Acquisition Loan agreement (Loan Agreement). If approved, the Loan Agreement would result in
the City providing Jamboree with a $3 million loan to facilitate acquisition of the Site. Of note, the
Loan Agreement would be secured by the real property acquired, and would also require that
affordability covenants be recorded against the Site to prohibit anything other than affordable housing
on the property.
By acquiring the Site, Jamboree will be able to seek funding for the construction of the project from
multiple sources including the State, County, and the Tax Credit Allocation Committee ("TCAC"). If
Jamboree fails to secure the required funding for development, the land will be conveyed to the City
for a future affordable housing project.
While Jamboree has entered into a purchase and sale agreement to acquire the Site for $3,000,000,
an appraisal dated July 30, 2019, prepared by Nagasaki and Associates, values the site at three
million, two hundred thousand Dollars ($3,200,000). Jamboree has conducted both a Phase I and
Phase II Environmental Site Assessment which determined the site to be free of environmental
contamination liabilities.
Jamboree is a nonprofit affordable housing developer founded in 1990 with the mission to deliver
quality housing and services, leverage resources, transform lives, and strengthen communities.
Jamboree currently has five (5) successful affordable housing projects within the City of Huntington
Beach.
The Community Development Department has reviewed several conceptual housing projects at the
site over the past ten years. Jamboree's site analysis has resulted in the following conceptual unit
yield for the site:
Type of Units Number of Units
1-Bedroom Units 39
2- Bedroom Units 4
Total 43
Part of Jamboree's site analysis to determine whether the site is a good candidate to be eligible for
restricted funds not only requires the unit yield analysis, but an affordability analysis as well. As part
of this analysis, Jamboree envisions this affordable housing project to consist of 33 units for
extremely low-income seniors, and six units for low income seniors. Jamboree also envisions a
future project to include wrap-around services to assist the vulnerable, extremely low-income
City of Huntington Beach Page 2 of 3 Printed on 10/31/2019
powere43A,Legistar`"l
e
File #: 19-1024 MEETING DATE: 11/4/2019
population that Jamboree looks to serve at the site. This model is often referred to as "permanent
supportive housing."
It is necessary for Jamboree to acquire the site in order to be competitive for additional funding. The
City's financial consultant, Keyser Marston Associates, reviewed Jamboree's pro-forma and
determined that the projected costs and revenues are in line with industry standards for the proposed
product type and financial gap of three million, three hundred eleven thousand dollars ($3,311,000)
does exist. In other words, the projected costs to develop the proposed product type exceed the
projected revenue generated by over three million dollars. Therefore, the loan amount of three
million dollars ($3,000,000) is reasonable and justified to enable an affordable housing development
at the site.
If the Loan Agreement is approved, Jamboree will use its best efforts to secure additional financing
and entitlements. Upon successful completion of those efforts, an Affordable Housing Agreement will
be brought forward to the City Council for consideration to memorialize the specifics of an affordable
housing development (unit count, affordability, etc.).
Environmental Status:
The action to approve the Loan Agreement with Jamboree is exempt pursuant to Section 15061(b)(3)
of the California Environmental Quality Act (CEQA) Guidelines, which exempts activities where it can
be seen with certainty that there is no possibility that the activity may have an adverse environmental
effect. Jamboree is currently in the process of acquiring the Site and is requesting an acquisition
loan from the City. The action to enter into the Loan Agreement with Jamboree does not constitute
project approval or ensure that the project would obtain funding to move forward. Jamboree is
acquiring the site for the purpose of obtaining funding for and the subsequent development of an
affordable housing project of up to 43 units on the site, which would be subject to a separate
development application and environmental review process. However, a future project contemplated
on the Site would be exempt pursuant to Section 15194, which exempts affordable housing projects
meeting specific criteria listed in Sections 15192 and 15194 of the CEQA Guidelines. Based on
current site information, the Site and project would meet the criteria listed in the above-mentioned
sections.
Strategic Plan Goal:
Non-Applicable - Administrative Item
Attachment(s):
1. Acquisition Loan Agreement by and between the City of Huntington Beach and JHC-
Acquisitions LLC
City of Huntington Beach Page 3 of 3 Printed on 10/31/2019
powerA37y LegistarT'"
City Council/ ACTION AGENDA November 4, 2019
Public Finance Authority
D) Approve the appointment of Marie Knight to the position of Director of Organizational
Learning & Engagement; and,
E) Approve and authorize the City Manager to execute the "Employment Agreement Between
the City of Huntington Beach and Marie Knight" for the position of Director of Organizational
Learning and Engagement.
Approved 6-0-1 (Peterson absent) as amended to strike reference to vacant Department
Head positions identified on Exhibit 1 of Resolution 2019-78
16. 19-1104 Approved the appointment of Christopher Slama to the position of the
Director of Community Services and authorized the City Manager to execute the
Employment Agreement
Recommended Action:
Approve and authorize the City Manager to execute the "Employment Agreement Between the City
of Huntington Beach and Christopher Slama"for the position of Director of Community Services.
Approved 6-0-1 (Peterson absent)
ADMINISTRATIVE ITEMS
17. 19-1119 Approved and authorized execution of a Lease Agreement for Let's Go
Fishing and Surf City Snack Bar, LLC at the Huntington Beach Pier
Recommended Action:
A) Approve and authorize the Mayor, City Clerk, and City Manager to execute "Lease
between the City of Huntington Beach and Let's Go Fishing and Surf City Snack Bar,
LLCMarian Johnson a solo proprietor, doing business as Let's Go Fishing and Surf Gity
Sn Gk in the City of Huntington Beach"; and,
B) Direct staff to review expectations/options for the Pier Concession and bring back as a Study
Session item.
Approved 6-0-1 (Peterson absent) as amended to revise lease agreement from a 1-year to 6-
month term, with a month-to-month option thereafter for year one; and, to accept revisions
submitted via Supplemental Communication to update the business name and delete
Section 16. SECURITY DEPOSIT.
18. 19-1024 Approved and authorized execution of an Acquisition Loan Agreement
between the City, Housing Authority and Beach Housing Partners LP for development of
up to 43 senior apartment units located at 18431 Beach Boulevard; and approved
allocation of funds
Recommended City Council and Housing Authority Action:
A) Direct the City Manager/Executive Director and City Attorney/Authority Counsel to
finalize the draft Acquisition Loan Agreement(18431 Beach Boulevard) by and among
the Huntington Beach Housing Authority, City of Huntington Beach, and Beach
Housing Partners LP; Approve the Loan Agreement (as defined Inter in this Staff Report\
by and betNeen the City of Huntington BeaGh, the Housing Authority and jHG AGqUiSitieRs
make non_substantive nhonges if required; and,
City Council/ ACTION AGENDA November 4, 2019
Public Finance Authority
B) Authorize and direct the City Manager/Executive Director, after City Attorney/Authority
Counsel review, to sign any necessary documents to implement the Agreement; and,
C) Appropriate funds of $2.1 million from Fund 217 and $900,000 from Fund 352 for this
purpose.
Approved 6-0-1 (Peterson absent) as amended by Supplemental Communication to
revise Recommended City Council and Housing Authority Action A).
19. 19-1094 Directed staff to prepare Amendments to the Housing Element of the
General Plan and to the Beach Edinger Corridor Specific Plan (BECSP) to obtain
Housing and Community Development (HCD) certification for the purpose of being
eligible to apply for SB 2 Funds
Recommended Action:
Direct staff to prepare a plan for the amendments to the Housing Element and Beach
Edinger Corridor Specific Plan (BECSP) with the affordable housing overlay, and submit
that plan to the State Housing and Community Development(HCD) for consideration and
review in an effort to get our Housing Element certified nirent otaff t„ prepare aR
am the He Sinn t and R e innil nnnsideratinn
arrr2i� fn2n#s t•8 �@FT�eprarrcr-v cru-crvi�,
Approved 4-2-1 (Semeta, Hardy-No; Peterson-Absent) as amended.
COUNCILMEMBER COMMENTS (Not Agendized)
Comments provided Brenden, Carr, Posey, Delgleize, Hardy and Semeta
ADJOURNMENT- 9:53 PM
The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority is
Monday, November 18, 2019, at 4:00 PM in the Civic Center Council Chambers, 2000 Main Street,
Huntington Beach, California.
INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND
STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT
http://www.huntingtonbeachca.gov
The Acquisition Loan Agreement between the City and Jamboree Housing
Corporation will be published with Supplemental Communications scheduled for
release on Friday, November 1, 2019 at approximately 3:00 PM
438
CITY OF HUNTINGTON BEACH
SUPPLEMENTAL COMMUNICATION
TO: Honorable Mayor and City Councilmembers
FROM: Ursula Luna-Reynosa, Community Development Director
Kellee Fritzal, Deputy Director of Economic Development
DATE: 11/01/2019
SUBJECT: SUPPLEMENTAL COMMUNICATION FOR ADMINISTRATIVE ITEM NO. 18 (19-1024)—
ACQUISITION LOAN AGREEMENT FOR 18431 BEACH BOULEVARD, ON THE
NOVEMBER 4, 2019 CITY COUNCIL/PFA REGULAR AND HOUSING AUTHORITY
SPECIAL MEETING AGENDA
Please find attached the draft Acquisition Loan Agreement for 18431 Beach Boulevard with Exhibits 1-12 for
Administrative Item No. 18 (19-1024). Recommended City Council and Housing Authority Action A) is
revised to reflect the correct listing of Agreement participants:
A) Direct the City Manager/Executive Director and City Attorney/Authority Counsel to finalize the draft
Acquisition Loan Agreement(18431 Beach Boulevard) by and among the Huntington Beach Housing
Authority, City of Huntington Beach, and Beach Housing Partners LP; and,
Recommended City Council and Housing Authority Actions B) and C) remain unchanged.
Aft. Draft Acquisition Loan Agreement w/Exhibits 1-12
SUPPLEMENTAL
COMMUNICATION
Coate:
Agenda lkm No.•
ACQUISITION LOAN AGREENIENT
(18431 Beach Boulevard)
by and among
HUNTINGTON BEACH HOUSING AUTHORITY,
Authority,
and
CITY OF HUNTINGTON BEACH,
City,
and
BEACH HOUSING PARTNERS LP,
Borrower.
ACQUISITION AN AQR FMENT
i
THIS ACQUISITION LOAN AGREEMENT ("Agreement") is entered into as of
January 23, 2020 ("Effective Date") by and among the City of Huntington Beach, a municipal
corporation of the State of California ("City"), the Huntington Beach Housing Authority, a
public body corporate and politic ("Authority"), and Beach Housing Partners LP, a California i=
limited partnership("Borrower"). City,Authority and Borrower agree as follows: 1
PART 1. SUBJECT OF AGREEMENT
SECTION 1.1 Pumose of the Agreement
The purpose of this Agreement is to increase affordable housing in the City by providing
financing for Borrower's acquisition of the hereinafter defined Property, which, conditioned
upon and subject to, among other things compliance with any subsequent environmental review
and receipt of all necessary and required entitlements and project approvals, will be developed
and operated with forty-three (43) units of rental housing, forty-two (42) of which shall be
affordable to Very Low Income Households and Extremely Low Income Households at an
Affordable Rent and one(1)manager's unit("Project"). The acquisition of the Property pursuant
to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best
interests of the City and the health, safety, morals, and welfare of its residents, and in accord
with the public purposes and provisions of applicable federal, state, and local laws and
requirements. Pursuant to this Agreement, the Authority and City will each make a loan to
Borrower to pay the cost of acquiring the Property for the uses described above. This Agreement
is in furtherance of the public purposes set forth in the Housing Authorities Law, Sections 34200
et seq. of the California Health and Safety Code and the Community Redevelopment Law of the
State of California,Sections 33000 et seq. of the California Health and Safety Code.
SECTION 1.2 Definitions
i
For purposes of this Agreement, the following capitalized terms shall have the following
meanings:
"Acquisition Costs" shall mean the total cost of acquiring the Property in conformance
with the terms and conditions of this Agreement, in an amount approved by the Executive
Director and the City Manager, including closing and escrow costs and the cost of the Title
Insurance Policies.
"Affordable Housing Agreement" shall mean an Affordable Housing Agreement to be
negotiated by the Authority, City and Borrower pursuant to which the City and Authority may
agree that all or part of the City Loan and Authority Loan, respectively, would convert to
construction and permanent financing for the Project, Borrower would agree to develop,
19431 arch BoWcva,d
Acq L. Apm v6 1-2120 a Ww I
� I
construct, and operate the Project and rent the Extremely Low Income Units and Very Low
Income Units to Extremely Low Income Households and Very Low Income Households at an
Affordable Rent, Authority, City and Borrower would agree to terms and conditions regarding
the remaining financing for the development, construction, and operation of the Project, all on
terms and conditions which may be negotiated and included in the Affordable Housing
Agreement,as set forth in more detail in this Agreement.
"Affordable Rent"shall mean rental rates not to exceed the following: j
I
1) In the case of an Extremely Low income Unit, the product of 30 percent
times 30 percent of the Area Median Income adjusted for family size appropriate for the unit.
2) In the case of a Very Low Income Unit shall not exceed the product of 30
percent times 50 percent of the Area Median Income adjusted for family size appropriate to the
unit.
For purposes of determining Affordable Rent,household size appropriate to the unit shall
mean two persons in the case of a 1-bedroom unit and three persons in the case of a 2-bedroom
unit. Affordable Rent shall include a reasonable utility allowance for tenant-paid utilities based
on the Orange County Housing Authority's published utility schedules.
"Affordable Unit'shall mean one of the proposed forty-two (42)rental dwelling units in
the Project restricted to occupancy by Very Law Income Households and Extremely L.ow
Income Households at an Affordable Rent. The tern"Affordable Unit" and "Affordable Units"
shall be used as the context mandates and shall be reasonably interpreted in light of the context
in which the term appears.
"A ueement" or any reference to this "Agreement" shall mean this Acquisition Loan
Agreement executed by and among Authority, City and Borrower, including all exhibits attached
hereto, which exhibits are incorporated herein by this reference and all other documents
incorporated herein by reference.
"Agreement Containing Covenants" shall mean the Agreement Containing Covenants
(Including Rental Restrictions) to be recorded upon the Close of Escrow, substantially in the
form attached to this Agreement as ATTACHMENT No. 3.If an Affordable Housing Agreement
is successfully negotiated and entered into, it is anticipated that the Agreement Containing
Covenants will be replaced and superseded by a new Agreement Containing Covenants setting
forth the Affordable Rents to be charged for the Affordable Units, which would be recorded at
the Construction Financing Event for the Project. The Agreement Containing Covenants shall
unconditionally be and at all times remain prior and superior to any lien created by the Authority
Ivan or the City Ivan or by the Option Agreement.
18431 aeuh awlewrd
Acq Lam Alm v61-23-20 exe im 2
I
I
i i ...
"Approved Title Conditions" shall mean title that is subject to current property taxes and
assessments, easements and other encumbrances specifically approved by the Executive Director
and the City Manager,
"Area Median Income" shall mean the area median income of the Orange County
metropolitan statistical area(PMSA),with adjustments for household size, as estimated annually
by the United States Department of Housing and Urban Development pursuant to Section S of
the United States Housing Act of 1937 as amended and published by California's Housing and
Community Development Department pursuant to Health and Safety Code Section 50093.
"Authori 'shall mean the Huntington Beach Housing Authority and any assignee of or
successor to its rights,powers and responsibilities.
"Authority Assignment of Agreements" shall mean a document substantially in the form
attached to this Agreement as ATTACHMENT No. 6, which is incorporated herein by this
reference.
"Authority Instruments" shall mean and include this Agreement, the Agreement
Containing Covenants, the Environmental Indemnity, the Option Agreement, the Memorandum
of Option,and the Authority Loan Documents.
"Authority LN11EW Loa " or"Authority Loan"shall mean the acquisition loan from the
Authority to Harrower, in the original principal amount of Nine Hundred Thousand Dollars
($900,000)from the Authority's Low and Moderate Income Housing Asset Fund and pursuant to
the terms and conditions described in this Agreement, secured by the Authority LMRIAF Loan
Deed of Trust and the other Authority Loan Documents and having a lien on the Property that is
first in priority over any other loans.
"Authority LMIHAF Loan Deed of TrusP'shall mean the Deed of Trust with Assignment
of Rents, in which Borrower is the Truster and Authority is the Beneficiary, which secures the
Authority LMIHAF Loan, substantially in the form attached to this Agreement as
ATTACHMENT No. 5, which is incorporated herein by this reference. If an Affordable
Housing Agreement is successfully negotiated and entered into, it is anticipated that the
Authority LMIHAF Loan Deed of Trust will be replaced and superseded by a new Authority
LMIHAF Loan Deed of Trust, which would be recorded at the Construction Financing Event for j
the Project.
"Authority LMIHAF Loan Note" shall mean the Promissory Note, evidencing the i
Authority LMIHAF Loan, substantially in the form attached to this Agreement as
ATTACHMENT No. 4, which is incorporated herein by this reference. If an Affordable
Housing Agreement is successfully negotiated and entered into, it is anticipated that the
Authority UGHAF Loan Note will be replaced and superseded by a new Authority LMIHAF
Loan Note,which would be executed at the Construction Financing Event for the Project.
I
18431 Roth Bmkwrd
Aeq Lean AS=v6 1-23-20 a tim 3
1
i
"Authority u nts" shall mean the instruments relating to the Authority Loan,
including: the Authority LMIHAF Loan Note; the Authority LMII-IAF Loan.Deed of Trust;and
the Authority Assignment of Agreements, each in a form that is reasonably acceptable to the
Executive Director, The Authority Loan Documents do not include the Agreement Containing
Covenants,Option Agreement,Memorandum of Option, or the Environmental Indemnity.
"Cy shall mean the City of Huntington Beach, California and any assignee of or
successor to its rights,powers and responsibilities.
i
"City Inclusionary Loan" or"City Loan"shall mean the acquisition loan from the City to
Borrower, in the original principal amount of Two Million One Hundred Thousand Dollars
($2,100,000) of Affordable Housing Trust Funds and pursuant to the terms and conditions
described in this Agreement, secured by the City Inclusionary Loan Deed of Trust and the other
City Loan Documents and having alien on the Property that is second in priority over any other
loans.
"City Inclusionary Loan Deed of Trust"shall mean the Deed of Trust with Assignment of
Rents, in which Borrower is the Trustor and City is the Beneficiary, which secures the City
Inclusionary Loan, substantially in the fort attached to this Agreement as ATTACHMENT No.
8, which is incorporated herein by this reference. If an Affordable Housing Agreement is
successfully negotiated and entered into,it is anticipated that the City Inclusionary Loan Deed of
Trust will be replaced and superseded by a new City Inclusionary Loan Deed of Trust, which
would be recorded at the Construction Financing Event for the Project.
"City Inclusionary Loan Note" shall mean the Promissory.Note, evidencing the City
Lnclusionary Loan, substantially in the form attached to this Agreement as ATTACHMENT No.
7, which is incorporated herein by this reference. If an Affordable Housing Agreement is
successfully negotiated and entered into, it is anticipated that the City Inclusionary Loan Note
will be replaced and superseded by a new City Inclusionary Loan Note, which would be
executed at the Construction Financing Event for the Project.
"City Instruments" shall mean and include this Agreement, the Agreement Containing
Covenants, the Option Agreement, the Environmental Indemnity, the Memorandum of Option,
and the City Loan Documents.
"City Loan Documents"shall mean the instruments relating to the City Loan, including:
the City Inclusionary Loan Note; the City inclusionary Lean Deed of Trust; and the City
Assignment of Agreements, each in a form that is reasonably acceptable to the City Manager,
The City Loan Documents do not include the Agreement Containing Covenants, Option
Agreement,Memorandum of Option,or the Environmental Indemnity.
"City Manaeer"shall mean the individual duly appointed to the position of City Manager
of the City, or authorized designee.
i
19431 aneh aoWe d
Aeq Lw Ate[v61-33-70=a Ilm 4
I l
I
"Close of Escrow" shall mean the point in time when all conditions precedent to the
funding of the Authority Loan and City Loan have been satisfied as set forth herein,
I
"C9nstruction Financing Event" shall mean the point in time when all of the following
events have occurred or have been satisfied as determined by the City Manager and Executive
Director:
I
(i) Borrower shall have complied with all applicable provisions of federal, state and j
local laws pertaining to the approvals for the Project, including the obligation to
comply with environmental laws, including but not limited to the applicable
requirements of CF-QA;
(ii) Borrower, Authority and City have negotiated and approved an Affordable
Housing Agreement and Borrower has executed the Affordable Housing
Agreement and any attachments thereto which require execution and any such
attachments which require recordation have been or will concurrently be duly
recorded in the Official Records of the Orange County Recorder's Office;
(iii) Borrower has prepared and submitted a reasonably detailed scope of development
for the Project as an attachment to the Affordable Housing Agreement for
approval by the Authority and City which is consistent with the terms of this
Agreement and contains the Extremely Low Income Units and the Very Low
Income Units as set forth herein;
(iv) Borrower has prepared and submitted a reasonably detailed project budget for the
Project as an attachment to the Affordable Housing Agreement for approval by
the Authority and City, which indicate the items for which payment will be
sought, the anticipated cost of each item, the proposed source of funding and a
proposed payment schedule. Line item estimates of costs shall be backed up by
documentation, including appraisals and construction cost estimates, as may
reasonably be required by the Authority or City;
(v) Borrower has prepared and submitted a reasonably detailed method of financing
for the Project as an attachment to the Affordable Housing Agreement for
approval by the Authority and City,setting forth the financing for the Project;
(vi) Borrower has executed any promissory notes, deeds of trust and/or other
instruments as are customary and appropriate to the Authority and City approved
funding mechanisms set forth in the approved method of financing for the Project
all in a form that is acceptable to the City Manager and Executive Director and
any such instruments which require recordation have been duly recorded in the
Official Records of the Orange County Recorder's Office;
(vii) Borrower has submitted for approval by the Authority and City evidence of
financing, including without limitation bond, grant, and/or loan documents,
consistent with the approved Project scope of development, approved Project
budget, and approved method of financing sufficient to completely finance the
development, construction and operation of the Project, including the financing
required to convert from the construction to the permanent phase of the Project;
19431 amchaminud
Acq tin Agm.d 1-23-2a axe utlm 5
(viu) Borrower has prepared and submitted a reasonably detailed schedule of
performance for the Project as an attachment to the Affordable Housing
Agreement for approval by the Authority and City providing for the timely
commencement and completion of construction of the Project;
(ix) Borrower has prepared and submitted for Authority and City review and approval
all corporate and partnership or limited liability formation documents for any
entity to be formed by the Borrower for the performance of the Project and its
constituent general partners or members, certificates of good standing and/or
other evidence of current authority for all such entities to conduct business within
the State of California, agreements with tax credit investors (if any), and express
consents and resolutions consenting to this transaction, as the Authority or City
may determine to be applicable;
(x) Borrower has obtained and provided evidence to the Authority and City of all
policies of insurance in the form and in the amounts as may be required by the
Affordable Housing Agreement;
(xi) Borrower has submitted evidence that the final working drawings for the Project
have been approved by the City in connection with the permitting and project
approvals of the Project;
(xii) Borrower has submitted a copy of the fully executed general construction contract
with a licensed general contractor,covering all construction work required by the
Affordable Housing Agreement and the approved final working drawings;
(xiii) Borrower has submitted evidence satisfactory to the City Manager and Executive
Director that Borrower has satisfied all conditions precedent to the issuance of all
permits and entitlements necessary for the Project,other than payment of fees(for
which funds have been budgeted in the project budget);
(xiv) Borrower has submitted for approval by the Authority and City and the Authority
and City have approved a maintenance program, including the maintenance
budget as is intended to be set forth in the Affordable Housing Agreement;
(xv) Borrower has submitted for approval by the Authority and City and the Authority
and City have approved an annual project budget for the first year of operation of
the Project as is intended to be set forth in the Affordable Housing Agreement;
(xvi) Borrower has submitted for approval by the Authority and City and the Authority
and City have approved a management plan as is intended to be set forth in the
Affordable Housing Agreement;
(xvii) Borrower has submitted for approval by the Authority and City and the Authority
and City have approved a binding commitment for the permanent loan for the
Project;
(xviii) The Authority and City have approved any limited partnership agreement and
guaranty and reserve Agreements,as applicable; and
(xix) Borrower has satisfied any other requirements for the Construction Financing
Event as may be set forth in the Affordable Housing Agreement,
18431 Both Bwl wd
Aoq L. Ag nt v6 1-23-20 n=tIm 6
"Environmental IndemnitW' shall mean an instrument substantially in the form attached
to this Agreement as ATTACHMENT No. 10.
"Escrow' shall mean that certain escrow with Escrow Agent,which has been established
to convey the Property from the Seller to Buyer, or another escrow mutually acceptable to
Authority, City and Borrower.
"Escrow Agent shall mean First American Title Insurance Company, or another escrow
agent mutually acceptable to Authority,City and Borrower.
'Executive Director" shall mean the individual duly appointed to the position of
Executive Director of the Authority,or authorized designee.
"Extremely Low Income HouschoW, shall mean persons and families whose income
does not exceed the income limits for Extremely Low Income households in Grange County,
adjusted for family size, published approximately annually by California's Housing and
Community Development Department. If California's Housing and Community Development
Department discontinues publishing such income limits,the term"Extremely Low Income"shall
mean a household income that does not exceed 30% of the Area Median Income, adjusted for
family size.
"Extremely Low Income Unit" shall mean one of the thirty-three (33) one bedroom
Affordable Units that are reserved for occupancy by Extremely Low Income Households at an
Affordable Rent.
"Force Majeure" or "Force Maieure Event" shall mean the following events, provided
that they actually delay and interfere with the timely performance of the matter to which it would
apply and despite the exercise of diligence and good business practices are or would be beyond
the reasonable control of the party claiming such interference: war; insurrection; strikes; lock-
outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; unusually severe weather, inability to secure necessary labor, materials or
tools, provided that such inability is not caused by the party claiming a Force Majeure Delay;
acts of any other party; or any other causes which despite the exercise of diligence and good
business practices are or would be beyond the reasonable control of the parry claiming such
delay and interference; provided, however, that the parties agree that delay in obtaining, or the
failure to obtain, construction financing, permanent financing, or project approvals or
entitlements for the Project shall not excuse performance of Borrower hereunder).
Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure
Event unless and until the party claiming such delay and interference delivers to the other party
written notice describing the event, its cause, when and how such party obtained knowledge, the
date the event commenced, and the estimated delay resulting therefrom. Any party claiming a
Force Majeure Delay shall deliver such written notice within ten (10) business days after it
obtains actual knowledge of the event.
18431 Beat!&Boulnud
Aeq Lase Agmt v61.23-20 ueeudw 7
1 ;
"Force Majeure Delay" shall mean any delay in taking any action required by this
Agreement,proximately caused by the occurrence of any Force Majeure Event.
i
"Grant Deed" shall mean that certain (}rant Deed that conveys the Property from the �
current owner,the Seller,to Borrower.
"Hazardous Substances" shall have the meaning set forth in the Environmental
Indemnity.
"Legal Description" shall mean the legal description of the Property attached to this
Agreement as ATTACHMENT No.2 which is incorporated herein by this reference.
"Option Agreement" shall mean the Option Agreement and Joint Escrow Instructions,
substantially in the form attached to this Agreement as ATTACHMENT No. 11, which is
incorporated herein by this reference. The Option Agreement shall unconditionally be and at all
times remain prior and superior to any lien created by the Authority Loan or the City Loan.
"Memorandum of Option" shall mean the Memorandum of Option, substantially in the
form attached to this Agreement as ATTACHMENT No. 12,which is incorporated herein by this
reference.
"Notice of Affordability Restrictions"means the Notice of Affordability Restrictions on
Transfer of Real Property, substantially in the form attached to this Agreement as Attachment
No. 13.
"Person" means an individual, partnership, limited partnership, trust, estate, association,
corporation,limited liability company or other entity,domestic or foreign.
"Property'shall mean that certain real property located in the City of Huntington Beach,
County of Orange, State of California,commonly known as 18431 Beach Boulevard,Huntington
Beach, California, legally described in the legal description attached to this Agreement as
ATTACHMENT NO. 2,which is incorporated herein by this reference.
"Seller 'shall mean Five Points Plaza LLC, a California limited liability company.
"Site Ma "means the document which is attached to this Agreement as ATTACHMENT
No. 1 which is incorporated herein by this reference.
"Title Comnanv' shall mean First American Title Insurance Company, or another title
insurance company mutually acceptable to Authority and Borrower.
"Title Insurance Policies" shall mean and include the following ALTA extended
coverage policies of title insurance issued by the Title Company, subject to the Approved Title
Conditions:
19431 aeah Bmle rd
Acq Lan AS=v6 1-23-20=mitim 8
a. A lender's policy or policies of title insurance in favor of Authority, together
with such endorsements as Authority may reasonably require,insuring the lien
of the Authority LMIHAF Loan Deed of Trust, in the amount of the Authority j
Loan(the"Authority's Title Policy");
b, A lender's policy or policies of title insurance in favor of City, together with
such endorsements as City may reasonably require, insuring the lien of the
City Inciusionary Loan Deed of Trust, in the amount of the City Loan (the
"City's Title Policy"); and
c. An owner's policy or policies of title insurance in favor of Borrower,together
with such endorsements as Borrower may reasonably require, insuring
Borrower's fee simple interest in the Property, in such amount as Borrower
may reasonably require(the"Borrower's Title Policy").
"Very Low Income Household" shall mean persons and families whose income does not
exceed the income limits for Very Low Income households in Orange County, adjusted for
family size, published approximately annually by California's Housing and Community
Development Department. If California's Housing and Community Development Department
discontinues publishing such income limits, the term "Very Low Income" shall mean a
household income that does not exceed 50% of the Area Median Income, adjusted for family
size.
"Very Low Income Unit" shall mean one of the six (6) one bedroom and three (3) two-
bedroom Affordable Units that are reserved for occupancy by Very Low Income Households at
an Affordable Rent.
SECTION 1.3 The Proper
The"Property" is that property in the City of Huntington Beach, which will be acquired
by Borrower,as illustrated on the"Site Map"(attached hereto as ATTACHMENT No. 1) and as
described in the"Legal Description of the Property"(attached hereto as ATTACHMENT No. 2).
SECTION 1.4 Authori
a. Authority is a public body, corporate and politic, exercising governmental
functions and powers, and organized and existing under the Housing Authorities Law of the
State of California.
b. The address of the Authority for purposes of receiving notices pursuant to
this Agreement is:
�I
19431 Boub BuWcmt
Mq Lm Aamt v61-23-30=c tin 9
I
f
Huntington Beach Housing Authority
2000 Main Street
Huntington Beach,CA 92648
Attn: Executive Director
With a copy to: City Attorney's Office
City of Huntington Beach
2000 Main Street l
Huntington Beach,CA 92648
C. "Authority" as used in this Agreement includes the Huntington Beach
Housing Authority and any assignee or successor to its rights,powers and responsibilities.
SECTION 1.5 City
a. City is a municipal corporation of the state of California.
b. The address of the City for purposes of receiving notices pursuant to this
Agreement is:
The City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Attn: City Manager
With a copy to: City Attorney's Office
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648.
C. "City" as used in this Agreement includes the City of Huntington Beach
and any assignee or successor to its rights,powers and responsibilities.
SECTION 1.6 Borrower
a. Borrower is Beach Housing Partners LP, a California limited partnership.
The address of Borrower for the purpose of receiving notices pursuant to this Agreement is:
Beach Housing Partners LP
c/o Jamboree Housing Corporation
17701 Cowan,Suite 200
Irvine,CA 92614
Attention: Michael Massie,Chief Development OBicer
i
IBUI Beard Bwlmrtd
Arq inert AV W r6 1-23-20 ee udm 10
l I
With a copy to;
Rutan&Tucker,LLP i
Attn:Patrick D.McCalla,Esq.
611 Anton Boulevard, loth Floor
Costa Mesa,California 92626
i
b. Whenever the term 'Borrower" is used herein, such term shall mean and
include: (1) the Borrower as of the date hereof;and(2)any assignee of or successor to its rights,
powers and responsibilities approved by the Authority and City in accordance with this
Agreement.
SECTION 1.7 Assienments and Transfers
a. The qualifications and identity of the Borrower are of particular concern to
the City and the Authority. It is because of those qualifications and identity that the Authority
and City have entered into this Agreement with the Borrower. No voluntary or involuntary
successor in interest of the Borrower shall acquire any rights or powers under this Agreement
except as expressly set forth herein.
b. The Borrower shall not assign all or any part of this Agreement without
the prior written approval of the Authority and City. Any such change (or assignment of this
Agreement in connection therewith) shall be by instruments reasonably satisfactory to the
Executive Director and City Manager, and be subject to the approval by the Executive Director
and City Manager of evidence of the proposed assignee's qualifications to meet the obligations
of the Borrower under this Agreement.
C. For the reasons cited above, the Borrower represents and agrees for itself
and any successor in interest that without the prior written approval of the Authority and City,
there shall be no cumulative change in ownership interest of any general partner of greater than
49%, or with respect to the identity of the parties in control of the Borrower or the degree
thereof,by any method or means.
d. The Borrower shall promptly notify the Authority and City of any and all
changes whatsoever in the identity of the parties in control of the Borrower or the degree thereof,
of which it or any of its officers have been notified or otherwise have knowledge or information.
This Agreement may be terminated by the Authority or City, and the Authority or City may each
exercise its remedies pursuant to the Option Agreement or the Authority Loan Documents or
City Loan Documents, respectively, if there is any significant change (voluntary or involuntary)
in membership,management or control of the Borrower(other than such changes occasioned by
the death or incapacity of any individual).
e. The Borrower shall not, except as permitted by this Agreement, assign or
attempt to assign this Agreement or any right herein,nor make any total or partial sale, transfer,
19431 Beach Bmlamd
Acq user Apnt v61-23-20 exeeuUft 11
i a
conveyance or assignment of the whole or any part of the Property (referred to hereinafter as a
"Transfer'% without prior written approval of the Authority and City. Consent to one such
transaction shall not be deemed to be a waiver of the right to require consent to future or
successive transactions.Any such proposed transferee shall have the qualifications and financial
responsibility necessary and adequate as may be reasonably determined by the Authority and
City to fulfill the obligations undertaken in this Agreement by the Borrower. Any such proposed
transferee,by instrument in writing satisfactory to the Authority and City and in form recordable
among the land records, for itself and its successors and assigns, and for the benefit of the l
Authority and City shall expressly assume all of the obligations of the Borrower under this
Agreement and attachments hereto and agree to be subject to all conditions and restrictions
applicable to the Borrower in this Agreement and attachments hereto. There shall be submitted
to the Authority and City for review all instruments and other legal documents proposed to effect
any such Transfer; and if approved by the Authority and City each of its approval shall be
indicated to the Borrower in writing. This Agreement may be terminated by the Authority or
City, and the Authority or City may each exercise its remedies pursuant to the Option Agreement
or the Authority Loan Documents or City Loan Documents, respectively, if there is a Transfer or
attempted Transfer in violation of this Agreement.
f. In the absence of specific written agreement by the Authority and City,no
Transfer, or approval thereof by the Authority and City, shall he deemed to relieve the Borrower
or any other party from any obligations under this Agreement.
PART 2. FINANCING AND CLOSE OF ESCROW
SECTION 2.1 Method of Financing
The Acquisition Costs shall be financed with the Authority Loan, City Loan and
Borrower's funds.
SECTION 2.2 Authority Loan and City Loan
a. In accordance with and subject to the terms and conditions of this
Agreement, the Authority agrees to lend to the Borrower, and the Borrower agrees to borrow
from the Authority, the Authority Loan for the purpose of payment of a portion of the
Acquisition Costs. In accordance with and subject to the terms and conditions of this
Agreement,the City agrees to lend to the Borrower, and the Borrower agrees to borrow from the
City,the City Loan for the purpose of payment of a portion of the Acquisition Costs.
b. The Authority Loan and City Loan shall each bear simple interest at the
rate of three percent(30/o),which shall begin to accrue upon disbursement. The maturity date for I
each of the Authority Loan and City Loan shall be February 28, 2022 (the "Outside Date For
Construction Financing Event" provided, however, the City Manager and Executive Director,
each in his or her sole discretion, may extend the Outside Date for Construction Financing Event
up to a total of sixty (60) cumulative days by providing written notice to Borrower of such
19431 11 er Realewd
A[Q wen Agent v6 I-2r-2a etmaion 12
i
extension), or as otherwise set forth in the Authority LMIHAF Loan Note and the City
Inclusionary Loan Note. If the Construction Financing Event has not occurred by the Outside
Date for Construction Financing Event, the Authority Loan and the City Loan shall each
immediately become all due and payable, and then the Authority or City may each exercise its
rights and remedies pursuant to the Authority Loan Documents or City Loan Documents,
respectively,
i
C. If an Affordable Housing Agreement is successfully negotiated and
entered into, it is contemplated that the Authority LMH-AF Loan Note shall be cancelled, the I
Authority LMIHAF Deed of Trust shall be reconvcyed, and Borrower shall execute a new
promissory note to the Authority for the total amount of the Authority Loan plus any accrued
interest on the Authority Loan theretofore unpaid plus any other sums secured by the Authority
LMIHAF Deed of Trust, and the City Inclusionary Loan Note shall be cancelled, the City
Inclusionary Deed of Trust shall be reconveyed, and Borrower shall execute a new promissory
note to the City for the total amount of the City Loan plus any accrued interest on the City Loan
theretofore unpaid plus any other sums secured by the City Inclusionary Deed of Tntst. The new
promissory notes shall be secured by deeds of trust on the Property. The repayment terms of the
Authority Loan are set forth in the form of Authority LMIHAF Loan Note attached to this
Agreement as ATTACHMENT No. 4 and repayment terms of the City Loan are set forth in the
form of City Inclusionary Loan Note attached to this Agreement as ATTACHMENT No. 7.
d. Prior to the Close of Escrow, the Authority, City and Borrower shall
execute and deliver such instruments and documents as may be necessary to evidence and secure i
the Authority Loan and City Loan, consistent with the terms of this Agreement, and each in a
form that is acceptable to the Executive Director and City Manager(as applicable),including the
following documents:
(1) the Agreement Containing Covenants;
(2) Option Agreement;
(3) Memorandum of Option;
(4) Authority LMIHAF Loan Note;
(5) Authority LMIHAF Loan Deed of Trust;
(6) Authority Assignment of Agreements;
(7) Environmental Indemnity,
(8) City Inclusionary Loan Note;
(9) City Inclusionary Loan Deed of Trust;
1&431 Bach Bw1mrd
Acq Loan A=I A 1-23-20 a =L= 13
i
(10) City Assignment of Agreements; and
(11) Notice of Affordability Restrictions.
C. The Authority Loan and City Loan shall be used exclusively to pay the
approved Acquisition Costs. Borrower will be obligated to pay, at its own cost and expense all �.
Acquisition Costs in excess of the Authority Loan plus the City Loan. j
I
f. The Close of Escrow and the funding of the Authority Loan and City Loan
is conditioned upon each of the following occurring to the satisfaction of the Executive Director
and City Manager;
(i) Borrower shall have submitted to the Authority and City evidence
of the insurance policies required by this Agreement;
(ii) Borrower shall have submitted to the Authority and City a fully
executed copy of Borrower's agreement to purchase the Property,together
with all amendments and addendums thereto(the"Purchase Agreement");
(iii) Borrower shall have submitted to Authority and City a certified
resolution of its managing general partner's Board of Directors
authorizing Borrower to enter into the Purchase Agreement, this
Agreement and all agreements contemplated herein and designating the
person or persons authorized to execute all necessary documents;
(iv) Title Insurance Company is prepared to issue the Title Insurance
Policies;
(v) Borrower shall have duly executed and delivered to the Authority
or into Escrow all of the Authority Instruments to be executed by
Borrower;
(vi) Borrower shall have duly executed and delivered to the City or into
Escrow all of the City Instruments to be executed by Borrower;
(vii) Executive Director determines that Borrower is not in default of its
obligations to the Authority under this Agreement or any attachments
hereto;
(viii) City Manager determines that Borrower is not in default of its
obligations to the Authority under this Agreement or any attachments
hereto;
18431 Beach Boukvmd
Acq La Agmtv61-2Yr0"=Hm 14
(ix) all conditions precedent under the Purchase Agreement to the
conveyance of marketable fee simple title to the Property to Borrower
have been satisfied,or waived by Borrower;
(x) the Grant Deed conveying title to the Property to Borrower is
executed and recorded or will concurrently be duly recorded in the
Official Records of the Orange County Recorder's Office;
(xi) Borrower shall have duly executed and delivered to the City or into I
Escrow the Notice of Affordability Restrictions;
Notwithstanding the foregoing, the Authority, in the sole discretion of the Executive Director,
and the City, in the sole discretion of the City Manager, may each waive any of the foregoing
conditions precedent to the Close of Escrow. A waiver of any of the foregoing conditions shall
not operate in any way as a waiver,or estoppel with respect to,any subsequent or other failure to
comply with such condition, or any other condition contained in this Agreement or any of the
other Authority Instruments or City Instruments.
g. Upon the Close of Escrow, the Title Company shall record the recordable
Authority Instruments in accordance with instructions provided by the Authority, and shall be
prepared to issue to the Authority an ALTA policy of title insurance, insuring the priority of the
Authority LMIHAF Loan Deed of Trust as set forth in this Agreement, in amounts and with
endorsements as the Authority may determine is appropriate. Upon the Close of Escrow, the
Title Company shall record the recordable City Instruments in accordance with instructions
provided by the City, and shall be prepared to issue to the City an ALTA policy of title
insurance, insuring the priority of the City Inclusionary Loan Deed of Trust as set forth in this
Agreement,in amounts and with endorsements as the City may determine is appropriate.
h. The following documents shall be recorded in the following order at the
Close of Escrow:
1. Agreement Containing Covenants;
2. Memorandum of Option;
3. Authority LMIHAF Loan Deed of Trust;
4. City Inclusionary Loan Deed of Trust;
5. Notice of Affordability Restrictions;and
6. Such other instruments as the parties may mutually agree to be
recorded at the Close of Escrow.
16431 Beath Boulevard
Aca Loan Apet v61-23-20 execudon 15
I
1 i
SECTION 2.3 Negotiation of Affordable Housing Agreement
So to this long as Agreement is in effect and Borrower is not In default hereunder or under
any of the City Instruments or Authority Instruments, the Authority,City, and Borrower agree to
negotiate the terms and conditions of a mutually acceptable Affordable Housing Agreement. The
negotiations will address, among other items, a sources and uses project budget for the Project,
the form, amount and terms of financing for the Project, including without limitation repayment I
terms, security, and priority of any Authority or City financing in relation to other Project
financing, a scope of development and schedule of performance for the Project, a method of
financing the Project,affordability restrictions to be placed on the Property,and the requirements
for a Project management and maintenance plan.
Borrower, at its sole cost and expense, will be responsible for compliance with the
requirements of the California Environmental Quality Act ("CEQA") in connection with the'
development of the Project. Borrower will respond fully and in a timely manner to requests for
information from the Authority or City and any of its consultants. Consideration of the
Affordable Housing Agreement by the City and the Authority is conditioned on the City's and
the Authority's determination to proceed with, modify or cancel the Project based on the results
of the subsequent environmental review. Borrower must not undertake or unconditionally
commit any funds to physical or choice-limiting actions, including demolition, movement,
rehabilitation,conversion,repair or construction prior to the environmental clearance.
During the negotiations, Borrower agrees to make full disclosure to the City and the
Authority of all pertinent information in its possession or under its control concerning Borrower,
the Property and/or the Project.
By execution of this Agreement,neither the City nor the Authority is committing itself to
take any action with respect to the proposed Project. If the negotiations hereunder culminate in
an Affordable Housing Agreement,such agreement shall become effective only after it has been
duly executed by the Borrower, has been considered and approved by the Authority Board and
City Council after a public meeting, and has been duly executed by the City and the Authority.
The City and the Authority will reasonably cooperate with Borrower in order to enable Borrower
to meet its deadlines; however, neither the City nor the Authority is obligated to expedite any
reviews, approvals, notices, meetings or other matters, and nothing contained in this Agreement
will be construed to limit the City's or the Authority's discretion in its activities in connection
with the Project.
The City and the Authority reserve final discretion and approval over the Project and all
proceedings and decisions in connection therewith. This Agreement will not be construed as a
grant of development rights or land use entitlements to construct the proposed Project. By its
execution of this Agreement, neither the City nor the Authority is committing itself to, or
agreeing to perform, any acts or activities that require their subsequent independent exercise of
discretion or the independent exercise of discretion by any agency or department thereof. The
19431 Bach limlewd
Aoq tnm AVW v6 1-23-20=cmdm 16
i
I
a ;
Authority and City reserve for subsequent Authority Board and City Council action any final
discretion and approval regarding the execution of an Affordable Housing Agreement and all
proceedings and decisions in connection therewith. Each party assumes the risk that,
notwithstanding good faith negotiations, the Authority, the City, and Borrower might not enter
into an Affordable Housing Agreement due to their failure to agree upon essential terms of a
transaction or a decision by the Authority Board or City Council not to authorize execution of
one or more of the Project agreements or approve of the Project.
i
This Agreement shall not be construed to limit in any manner(i)the right or the authority
of the City, or any other governmental agency having jurisdiction, to require public
improvements, dedications, exactions or other conditions of approval in connection with the
development of the Property or any portion thereof; or (ii) Borrower's responsibility to pay for
the cost of complying therewith. Nothing contained herein shall be deemed to entitle Borrower j
to any City permit or other City approval necessary for the development of the Property, or
waive any applicable City requirements relating thereto. This Agreement does not: (a) grant any
land use entitlement to Borrower; (b) supersede, nullify or amend any condition which may be
imposed by the City in connection with approval of the development described herein; (c)
guarantee to Borrower or any other party any profits from the development of the Property; or
(d) amend any City laws,codes or Hiles.
The parties in no way intend for this Agreement to give rise to or create any relationship
of partnership,joint venture, or any other form of association of any kind or nature between any
of them.
PART 3 COMPLIANCE WITH LAWS;INDEMNIFICATION AND INSURANCE
I
SECTION 3.1 Local.State. and Federal Laws
a. Borrower shall carry out all activities on the Property, including, without
limitation, any and all public works (as defined by applicable law), in conformity with all
applicable local, state and federal laws, including,without limitation, all applicable federal and
state labor laws (including, without limitation, the requirement to pay state prevailing wages, if
applicable).
b. Borrower hereby expressly acknowledges and agrees that neither City nor
Authority has ever previously affirmatively represented to the Borrower or its contractor(s) in
writing or otherwise, in a call for bids or otherwise, that the work to be covered by the bid or
contract is not a"public work,"as defined in Section 1720 of the Labor Code. Borrower hereby
agrees that Borrower shall have the obligation to provide any and all disclosures or
identifications required by Labor Code Section 1781, as the same may be enacted, adopted or
amended from time to time,or any other similar law. Borrower shall indemnify,protect,defend
and hold harmless the Authority, City and their respective officers, employees, contractors and
agents, with counsel reasonably acceptable to Authority and City, from and against any and all
loss, liability, damage, claim, cost, expense, and/or "increased costs" (including reasonable
)9431 Buds BW1,vard '
Acq LMAQmt v61-23-20uemlim 17
attorneys fees,court and litigation costs,and fees of expert witnesses)which, in connection with
the development, construction (as defined by applicable law) and/or operation of the
improvements, including, without limitation, any and all public works (as defined by applicable
law), results or arises in any way from any of the following; (1)the noncompliance by Borrower
of any applicable local, state and/or federal law, including, without limitation, any applicable
federal and/or state labor laws (including, without limitation, if applicable, the requirement to j
pay state prevailing wages); (2) the implementation of Section 1781 of the Labor Code, as the
same may be enacted, adopted or amended from time to time,or any other similar law;and/or(3)
failure by Borrower to provide any required disclosure or identification as required by Labor
Code Section 1781, as the same may be enacted,adopted or amended from time to time, or any
other similar law.
C. It is agreed by the parties that Borrower shall bear all risks of payment or
non-payment of state prevailing wages and/or Labor Code Section 1781, as the same may be
enacted, adopted or amended from time to time, and/or any other similar law. `Increased costs"
as used in this Section 3.1 shall have the meaning ascribed to it in Labor Code Section 1781,as
the same may be enacted,adopted or amended from time to time.
d. The foregoing indemnity shall survive termination of this Agreement and
shall continue after Close of Escrow.
SECTION 3.2 Indemnification and Insurance
a. During the period commencing with execution of this Agreement by the
Authority and City, and until the Construction Financing Event, Borrower agrees to and shall
defend, indemnify and hold the Authority, the City and their respective officers, employees,
contractors and agents harmless from and against all claims, liability, loss, damage, costs or
expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the
death of any person or any accident, injury, loss or damage whatsoever caused to any person or
to the property of any person arising directly or indirectly out of or related to the Property or the
Borrower or its officers, employees,contractors or agents. Borrower shall not be responsible for
(and such indemnity shall not apply to) to the extent of any gross negligence or willful
misconduct of the Authority, the City or their respective officers, employees, contractors or
agents.
b. Prior to the Close of Escrow, Borrower shalt furnish or cause to be
furnished to the Authority and City evidence of the following policies of insurance, naming
Borrower as insured and the Authority and the City as additional insureds.
(i) Casualty Insurance: Commencing as of the Close of Escrow,
Borrower shall maintain or cause to be maintained a policy or policies of insurance against loss
or damage to the Property and all property of an insurable nature located upon the Property,
resulting from fire,lightning, vandalism, malicious mischief,riot and civil commotion, and such
other perils ordinarily included in extended coverage fire insurance policies. Such insurance
18431 Huth Bwbmld
Aoq mean Agmt v6 1-23-20 amdan 18
__.. .
shall be maintained in an amount not less than one hundred percent (1001/6)of the full insurable
value of the improvements,as deemed herein in paragraph d.
i
(ii) Liability Insurance: Borrower shall maintain or cause to be
maintained liability insurance, to protect against loss from liability imposed by law for damages
on account of personal injury, including death therefrom, suffered or alleged to be suffered by
any person or persons whomsoever on or about the Property and the business of the Borrower on
the Property,or in connection with the operation thereof,resulting directly or indirectly from any I
acts or activities of Borrower or its lessees, or any person acting for Borrower, or under its
respective control or direction, and also to protect against loss from liability imposed by law for
damages to any property of any person occurring on or about the Property, or in connection with
the operation thereof,caused directly or indirectly by or from acts or activities of Borrower or its
tenants, or any person acting for Borrower, or under its control or direction. Such property
damage and personal injury insurance shall also provide for and protect Authority and City
against incurring any legal cost in defending claims for alleged loss. Such personal injury and j
property damage insurance shall be maintained in full force and effect in the following amounts:
commercial general liability in a general aggregate amount of not less than Two Million Dollars
($2,000,000); and not less than One Million Dollars ($1,000,000) of bodily injury and property
damage insurance. Borrower agrees that provisions of this paragraph as to maintenance of '
insurance shall not be construed as limiting in any way the extent to which Borrower may be
held responsible for the indemnification of Authority or City or the payment of damages to
persons or property resulting from Borrower's activities, activities of its tenants or the activities
of any other person or persons for which Borrower is otherwise responsible.
(iii) —Workers' Compensation Insurance: Borrower shall maintain or
cause to be maintained workers' compensation insurance issued by a responsible carrier
authorized under the laws of the State of California to insure employers against liability for
compensation under the workers' compensation laws now in force in California, or any laws
hereafter enacted as an amendment or supplement thereto or in lieu thereof. Such workers'
compensation insurance shall cover all persons employed by Borrower in cc
mrection with the
Property and shall cover liability within statutory limits for compensation under any such act
aforesaid, based upon death or bodily injury claims made by, for or on behalf of any person
incurring or suffering injury or death in connection with the Property or the operation thereof by
Borrower. Notwithstanding the foregoing, Borrower may, in compliance with the laws of the
State of California and in lieu of maintaining such insurance, self-insure for workers'
compensation in which event Borrower shall deliver to Authority and City evidence that such
self-insurance has been approved by the appropriate State authorities.
G. All policies hereunder shall not be subject to cancellation, reduction in
coverage, or non-renewal except after notice in writing shall have been sent by registered mail
addressed to Authority and City,to the extent practicable within 30 days but in any event prior to
the effective date thereof. All policies may name the Authority, City and Borrower as insureds,
additional insureds, and/or loss payable parties as their interests may appear.
19/31 Bach Baute b
Aeq Loan AffW v61.23-20 eacmdim 19
I � ,
d. The term 'full insurable value" as used in this Section 3.2 shall mean the
actual replacement cost (excluding the cost of excavation, foundation and footings below the
lowest floor and without deduction for depreciation) of the improvements on the Property
immediately before such casualty or other loss, including the cost of construction, architectural
and engineering fees, and inspection and supervision. To ascertain the amount of coverage
required, Borrower shall cause the full insurable value to be determined from time to time by
appraisal by the insurer, by agreement between Borrower and Authority and City or by an
appraiser mutually acceptable to Authority,City,and Borrower.
e. All insurance provided under this Section 3.2 shall be for the benefit of
Borrower, Authority and City. Borrower agrees to timely pay all premiums for such insurance
and, at its sole cost and expense, to comply and secure compliance with all insurance
requirements necessary for the maintenance of such insurance. Borrower agrees to submit j
Policies of all insurance required by this Section 3.2,or certificates and endorsements evidencing
the existence thereof,to Authority and City prior to the Close of Escrow,indicating frill coverage
of the contractual liability imposed hereby. Within thirty (30) days, if practicable, but in any
event prior to expiration of any such policy, copies of renewal policies, or certificates and
endorsements evidencing the existence thereof, shall be submitted to Authority and City. All
insurance herein provided for under this Section 3.2 shall be effected under policies issued by
insurers of recognized responsibility, licensed or permitted to do business in the State of
California reasonably approved by Authority and City. All policies or certificates of insurance
shall provide that such policies shall not be canceled or limited in any manner without at least
thirty(30)days prior written notice to Authority and City.
f. if Borrower fails or refuses to procure or maintain insurance as required
by this Agreement,Authority and City shall each have the right,at its election,and upon ten (10)
days prior notice to Borrower, to procure and maintain such insurance. The premiums paid by
Authority or City shall be treated as a loan, due from Borrower,to be paid on the first day of the
month following the date on which the premiums were paid. Authority and City shall give
prompt notice of the payment of such premiums, stating the amounts paid and the name of the
insured(s).
SECTION 3.3 Disclaimer of Responsibility by the Authority and City j
Neither the Authority nor the City undertakes or assumes or will have any responsibility,
right or duty to Borrower or to any third party to review, inspect,supervise,pass judgment upon
or inform Borrower or any third party of any matter in connection with the Property, whether
with respect to the condition of the Property or its quality, adequacy or suitability to the Project,
or with respect to any person furnishing services with regard to the Property, or otherwise.
Borrower and all third parties shall rely upon its or their own judgment regarding such matters, i
and any review, inspection, supervision, exercise of judgment or information supplied to
Borrower or to any third party by the Authority or the City in connection with such matter is for
10431 Be h aautaw,d
Arq lass Ag=v6 1-23-20 w=utim 20
f
the public purpose of providing affordable housing, and neither Borrower nor any third party is
entitled to rely thereon.
SECTION 3.4 Rights of Access i
Commencing upon the Close of Escrow, representatives of the Authority and the City
shall have the reasonable right of access to the Property, upon two (2) business days' written I
notice to Borrower (except in the case of an emergency, in which case Authority shall provide i
such notice as may be practical under the circumstances), without charges or fees, at normal f
hours for the purposes of this Agreement.
SECTION 3.5 Taxes.Assessments. Encumbrances and Liens
i
Borrower shall pay when due all real estate taxes and assessments assessed and levied on
or against the Property.Borrower shall not place,or allow to be placed,on title to the Property or
any portion thereof, any mortgage, trust deed, encumbrance or lien. In addition, Borrower shall
remove, or shall have removed, any levy or attachment made on title to the Property (or any
portion thereof), or shall assure the satisfaction thereof within a reasonable time but in any event
prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Borrower
from contesting the validity or amount of any tax assessment, nor to limit the remedies available
to the Borrower in respect thereto.Any violation of the provisions of this Section 3.5 shall be a
material default of Borrower hereunder.
SECTION 3.6 Rights to Ptana
a. All work product prepared with regard to the Property or the Project,
including (but not limited to), all plans, construction documents, soils tests and similar reports,
permits and other entitlements are hereby assigned to the Authority and City as security for
Borrower's obligations hereunder. In the event that this Agreement is terminated by the
Authority or City,Borrower shall, within ten (10)business days of such termination, transmit all
such work product to the Authority and City.
b. To effectuate the assignment described in paragraph a., concurrently with
executing a contract with the project architect, Borrower shall execute and deliver to the
Authority an Assignment of Agreements, substantially in the form attached to this Agreement as
ATTACHMENT No. 6 in a form that is acceptable to the Executive Director, granting to the
Authority all of Borrower's rights to: (1) the plans prepared for the Project; (2) the contract
between Borrower and its architect; (3) all permits relating to the Project; and similar rights and
property interests, and Borrower shall execute and deliver to the City an Assignment of
Agreements, substantially in the form attached to this Agreement as ATTACHMENT No. 9,
granting to the City all of Borrower's rights to: (1) the plans prepared for the Project; (2) the
contract between Borrower and its architect; (3) all permits relating to the Project; and similar
rights and property interests.
18431 Both Bwlawrd
Acq tam Agmt v6 1-23-20 a=d= 21
...:....
PART 4. USE OF THE PROPERTY
SECTION 4.1 Uses
i
Borrower covenants and agrees(for itself,its successors, its assigns, and every successor
in interest to the Property or any part thereof)that Borrower, its successors and assigns shall use
the Property exclusively to provide affordable housing for Extremely Low Income Households
and Very Low Income Households in accordance with the Agreement Containing Covenants.
SECTION 4.2 Obligation to Refrain from Discrimination
Borrower covenants and agrees for itself, its successors and its assigns in interest to the
Property or any part thereof, that there shall be no discrimination against or segregation of any
person, or group of persons, on account of race, color, creed, religion, sex, sexual orientation,
marital status, national origin, or ancestry in the sale, lease; sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall Borrower 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 Property.
SECTION 4.3 Effect and Duration of Covenants
The covenants established in this Agreement shall run with the land, without regard to
technical classification and designation, and shall be for the benefit and in favor of Authority and
City, and their respective successors and assigns. The covenants described in this Part 4 shall
commence upon the Close of Escrow and shall be set forth in the Agreement Containing
Covenants and shall remain in effect for the respective periods specified therein.
SECTION 4.4 Effect of Violation of the Terms and Provisions of this Awcoment
The Authority and the City are deemed beneficiaries of the terms and provisions of this
Agreement and the covenants herein, both for and in their own right and for the purposes of
protecting the interests of the community and other parties, public or private, for whose benefit
this Agreement and the covenants running with the land have been provided. The Authority and
City shall each have the right if the covenants contained in this Agreement are breached to
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 or any other beneficiaries
of this Agreement and covenants are entitled.
SECTION 4.5 Hazardous Substances
At the Close of Escrow,Borrower shall execute and deliver to the Authority and City an
Environmental Indemnity,substantially in the form of ATTACHMENT No. 10.
18431 Brxh Boule ,d
Aoq Lom Agmt v6 1.23.20 mewim 22
PART 5. DEFAULTS AND REMEDIES
SECTION 5.1 Defaults-General
IL Failure or delay by any Party to perform any term or provision of this
Agreement constitutes a default under this Agreement.
b. The injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Failure or delay in giving
such notice shall not constitute a waiver of any default, nor shall it change the time of default.
Except as otherwise expressly provided in this Agreement,any failures or delays by any party in
asserting any of its rights and remedies as to any default shall not operate as a waiver of any
default or of any such rights or remedies. Delays by any party in asserting any of its rights and
remedies shall not deprive either party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies. The party who fails or delays must immediately commence to cure,correct or remedy
such failure or delay and shall complete such cure, correction or remedy with reasonable
diligence.
C. If a monetary event of default occurs, prior to exercising any remedies
hereunder, the injured party shall give the party in default written notice of such default. The
party in default shall have a period of seven (7) days after such notice is given within which to
cure the default prior to exercise of remedies by the injured party.
d. If a non-monetary event of default occurs,prior to exercising any remedies
hereunder, the injured party shall give the party in default written notice of such default. if the
default is reasonably capable of being cured within thirty (30) days, the party in default shall
have such period to effect a cure prior to exercise of remedies by the injured party. If the default
is such that it is not reasonably capable of being cured within thirty (30) days, and the party in
default (i) initiates corrective action within said period, and (ii) diligently, continually, and in
good faith works to effect a cure as soon as possible, then the party in default shall have such
additional time as is reasonably necessary to cure the default prior to exercise of any remedies by
the injured party but in no event longer than sixty(60)days.
SECTION 5.2 Institution of Legal Actions.
Subject to the notice and cure provisions of Section 5.1, in addition to any other rights or
remedies (and except as otherwise provided in this Agreement), any party may institute legal
action to cure,correct or remedy any default, to recover damages for any default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such legal actions must be
instituted in the Superior Court of the County of Orange, State of California, in any other
appropriate court of that county, or in the United States District Court for the Central District of
California.
18431 BaKh BOUkVWA
A0q Lm Agmt e6 1-23-20" Wiw 23
SECTION 5.3 Applicable Law
The internal laws of the State of California shall govern the interpretation and i
enforcement of this Agreement.
SECTION 5.4 Acceptance of Service of Process
I
In the event that any legal action is commenced by the Authority or City against the
Borrower, service of process on the Borrower shall be made by personal service upon the
Borrower(or upon a general partner, managing member or officer of the Borrower) and shall be
valid whether made within or without the State of California, or in such manner as may be
provided by law.
SECTION 5.5 Rights and Remedies Are Cumulative
The rights and remedies of the parties are cumulative, and the exercise by any party of
one or more of such 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 the
other party.
SECTION 5.6 Damages
If any party defaults with regard to any of the provisions of this Agreement, subject to the
notice and cure provisions of Section 5.1 and the non-recourse provisions of Section 5.10, the
defaulting party shall be liable to the non-defaulting patty for any damages caused by such i
default, and the non-defaulting party may, after such notice and opportunity to cure (but not
before) commence an action for damages against the defaulting party with respect to such
default; provided however,that neither the City nor the Authority will be liable to Borrower, or
any party claiming through Borrower, for payment of special, incidental, indirect, punitive,
exemplary, or consequential costs, liabilities, loss, expense, or damages, including without
limitation economic loss, commercial loss, lost business, lost profits, lost revenues, interruptions
of service, or any delay, error, or loss of data or information, whether foreseeable or
unforeseeable, whether based on breach of warranty, breach of contract, negligence, strict
liability, or any other legal theory, even if Borrower has been informed of the possibility of such
costs,liabilities,loss,expense,or damages.
SECTION 5.7 Specific Performance
Borrower hereby waives on behalf of itself and any party claiming through Borrower the
right to bring an action for specific performance against the City or the Authority.
If Borrower defaults with regard to any of the provisions of this Agreement,subject to the
notice and cure provisions of Section 5.1, City or Authority, each at its option, may, after such
i
18431 Bch aaaWv&M
Acq Lma Aym v6 1-23-20 ex—Mm 24
............. .........
notice and opportunity to cure(but not before) commence an action for specific performance of
the terms of this Agreement pertaining to such default.
SECTION 5.8 Tennination by the Borrower
Prior to the Close of Escrow, subject to the notice and cure provisions of Section 5.1,
Borrower shall have the right to terminate this Agreement, by providing written notice to the
Authority and City,in the event of a default by Authority or City pursuant to this Agreement.
SECTION 5.9 Termination by Authority and City
a. Notwithstanding anything in this Agreement to the contrary, the Authority
and City shall each have the right to terminate this Agreement in its sole discretion and without
further notice to Borrower and without requirement of the expiration of any cure period, in the
event that, subject to Force Majeure Delay, the Close of Escrow has not occurred by February
16, 2020, provided, however, the Executive Director and City Manager, each in his or her sole
discretion,may extend the outside date of February 16,2020, for Close of Escrow up to a total of
sixty(60)cumulative days by providing written notice to Borrower of any such extension.
b. Notwithstanding anything in this Agreement to the contrary,the Authority
and City shall each have the right to terminate this Agreement, in its sole discretion and without
further notice to Borrower and without requirement of the expiration of any cure period, in the
event that, subject to Force Majeure Delay, the Construction Financing Event has not occurred
by the Outside Date For Construction Financing Event; provided, however, the City Manager
and Executive Director, each in his or her sole discretion, may extend the Outside Date for
Construction Financing Event up to a total of sixty(60)cumulative days.
C. Prior to the Close of Escrow, subject to the notice and cure provisions of
Section 5.1, Authority and City shall each have the right to terminate this Agreement, by
providing written notice to the Borrower, in the event of a default by Borrower pursuant to this
Agreement.
SECTION 5.9A Termination by Borrower.City or Authority
Notwithstanding anything in this Agreement to the contrary, if the Construction
Financing Event has not occurred by the Outside Date for Construction Financing Event(as such
date may have been extended pursuant to the terms of this Agreement), Borrower,Authority and
City shall each have the right to terminate this Agreement following a determination by any of
Borrower, City, or Authority, in its reasonable discretion, that the Project is not financially
feasible,and such determination shall not constitute a default by Borrower, so long as Borrower
has diligently and in good faith applied for financing customarily utilized in affordable housing
transactions similar to the Project, but due to no fault of Borrower, Borrower has not obtained
sufficient financing to develop the Project.
18431 Bach BmIevard
Acq L. Agmt v6 1-23-20 4 rim 25
SECTION 5.10 Limited Recourse Obligations i
Subject to the provisions and limitations of this Section 5,10, the obligation to repay the
Authority Loan and the City Loan is a nonrecourse obligation of the Borrower. Borrower, its
principals, shareholders, partners or its successors and assigns shall not have any personal
liability for repayment of the loan,except as provided in this Section 5.10. The sole recourse of
Authority and City shall be the exercise of the option under the Option Agreement and the !
exercise of its rights against the Property and any related security for the Authority Loan and
City Loan, as applicable. Provided,however, that the foregoing shall not(a) constitute a waiver
of any obligation evidenced by the Authority LMMAF Loan Note,the Authority LMIHAF Loan
Deed of Trust, the City Inclusionary Loan Note,or the City Inclusionary Loan Deed of Trust;(b)
limit the right of the Authority or City to name Borrower as a party defendant in any action or
suit for judicial foreclosure and sale under the Authority LMIHAF Loan Note, the Authority
LMIHAF Loan Deed of Trust, the City Inclusionary Loan Note, or the City Inclusionary Loan
Deed of Trost or any action or proceeding hereunder so long as no judgment in die nature of a
deficiency judgment shall be asked for or taken against Borrower; (c) release or impair the
Authority LMIHAF Loan Note, the Authority LMIHAF Loan Deed of Trust, the City
Inclusionary Loan Note, or the City Inclusionary Loan Deed of Trust; (d)prevent or in any way
hinder Authority or City from exercising, or constitute a defense, an affirmative defense, a
counterclaim, or other basis for relief in respect of the exercise of,any other remedy against the
mortgaged Property or any other instrument securing the Authority LMIHAF Loan Note or the
City Inclusionary Loan Note or as prescribed by law or in equity in case of default; (e)prevent or
in any way hinder Authority or City from exercising, or constitute a defense, an affirmative
defense, a counterclaim, or other basis for relief in respect of the exercise of, its remedies in
respect of any deposits, insurance proceeds, condemnation awards or other monies or other
collateral or letters of credit securing the Authority LMIHAF Loan Note or the City Inclusionary
Loan Note; (f) relieve Borrower of any of its obligations under any indemnity delivered by
Borrower to Authority and/or City; or (g) affect in any way the validity of any guarantee or
indemnity from any person of all or any of the obligations evidenced and secured by the
Authority LMT£IAF Loan Note, the Authority LMIHAF Loan Deed of Trust, the City
Inclusionary Loan Note, or the City Inclusionary Loan Deed of Trust. The foregoing provisions
of this paragraph are limited by the provision that in the event of the occurrence of a default,
Borrower and its successors and assigns shall have personal liability hereunder for any
deficiency judgment,but only if and to the extent Borrower, its principals, shareholders,partners
or its successors and assigns received rentals, other revenues, or other payments or proceeds in
respect of the mortgaged Property after the occurrence of such default, which rentals, other
revenues, or other payments or proceeds have not been used for the payment of ordinary and
reasonable operating expenses of the mortgaged Property, ordinary and reasonable capital
improvements to the mortgaged Property, debt service, real estate taxes in respect of the
mortgaged Property and basic management fees, but not incentive fees, payable to an entity or
person unaffiliated with Borrower in connection with the operation of the mortgaged Property, I
which are then due and payable. Notwithstanding the first sentence of this paragraph,
P Ya 8 p graph, Authority
and City may each recover directly from Borrower or from any other party:
19431 Bach Bwlnwld
Acq tan Agw v61-23-20 a dca 26
(A) any damages,costs and expenses incurred by Authority or City as a result
of fraud or any criminal act or acts of Borrower or any partner, shareholder, officer, director or
employee of Borrower, or of any member or general or limited partner of Borrower, or of any
general or limited partner of such member or general or limited partner,
(B) any damages,costs and expenses incurred by Authority or City as a result i
of any misappropriation of funds provided for the acquisition of the Property or proceeds of
insurance policies or condemnation proceeds; i
(C) any and all amounts owing by Borrower pursuant to the indemnification
regarding Hazardous Substances pursuant to the Environmental Indemnity,and
(D) all court costs and attorneys' fees reasonably incurred in enforcing or
collecting upon any of the foregoing exceptions.
SECTION 5.11 City and Authority Option to Acquire Prope�rt
In addition to any other rights and remedies of City and Authority hereunder,the City and
Authority shall each have an irrevocable option to acquire the Property from Borrower as set
forth in the Option Agreement.
Upon City or Authority's (as applicable) acquisition of the Property pursuant to the
Option Agreement, this Agreement shall be automatically terminated, thereby releasing the
parties from fiuther obligations hereunder, and Escrow Agent shall return to Borrower all
documents and funds then being held by Escrow Agent which have been delivered by Borrower,
and shall return to City or Authority(as applicable)all documents and funds then being held by
Escrow Agent which have been delivered by City or Authority(as applicable). Nothing in this
Section 5.11 shall be construed as releasing any party from liability for any default of its
obligations hereunder or breach of its representations and warranties under this Agreement
occurring prior to the termination of this Agreement. i
!
PART6. GENERAL PROVISIONS
I
SECTION 6.1 Notices
Formal notices, demands and communications between the patties shall be sufficiently
given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to
the principal offices of the Authority and the Borrower, as designated in Sections 1.4, 1.5, and
1.6 hereof. Such written notices,demands and communications may be sent in the same manner
to such other addresses as either party may from time to time designate by mail as provided in
this Section 6.1. Any notice that is personally delivered (including by means of professional
messenger service, courier service such as United Parcel Service or Federal Expreas, or by U.S.
Postal Service),shall be deemed received on the documented date of receipt by the recipient; and
18431 Boeh Boulamd
nay lm As=W I-23-20 maotim 27
any notice that is sent by registered or certified mail, postage prepaid, return receipt required
shall be deemed received on the date of receipt thereof.
SECTION 6.2 Conflicts of interest
a. No member, official or employee of the Authority or City shall have any i
personal interest, direct or indirect, in this Agreement nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his personal
interests or the interests of any corporation,partnership or association in which he is, directly or
indirectly, interested.
b. The Borrower warrants that it has not paid or given, and will not pay or
give,any third party any money or other consideration for obtaining this Agreement. I
SECTION 6.3 Nonliability of Authority Officials and Employees
No member, official, employee or consultant of the Authority or City shall be personally
liable to the Borrower, or any successor in interest, in the event of any default or breach by the
Authority or for any amount which may become due to the Borrower or to its successor, or on
any obligations under the terms of this Agreement.
SECTION 6.4 inspection of Books and Records
Borrower shall maintain complete, accurate, and current records pertaining to the
Property for a period of five (5) years after the creation of such records, and shall permit any
duly authorized representative of the Authority or City to inspect and copy records, during
regular business hours upon reasonable advance notice. Records must be kept accurate and
current.
SECTION 6.5 ARp-r—ovals
a. Except as otherwise expressly provided in this Agreement, approvals
required of Authority, City, or Borrower in this Agreement, including the attachments hereto,
shall not be unreasonably withheld or delayed. All approvals shall be in writing. Except as
otherwise expressly provided in this Agreement, failure by either party to approve a matter
within the time provided for approval of the matter shall not be deemed a disapproval, and
failure by either party to disapprove a matter within the time provided for approval of the matter
shall not be deemed an approval.
b. Except as otherwise expressly provided in this Agreement, approvals
required of the Authority shall be deemed granted by the written approval of the Executive
Director and approvals required of the City shall be deemed granted by the written approval of j
the City Manager. Notwithstanding the foregoing, the Executive Director or City Manager may
each, in his or her sole discretion, refer to its governing body any item requiring approval;
18431 anch Bwkv&A
Acq 1. AS=v61-29-20 maid ¢ 28
i
otherwise, "Authority approval" shall mean and refer to approval by the Executive Director and
"City Approval"shall mean and refer to approval by the City Manager.
t
SECTION 6.6 Real Estate Commissions
Borrower warrants that it has not paid or given,and will not pay or give, any person any
money or other consideration for obtaining this Agreement that is in violation of any law.
Neither the City, Authority nor the Borrower shall be liable for any real estate commissions,
brokerage fees or finder's fees which may arise from this transaction. Borrower represents to the
City and Authority that it has employed no broker, agent, or finder in connection with this
transaction. Borrower hereby indemnifies, defends, and holds harmless the City and Authority
from any claims or damages for payment of any real estate commissions or broker's fees or
finder's fees arising out of the acts or representations of the other with respect to any of the
transactions contemplated by this Agreement.
SECTION 6.7 No Third Party Beneficiaries
This Agreement is made solely and specifically between the Authority, City and
Borrower and their respective successors and assigns; and, except as expressly provided
otherwise in this Agreement, no other person will have any rights, interest or claims under this
Agreement or be entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
SECTION 6.8 Authority to Siim
Borrower hereby represents that the person executing this Agreement on behalf of
Borrower has full authority to do so and to bind Borrower to perform pursuant to the terms and
conditions of this Agreement.
SECTION 6.9 No Partnership
Nothing contained in this Agreement shall be deemed or construed to create a
partnership,joint venture, or any other similar relationship between the parties hereto or cause
Authority or City to be responsible in any way for the debts or obligations of Borrower or any
other Person,
i
i
I
I
I
]8431 B"ch Bw1cmd
Anq Wen Agmt v6 1-23.20 uxatim 29
i
i
SECTION 6.10 Compliance with Law
Borrower agrees to comply with all the requirements now in force, or which may
hereafter be in force, of all municipal, county, state and federal authorities, pertaining to the
development and use of the Property, as well as operations conducted thereon. The judgment of
any court of competent jurisdiction, or the admission of Borrower in any action or proceeding,
whether AuthorityCity be or y a party thereto or not, that Borrower has violated any such
ordinance or statute in the development and use of the Property shall be conclusive of that fact as l
betwccn Authority and Borrower or City and Borrower.
SECTION 6.11 Binding Effect
This Agreement, and the terms, provisions, promises, covenants and conditions hereof,
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
heirs,legal representatives, successors and assigns.
i
SECTION 6.12 Incorporation by Reference
Each of the attachments and exhibits attached hereto is incorporated herein by this
reference.
SECTION 6.13 Counterparts
This Agreement may be executed by each party on a separate signature page, and when
the executed signature pages are combined,shall constitute one single instrument.
SECTION 6.14 Construction and Intemretation of Agreement
a. The language in all parts of this Agreement shall in all cases be construed
simply, as a whole and in accordance with its fair meaning and not strictly for or against any
party. The parties hereto aclmowledge and agree that this Agreement has been prepared jointly
by the parties and has been the subject of arm's length and careful negotiation over a
considerable period of time, that each party has been given the opportunity to independently
review this Agreement with legal counsel, and that each party has the requisite experience and
sophistication to understand, interpret, and agree to the particular language of the provisions
hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of
this Agreement, this Agreement shall not be interpreted or construed against the party preparing
it, and instead other Hiles of interpretation and construction shall be utilized.
b. If any term or provision of this Agreement, the deletion of which would
not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby and each other term and provision of this Agreement shall be valid
and enforceable to the fullest extent pemtitted by law. It is the intention of the parties hereto that
19431 Bach Bw1mrd
AM 1. Ag=v6 1.23-30 mccu0® 30
in lieu of each clause or provision of this Agreement that is illegal, invalid, or unenforceable,
there be added as a part of this Agreement an enforceable clause or provision as similar in terms
to such illegal,invalid,or unenforceable clause or provision as may be possible.
C. The captions of the articles, sections and subsections herein are inserted !
solely for convenience and under no circumstances are they or any of them to be treated or
construed as part of this instrument. j
I
d. References in this instrument to this "Agreement" mean, refer to and
include this instrument as well as any riders, exhibits,addenda and attachments hereto(which are
hereby incorporated herein by this reference) or other documents expressly incorporated by
reference in this instrument. Any references to any covenant, condition, obligation, and/or
undertaking"herein,""hereunder," or"pursuant hereto"(or language of like import) shall mean,
refer to, and include the covenants, obligations, and undertakings existing pursuant to this
instrument and any riders, exhibits, addenda, and attachments or other documents affixed to or
expressly incorporated by reference in this instrument.
e. As used in this Agreement, and as the context may require, the singular
includes the plural and vice versa, and the masculine gender includes the feminine and vice
versa.
1
SECTION 6.15 Attorneys' Fees
I
If any action or proceeding arising out of or relating to this Agreement is commenced by i
any party to this Agreement, the prevailing party shall be entitled to receive from the non-
prevailing party, in addition to any other relief that may be granted, the reasonable attorneys'
fees,costs and expenses incurred in the action or proceeding by the prevailing party.
PART 7 ENTIRE AGREEMENT,WAIVERS AND AMENDMENTS
a. This Agreement shall be executed in three duplicate originals each of
which is deemed to be an original. This Agreement shall constitute the entire understanding and
agreement of the parties.
b. This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the Property.
C. All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the Authority, City or Borrower, and all amendments
hereto must be in writing and signed by the appropriate authorities of the Authority, City and the
Borrower. This Agreement and any provisions hereof may be amended by mutual written
agreement by the Borrower,City,and the Authority,
19431 each Boulnud
Acq L. As=v61-23-20 etxd m 31
!
d. The City Manager is hereby authorized and directed to take such other and
further actions, and sign such other and further agreements and documents on behalf of the City
as may be necessary or proper to effect the terms of this Agreement. The Executive Director is
hereby authorized and directed to take such other and further actions, and sign such other and
further agreements and documents on behalf of the Authority as may be necessary or proper to
effect the terms of this Agreement.
I
[SIGNATURES APPEAR ON NEXT PAGEJ
I
i
18431 such Eoulaud .
Acq roan Agar v61d3.20=Mthn 32
IN WITNESS WHEREOF, City, Authority and Borrower have signed this Agreement as
of the Effective Date, I
I
"BORROWER" "CITY" i
BEACH HOUSING PARTNERS LP THE CTl'Y OF HUNI'INGTON BEACH, a !
a California limited partnership municipal corporation of the state of California
By: JHC-Beach LLC,a Califomia limited
liability company By,
Its: Managing General Partner City Manager
By: Jamboree Housing Corporation, ATTEST:
a CalifoVnonprofitub c
benefit By; City Clerk
Its: ManagBy ~^ APPROVED AS TO FORM:
Name: Michael Massie
Title: Chief Development
Officer By.
City Attorney
[SIGNATURES CONTINUE ON NEXT PAGE]
COUNTERPART
18431 Beach Joulamard
Acq Loan Agent v6 1-23-20"ccuhm 33
I
I
t
I
I
IN WITNESS WHEREOF, City, Authority and Borrower have signed this Agreement as
of the Effective Date.
I
"BORROWER" 'ICE,.,
r
BEACH HOUSING PARTNERS LP THE CITY OF HUNTINGTON BEACH, a I
a California limited partnership m corporation of a of Califomia
By: JHC-Beach LLC,a California limited
liability company gy.
Its: Managing General Partner City er
By: Jamboree Housing Corporation, ATTEST:
e neCalifornia nonprofit public By:!? n n�✓
benefit corporation 94X*Vt ,�
City Clerk
Its: Manager
By APPROVED AS TO FORM:
Name: Michael Massie
Title: Chief Development
Officer By:
Cn City Atto y
[SIGNATURES CONTINUE ON NEXT PAGE]
I
I
i
COUNTERPART
18431 Bach Bwlanrd
Acq Lo Agent v61.23-20 auadon 33
I
ACKNOWLEDGMENT
I
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and !
not the truthfulness, accuracy, or validity of that document.
f
State of California
County of Orange
On January 23, 2020 before me, Lisa DW Kennedy, Notary Public, personally
i
appeared Oliver Chi who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to i
me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
LIEA 4.W,X'" CY.;. Nonry Publlc.-CalnZm
WITNESS my hand and official seal. orAflobounly
Commission f 2178991
( , am.E rp Fab Yi Ki
Signature" 'tie F (Seal)
i
I
"AUTHORITY"
i
HUNTINGTON BEACH HOUSING AUTHORITY,
a pub li corporate and c
i
By. :
Executive Director
ATTEST:
By:
Secretary
APPROVED AS TO FORM:
By:
ity Atfo—meq
i
15431 Baa Boolevetd
Aeq Lava Agmt v6 1.23.20 execution 34
i
I
i
ACKNOWLEDGMENT
Ij
A notary public or other officer completing this certificate verifies only the identity �
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On January 23, 2020 before me, Lisa DW Kennedy, Notary Public, personally
appeared Oliver Chi who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
� I
I certify under PENALTY OF PERJURY under the laws of the State of California
I
that the foregoing.paragraph is true and correct.
i
LISA D..W.KENNEDY
WITNESS my hand and official seal. r*MRAUG-UlKimu
F �nQl Coumy
Comialakn/,2N8991 '
f / ff omm.:Ei IraF0.1 2021
Signature (seal)
ATTACHMENTS
ATTACHMENT NO. 1 - SITE MAP
ATTACHMENT NO. 2 - LEGAL DESCRIPTION
ATTACHMENT NO. 3 - AGREEMENT CONTAINING COVENANTS
ATTACHMENT NO. 4 - AUTHORITY LMIHAF LOAN NOTE
ATTACHMENT NO. 5 - AUTHORITY LMIHAF LOAN DEED OF TRUST
ATTACHMENT NO. 6 - AUTHORITY ASSIGNMENT OF AGREEMENTS
ATTACHMENT NO. 7 - CITY INCLUSIONARY LOAN NOTE
ATTACHMENT NO. 8 - CITY INCLUSIONARY LOAN DEED OF TRUST
ATTACHMENT NO. 9 - CITY ASSIGNMENT OF AGREEMENTS
ATTACHMENT NO. 10 - ENVIRONMENTAL INDEMNITY
ATTACHMENT NO. 1 I - OPTION AGREEMENT
ATTACHMENT NO. 12 - MEMORANDUM OF OPTION
ATTACHMENT NO. 1
SITE MAP
[behind this page]
OOa�A
0a oiwuaia a ¢ aa I .sue=
Z K .. ry ry m M o
a p ... I Y� � • P is m o
N
K z ~Z I e
z W O z z ZES LL> F=--
> D _
' cwiw a > w I _ L
0 0 a Of a
Q aaoN � N Q
N N C W-
M
101,
a N
N KQ za �� ;N 0rN Ooz cg� @oQr �
am UZ OLLI d zZ O V r
JW
mm fza >Nw w
J . + Y Z Y z aOZz 0 -
zN mrzmK m mm x 0 w w w
Of CL 0 Wo o � �� Jo
* QUQ
AQ11vonand �z = Q
low,
o
0
Z m
o
u�
'dAla H�`d36 �
F N
z LU
dN a
L—J W Z
Do
\ U =
a
-
wa
a�
,0-.9Z a+i
z� �¢
CD
U)
uiF �
xiiiv onandui
ga a V
Ld
{ J W
}� > m CD
LLI CD
J J Z L
I w W 0
.• O
• E! � ! f W -0
9 i i aL40 �r
„,. > Z
iJ• .� Q L�
.NI d331S + l m 2
ATTACHMENT NO. 2
LEGAL DESCRIPTION
[behind this page]
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH,COUNTY OF ORANGE, STATE OF
CALIFORNIA,AS PER MAP RECORDED IN BOOK 76,PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
FirstAmerican TWe Insurance Company
ATTACHMENT NO. 3
AGREEMENT CONTAINING COVENANTS
[behind this page]
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
RECORDING REQUESTED BY NO FEE
AND WHEN RECORDED RETURN TO: II $�]RI I1�� I h11�II I I I II SI I 11� I I I �1�$ 11�
THE CITY OF HUNTINGTON BEACH 2O20000038042 8:00 am 01/29/20
2000 Main Street 9 503A Al2 10
Huntington Beach, CA 92648 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
AGREEMENT CONTAINING COVENANTS
(Including Rental Restrictions)
(18431 Beach Boulevard)
THIS AGREEMENT CONTAINING COVENANTS (Including Rental Restrictions) (the
"Agreement") is entered into as of 3M4AN i 1% , 2020, by and between BEACH HOUSING
PARTNERS LP, A CALIFORNIA LIMITED PARTNERSHIP ("Owner"), and the
HUNTINGTON BEACH HOUSING AUTHORITY, a public body, corporate and politic
("Authority").
WHEREAS, Owner is the owner of that certain real property (the "Property") located in
the City of Huntington Beach more particularly described in Exhibit "A" which is attached
hereto and incorporated herein by this reference;
WHEREAS, for the purpose of providing housing that will be affordable to Extremely
Low Income Households and Very Low Income Households,the Owner,Authority, and the City
of Huntington Beach ("City") have entered into that certain Acquisition Loan Agreement, dated
as of January 23, 2020 (the "Loan Agreement") to which this Agreement is attached as
Attachment No. 3, which is incorporated herein by this reference(any capitalized term that is not
otherwise defined in this Agreement shall have the meaning ascribed to such term in the Loan
Agreement);
WHEREAS, pursuant to the Loan Agreement, the Authority has provided financial
assistance to Owner to acquire the Property, using Low and Moderate Income Housing Asset
Funds ("Authority LMIHAF Loan"), and the City has provided financial assistance to Owner to
acquire the Property, using Affordable Housing Trust Funds ("City Inclusionary Loan"); and
WHEREAS, the Loan Agreement contains certain provisions relating to the restricted use
of the Property for affordable housing purposes.
V5 1-22-20 execution
Agmt Containing Covenants
Page 1 of 6
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
THE CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
AGREEMENT CONTAINING COVENANTS
(Including Rental Restrictions)
(18431 Beach Boulevard)
THIS AGREEMENT CONTAINING COVENANTS (Including Rental Restrictions) (the
"Agreement") is entered into as of 24 , 2020, by and between BEACH HOUSING
PARTNERS LP, A CALIFORNIA LIMITED PARTNERSHIP ("Owner"), and the
HUNTINGTON BEACH HOUSING AUTHORITY, a public body, corporate and politic
("Authority").
WHEREAS, Owner is the owner of that certain real property (the "Property") located in
the City of Huntington Beach more particularly described in Exhibit "A" which is attached
hereto and incorporated herein by this reference;
WHEREAS, for the purpose of providing housing that will be affordable to Extremely
Low Income Households and Very Low Income Households, the Owner, Authority, and the City
of Huntington Beach ("City") have entered into that certain Acquisition Loan Agreement, dated
as of January 23, 2020 (the "Loan Agreement") to which this Agreement is attached as
Attachment No. 3, which is incorporated herein by this reference (any capitalized term that is not
otherwise defined in this Agreement shall have the meaning ascribed to such term in the Loan
Agreement);
WHEREAS, pursuant to the Loan Agreement, the Authority has provided financial
assistance to Owner to acquire the Property, using Low and Moderate Income Housing Asset
Funds ("Authority LMIHAF Loan"), and the City has provided financial assistance to Owner to
acquire the Property, using Affordable Housing Trust Funds ("City Inclusionary Loan"); and
WHEREAS, the Loan Agreement contains certain provisions relating to the restricted use
of the Property for affordable housing purposes.
V5 1-22-20 execution
Agmt Containing Covenants
Page 1 of 6
NOW, THEREFORE, AUTHORITY AND OWNER COVENANT AND AGREE AS
FOLLOWS:
1. Affordable Units. For the Term of this Agreement, Owner covenants and agrees
for itself, its successors, its assigns and every successor in interest to the Property or any part
thereof or any interest therein, that Owner, its successors and assigns shall use the Property
exclusively to provide thirty-three (33) one bedroom Affordable Units (hereinafter defined) that
are reserved for occupancy by Extremely Low Income Households (hereinafter defined) at an
Affordable Rent (hereinafter defined) and six (6) one bedroom and three (3) two-bedroom
Affordable Units that are reserved for occupancy by Very Low Income Households (hereinafter
defined) at an Affordable Rent.
. "Affordable Unit" shall mean one of the forty-two (42) rental dwelling units developed
on the Property restricted to occupancy by Very Low Income Households and Extremely Low
Income Households at an Affordable Rent. The term "Affordable Unit" and "Affordable Units"
shall be used as the context mandates and shall be reasonably interpreted in light of the context
in which the term appears.
2. Maximum Incomes.
a. "Extremely Low Income Household" shall mean persons and families
whose income does not exceed the income limits for Extremely Low Income households in
Orange County, published approximately annually by California's Housing and Community
Development Department. If California's Housing and Community Development Department
discontinues publishing such income limits, the term "Extremely Low Income" shall mean a
household income that does not exceed 30% of the Area Median Income, adjusted for family
size.
b. "Very Low Income Household" shall mean persons and families whose
income does not exceed the income limits for Very Low Income households in Orange County,
published approximately annually by California's Housing and Community Development
Department. If California's Housing and Community Development Department discontinues
publishing such income limits,the term "Very Low Income" shall mean a household income that
does not exceed 50%of the Area Median Income, adjusted for family size.
3. Maximum Rents. "Affordable Rent" shall mean rental rates not to exceed the
following:
a. In the case of an Extremely Low Income Unit, the product of 30 percent
times 30 percent of the Area Median Income adjusted for family size appropriate for the unit.
b. In the case of a Very Low Income Unit,the product of 30 percent times 50
percent of the Area Median Income adjusted for family size appropriate to the unit.
For purposes of determining Affordable Rent, household size appropriate to the unit shall
mean two persons in the case of a 1-bedroom unit and three persons in the case of a 2-bedroom
unit. Affordable Rent shall include a reasonable utility allowance for tenant-paid utilities based
on the Orange County Housing Authority's published utility schedules.
V5 1-22-20 execution
Agmt Containing Covenants
Page 2 of 6
"Area Median Income" shall mean the area median income of the Orange County
metropolitan statistical area (PMSA), with adjustments for household size, as estimated annually
by the United States Department of Housing and Urban Development pursuant to Section 8 of
the United States Housing Act of 1937 as amended and published by California's Housing and
Community Development Department pursuant to Health and Safety Code Section 50093.
4. Failure to Comply. Subject to the notice and cure provisions herein, failure to
comply with the affordability covenants in this Agreement is an event of default under the terms
of the promissory note evidencing the Authority LMIHAF Loan and the promissory note
evidencing the City Inclusionary Loan. Pursuant to each of said promissory notes, upon a
default under this Agreement not cured within the notice and cure period provided herein, the
Authority LMIHAF Loan and City Inclusionary Loan will each become immediately due and
payable.
5. Nondiscrimination. The Owner covenants and agrees for itself, its successors, its
assigns and every successor in interest to the Property or any part thereof, there shall be no
discrimination against or segregation of any person, or group of persons, on account of race,
color, national origin, religion or sex in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the Property nor shall Owner 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 Property.
6. Term of Covenants. The covenants established in this Agreement and any
amendments hereto approved by the Authority and the Owner shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Authority, its
successors and assigns, and the City of Huntington Beach and its successors and assigns. The
covenants in this Agreement shall remain in effect for the longest feasible time, but not less than
fifty-five (55) years from the date of this Agreement (the "Term"). Notwithstanding the
foregoing, as further set forth in the Loan Agreement, if City, Authority and Owner enter into an
Affordable Housing Agreement, this Agreement shall be replaced and superseded by a new
agreement containing covenants setting forth the specific affordability requirements for the
Property, which new agreement would be recorded at the Construction Financing Event for the
Project.
7. Enforcement of Covenants. In amplification and not in restriction of the
provisions set forth hereinabove, it is intended and agreed that Authority and City shall each be
deemed beneficiaries of the covenants and agreements provided hereinabove both for and in
their own rights and also for the purposes of protecting the interests of the community. All
covenants without regard to technical classification or designation shall be binding for the
benefit of Authority and City, and such covenants shall run in favor of Authority and City for the
entire period during which such covenants shall be in force and effect, without regard to whether
Authority or City is or remains an owner of any land or interest therein to which such covenants
relate. Authority and City and their respective successors or assigns shall each have the right, in
the event of any breach (or threatened breach) of any covenant or agreement, to exercise all the
rights and remedies, and to maintain any actions at law or suits in equity or other proper
V5 1-22-20 execution
Agmt Containing Covenants
Page 3 of 6
proceedings to enforce the curing of such breach of covenant or agreement including, without
limitation, enjoining any actions that would or do violate the covenants.
8. Covenants Run with the Land. The covenants established in this Agreement, shall,
without regard to technical classification or designation, run with the land, and shall be
enforceable against and be binding on Owner and any successor in interest to the Property or any
part thereof or any interest therein for the benefit and in favor of Authority, City and their
respective successors and assigns.
9. Amendments. Only Authority, its successors and assigns, and Owner and the
successors and assigns of Owner in and to fee title to the Property shall have the right to consent
and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements, or
other restrictions contained in this Agreement, or to subject the Property to additional covenants,
easements or other restrictions. Authority, its successors and assigns, and Owner and the
successors and assigns of Owner in and to fee title to the Property shall have the right to consent
and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements, or
restrictions contained in this Agreement or to subject the Property to additional covenants,
easements, or other restrictions without the consent of any tenant, lessee, easement holder,
licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity
having any interest less than a fee in the Property.
10. Notice and Cure. Failure or delay by Owner to perform or a breach or threatened
breach of any term or provision of this Agreement constitutes a default under this Agreement.
Authority or City shall give written notice of default to Owner, specifying the default
complained of by the Authority or City, as applicable. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default. Any failures or delays
by Authority or City in asserting any of its rights and remedies as to any default shall not operate
as a waiver of any default or of any such rights or remedies. Delays by Authority or City in
asserting any of its rights and remedies shall not deprive Authority or City of its right to institute
and maintain any actions or proceedings which it may deem necessary to protect, assert, or
enforce any such rights or remedies.
If the default is reasonably capable of being cured within thirty (30) calendar days after
any written notice of default is received or deemed received, Owner shall have such period to
effect a cure prior to exercise of remedies by the Authority or City under this Agreement. If the
default is such that it is not reasonably capable of being cured within thirty(30) days, and Owner
(i) initiates corrective action within said period, and (ii) diligently and in good faith works to
effect a cure as soon as possible, then Owner shall have such additional time as is reasonably
necessary to cure the default prior to exercise of any remedies by Authority or City. In no event
shall Authority or City be precluded from exercising remedies if its security becomes or is about
to become materially jeopardized by any failure to cure a default or the default is not cured
within sixty(60) days after the notice of default is received or deemed received.
Any notice of default that is personally delivered (including by means of professional
messenger service, courier service such as United Parcel Service or Federal Express, or by U.S.
Postal Service), shall be deemed received on the documented date of receipt by Owner; and any
notice of default that is sent by registered or certified mail, postage prepaid, return receipt
V5 1-22-20 execution
Agmt Containing Covenants
Page 4 of 6
required shall be deemed received on the date of receipt thereof. Notices hereunder shall be sent
to the address(es) set forth in the Loan Agreement.
11. Severability; Waiver.
a. If any provision of this 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.
b. A waiver by any party of the performance of any 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 any party in exercising any
remedy or right be considered a waiver of, or an estoppel against, the later exercise of such
remedy or right.
12. Governing Law. This Agreement shall be governed by the internal laws of the
State of California.
13. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one original and all of which shall be one and the same instrument.
This Agreement may be executed by each party on a separate signature page, and when the
executed signature pages are combined, shall constitute one single instrument.
14. Attorneys' Fees. If any action or proceeding arising out of or relating to this
Agreement is commenced by any party to this Agreement, the prevailing party shall be entitled
to receive from the non-prevailing party, in addition to any other relief that may be granted, the
reasonable attorneys' fees, costs and expenses incurred in the action or proceeding by the
prevailing party.
[Signatures on Following Page]
V5 1-22-20 execution
Agmt Containing Covenants
Page 5 of 6
IN WITNESS WHEREOF, Authority and Owner have signed this Agreement as of the
date first written above.
"BORROWER" "AUTHORITY"
BEACH HOUSING PARTNERS LP HUNTINGTON BEACH HOUSING
a California limited partnership AUTHORITY,
c dy corporate olitic
By: JHC-Beach LLC, a California limited a p n
liability company
Its: Managing General Partner By:
Executive Director ,
By: Jamboree Housing Corporation, bkff (�
a California nonprofit public ATTEST: t
benefit corporation /')�
By.
Its: Manager Secretary '
By
Name: Michael Massie APPROVED AS TO FORM: G
Title: Chief Development
Officer
By:
1 t City Attorr@y
V5 1-22-20 execution
Agmt Containing Covenants
Page 6 of 6
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF
On .Sit/jt L c,� 2� before me, Gi sir 4)&1-)
personally appeared h_L v� F- 1 i who proved to me on the Sasis of sati factory
evidence to be the persons whose name(01 s4am subscribed to the within instrument and
acknowledged to me that.�ie-Y,she hc3y executed the same in fiis7i�r authorized capacity(ie4
and that by Xs-AwrMwAr signature(s) on the instrument the person(, or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
owowo
WITNESS my hand and official seal. LISP D.w.rKE�NEDYNotary Public-Caifornia Z
Orange County
z '�~ Cornmission N 2178g81
Z M COMM.E fires Feb 1,2021
Signature ►` 1 (Seal)
IN WITNESS WHEREOF, Authority and Owner have signed this Agreement as of the
date first written above.
"BORROWER" "AUTHORITY"
BEACH HOUSING PARTNERS LP HUNTINGTON BEACH HOUSING
a California limited partnership AUTHORITY,
a public body corporate and politic
By: JHC-Beach LLC, a California limited
liability company
Its: Managing General Partner By;
Executive Director
By: Jamboree Housing Corporation,
a California nonprofit public ATTEST:
benefit corporation
By:
Its: Manager � Secretary
By ^�
Name: Michael Massie APPROVED AS TO FORM:
Title: Chief Development
Officer
By:
City Attorney
V5 1-22-20 execution
Agmt Containing Covenants
Page 6 of 6
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)SS.
COUNTY OF
On �✓�/1?L!�11 y , �� before me, UT/ 41)K�,)7-W,�'
personally appeared 241 j,, j 4�- �'���!E who proved tome on the basis of satisfactory
evidence to be the person(%) whose name(s) is/fie subscribed to the within instrument and
acknowledged to me that he/sho4hey executed the same in hisAwrftWr authorized capacity(ie�,
and that by his/herhheir signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(o acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
JUDI LOWENTHAL
Comm.#2273342
WITNESS my hand and official seal. N F NOTARY PUBLIC-CALIFORNIA N
ORANGE COUNTY
MY Comm,EzP.JAN.2!2013''
Signature (Seal)
Exhibit"A"
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
ATTACHMENT NO. 4
AUTHORITY LMIHAF LOAN NOTE
[behind this page]
l
PROMISSORY NOTE
TO THE HUNTINGTON BEACH HOUSING AUTHORITY
[LOW AND MODERATE INCOME HOUSING ASSET FUND)
3%Interest Huntington Beach,California
$900,000 3wwkq-r tig 2020 '
i
FOR VALUE RECEIVED, BEACH HOUSING PARTNERS LP, a California limited
partnership ('Borrower"), hereby promises to pay to the HUNTINGTON BEACH HOUSING
AUTHORITY ("Authority'), a public body, corporate and politic, or order, a principal amount
of NINE HUNDRED THOUSAND DOLLARS ($900,000) (the "Authority LMIHAF Loan'.
This Note is given pursuant to that certain Acquisition Loan Agreement dated January 23, 2020,
between Borrower, Authority, and the City of Huntington Beach (the "Loan Agreement") and
evidences the Authority LMIHAF Loan to Borrower,which provides part of the financing for the
acquisition of that certain real property in the City of Huntington Beach legally described in the
Deed of Trust securing this Note (the "Property"). The obligation of Borrower to Authority
hereunder is subject to the terms of the Loan Agreement, this Note and the following
instruments, each dated on or about the date hereof; and, where applicable, executed and
delivered by Borrower for the purpose of securing this Note: a Deed of Trust, Security
Agreement and Fixture Filing(With Assignment of Rents) ("Authority LMIHAF Loan Deed of
Trust")and an Assignment of Agreements ("Assignment of Agreements'. Said documents are
public records on file in the offices of Authority, and the provisions of said documents are
incorporated herein by this reference. The Borrower shall pay interest at the rate, in the amount
and at the time hereinafter provided.
Any capitalized term not otherwise defined herein shall have the meaning ascribed to j
such term in the Loan Agreement.
i
2. This Note evidences the obligation of the Borrower to the Authority for the
repayment of the Authority Loan. None of the funds provided pursuant to the Authority Loan
were funded directly or indirectly with any obligation the interest on which is exempt from tax
under Section 103 of the Internal Revenue Code of 1986,as amended,or pursuant to any United
States government federal source.
3. This Note is payable at the principal office of Authority, 2000 Main Street,
Huntington Beach, CA 92648, Attn: Executive Director, or at such other place as the holder
hereof may inform the Borrower in writing, in lawful money of the United States.
4. This Note shall be secured by the Authority LMIHAF Loan Deed of Trust.
vs 1-22-20 execution
LMIHAF Note
Page 1 of 5
1 .
5. This Note shall bear simple interest at the rate of three percent (3%) per annum,
which shall begin to accrue upon disbursement.
'
6. Until the Maturity Date, no payments shall be due and payable under this Note II
except to the extent of any refinancing. "Maturity Date"means the earliest to occur of:
I
(a) The date of the Construction Financing Evart for the Project; '
(b) The Outside Date for Construction Financing Event, as such date may be I
extended pursuan to the Loan Agreement; i
(c) The date that the Property or any portion thereof or interest therein is sold,
transferred,assigned or refinanced,without the prior written approval of the Authority;
(d) The date of a default by the Borrower under the terms of this Note, the Loan
Agreement, the Authority LMIHAF Loan Deed of Trust, the Assignment of Agreements, or the
Agreement Containing Covenants that is not cured within the time period provided herein or
therein; or
(e) The expiration or earlier termination of the Loan Agreement.
7. Except as set forth in Section 2.2.c of the Loan Agreement, which provides for
cancellation of this Note and reconveyance of the LMIHAF Loan Loan Deed of Trust if an
Affordable Housing Agreement is successfully negotiated and entered into and Borrower
executes a new promissory note, all as further set forth in Section 2.2.c of the Loan Agreement,
the entire unpaid principal balance of this Note and any accrued but unpaid interest shall be
immediately due and payable upon the Maturity Date.
8. All payments to the Authority shall be applied first to interest,then to reduce the
principal amount owed.
9. The Authority LMIHAF Loan is funded from the Authority's Low and Moderate
Income Housing Asset Fund. Accordingly, Borrower agrees for itself, its successors and assigns
that the use of the Property shall be subject to the restrictions on rent and occupancy set_forth in
the Agreement Containing Covenants.
10. Borrower waives presentment for payment, demand, protest, and notices of
dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on
the ground of any extension or extensions of the time of payment or of any due date under this
Note, in whole or in part,whether before or after maturity and with or without notice. Borrower
hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be
incurred by the holder hereof,in the enforcement of this Note.
vs 1-22-20 execution
LMIHAF Note
Page 2 of 5
i
i
I
I
11. Upon the failure of Borrower to perform or observe any term or provision of this
Note,the holder may exercise its rights or remedies hereunder.
i
12. (a) Failure or delay by Borrower to perform or a breach or threatened breach of
any term or provision of this Note constitutes a default under this Note.
i �
(b) Authority shall give written notice of default to Borrower, specifying the I
default complained of by the Authority. Delay in giving such notice shall not constitute a waiver j
of any default nor shall it change the time of default.
(c) Any failures or delays by Authority in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or of any such rights or j
remedies. Delays by Authority in asserting any of Its rights and remedies shall not deprive
Authority of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect,assert,or enforce any such rights or remedies.
(d) ff a monetary event of default occurs under the terms of this Note,prior to
exercising any remedies hereunder Authority shall give Borrower written notice of such default.
Borrower shall have a reasonable period of time after such notice is given within which to cute
the default prior to exercise of remedies by Authority under this Note. In no event shall
Authority be precluded from exercising remedies if its security becomes or is about to become ;
materially impaired by any failure to cure a default or the default is not cured within ten (10)
calendar days after the notice of default is received or deemed received.
(a) If a non-monetary event of default occurs under the terms of this Note,
prior to exercising any remedies hereunder,Authority shall give Borrower notice of such default.
If the default is reasonably capable of being cured within thirty (30) calendar days after such
notice is received or deemed received, Borrower shall have such period to effect a cure prior to
exercise of remedies by the Authority under this Note. If the default is such that it is not
reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective
action within said period, and (ii) diligently and in good faith works to effect a cure as soon as
possible, then Borrower shall have such additional time as is reasonably necessary to cure the .I
default prior to exercise of any remedies by Authority. In no event shall Authority be precluded
from exercising remedies if its security becomes or is about to become materially jeopardized by
any failure to cure a default or the default is not cured within sixty(60) days after the notice of
default is received or deemed received.
i
(f) Any notice of default that is transmitted by electronic facsimile
transmission followed by delivery of a "hard' copy, shall be deemed received upon its
vs 1-22-20 execution
LMIHAF Note
Page 3 of 5
i
!
transmission; any notice of default that is personally delivered (including by means of
professional messenger service,courier service such as United Parcel Service or Federal Express,
or by U.S. Postal Service), shall be deemed received on the documented date of receipt by
Owner; and any notice of default that is sent by registered or certified mail, postage prepaid,
return receipt required shall be deemed received on the date of receipt thereof Notices
hereunder shall be sent to the address(es)set forth in the Loan Agreement.
13. If the rights created by this Note shall be held by a court of competent jurisdiction to
be invalid or unenforceable as to any part of the obligations described herein, the remaining
obligations shall be completely performed and paid.
14. Borrower shall have the right to prepay the obligation evidenced by this Note, or
any part thereof,without penalty,but any such repayment shall nor relieve the Property from the
burden of the Agreement Containing Covenants.
15. Notuecourse Obligation. Subject to the provisions and limitations of this
Section 15, the obligation to repay the Authority LMIHAF Loanis a nonrecourse obligation of
the Borrower. Borrower and each general partner or limited partner of Borrower will not have
any personal liability for repayment of the Authority LMIHAF Loan, except as provided in this
Section 15. The sole recourse of Authority will be the exercise of its rights against the Property
and other security for the Authority LMIHAF Loan. Provided, however,that the foregoing will
not (a) constitute a waiver of an obligation evidenced by this Note or the Authority LMIHAF
Loan Deed of Trust; (b)limit the right of the Authority to name Borrower as a party defendant in
any action or suit for judicial foreclosure and sale under this Note and the Authority LMIHAF
Loan Deed of Trust or any action or proceeding hereunder so long as no judgment in the nature
of a deficiency judgment will be asked for or taken against Borrower, (c)release or impair this
Note or the Authority LMIHAF Loan Deed of Trust; (d) prevent or in any way hinder the
Authority from exercising, or constitute a defense, an affirmative defense, a counterclaim, or
other basis for relief in respect of the exercise of, any other remedy against the mortgaged
Property or other instnmrent securing the Note or as prescribed by law or in equity in case of
default; (e) prevent or in any way hinder the Authority from exercising, or constitute a defense,
an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, its
remedies in respect of deposits, insurance proceeds, condemnation awards or other monies or
other collateral or letters of credit securing this Note; (f) relieve Borrower of its obligations
under an indemnity delivered by Borrower to Authority;or(g)affect in any way the validity of a !
guarantee or indemnity from any person of all or any of the obligations evidenced and secured by
this Note and the Authority LWHAF Loan Deed of Trust. The foregoing provisions of this
paragraph are limited by the provision that in the event of the occurrence of a default, Borrower
and its successors and assigns will have personal liability hereunder for any deficiency judgment,
but only if and to the extent Borrower, its principals, shareholders, partners or its successors and
v5 1-22-20 execution
LMIHAF Note j
Page 4 of 5
assigns received rentals, other revenues, or other payments or proceeds in respect of the
mortgaged Property after the occurrence of such default, which rentals, other revenues, or other
payments or proceeds have not been used for the payment of ordinary and reasonable operating
expenses of the mortgaged Pro pe rtgage petty, ordinary and reasonable capital improvements to the
mortgaged Property,debt service,real estate taxes in respect of the mortgaged Property and basic
management fees, but not incentive fees, payable to an entity or person unaffiliated with
Borrower in connection with the operation of the mortgaged Property, which am then due and
payable. Notwithstanding the first sentence of this paragraph, Authority may recover directly i
from Borrower or from any other party:
i. damages,costs and expenses incurred by the Authority as a result of fraud
or criminal act or acts of Borrower or a partner, shareholder, officer, director or employee of
Borrower, or of a member or general or limited partner of Borrower, or of a general or limited
partner of such member or general or limited partner,
ii. damages, costs and expenses incurred by Authority as a result of
misappropriation of funds provided for the payment of Acquisition Costs, as described in the
Loan Agreement, rents and revenues from the operation of the Project,or proceeds of insurance
policies or condemnation proceeds;
iii. all amounts owing by Borrower pursuant to the indemnification regarding
Hazardous Substances under the Environmental Indemnity,and
iv. all court costs and attorneys' fees reasonably incurred in enforcing or
collecting upon any of the foregoing exceptions.
IN WITNESS WHEREOF Borrower has executed this Note as of the day and year set
forth above.
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC,a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonproffill public nefit corporation
Its: Mena `!¢
By �~
Name: Michael Massie
Title: Chief Development Officer
v5 1-22-20 execution
LMIHAF Note
Page 5 of 5
ATTACHMENT NO. 5
AUTHORITY LMIHAF LOAN DEED OF TRUST
[behind this page]
i
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
RECORDING REQUESTED BY II I I II II II I I I I II I I I I I I I II NO F E E
AND WHEN RECORDED RETURN TO: * $ R 0 0 1 1 4 4 5 6 1 4 $ *
2020000038044 8:00 am 01/29/20
CITY OF HUNTINGTON BEACH 9 503A DI I S02 A36 9
2000 Main Street 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 0.00
Huntington Beach,CA 92648
Attn:City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18
FREE RECORDING REQUESTED
(Gov't Code Section 27383)
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
BY BEACH HOUSING PARTNERS LP FOR THE BENEFIT OF
THE HUNTINGTON BEACH HOUSING AUTHORITY
[LOW AND MODERATE INCOME HOUSING ASSET FUND]
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents)
(this"Deed of Trust"), dated as of JAr��tAR� 2g ,2020, is made by Beach Housing
Partners LP, a California limited partnership, whose address is Beach Housing Partners LP, c/o
Jamboree Housing Corporation, 17701 Cowan, Suite 200, Irvine, CA 92614, Attention:
Michael Massie, Chief Development Officer (the "Trustor"), in favor of First American Title
Insurance Company (the "Trustee"), and the Huntington Beach Housing Authority, a public
body, corporate and politic, whose address is 2000 Main Street, Huntington Beach, CA 92648,
Attn: Executive Director (the `Beneficiary'.'), and is executed to secure that certain Promissory
Note to the Huntington Beach Housing Authority [Low and Moderate Income Housing Asset
Fund] dated on or about the date hereof in a principal amount of up to $900,000 executed by the
Trustor in favor of the Beneficiary (such Promissory Note, as it may from time to time be
supplemented, amended, extended, renewed or otherwise modified from time to time being
referred. to in this Deed of Trust as the "Promissory Note"), the provisions of which are
incorporated in this Deed of Trust by this reference.
1. Grant in Trust and Security Agreement. For valuable consideration, the Trustor
irrevocably grants, transfers and assigns to the Trustee, in trust, with power of sale, for the
benefit of the Beneficiary,the following property(the"Trust Estate"):
(a) the real property described in Exhibit A attached to this Deed of Trust and
incorporated herein by this reference (the"Land"); and
i
(b) all buildings, structures and other improvements now or in the future
located or to be constructed on the Land(the"Improvements"); and
V5 1-22-20 execution
LMIHAF Deed of Trust
Page I of 7
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18
FREE RECORDING REQUESTED
(Gov't Code Section 27383)
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
BY BEACH HOUSING PARTNERS LP FOR THE BENEFIT OF
THE HUNTINGTON BEACH HOUSING AUTHORITY
[LOW AND MODERATE INCOME HOUSING ASSET FUND]
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents)
(this "Deed of Trust"), dated as of )Ao o\M 20 , 2020, is made by Beach Housing
Partners LP, a California limited partnership, whose address is Beach Housing Partners LP, c/o
Jamboree Housing Corporation, 17701 Cowan, Suite 200, Irvine, CA 92614, Attention:
Michael Massie, Chief Development Officer (the "Trustor"), in favor of First American Title
Insurance Company (the "Trustee"), and the Huntington Beach Housing Authority, a public
body, corporate and politic, whose address is 2000 Main Street, Huntington Beach, CA 92648,
Attn: Executive Director (the "Beneficiary"), and is executed to secure that certain Promissory
Note to the Huntington Beach Housing Authority [Low and Moderate Income Housing Asset
Fund] dated on or about the date hereof in a principal amount of up to $900,000 executed by the
Trustor in favor of the Beneficiary (such Promissory Note, as it may from time to time be
supplemented, amended, extended, renewed or otherwise modified from time to time being
referred to in this Deed of Trust as the "Promissory Note"), the provisions of which are
incorporated in this Deed of Trust by this reference.
1. Grant in Trust and Security Agreement. For valuable consideration, the Trustor
irrevocably grants, transfers and assigns to the Trustee, in trust, with power of sale, for the
benefit of the Beneficiary, the following property(the "Trust Estate"):
(a) the real property described in Exhibit A attached to this Deed of Trust and
incorporated herein by this reference (the"Land"); and
(b) all buildings, structures and other improvements now or in the future
located or to be constructed on the Land (the "Improvements"); and
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 1 of 7
(c) all tenements, hereditaments, appurtenances, privileges and other rights
and interests now or in the future benefitting or otherwise relating to the
Land or the Improvements, including easements, rights-of-way,
development rights; mineral rights, water rights and water stock (the
"Appurtenances"). The Appurtenances, together with the Land and the
Improvements, shall be referred to as the "Property".
2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment
and performance of the following (collectively, the "Secured Obligations"): (a) all present and
future indebtedness evidenced by the Promissory Note, including principal and all other amounts
payable under the terms of the Promissory Note; (b) all present and future obligations of the
Trustor to the Beneficiary under this Deed of Trust; (c) present and future obligations of the
Trustor to the Beneficiary under that certain Acquisition Loan Agreement dated as of January 23,
2020 entered into by and between the Trustor (the "Borrower" therein), the Beneficiary (the
"Authority" therein), and the City of Huntington Beach (the "City" therein) (the "Agreement");
and (d) all additional present and future obligations of the Trustor to the Beneficiary under any
other agreement or instrument (whether existing now or in the future) which states that it is, or
such obligations are, secured by this Deed of Trust; in each case as such indebtedness and other
obligations may from time to time be supplemented, modified, amended, renewed and extended,
whether evidenced by new or additional documents or otherwise.
3. Trustor's Covenants. To protect the security of this Deed of Trust, the Trustor agrees as
follows:
(a) Payment and Performance of Secured Obligations. The Trustor shall pay
and perform all Secured Obligations in accordance with the respective terms of such Secured
Obligations, whether evidenced by or arising under this Deed of Trust or the Promissory Note.
(b) Liens and Taxes. The Trustor shall pay, prior to delinquency, all taxes, if
any, which are or may become a lien affecting any part of the Trust Estate, and the Trustor shall
pay and perform when due all other obligations secured by or constituting a lien affecting any
part of the Trust Estate, provided that the Trustor shall not be in violation of this provision if the
Trustor is protesting or contesting such taxes in good faith and by legal means.
4. Obligations With Respect to Trust Estate. Neither the Beneficiary nor the Trustee shall
be under any obligation to preserve, maintain or protect the Trust Estate or any of the Trustor's
rights or interests in the Trust Estate, or make or give any presentments, demands for
performance, protests, notices of nonperformance, protest or dishonor or other notices of any
kind in connection with any rights, or take any other action with respect to any other matters
relating to the Trust Estate. The Beneficiary and the Trustee do not assume and shall have no
liability for, and shall not be obligated to perform, any of the Trustor's obligations with respect
to any rights or any other matters relating to the Trust Estate, and nothing contained in this Deed
of Trust shall release the Trustor from any such obligations.
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 2 of 7
5. Remedies Upon Event of Default. Upon the occurrence of any Event of Default (as
hereinafter defined): (a) the Trustor shall be in default under this Deed of Trust, and upon
acceleration of the payment of any Secured Obligations in accordance with the terms of the
Promissory Note, all Secured Obligations shall immediately become due and payable without
further notice to the Trustor; (b) upon demand by the Beneficiary, the Trustor shall pay to the
Beneficiary, in addition to all other payments specifically required under the Promissory Note, at
the times and in the amounts required by the Beneficiary from time to time, sums which when
cumulated will be sufficient to pay one month prior to the time the same become delinquent, all
taxes which are or may become a lien affecting the Trust Estate and the premiums for any
policies of insurance to be obtained hereunder (all such payments to be held in a cash collateral
account as additional security for the Secured Obligations over which the Beneficiary shall have
sole and exclusive control and right of withdrawal); and (c) the Beneficiary may, without notice
to or demand upon the Trustor, which are expressly waived by the Trustor (except for notices or
demands otherwise required by applicable laws to the extent not effectively waived by the
Trustor and any notices or demands specified below), and without releasing the Trustor from any
of its Secured Obligations, exercise any one or more of the following remedies as the Beneficiary
may determine.
The Beneficiary may, either directly or through an agent or court-appointed
receiver, and without regard to the adequacy of any security for the Secured Obligations:
(i) enter, take possession of, manage, operate, protect, preserve and
maintain, and exercise any other rights of an owner of the Trust Estate, and use any other
properties or facilities of the Trustor relating to the Trust Estate, all without payment of rent or
other compensation to the Trustor;
(ii) enter into such contracts and take such other action as the
Beneficiary deems appropriate to complete all or any part of any construction which may have
commenced on the Land, subject to such modifications and other changes in the plan of
development as the Beneficiary may deem appropriate;
(iii) conduct any business of the Trustor in relation to the Trust Estate
and deal with the Trustor's creditors, debtors, agents and employees and any other persons
having any relationship with the Trustor in relation to the Trust Estate, and amend any contracts
between them, in any manner the Beneficiary may determine;
(iv) endorse, in the name of the Trustor, all checks, drafts and other
evidences of payment relating to the Trust Estate, and receive, open and dispose of all mail
addressed to the Trustor and notify the postal authorities to change the address for delivery of
such mail to such address as the Beneficiary may designate; and
(v) take such other action as the Beneficiary deems appropriate to
protect the security of this Deed of Trust.
The Beneficiary's agent or court-appointed receiver shall hold all monies and
proceeds, including, without limitation, proceeds from the sale of the Property or any portion
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 3 of 7
thereof, for the benefit of the Trustor and shall not disburse the monies or proceeds for the
satisfaction of the Secured Obligations without the prior written consent of the Beneficiary. The
Beneficiary's agent or court-appointed receiver may, but without any obligation to do so and
without notice to or demand upon the Trustor and without releasing the Trustor from any
Secured Obligations under this Deed of Trust, and at the expense of the Trustor, follow the
written instruction of the Beneficiary under this Section 5.
The Beneficiary may execute and deliver to the Trustee written declaration of
default and demand for sale and written notice of default and of election to cause all or any part
of the Trust Estate to be sold, which notice the Trustee shall cause to be filed for record; and
after the lapse of such time as may then be required by law following the recordation of such
notice of default, and notice of sale having been given as then required by law, the Trustee,
without demand on the Trustor, shall sell such Property at the time and place fixed by it in such
notice of sale, either as a whole or in separate parcels and in such order as the Beneficiary may
direct (the Trustor waiving any right to direct the order of sale), at public auction to the highest
bidder for cash in lawful money of the United States (or cash equivalents acceptable to the
Trustee to the extent permitted by applicable law), payable at the time of sale. The Trustee may
postpone the sale of all or any part of the Trust Estate by public announcement at such time and
place of sale, and from time to time after any such postponement may postpone such sale by
public announcement at the time fixed by the preceding postponement. The Trustee shall deliver
to the purchaser at such sale its deed conveying the property so sold, but without any covenant or
warranty, express or implied, and the recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including the Trustee or the
Beneficiary, may purchase at such sale, and any bid by the Beneficiary may be, in whole or in
part, in the form of cancellation of all or any part of the Secured Obligations. Any such sale
shall be free and clear of any interest of the Trustor and any lease, encumbrance or other matter
affecting the property so sold which is subject or subordinate to this Deed of Trust, except that
any such sale shall not result in the termination of any such lease (i) if and to the extent
otherwise provided in any estoppel or other agreement executed by the tenant and the
Beneficiary(or executed by the tenant in favor of, and accepted by, the Beneficiary), or (ii) if the
purchaser at such sale gives written notice to the tenant, within 30 days after date of sale, that the
lease will continue in effect.
The Beneficiary may proceed to protect, exercise and enforce any and all other
remedies provided under the Agreement, the Promissory Note, this Deed of Trust or by
applicable laws.
All proceeds of collection, sale or other liquidation of the Trust Estate shall be
applied first to all costs, fees, expenses and other amounts payable by the Trustor under this
Deed of Trust and to all other Secured Obligations not otherwise repaid in such order and
manner as the Beneficiary may determine, and the remainder, if any, to the person or persons
legally entitled thereto.
Each of the remedies provided in this Deed of Trust is cumulative and not
exclusive of, and shall not prejudice, any other remedy provided in this Deed of Trust or by
applicable laws. Each remedy may be exercised from time to time as often as deemed necessary
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 4 of 7
by the Trustee and the Beneficiary, and in such order and manner as the Beneficiary may
determine. This Deed of Trust is independent of any other security for the Secured Obligations,
and upon the occurrence of an Event of Default, the Trustee or the Beneficiary may proceed in
the enforcement of this Deed of Trust independently of any other remedy that the Trustee or the
Beneficiary may at any time hold with respect to the Trust Estate or the Secured Obligations or
any other security. The Trustor, for itself and for any other person claiming by or through the
Trustor, waives, to the fullest extent permitted by applicable laws, all rights to require a
marshaling of assets by the Trustee or the Beneficiary or to require the Trustee or the Beneficiary
to first resort to any particular portion of the Trust Estate or any other security (whether such
portion shall have been retained or conveyed by the Trustor) before resorting to any other
portion, and all rights of redemption, stay and appraisal.
6. Event of Default. An "Event of Default" shall be deemed to occur if the Trustor is in
default of any provision of the Promissory Note, this Deed of Trust or the Agreement and fails to
cure such default subject to the notice and cure provisions thereof.
7. Costs, Fees and Expenses. The Trustor shall pay, on demand, all reasonable costs, fees,
expenses, advances, charges, losses and liabilities of the Trustee and the Beneficiary under or in
connection with this Deed of Trust or the enforcement of, or the exercise of, any remedy or any
other action taken by the Trustee or the Beneficiary under this Deed of Trust or the collection of
the Secured Obligations, in each case including, without limitation, (a) reconveyance and
foreclosure fees of the Trustee, (b) costs and expenses of the Beneficiary or the Trustee or any
receiver appointed under this Deed of Trust in connection with the operation, maintenance,
management, protection, preservation, collection, sale or other liquidation of the Trust Estate or
foreclosure of this Deed of Trust, (c) advances made by the Beneficiary to complete or partially
construct all or any part of any construction which may have commenced on the Land or
otherwise to protect the security of this Deed of Trust, (d) cost of evidence of title, and (e)the
reasonable fees and disbursements of the Trustee's and the Beneficiary's legal counsel and other
out-of-pocket expenses, and the reasonable charges of the Beneficiary's legal counsel.
8. Late Pam. By accepting payment of any part of the Secured Obligations after, its
due date, the Beneficiary does not waive its right either to require prompt payment when due of
all other Secured Obligations or to declare a default for failure to so pay.
9. Action by Trustee. At any time and from time to time upon written request of the
Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the
personal liability of any person for payment of the Secured Obligations or the security of this
Deed of Trust for the full amount of the Secured Obligations on all Property remaining subject to
this Deed of Trust, the Trustee may, without notice and without liability for such action, and
notwithstanding the absence of any payment on the Secured Obligations or any other
consideration: (a) reconvey all or any part of the Trust Estate, (b) consent to the making and
recording, or either, of any map or plat of the Land, (c)join in granting any easement affecting
the Land, or (d)join in or consent to any extension agreement or any agreement subordinating
the lien of this Deed of Trust. The Trustee is not obligated to notify the Trustor or the
Beneficiary of any pending sale under any other deed of trust or of any action or other
V5 I-22-20 execution
LMIHAF Deed of Trust
Page 5 of 7
proceeding in which the Trustor, the Beneficiary or.the Trustee is a party unless brought by the
Trustee.
10. Reconve, a� nce. Upon written request of the Beneficiary and surrender of this Deed of
Trust and the Promissory Note to the Trustee for cancellation or endorsement, and upon payment
of its fees and charges, the Trustee shall reconvey, without warranty, all or any part of the
Property then subject to this Deed of Trust. Any reconveyance, whether full or partial, may be
made in terms to "the person or persons legally entitled thereto", and the recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The
Beneficiary shall not be required to cause any Property to be released from this Deed of Trust
until final payment and performance in full of all Secured Obligations and termination of all
obligations of the Beneficiary under or in connection with the Promissory Note or until the
Secured Obligations are forgiven.
11. Substitution of Trustee. The Beneficiary may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named in or acting under this Deed of
Trust, which instrument, when executed by the Beneficiary and duly acknowledged and recorded
in the office of the recorder of the county or counties where the Land is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees who shall, without
conveyance from the predecessor Trustee, succeed to all of its title, estate, rights, powers and
duties. Such instrument must contain the name of the original Trustor, the Trustee and the
Beneficiary, the book and page where this Deed of Trust is recorded (or the date of recording and
instrument number) and the name and address of the new Trustee.
12. Successors and Assigns. This Deed of Trust applies to and shall be binding on and inure
to the benefit of all parties to this Deed of Trust and their respective successors and permitted
assigns.
13. Acceptance. Notice of acceptance of this Deed of Trust by the Beneficiary or the Trustee
is waived by the Trustor. The Trustee accepts this Deed of Trust when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by law.
14. Beneficiary's Statements. For any statement regarding the Secured Obligations, the
Beneficiary may charge the maximum amount permitted by law at the time of the request for
such statement.
15. Governing Law. This Deed of Trust shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
16. Recording. The Trustee shall record this Deed of Trust against the Property in the
Orange County's Recorder's office.
[Signature on Following Page]
[Remainder of Page Intentionally Left Blank]
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 6 of 7
IN WITNESS WHEREOF, the Trustor has executed this Deed of Trust as of the day and
year set forth above.
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC, a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public benefit corporation
Its: Mana er
By
Name: Michael Massie
Title: Chief Development Officer
V5 1-22-20 execution
LMIHAF Deed of Trust
Page 7 of 7
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF
On , ;LOIN before me, -J/f-y/ Zaunvfi� �l � ,cy k"'-l1G ,
personally appeared ie,j EL 71%As�ir who proved to me on the basis of satisfactory
evidence to be the persons) whose name(49) is/ subscribed to the within instrument and
acknowledged to me that he/sheMwy executed the same in his/hen4heir authorized capacity(ies),
and that by his/herMieir signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. JUDI LOWENTHAL
Comm.$2273342
N : m NOTARY PUKIC•CALIFORNIA
ORANGE COUNTY ..
MY COMM.EXP.JAN.25,2023''
Signature L (Seal)
Exhibit"A"
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
ATTACHMENT NO. 6
AUTHORITY ASSIGNMENT OF AGREEMENTS
[behind this page]
. :.:. . . . ... ... .
ASSIGNMENT OF AGREEMENTS
FOR VALUE RECEIVED, the undersigned, Beach Housing Partners LP, a California
limited partnership (`Borrower"), assigns to the City of Huntington Beach, a California
municipal corporation("City"),all of its right,title and interest in and to:
1. All architectural, design, engineering and development agreements, and any and all
amendments, modifications, supplements, addenda and general conditions thereto
(collectively,"Architectural Agreements");and
2. All plans and specifications, shop drawings, working drawings, amendments,
modifications, changes, supplements, general conditions and addenda thereto
(collectively"Plans and Specifications")
heretofore or hereafter into or prepared by any architect, engineer or other person or entity
(collectively"Architect'), for or on behalf of Borrower in connection with the development and
construction of the.Project. The Plans and Specifications, as of the date hemot are those which
Borrower has heretofore,or will hereafter deliver to City.
I
This ASSIGNMENT OF AGREEMENT'S AND PLANS AND SPECIFICATION
("Asslgnment'D constitutes a present and absolute assignment to City as of the date of this
Assignment;provided•however,City confers upon Borrower the right to enforce the terms of the
Architectural Agreements and Borrower's rights to the Plans and Specifications so long as no
default or event which would constitute a default after notice or the passage of time, or both,has
occurred and is continuing under that certain Acquisition Loan Agreement dated as of January
23, 2020, between City, Borrower, and the Huntington Beach Housing Authority ('Authority)
(the "Loan Agreement"), as well as any future amendments and implementation agreements
between City, Borrower and Authority which refer to this Assignment. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Loan Agreement. Upon the
occurrence of a default or event which would constitute a default after notice or the passage of
time, or both, under the Loan Agreement, City may, in its sole discretion, give-notice to
Architect of its intent to enforce the rights of Borrower under the Architectual Agreements and
of its rights to the Plans and Specifications and may initiate or participate in any legal
proceedings respecting the enforcement of said rights. Borrower acknowledges that by accepting
this Assignment, City does not assume any of Borrower's obligations under the Architectural
Agreements or with respect to the Plans and Specifications.
Borrower represents and warrants to City that;(a) any Architectural Agreements entered
into by Borrower are in full force and effect and are enforceable in accordance with their terms
and no default, or event which would constitute a default after notice or the passage of time, or
vs 1-22-20 execution
Inclusionary
Assignment of Agreements
Page I of 3
both, exists with respect to said Architectural Agreements; (b) any copies of the Architectural
Agreements and Plans and Specifications delivered to City are complete and correct; and (c)
Borrower has not assigned any of its rights under the Architectural Agreements or with respect to
the Plans and Specifications except to the Authority.
Borrower agrees: (a) to pay and perform all obligations of Borrower under the
Architectural Agreements; (b)to enforce the payment and performance of all obligations of any !
other person or entity under the Architectural Agreements; (c) not to modify the existing j
Architectural Agreements nor to enter into any future Architectural Agreements without City's
prior written approval except as otherwise may be permitted in the Loan Agreement; and(d)not
to further assign (other than assignment in connection with a loan from the Authority), for
security or any other purposes, its rights under the Architectural Agreements or with respect to
the Plans and Specifications without City's prior written consent.
This Assignment secures performance by Borrower of all obligations of Borrower under
the Loan Agreement.This Assignment is supplemented by the provisions of the Loan Agreement
and said provisions are incorporated herein by reference.
This Assignment shall be governed by the laws of the State of California, except to the
extent that Federal laws preempt the laws of the State of California, and Borrower consents to
the jurisdiction of any Federal Court in the Central District of California, or State Court within
the County of Orange having proper venue for the filing and maintenance of any action arising
hereunder and agrees that the prevailing party in any such action shall be entitled, in addition to
any other recovery,to reasonable attorney's fees and costs.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal
representatives,assigns,and successors-in-interest of Borrower and City;provided,however,this
shall not be construed and is not intended to waive any restrictions on assignment,sale,transfer,
mortgage,pledge,hypothecation or encumbrance by Borrower contained in the Loan Agreement.
The attached Architect's Consent, Schedule I and Exhibit A are incorporated by
reference.
[SIGNATURE ON FOLLOWING PAGE]
vs 1-22-20 execution
Inclusionary
Assignment of Agreements
Page 2 of 3
....:........ . .
Executed as of -r 2020.
i
i
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach L.L.C, a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public efit corporation
Its: Ma
nage
By
Name: Michael Massie
Title: Chief Development Officer
vs 1-22-20 execution
Inclusionary
Assignment of Agreements
Page 3 of 3
ARCHTCECT'S CONSENT
The undersigned architect ( Architect'] hereby consents to the foregoing Assignment to
which this Architect's Consent{"Consent") is part, and acknowledges that there presently exists
no unpaid claims due to the Architect except as set forth on Schedule 1 attached hereto, arising
out of the preparation and delivery of the Plans and Specifications to Borrower and/or the
performance of the Architect's obligations under the Assignment.
Architect agrees that if, at any time, City shall become the owner of said Property, or,
pursuant to its rights under the Loan Agreement, elects to undertake or cause the completion of
construction of the Project on any portion of the Property, in accordance with the Plans and
Specifications,and gives Architect written notice of such election; THEN, so long as Architect
has received,receives or continues to receive the compensation called for under the Architectural
Agreements, City may, at its option, use and rely on the Plans and Specifications for the
purposes for which they were prepared, and Architect will continue to perform its obligations
under the Architectural Agreements for the benefit and account of City in the same manner as if
performed for the benefit or account of Borrower in the absence of the Assignment
Architect further agrees that, in the event of a breach by Borrower of the Architectural
Agreements, or any agreement entered into with Architect in connection with the Plans and
Specifications, so long as Borrower's interest in the Architectural Agreements and Plans and
Specifications is assigned to City, Architect will give written notice to City of such breach at the
address shown below. City shall have thirty(30)days from the receipt of such written notice of
default to remedy or cure said default Nothing herein shall require City to cure said default or to
undertake completion of construction of the Project.
Architect warrants and represents that iVWshe has no knowledge of any prior
assignment(s) of any interest in the Platys and Specifications and/or the Architectural
Agreements. Except as otherwise defined herein,the terms used herein shall have the meanings
given them in the Assignment.
Executed sfs/of/ 20 01 ZD .
By: Wit
Name: Srt✓�ko �
Title: r .4 46rw L
City's Address:
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Attn: City Manager
_........................... ......._..... ... . ..... . . . j
l �
SCHEDULE OF UNPAID CLAIMS
Schedule I to Assignment of Architectural Agreements and Plans and Specifications dated as I
of 20 between BEACH HOUSING PARTNERS LP, a California limited
partnership,as Borrower,and CITY OF HUNTINGTON,as City. j.
I
i
I
i
I
it
EXHIBIT A
PROPERTY DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California,described
as follows:
PARCEL 2,IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN:. 159-031-18
I .
I '
' i
is
ATTACHMENT NO. 7
CITY INCLUSIONARY LOAN NOTE
[behind this page]
PROMISSORY NOTE
TO THE CITY OF HUNTINGTON BEACH
[AFFORDABLE HOUSING TRUST FUNDS]
3%Interest Huntington Beach,California
$2,100,000 2020
FOR VALUE RECEIVED, BEACH HOUSING PARTNERS LP, a California limited
partnership (`93orTower"), hereby promises to pay to the CITY OF HUNTINGTON BEACH
("City"), a California municipal corporation, or order, a principal amount of TWO MILLION
ONE HUNDRED THOUSAND DOLLARS ($2,100,000) (the "City Inclusionary Loan"). This
Note is given pursuant to that certain Acquisition Loan Agreement dated January 23, 2020,
between Borrower, City, and the Huntington Beach Housing Authority (the "Loan Agreement")
and evidences the City Inclusionary Loan to Borrower, which provides part of the financing for
the acquisition of that certain real property in the City of Huntington Beach legally described in
the Deed of Trust securing this Note (the "Property"), The obligation of Borrower to City
hereunder is subject to the terms of the Loan Agreement, this Note and the following
instruments, each dated on or about the date hereof, and, where applicable, executed and
delivered by Borrower for the purpose of securing this Note: a Dead of Trust, Security
Agreement and Fixture Filing (With Assignment of Rents) ("City Inclusionary Loan Deed of
Trust's and an Assignment of Agreements ("Assignment of Agreements"). Said documents are
public records on 'file in the offices of City, and the provisions of said documents are
incorporated herein by this reference. The Borrower shall pay interest at the rate, in the amount
and at the time hereinafter provided.
Any capitalized term not otherwise defined herein shall have the meaning ascribed to
such term in the Loan Agreement.
2. This Note evidences the obligation of the Borrower to the City for the repayment
of the City Loan. None of the funds provided pursuant to the City Loan were ftinded directly or
indirectly with any obligation the interest on which is exempt from tax under Section 103 of the
Internal Revenue Code of 1986, as amended, or pursuant to any United States government
federal source.
3. This Note is payable at the principal office of City,2000 Main Street, Huntington
Reach, CA 92648, Attn: City Manager, or at such other place as the holder hereof may inform
the Borrower in writing,in lawful money of the United States.
4. This Note shall be secured by the City Inclusionary Loan Deed of Trust.
v5 1-22.20 execution
Inclusionary Note
Page 1 of 6
5. This Note shall bear simple interest at the rate of three percent (3%) per annum,
which shall begin to accrue upon disbursement
6. Until the Maturity Date, no payments shall be due and payable under this Note
except to the extent of any refinancing. "Maturity Date"means the earliest to occur of:
(a) The date of the Construction Financing Event for the Project; j
(b) The Outside Date for Construction Financing Event, as such date may be
extended pursuan to the Loan Agreement;
(c) The date that the Property or any portion thereof or interest therein is sold,
transferred,assigned or refinanced,without the prior written approval of the City;
(d) The date of a default by the Borrower under the terms of this Note, the Loan
Agreement, the City Inclusionary Loan Deed of Trust, the Assignment of Agreements, or the
Agreement Containing Covenants that is not cured within the time period provided herein or
therein;or
(e) The expiration or earlier termination of the Loan Agreement.
7. Except as set forth in Section 2.2.c of the Loan Agreement, which provides for
cancellation of this Note and reconveyance of the LMIHAF Loan Loan Deed of Trust if an j
Affordable Housing Agreement is successfully negotiated and entered into and Borrower
executes a new promissory note, all as further set forth in Section 2.2.c of the Loan Agreement,
the entire unpaid principal balance of this Note and any accrued but unpaid interest shall be
immediately due and payable upon the Maturity Date.
g. All payments to the City shall be applied first to interest, then to reduce the
principal amount owed.
9. The City Inclusionary Loan is funded from the City's Affordable Housing Trust
Funds, Accordingly, Borrower agrees for itself, its successors and assigns that the use of the
Property shall be subject to the restrictions on rent and occupancy set forth in the Agreement
Containing Covenants.
10. Borrower waives presentment for payment, demand, protest, and notices of
dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on
the ground of any extension or extensions of the time of payment or of any due date under this
Note, in whole or in part,whether before or after maturity and with or without notice. Borrower
v5 1-22-20 execution
Inclusionary Note
Page 2 of 6
hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be
incurred by the holder hereof,in the enforcement of this Note.
11. Upon the failure of Borrower to perform or observe any term or provision of this
Note,the holder may exercise its rights or remedies hereunder.
I
12. (a) Failure or delay by Borrower to perform or a breach or threatened breach of I
any term or provision of this Note constitutes a default under this Note.
(b) City shall give written notice of default to Borrower,specifying the default
complained of by the City. Delay in giving such notice shall not constitute a waiver of any
default nor shall it change the time of default.
(c) Any failures or delays by City in asserting any of its rights and remedies
as to any default shall not operate as a waiver of any default or of any such rights or remedies.
Delays by City in asserting any of its rights and remedies shall not deprive City of its right to
institute and maintain any actions or proceedings which it may deem necessary to protect,assert,
or enforce any such rights or remedies.
(d) If a monetary event of default occurs under the terms of this Note,prior to
exercising any remedies hereunder City shall give Borrower written notice of such default.
Borrower shall have a reasonable period of time after such notice is given within which to cure
the default prior to exercise of remedies by City under this Note. In no event shall City be
precluded from exercising remedies if its security becomes or is about to become materially
impaired by any failure to cure a default or the default is not cured within ten(10)calendar days
after the notice of default is received or deemed received.
(e) If a non-monetary event of default occurs under the terms of this Note,
prior to exercising any remedies hereunder, City shall give Borrower notice of such default. If
the default is reasonably capable of being cured within thirty(30) calendar days after such notice
is received or deemed received, Borrower shall have such period to effect a cure prior to exercise
of remedies by the City under this Note. If the default is such that it is not reasonably capable of
being cured within thirty (30) days, and Borrower (i) initiates corrective action within said
period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then
Borrower shall have such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by City. In no event shall City be precluded from exercising remedies if
its security becomes or is about to become materially jeopardized by any failure to cure a default
or the default is not cured within sixty(60)days after the notice of default is received or deemed
received.
vs1-22-20 execution
Inclusionary Note
Page 3 of 6
I
(f) Any notice of default that is transmitted by electronic facsimile
transmission followed by delivery of a "hard" copy, shall be deemed received upon its
transmission; any notice of default that is personally delivered (including by means of
professional messenger service, courier service such as United Parcel Service or Federal Express,
or by U.S. Postal Service), shall be deemed received on the documented date of receipt by
Owner; and any notice of default that is sent by registered or certified mail, postage prepaid,
return receipt required shall be deemed received on the date of receipt thereof. Notices
I
hereunder shall be sent to the address(es)set forth in the Loan Agreement.
13. If the rights created by this Note shall be held by a court of competent jurisdiction to
be invalid or unenforceable as to any part of the obligations described herein, the remaining
obligations shall be completely performed and paid.
14. Borrower shall have the right to prepay the obligation evidenced by this Note, or
any part thereof,without penalty,but any such repayment shall nor relieve the Property from the
burden of the Agreement Containing Covenants.
15. Nonrecourse Obligation. Subject to the provisions and limitations of this Section
15, the obligation to repay the City Inclusionary Loan is a nonrecourse obligation of the
Borrower. Borrower and each general partner or limited partner of Borrower will not have any
personal liability for repayment of the City Inclusionary Loan,except as provided in this Section
15. The sole recourse of City will be the exercise of its rights against the Property and other
security for the City Inclusionary Loan. Provided, however, that the foregoing will not (a)
constitute a waiver of an obligation evidenced by this Note or the City Inclusionary Loan Deed
of Trust; (b) limit the right of the City to name Borrower as a party defendant in any action or
suit for judicial foreclosure and sale under this Note and the City Inclusionary Loan Deed of
Trust or any action or proceeding hereunder so long as no judgment in the nature of a deficiency
judgment will be asked for or taken against Borrower; (c)release or impair this Note or the City
Inclusionary Loan Deed of Trust; (d)prevent or in any way hinder the City from exercising, or
constitute a defense,an affrmrative defense, a counterclaim,or other basis for relief in respect of
the exercise of, any other remedy against the mortgaged Property or other instrument securing
the Note or as prescribed by law or in equity in case of default; (a)prevent or in any way hinder
the City from exercising, or constitute a defense, an affirmative defense,a counterclaim,or other
basis for relief in respect of the exercise of, its remedies in respect of deposits, insurance
proceeds, condemnation awards or other monies or other collateral or letters of credit securing
this Note; (f) relieve Borrower of its obligations under an indemnity delivered by Borrower to
City; or (g)affect in any way the validity of a guarantee or indemnity from any person of all or
any of the obligations evidenced and secured by this Note and the City Inclusionary Loan Deed
of Trust. The foregoing provisions of this paragraph are limited by the provision that in the
event of the occurrence of a default, Borrower and its successors and assigns will have personal
v51-22-20 execution
Inclusionary Note
Page 4 of 6
I
liability hereunder for any deficiency judgment, but only if and to the extent Borrower, its
principals, shareholders, partners or its successors and assigns received rentals, other revenues,
or other payments or proceeds in respect of the mortgaged Property after the occurrence of such
default, which rentals, other revenues, or other payments or proceeds have not been used for the
payment of ordinary and reasonable operating expenses of the mortgaged Property, ordinary and
reasonable capital improvements to the mortgaged Property, debt service, real estate taxes in
respect of the mortgaged Property and basic management fees, but not incentive fees, payable to
an entity or person unaffiliated with Borrower in connection with the operation of the mortgaged j
Property, which are then due and payable. Notwithstanding the first sentence of this paragraph,
City may recover directly from Borrower or from any other party:
i. damages, costs and expenses incurred by the City as a result of fraud or
criminal act or acts of Borrower or a partner, shareholder, officer, director or employee of
Borrower, or of a member or general or limited partner of Borrower, or of a general or limited
partner of such member or general or limited partner;
ii. damages, costs and expenses incumd by City as a result of
misappropriation of funds provided for the payment of Acquisition Costs, as described in the
Loan Agreement, rents and revenues from the operation of the Project, or proceeds of insurance
policies or condemnation proceeds; j
iii. all amounts owing by Borrower pursuant to the indemnification regarding
Hazardous Substances under the Environmental Indemnity, and
iv. all court costs and attorneys' fees reasonably incurred in enforcing or
collecting upon any of the foregoing exceptions.
[remainder of page left intentionally blank]
[signature on following page]
i
i
v51-22-20 execution ;
Inclusionary Note
Page 5 of 6
i
i'
1
I i
IN WITNESS WHEREOF Borrower has executed this Note as of the day and year set
forth above.
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC,a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public benefit corporation
Its: Mana ;
By /
Name: Michael Massie
Title: Chief Development Officer
vs 1-22-20 execution
Inclusionary Note
Page 6 of 6
ATTACHMENT NO. 8
CITY INCLUSIONARY LOAN DEED OF TRUST
[behind this page]
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
RECORDING REQUESTED BY tom, II II II III II I II IIII II I III II NO FEE
AND WHEN RECORDED RETURN TO: * $ R 0 0 1 1 4 4 5 6 1 5 $ *
2020000038045 8:00 am 01129/20
CITY OF HUNTINGTON BEACH 9 503A D11 S02 A36 9
2000 Main Street 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 0.00
Huntington Beach, CA 92648
Attn: City Manager
I
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
BY BEACH HOUSING PARTNERS LP FOR THE BENEFIT OF
THE CITY OF HUNTINGTON BEACH
[AFFORDABLE HOUSING TRUST FUND]
I
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents)
(this"Deed of Trust"), dated as of -5 NNkA pay 2% , 2020, is made by Beach Housing
Partners LP, a California limited partnership, whose address is Beach Housing Partners LP, c/o
Jamboree Housing Corporation, 17701 Cowan, Suite 200, Irvine, CA 92614, Attention:
Michael Massie, Chief Development Officer (the "Trustor"), in favor of First American Title
Insurance Company (the "Trustee"), and the City of Huntington Beach, a California municipal
corporation, whose address is 2000 Main Street, Huntington Beach, CA 92648, Attn: Executive
Director (the "Beneficiary"), and is executed to secure that certain Promissory Note to the City
of Huntington Beach [Affordable Housing Trust Fund] dated on or about the date hereof in a
principal amount of up to $2,100,000 executed by the Trustor in favor of the Beneficiary (such
Promissory Note, as it may from time to time be supplemented, amended, extended, renewed or
otherwise modified from time to time being referred to in this Deed of Trust as the"Promissory
Note"),the provisions of which are incorporated in this Deed of Trust by this reference.
1. Grant in Trust and Security Agreement. For valuable consideration,-the Trustor
irrevocably grants, transfers and assigns to the Trustee, in trust, with power of sale, for the
benefit of the Beneficiary,the following property(the"Trust Estate"):
(a) the real property described in Exhibit A attached to this Deed of Trust and
incorporated herein by this reference (the"Land"); and
(b) all buildings, structures and other improvements now or in the future
located or to be constructed on the Land(the"Improvements"); and
VS 1-22-20 execution
Inclusionary Deed of Trust
Page 1 of 7
RECORDING REQUESTED BY tlt.1
AND WHEN RECORDED RETURN TO:
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Attn:City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
BY BEACH HOUSING PARTNERS LP FOR THE BENEFIT OF
THE CITY OF HUNTINGTON BEACH
[AFFORDABLE HOUSING TRUST FUND]
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents)
(this"Deed of Trust"), dated as of -3 RNw AR`1 2% , 2020, is made by Beach Housing
Partners LP, a California limited partnership, whose address is Beach Housing Partners LP, c/o
Jamboree Housing Corporation, 17701 Cowan, Suite 200, Irvine, CA 92614, Attention:
Michael Massie, Chief Development Officer (the "Trustor"), in favor of First American Title
Insurance Company (the "Trustee"), and the City of Huntington Beach, a California municipal
corporation, whose address is 2000 Main Street, Huntington Beach, CA 92648, Attn: Executive
Director (the "Beneficiary"), and is executed to secure that certain Promissory Note to the City
of Huntington Beach [Affordable Housing Trust Fund] dated on or about the date hereof in a
principal amount of up to $2,100,000 executed by the Trustor in favor of the Beneficiary (such
Promissory Note, as it may from time to time be supplemented, amended, extended, renewed or
otherwise modified from time to time being referred to in this Deed of Trust as the "Promissory
Note"),the provisions of which are incorporated in this Deed of Trust by this reference.
1. Grant in Trust and Security Agreement. For valuable consideration, the Trustor
irrevocably grants, transfers and assigns to the Trustee, in trust, with power of sale, for the
benefit of the Beneficiary, the following property(the "Trust Estate"):
(a) the real property described in Exhibit A attached to this Deed of Trust and
incorporated herein by this reference(the"Land"); and
(b) all buildings, structures and other improvements now or in the future
located or to be constructed on the Land(the"Improvements"); and
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 1 of 7
(c) all tenements, hereditaments, appurtenances, privileges and other rights
and interests now or in the future benefitting or otherwise relating to the
Land, or the Improvements, including easements, rights-of-way,
development rights, mineral rights, water rights and water stock (the
"Appurtenances"). The Appurtenances, together with the Land and the
Improvements, shall be referred to as the "Property".
2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment
and performance of the following (collectively, the "Secured Obligations"): (a) all present and
future indebtedness evidenced by the Promissory Note, including principal and all other amounts
payable under the terms of the Promissory Note; (b) all present and future obligations of the
Trustor to the Beneficiary under this Deed of Trust; (c) present and future obligations of the
Trustor to the Beneficiary under that certain Acquisition Loan Agreement dated as of January 23,
2020 entered into by and between the Trustor (the "Borrower" therein), the Beneficiary (the
"City" therein), and the Huntington Beach Housing Authority (the "Authority" therein) (the
"Agreement"); and (d) all additional present and future obligations of the Trustor to the
Beneficiary under any other agreement or instrument (whether existing now or in the future)
which states that it is, or such obligations are, secured by this Deed of Trust; in each case as such
indebtedness and other obligations may from time to time be supplemented, modified, amended,
renewed and extended, whether evidenced by new or additional documents or otherwise.
3. Trustor's Covenants. To protect the security of this Deed of Trust, the Trustor agrees as
follows:
(a) Payment and Performance of Secured Obligations.L The Trustor shall pay
and perform all Secured Obligations in accordance with the respective terms of such Secured
Obligations, whether evidenced by or arising under this Deed of Trust or the Promissory Note.
(b) Liens and Taxes. The Trustor shall pay, prior to delinquency, all taxes, if
any, which are or may become a lien affecting any part of the Trust Estate, and the Trustor shall
pay and perform when due all other obligations secured by or constituting a lien affecting any
part of the Trust Estate, provided that the Trustor shall not be in violation of this provision if the
Trustor is protesting or contesting such taxes in good faith and by legal means.
4. Obligations With Respect to Trust Estate. Neither the Beneficiary nor the Trustee shall
be under any obligation to preserve, maintain or protect the Trust Estate or any of the Trustor's
rights or interests in the Trust Estate, or make or give any presentments, demands for
performance, protests, notices of nonperformance, protest or dishonor or other notices of any
kind in connection with any rights, or take any other action with respect to any other matters
relating to the Trust Estate. The Beneficiary and the Trustee do not assume and shall have no
liability for, and shall not be obligated to perform, any of the Trustor's obligations with respect
to any rights or any other matters relating to the Trust Estate, and nothing contained in this Deed
of Trust shall release the Trustor from any such obligations.
5. Remedies Upon Event of Default. Upon the occurrence of any Event of Default (as
hereinafter defined): (a) the Trustor shall be in default under this Deed of Trust, and upon
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 2 of 7
acceleration of the payment of any Secured Obligations in accordance with the terms of the
Promissory Note, all Secured Obligations shall immediately become due and payable without
further notice to the Trustor; (b) upon demand by the Beneficiary, the Trustor shall pay to the
Beneficiary, in addition to all other payments specifically required under the Promissory Note, at
the times and in the amounts required by the Beneficiary from time to time, sums which when
cumulated will be sufficient to pay one month prior to the time the same become delinquent, all
taxes which are or may become a lien affecting the Trust Estate and the premiums for any
policies of insurance to be obtained hereunder (all such payments to be held in a cash collateral
account as additional security for the Secured Obligations over which the Beneficiary shall have
sole and exclusive control and right of withdrawal); and (c) the Beneficiary may, without notice
to or demand upon the Trustor, which are expressly waived by the Trustor (except for notices or
demands otherwise required by applicable laws to the extent not effectively waived by the
Trustor and any notices or demands specified below), and without releasing the Trustor from any
of its Secured Obligations, exercise any one or more of the following remedies as the Beneficiary
may determine.
The Beneficiary may, either directly or through an agent or court-appointed
receiver, and without regard to the adequacy of any security for the Secured Obligations:
(i) enter, take possession of, manage, operate, protect, preserve and
maintain, and exercise any other rights of an owner of the Trust Estate, and use any other
properties or facilities of the Trustor relating to the Trust Estate, all without payment of rent or
other compensation to the Trustor;
(ii) enter into such contracts and take such other action as the
Beneficiary deems appropriate to complete all or any part of any construction which may have
commenced on the Land, subject to such modifications and other changes in the plan of
development as the Beneficiary may deem appropriate;
(iii) conduct any business of the Trustor in relation to the Trust Estate
and deal with the Trustor's creditors, debtors, agents and employees and any other persons
having any relationship with the Trustor in relation to the Trust Estate, and amend any contracts
between them, in any manner the Beneficiary may determine;
(iv) endorse, in the name of the Trustor, all checks, drafts and other
evidences of payment relating to the Trust Estate, and receive, open and dispose of all mail
addressed to the Trustor and notify the postal authorities to change the address for delivery of
such mail to such address as the Beneficiary may designate; and
(v) take such other action as the Beneficiary deems appropriate to
protect the security of this Deed of Trust.
The Beneficiary's agent or court-appointed receiver shall hold all monies and
proceeds, including, without limitation, proceeds from the sale of the Property or any portion
thereof, for the benefit of the Trustor and shall not disburse the monies or proceeds for the
satisfaction of the Secured Obligations without the prior written consent of the Beneficiary. The
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 3 of 7
Beneficiary's agent or court-appointed receiver may, but without any obligation to do so and
without notice to or demand upon the Trustor and without releasing the Trustor from any
Secured Obligations under this Deed of Trust, and at the expense of the Trustor, follow the
written instruction of the Beneficiary under this Section 5.
The Beneficiary may execute and deliver to the Trustee written declaration of
default and demand for sale and written notice of default and of election to cause all or any part
of the Trust Estate to be sold, which notice the Trustee shall cause to be filed for record; and
after the lapse of such time as may then be required by law following the recordation of such
notice of default, and notice of sale having been given as then required by law, the Trustee,
without demand on the Trustor, shall sell such Property at the time and place fixed by it in such
notice of sale, either as a whole or in separate parcels and in such order as the Beneficiary may
direct (the Trustor waiving any right to direct the order of sale), at public auction to the highest
bidder for cash in lawful money of the United States (or cash equivalents acceptable to the
Trustee to the extent permitted by applicable law), payable at the time of sale. The Trustee may
postpone the sale of all or any part of the Trust Estate by public announcement at such time and
place of sale, and from time to time after any such postponement may postpone such sale by
public announcement at the time fixed by the preceding postponement. The Trustee shall deliver
to the purchaser at such sale its deed conveying the property so sold, but without any covenant or
warranty, express or implied, and the recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including the Trustee or the
Beneficiary, may purchase at such sale, and any bid by the Beneficiary may be, in whole or in
part, in the form of cancellation of all or any part of the Secured Obligations. Any such sale
shall be free and clear of any interest of the Trustor and any lease, encumbrance or other matter
affecting the property so sold which is subject or subordinate to this Deed of Trust, except that
any such sale shall not result in the termination of any such lease (i) if and to the extent
otherwise provided in any estoppel or other agreement executed by the tenant and the
Beneficiary (or executed by the tenant in favor of, and accepted by, the Beneficiary), or (ii) if the
purchaser at such sale gives written notice to the tenant, within 30 days after date of sale, that the
lease will continue in effect.
The Beneficiary may proceed to protect, exercise and enforce any and all other
remedies provided under the Agreement, the Promissory Note, this Deed of Trust or by
applicable laws.
All proceeds of collection, sale or other liquidation of the Trust Estate shall be
applied first to all costs, fees, expenses and other amounts payable by the Trustor under this
Deed of Trust and to all other Secured Obligations not otherwise repaid in such order and
manner as the Beneficiary may determine, and the remainder, if any, to the person or persons
legally entitled thereto.
Each of the remedies provided in this Deed of Trust is cumulative and not
exclusive of, and shall not prejudice, any other remedy provided in this Deed of Trust or by
applicable laws. Each remedy may be exercised from time to time as often as deemed necessary
by the Trustee and the Beneficiary, and in such order and manner as the Beneficiary may
determine. This Deed of Trust is independent of any other security for the Secured Obligations,
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 4 of 7
and upon the occurrence of an Event of Default, the Trustee or the Beneficiary may proceed in
the enforcement of this Deed of Trust independently of any other remedy that the Trustee or.the
Beneficiary may at any time hold with respect to the Trust Estate or the Secured Obligations or
any other security. The Trustor, for itself and for any other person claiming by or through the
Trustor, waives, to the fullest extent permitted by applicable laws, all rights to require a
marshaling of assets by the Trustee or the Beneficiary or to require the Trustee or the Beneficiary
to first resort to any particular portion of the Trust Estate or any other security (whether such
portion shall have been retained or conveyed by the Trustor) before resorting to any other
portion, and all rights of redemption, stay and appraisal.
6. Event of Default. An "Event of Default" shall be deemed to occur if the Trustor is in
default of any provision of the Promissory Note, this Deed of Trust or the Agreement and fails to
cure such default subject to the notice and cure provisions thereof.
7. Costs, Fees and Expenses. The Trustor shall pay, on demand, all reasonable costs, fees,
expenses, advances, charges, losses and liabilities of the Trustee and the Beneficiary under or in
connection with this Deed of Trust or the enforcement of, or the exercise of, any remedy or any
other action taken by the Trustee or the Beneficiary under this Deed of Trust or the collection of
the Secured Obligations, in each case including, without limitation, (a) reconveyance and
foreclosure fees of the Trustee, (b) costs and expenses of the Beneficiary or the Trustee or any
receiver appointed under this Deed of Trust in connection with the operation, maintenance,
management, protection, preservation, collection, sale or other liquidation of the Trust Estate or
foreclosure of this Deed of Trust, (c) advances made by the Beneficiary to complete or partially
construct all or any part of any construction which may have commenced on the Land or
otherwise to protect the security of this Deed of Trust, (d) cost of evidence of title, and (e)the
reasonable fees and disbursements of the Trustee's and the Beneficiary's legal counsel and other
out-of-pocket expenses, and the reasonable charges of the Beneficiary's legal counsel.
8. Late Pam. By accepting payment of any part of the Secured Obligations after its
due date, the Beneficiary does not waive its right either to require prompt payment when due of
all other Secured Obligations or to declare a default for failure to so pay.
9. Action by Trustee. At any time and from time to time upon written request of the
Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the
personal liability of any person for payment of the Secured Obligations or the security of this
Deed of Trust for the full amount of the Secured Obligations on all Property remaining subject to
this Deed of Trust, the Trustee may, without notice and without liability for such action, and
notwithstanding the absence of any payment on the Secured Obligations or any other
consideration: (a) reconvey all or any part of the Trust Estate, (b) consent to the making and
recording, or either, of any map or plat of the Land, (c)join in granting any easement affecting
the Land, or (d)join in or consent to any extension agreement or any agreement subordinating
the lien of this Deed of Trust. The Trustee is not obligated to notify the Trustor or the
Beneficiary of any pending sale under any other deed of trust or of any action or other
proceeding in which the Trustor, the Beneficiary or the Trustee is a party unless brought by the
Trustee.
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 5 of 7
10. Reconveyance. Upon written request of the Beneficiary and surrender of this Deed of
Trust and the Promissory Note to the Trustee for cancellation or endorsement, and upon payment
of its fees and charges, the Trustee shall reconvey, without warranty, all or any part of the
Property then subject to this Deed of Trust. Any reconveyance, whether full or partial, may be
made in terms to "the person or persons legally entitled thereto", and the recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The
Beneficiary shall not be required to cause any Property to be released from this Deed of Trust
until final payment and performance in full of all Secured Obligations and termination of all
obligations of the Beneficiary under or in connection with the Promissory Note or until the
Secured Obligations are forgiven.
11. Substitution of Trustee. The Beneficiary may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named in or acting under this Deed of
Trust, which instrument, when executed by the Beneficiary and duly acknowledged and recorded
in the office of the recorder of the county or counties where the Land is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees who shall, without
conveyance from the predecessor Trustee, succeed to all of its title, estate, rights, powers and
duties. Such instrument must contain the name of the original Trustor, the Trustee and the
Beneficiary,the book and page where this Deed of Trust is recorded (or the date of recording and
instrument number) and the name and address of the new Trustee.
12. Successors and Assigns. This Deed of Trust applies to and shall be binding on and inure
to the benefit of all parties to this Deed of Trust and their respective successors and permitted
assigns.
13. Acceptance. Notice of acceptance of this Deed of Trust by the Beneficiary or the Trustee
is waived by the Trustor. The Trustee accepts this Deed of Trust when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by law.
14. Beneficiary's Statements. For any statement regarding the Secured Obligations, the
Beneficiary may charge the maximum amount permitted by law at the time of the request for
such statement.
15. Governing Law. This Deed of Trust shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
16. Recording. The Trustee shall record this Deed of Trust against the Property in the
Orange County's Recorder's office.
[Signature on Following Page]
[Remainder of Page Intentionally Left Blank]
V5 1-22-20 execution
Inclusionary Deed of Trust
Page 6 of 7
IN WITNESS WHEREOF, the Trustor has executed this Deed of Trust as of the day and
year set forth above.
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC, a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit publ' benefit corporation
Its: Maria er
By
Name: Michael Massie
Title: Chief Development Officer
VS 1-22-20 execution
Inclusionary Deed of Trust
Page 7 of 7
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)SS.
COUNTY OF
On 1 ,61YR before me, LOWZ��)7/✓ 4
personally appeared 2J` A;� who proved to me on the basis of satisfactory
evidence to be the person(g) whose name(o is/afe subscribed to the within instrument and
acknowledged to me that he/she4hey executed the same in hisAwPkh6r authorized capacity(ies),
and that by his/herkheir signature(() on the instrument the person(s), or the entity upon behalf of
which the person(g)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. '` JUDI # EN HALCom '^
N 4 NOTARY PUBLIC-CALIFORNIA UJ
ORANGE COUNTY
+cows` My Comm.Exp.JAN.25.2023''
Signature f Seal g (Seal)
Exhibit"A"
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
ATTACHMENT NO. 9
CITY ASSIGNMENT OF AGREEMENTS
[behind this page]
ASSIGNMENT OF AGREEMENTS
FOR VALUE RECEIVED, the undersigned, Beach Housing Partners LP, a California
limited partnership ("Borrower"), assigns to the Huntington Beach Housing Authority, a public
body corporate and politic("Authority), all of its right,title and interest in and to:
1. All architectural, design, engineering and development agreements, and any and ail
amendments, modifications, supplements, addenda and general conditions thereto
(collectively,"Architectural Agreements");and
2. All plans and specifications, shop drawings, working drawings, amendments,
modifications, changes, supplements, general conditions and addenda thereto
(collectively"Plans and Specifications")
heretofore or hereafter into or prepared by any architect, engineer or other person or entity
(collectively"Architece% for or on behalf of Borrower in connection with the development and
construction of the Project. The Plans and Specifications, as of the date hereof, are those which
Borrower has heretofore,or will hereafter deliver to Authority.
This ASSIGNMENT OF AGREEMENTS AND PLANS AND SPECIFICATION
("Assignment")constitutes a present and absolute assignment to Authority as of the date of this
Assignment; provided however.Authority confers upon Borrower the right to enforce the terms
of the Architectural Agreements and Borrower's rights to the Plans and Specifications so long as
no default or event which would constitute a default after notice or the passage of time, or both,
has occurred and is continuing under that certain Acquisition Loan Agreement dated as of
January 23, 2020 between Authority, Borrower, and the City of Huntington Beach("City") (the
"Loan Agreement"), as well as any Arture amendments and implementation agreements between
Authority, Borrower, and City which refer to this Assignment, Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Loan Agreement. Upon the occurrence of a
defauh or event which would constitute a default after notice or the passage of time, or both,
under the Loan Agreement, Authority may, in its sole discretion, give notice to Architect of its
intent to enforce the rights of Borrower under the Architectual Agreements and of its rights to the
Plans and Specifications and may initiate or participate in any legal proceedings respecting the
enforcement of said rights. Borrower acknowledges that by accepting this Assignment,
Authority does not assume any of Borrower's obligations under the Architectural Agreements or
with respect to the Plans and Specifications.
Borrower represents and warrants to Authority that: (a) any Architectural Agreements
entered into by Borrower are in full force and effect and are enforceable in accordance with their
terms and no default, or event which would constitute a default after notice or the passage of
v3 1-18-20 execution
LMIHAF
Assignment of Agreements
Page 1 of 3
1 i ,
time, or both, exists with respect to said Architectural Agreements; (b) any copies of the
Architectural Agreements and Plans and Specifications delivered to Authority are complete and
correct; and (c) Borrower has not assigned any of its rights under the Architectural Agreements
or with respect to the Plans and Specifications except to the City.
Borrower agrees: (a) to pay and perform all obligations of Borrower under the
Architectural Agreements; (b)to enforce the payment and performance of all obligations of any
other person or entity under the Architectural Agreements; (c) not to modify the existing
Architectural Agreements nor to enter into any future Architectural Agreements without
Authority's prior written approval except as otherwise may be permitted in the Loan Agreement;
and (d)not to further assign (other than assignment in connection with a loan from the City),for
security or any other purposes, its rights under the Architectural Agreements or with respect to
the Plans and Specifications without Authority's prior written consent.
This Assignment secures performance by Borrower of all obligations of Borrower under
the Loan Agreement.This Assignment is supplemented by the provisions of the Loan Agreement
and said provisions are incorporated herein by reference.
This Assignment shall be governed by the laws of the State of California, except to the
extent that Federal laws preempt the laws of the State of California, and Borrower consents to
the jurisdiction of any Federal Court within the Central District of California, or State Court
within the County of Orange having proper venue for the filing and maintenance of any action
arising hereunder and agrees that the prevailing party in any such action shall be entitled, in
addition to any other recovery,to reasonable attorney's fees and costs.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal
representatives, assigns, and successors-in-interest of Borrower and Authority; VMvided.
however,this shall not be construed and is not intended to waive any restrictions on assignment,
sale, transfer, mortgage, pledge, hypothecation or encumbrance by Borrower contained in the
Loan Agreement.
The attached Architect's Consent, Schedule 1 and Exhibit A are incorporated by
reference.
[SIGNATURE ON FOLLOWING PAGE]
V3 1-18-20 execution
LMIHAF
Assignment of Agreements
Page 2 of 3
f /I
Executed as of tAN11aru 23-12020.
it
BEACH HOUSING PARTNERS LP
a California limited partnership
By: JHC-Beach LLC,a California limited liability
comfy
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California no rofit publ'c be fit corporation
Its: Manage
By
Name: Michael essie
Title: Chief Development Officer
yr 1-19-20execution
LMIHAF
Assignment of Agreements
Page 3 of 3
ARCHITECT'S CONSENT
The undersigned architect ("Architect") hereby consents to the foregoing Assignment to !
which this Architect's Consent("Consent") is part, and acknowledges that there presently exists
no unpaid claims due to the Architect except as set forth on Schedule 1 attached hereto, arising i
out of the preparation and delivery of the Plans and Specifications to Borrower and/or the
performance of the Architect's obligations under the Assignment.
Architect agrees that if,at any time, Authority shall become the owner of said Property,
or,pursuant to its rights under the Loan Agreement,elects to undertake:or cause the completion
of construction of the Project on any portion of the Property, in accordance with the Plans and
Specifications, and gives Architect written notice of such election; THENi so long as Architect
has received,receives or continues to receive the compensation called for under the Architectural
Agreements, Authority may, at its option, use and rely on the Plans and Specifications for the
purposes for which they were prepared, and Architect will continue to perform its obligations
under the Architectural Agreements for the benefit and account of Authority in the same manner
as if performed for the benefit or account of Borrower in the absence of the Assignment.
Architect further agrees that, in the event of a breach by Borrower of the Architectural i
Agreements, or any agreement entered into with Architect in connection with the Plans and
Specifications, so long as Borrower's interest in the Architectural Agreements and Plans and
Specifications is assigned to Authority, Architect will give written notice to Authority of such
breach at the address shown below. Authority shall have thirty (30) days from the receipt of
such written notice of default to remedy or cure said default. Nothing herein shall require
Authority to cure said default or to undertake completion of construction of the Project.
Architect warrants and represents that ivbWshe has no knowledge of any prior
assignment(,) of any interest in the Plans and Specifications and/or the Architectural
Agreements. Except as otherwise defined herein, the terms used herein shall have the meanings
given them in the Assignment.
Executed as of a �' 202A .
By
Name:e-+Kw W o
Title: ,n�, _\
Authority's Address: C
Huntington Beach Housing Authority
2000 Main Street
Huntington Beach, CA 92648
Attn: Executive Director
I
SCHEDULE OF UNPAID CLAIMS
Schedule 1 to Assignment of Architectural Agreements and Plans and Specifications dated as
of 20_ between BEACH HOUSING PAKINERS LP, a California limited I
partnership,as Borrower,and HUNTINGTON BEACH HOUSING AUTHORITY, as Authority.'
I
EXHIBIT A
PROPERTY DESCRIPTION
i
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
i
I
i
+ I
ATTACHMENT NO. 10
ENVIRONMENTAL INDEMNITY
[behind this page]
1 ) /
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY (this "Indemnity', dated as of
SAuuA0.1 2$ 2020 made by BEACH HOUSING PARTNERS LP, A CALIFORNIA
LIMITED PARTNERSHIP(referred to as'Borrower"),in favor of the HUNTINGTON BEACH
HOUSING AUTHORITY, a public body corporate and politic (the "Authority D, and the CITY
OF HUNTINGTON BEACH,a California municipal corporation("City').
WITNESSETH
WHEREAS,Borrower is the owner of real property in the City of Huntington Beach, as
more particularly described on Exhibit A attached hereto and made a part hereof, and the real
property improvements thereon(collectively referred to as the'Troperty");
WHEREAS, Borrower, Authority, and City entered into that certain Acquisition Loan
Agreement, dated as of January 23, 2020 (the "Loan Agreement"), pursuant to which the
Authority and City each agreed to make a loan (collectively, the "Loans") to Borrower for the
purposes of providing financing for the acquisition of property for affordable housing purposes
(the Loan Agreement and the documents and instruments referred to therein which are being
executed by Borrower concurrently herewith are referred to collectively as the "Loan
Documents'7;
WHEREAS, Borrower has agreed to execute and deliver to the Authority and City this
Indemnity to induce the Authority and City to make the Loans.
NOW, THEREFORE, in consideration of the foregoing and in consideration of the
mutual agreements hereinafter set forth, Borrower hereby agrees with the Authority and City as
follows:
Section 1. DEFINITIONS
For the purpose of this Indemnity, "Hazardous Materials" or "Hazardous Substances"
shall include, but not be limited to, substances defined as "extremely hazardous substances,"
"hazardous substances," "hazardous materials," "hazardous waste" or "toxic substances" in the
Comprehensive Environmental Response,Compensation and Liability Act of 1980, as amended,
42 U.S.C. Sections 11001-11050; the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S,C. Sections 6901,
at seq.; and those substances defined as "hazardous waste" in Section 25117 of the California
Health and Safety Code, as "infectious waste" in Section 25117.5 of the California Health and
Safety Code, or as "hazardous substances" in Section 25316 of the California Health and Safety
Code or"hazardous materials" as defined in Section 353 of the California Vehicle Code; and in
the regulations adopted and publications promulgated pursuant to said laws. Other capitalized
terms used in this Indemnity shall have the meanings ascribed to them in the Loan Agreement
with the same force and effect as if set forth in full below.
V3 1-M20 axe dlm
Environmental Indemnity
Page 1 of 10
Section 2. COVENANTS AND INDEMNITY
The following covenants and indemnities are hereby given and made by Borrower:
2.1 Covenants.
I
(a) Borrower covenants that it shall comply with any and all applicable laws, i
regulations, and/or orders which may be promulgated, from time to time, with respect to the
discharge and/or removal of Hazardous Materials,to pay immediately when due the costs of the
removal of, or any other action required by law with respect to, any such Hazardous Materials,
and to keep the Property free of any lien imposed pursuant to any such laws, regulations, or
orders.
(b) Borrower covenants that the Property will not, while Borrower is the owner
thereof, be used for any activities involving,directly or indirectly,the use,generation,treatment,
storage,release,or disposal of any Hazardous Materials,except for de minimis quantities used at
the Property in compliance with all applicable environmental laws and required in connection
with the routine construction,operation and maintenance of the Property.
(c) Borrower further agrees that Borrower shall not release or dispose of any
Hazardous Materials at the Property without the express written approval of the Authority and
City and that any such release or disposal shall be effected in strict compliance with all
applicable laws,and all conditions,if any, established by the Authority or City.
(d) The Authority and City shall each have the right, at any time,'to conduct an
environmental audit of the Property at the Authority's or City's, as applicable, expense, unless
Hazardous Materials are found, then at Borrower's sole cost and expense, and Borrower shall
cooperate in the conduct of any such environmental audit but in no event shall such audit be
conducted unless the Authority or City reasonably believes that such audit is warranted. Other
than in an emergency, such audit shall be conducted only after prior written notice has been
given to Borrower and only in the presence of a representative of Borrower.Borrower shall give
the Authority and City and their respective agents and employees access to the Property to
remove, or otherwise to mitigate against the effects of, Hazardous Materials,with any and all of
such activities to be conducted in accordance with all applicable laws.
(e) Borrower shall not install, or permit to be installed, on the Property friable
asbestos or any substance containing asbestos and deemed hazardous by applicable federal or
state regulations respecting such material, and, with respect to any such material currently
present in the Property, Borrower shall promptly either (i) remove or cause to be removed any
material that such applicable regulations deem hazardous and require to be removed, or (ii)
otherwise comply with such applicable federal and state regulations,at Borrower's sole cost and
expense. If Borrower shall fail to so do within the cure period permitted under applicable law,
regulation, or order, the Authority and City may each do whatever is necessary to eliminate said
substances from the premises or to otherwise comply with the applicable law, regulation, or
V3.1-18-20 ex"Im
Environmental Indemnity
Page 2 of 10
order,and the costs thereof shall be added to the Obligations(as hereinafter defined)of Borrower
under this Section 2.
(f) Borrower shall immediately advise the Authority and City in writing of any of
the following: (i) any pending or threatened environmental claim against Borrower or the
Property, (ii) any condition or occurrence on the Property that (A) results in noncompliance by
Borrower with any applicable environmental law, (B) could reasonably be anticipated to cause
the Property to be subject to any restrictions on the ownership,occupancy, use or transferability
of the Property under any environmental law, or(C)could reasonably be anticipated to form the
basis of an environmental claim against the Property or Borrower.
2.2 Inde Borrower shall indemnify, protect, and hold the Authority and City
harmless from and against any and all damages, losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses,judgments, suits, proceedings, costs, disbursements, or expenses
(including, without limitation, attorneys' and experts' fees and disbursements) of any kind or of
any nature whatsoever(collectively, the Obligations) which may at any time be imposed upon,
incurred by or asserted or awarded against the Authority or City and arising from or out of:
(a) Tice presence of any Hazardous Materials on, in, under, or affecting all or
any portion of the Property or any surrounding areas;
(b) The breach of any covenant made by Borrower in Section 2.1 hereof,or
(c) The enforcement by the Authority or City of any of the provisions of this
Section 2.2 or the assertion by Borrower of any defense to its obligations
hereunder.
Subject to the qualifications set forth in Section 2.3,below,Borrower shall be liable for payment
and performance of the Obligations to the full extent(but only to the extent)of the property and
assets(including the Property)which constitute security for such Obligations. If default occurs
in the timely and proper payment and performance of any such Obligations (after notice and
reasonable opportunity to cure), any judicial proceedings brought by the Authority or City
against Borrower shall be limited to the protection and preservation of the Property, the
preservation, enforcement and foreclosure of the lions, mortgages, assignments, rights and
security interests securing such Obligations and enforcement and collection of such Obligations
for which Borrower remains directly liable as provided in this Section. If there is a foreclosure
of any such lions, mortgages, assignments, rights and security interests by power of sale or
otherwise, no personal judgment for any deficiency thereon shall be sought or obtained by the
Authority or City against Borrower, or its officers, directors, agents, attorneys, servants or
employees.
2.3 Exceptions to Non-Recourse Liability. Notwithstanding the foregoing provisions
of Section 2.2 or any other agreements,
V3 1-19-20 mwmdm
Environmental Indemnity
Page 3 of 10
(a) the Authority and City may each proceed against any other person or entity
whatsoever with respect to the enforcement of any guarantees, surety bonds, letters of credit,
relmbursement agreements or similar rights to payment or performance;and
(b) The Authority and City may each recover personally from any person or
entity other than Borrower's Managing General Partner and Limited Partners: j
(1) any damages,costs and expenses incurred by the Authority or City as
a result of the negligence of such person or entity, involving, directly or indirectly, the use,
generation,treatment,storage,release,or disposal of any Hazardous Materials by such person or
entity or by others; provided, however, that neither Borrower nor any officer, partner, agent,
attorney, servant or employee of Borrower shall have any personal liability if the act or omission
complained of was performed in good faith and was not reckless, wanton, intentional or grossly
negligent;
(2) any damages, costs and expenses incurred by Authority or City as
a result of fraud or any criminal act or acts of Borrower or any partner, shareholder, officer,
director or employee of Borrower, or of any general or limited partner of Borrower; and
(3) all court costs and attorneys' fees reasonably incurred in enforcing
or collecting upon any of the foregoing exceptions (provided that Authority or City, as
applicable, shall pay Borrower's reasonable court costs and attorneys' fees if Borrower is the
prevailing party in any such enforcement or collection action).
Section 3. BORROWER'S UNCONDITIONAL OBLIGATIONS
3.1 Unconditional Obligations. Borrower hereby agrees that the Obligations will be
paid and performed strictly in accordance with the terms of this Indemnity, regardless of any
law, regulation,or order now or hereafter in effect in any jurisdiction affecting any of the Loan
Documents or affecting any of the rights of the Authority or City with respect thereto. The
obligations of Borrower hereunder shall be absolute and unconditional irrespective of:
(a) The validity, regularity, or enforceability of the Loan Documents or any
other instrument or document executed or delivered in connection therewith;
(b) Any alteration, amendment, modification, release, termination, or
cancellation of any of the Loan Documents, or any change in the time,manner,or
place of payment of, or in any other term in respect of, all or any of the
obligations of Borrower contained in any of the Loan Documents;
(c) Any extension of the maturity of the Loans or any waiver of,or consent to
any departure from,any provision contained in any of the Loan Documents;
V3 1-18-20 m�mulim
Environmental Indemnity
Page 4 of 10
(d) Any exculpatory provision in any of the Loan Documents limiting the
Authority's or City's recourse to property encumbered by the Deed of Trust
securing the Loans, or to any other security, or limiting the Authority's or City's
rights to a deficiency judgment against Borrower;
(e) Any exchange, addition, subordination, or release of, or nonperfection of
any lien on or security interest In, any collateral for the Loans, or any release,
amendment, waiver of, or consent to any departure from any provision of, any
other Borrower or guarantee given in respect of the Loans;
(f) The insolvency or bankruptcy of Borrower, Borrower, or of any
indemnitor or guarantor under any other indemnity or guarantee given in respect
of the Loam; or
(g) Any other circumstance that might otherwise constitute a defense
available to, or a discharge of Borrower, Borrower, or any other Indemnitor or
guarantor with respect to the Loans or any or all of the Obligations.
3.2 Continuation. This Indemnity (a) is a continuing indemnity and shall remain in
full force and effect until the satisfaction in full of all of the Obligations (notwithstanding the
payment in full of the Loans or the release or other extinguishment of any security for the
Loans); and (b) shall continue to be effective or shall be reinstated, as the case may be, if at any
time any payment of any of the Obligations is rescinded or must otherwise be returned by the
Authority or City upon the Insolvency, bankruptcy, or reorganization of Borrower, Borrower or
otherwise,all as though such payment had not been made.
3.3 Termination.Notwithstanding the payment(and performance)in full of all of the
Obligations and the payment(or performance) in full of all of Borrower's obligations under the
Loan Documents,this Indemnity shall not terminate if any of the following shall have occurred:
(a) The Authority or City has at any time or in any manner participated in the
management or control of, taken possession of(whether personally, by agent or
by appointment of a receiver),or taken title to the Property or any portion thereof,
whether by foreclosure, deed in lieu of foreclosure, sale under power of sale or
otherwise;or
(b) There has been a change, between the date hereof and the date on which
all of the Obligations are paid and performed in full, in any Hazardous Materials
laws,the effect of which may be to make a lender or mortgagee liable in respect
of any of the Obligations,notwithstanding the fart that no event, circumstance,or
condition of the nature described in paragraph(a)above ever occurred.
V3 1-18-20 excwtim
Environmental Indemnity
Page 5 of 10
Section 4. WAIVER
I
Borrower hereby waives the following:
(a) Promptness and diligence;
i
(b) Notice of acceptance and notice of the incurrence of any obligation by j
Borrower,
I
(c) Notice of any action taken by the Authority, City, Borrower, or any other
interested party under any Loan Document or under any other agreement or instrument relating
thereto;
i
(d) ' All other notices,demands,and protests,and all other formalities of every
kind, in connection with the enforcement of the Obligations, the omission of or delay in which,
but for the provisions of this Section 4, might constitute grounds for relieving Borrower of its
Obligations hereunder;
(e) The right to a trial by jury with respect to any dispute arising under, or
relating to,this Indemnity;
(1) Any requirement that the Authority or City protect, secure, perfect, or
insure any security interest or lien in or on any property subject thereto;
(g) Any requirement that the Authority or City exhaust any right or take any
action against Borrower or any other person or collateral;and
(h) Any defense that may arise by reason of:
(1) The incapacity, lack of authority, death or disability of, or
revocation hereof by,any person or persons;
(2) The failure of the Authority or City to file or enforce any claim
against the estate(in probate,bankruptcy,or any other proceedings)of any person or persons;or
. (3) Any defense based upon an election of remedies by the Authority
or City, including,without limitation, an election to proceed by nonjudicial foreclosure or which
destroys or otherwise impairs the subrogation rights of the Authority or City or any other right of
the Authority to proceed against Borrower.
Section 5. NOTICES
Any notice, demand, statement, request, or consent made hereunder shall he in writing
and shall be personally served, mailed by first-class registered mail, return receipt requested, to
V3 1-1&20 execWM
Environmental Indemnity
Page 6 of 10
1
the address set forth in the first paragraph of this Indemnity, above, of the party to whom such
notice is to be given(or to such other address as the parties hereto,shall designate in writing):
In the case of the Authority:
Huntington Beach Housing Authority
2000 Main Street
Huntington Beach,CA 92648
Attn: Executive Director
With a copy to:
City Attorneys Office
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
in the case of the City:
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Attn: City Manager
With a copy to:
City Attorney's Office
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
i
In the case of Borrower:
Beach Housing Partners LP
clo Jamboree Housing Corporation j
17701 Cowan,Suite 200
Irvine,CA 92614
Attention: Michael Massie,Chief Development Officer
With a copy to:
Rutan&Tucker, LLP
Attn:Patrick D. McCalla,Esq.
611 Anton Boulevard, 14th Floor
Costa Mesa,CaHfomia 92626
Vl 1-19-20 emcudm
Environmental Indemnity
Page 7 of 10
Any notice that is personally delivered (including by means of professional messenger service,
courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service),
shall be deemed received on the documented date of receipt; and any notice that is sent by
registered or certified mail, postage prepaid,return receipt required shall be deemed received on
the date of receipt thereof.
i
Section 6. MISCELLANEOUS
I
6.1 Borrower shall make any payment required to be made hereunder in lawful
money of the United States of America, and in same day funds, to the Authority or City at its
address specified in the first paragraph hereof.
6.2 No amendment of any provision of this Indemnity shall be effective unless it is in
writing and signed by Borrower, City, and the Authority, and no waiver of any provision of this
Indemnity, and no consent to any departure by Borrower from any provision of this Indemnity,
shall be effective unless it is in writing and signed by City and the Authority, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given.
6.3 No failure on the part of the Authority or City to exercise, and no delay in
exercising, any right hereunder or under any other Loan Document shall operate as a waiver
thereof:, nor shall any single or partial exercise of any right preclude any other or further exercise
thereof or the exercise of any other right. The rights and remedies of the Authority and City
provided herein and in the other Loan Documents are cumulative and are in addition to,and not
exclusive of, any rights or remedies provided by law. The rights of the Authority or City under
any Loan Document against any party thereto are not conditional or contingent on any attempt
by the Authority or City to exercise any of its rights under any other Loan Document against
such party or against any other person or collateral.
6.4 Any provision of this Indemnity that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unanforceability without invalidating the remaining portions hereof and without affecting the
validity or enforceability of such provision in any other jurisdiction.
6.5 This Indemnity shall (a) be binding upon Borrower, and Borrower's successors
and assigns; and (b) inure, together with all rights and remedies of the Authority and City
hereunder, to the benefit of the Authority, City, and their respective directors, officers,
employees, and agents, any successors to the Authority's or City's interest in the Property, any
other person who acquires any portion of the Property at a foreclosure sale or otherwise through
the exercise of the Authority's or City's rights and remedies under the Loan Documents, any
successors to any such person, and all directors, officers, employees, and agents of all of the
aforementioned parties. Without limiting the generality of clause (b) of the immediately
preceding sentence, the Authority or City may each, subject to, and in accordance with, the
provisions of the Loan Documents, assign or otherwise transfer all or any portion of its rights
V3 1.19-20 es=Mw
Environmental Indemnity
Page 8 of 10
' ' r
and obligations under any other Loan Document,to any other person,and such other person shall
thereupon become vested with all of the rights and obligations in respect thereof that were
granted to the Authority or City herein or otherwise. None of the rights or obligations of
Borrower hereunder may be assigned or otherwise transferred without the prior written consent
of the Authority and City.
6.6 Borrower hereby(a) irrevocably submits to the jurisdiction of any California or
f
federal court sitting, in each instance, in Orange County in any action or proceeding arising out
of or relating to this Indemnity,(b)waives any defense based on doctrines of venue or forum non
convenient or similar rules or doctrines, and (c) irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in such California or federal court.
Borrower irrevocably consents to the service of any and all process which may be required or
permitted in any such action or proceeding to the address specified in the first paragraph of this
Indemnity, above. Borrower agrees that a final judgment in any such action or proceeding shall
be inclusive and may be enforced in any other jurisdiction by suit on the judgment or in any
other manner provided by law.
6.7 The title of this document and the captions used herein are inserted only as a
matter of convenience and for reference and shall in no way define, limit, or describe the scope
or the intent of this Indemnity or any of the provisions hereof.
6.8 This Indemnity shall be governed by,and construed and interpreted in accordance
with, the laws of the State of California applicable to contracts made and to be performed
therein, except to the extent that the laws of the United States preempt the laws of the State of
California.
6.9 This Indemnity may be executed in any number of counterparts, each of which
shall constitute an original and all of which together shall constitute one agreement.
(Signature on Followtng Page]
V3 1-18-leaueuUm
Environmental Indemnity
Page 9 of 10
IN WITNESS WHEREOF, Borrower bag duly executed this Indemnity as of the date first
set forth above.
BEACH HOUSING PARTNERS LP
I
a California limited partnership
By: JHC-Beach LLC,a California limited liability
company
Its: Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public benefit corporation
Its: Manager
By
Name:AMchael Massie
Title: Chief Development Officer
vs 1-15,20axemli n
Environmental Indemnity
Page 10 of 10
Exhibit A
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California,described
as follows:
I
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH,COUNTY OF ORANGE,STATE OF
CALIFORNIA,AS PER MAP RECORDED IN BOOK 96,PAGE 4 OF PARCEL MAPS,IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
ATTACHMENT NO. 11
OPTION AGREEMENT
[behind this page]
OPTION AGREEMENT AND JQINT ESCROW INSTRUCTIONS
To: First American Title Insurance Company Escrow/Order No.: 956798
("Escrow Holder" and"Title Company") ("Escrow")
777 South Figueroa Street,4th Floor
Los Angeles, CA 90017
Attu.: Brian M.Serikaku,
Senior National Commercial Escrow Officer("Escrow Officer")
Direct:213.271.1774
Fax:877.398.1603
Cell:213.814.8620
Toll Free: 800,668.4853
Email:bmserikakulalfirstam.cem,
This Option Agreement and Joint Escrow Instructions ("Option Agreement"), is entered
into as of :3 mavo e'i vb , 2020, ("Effective Date") by and among the City of Huntington
Beach, a municipal corporation of the State of California ("City"), the Huntington Beach
Housing Authority, a public body corporate and politic ("Authority"), and Beach Housing
Partners LP, a California limited partnership ("Borrower"), each a "Party" and collectively, the
"Parties"to this Option Agreement.
RECITALS
A. This Option Agreement is entered into pursuant to that certain Acquisition Loan
Agreement entered into by and between the Parties dated January 23, 2020 (the "Loan
Agreement"). The term "Loan Agreement" as used herein shall mean, refer to and include the
Loan Agreement, as well as any riders, exhibits, addenda, implementation agreements,
amendments and attachments thereto (which are hereby incorporated herein by this reference)or
other documents expressly incorporated by reference in the Loan Agreement. Any capitalized
term not otherwise defined herein shall have the meaning ascribed to such term in the Loan
Agreement.
B. Pursuant to the Loan Agoement, the Authority and City have each provided
financial assistance to Borrower to acquire certain real property within the City of Huntington
Beach for affordable housing purposes (the "Property'7, using Low and Moderate Income
Housing Asset Funds("Authority LMIHAF Loan") and Affordable Housing Trust Funds("City
Inclusionary Loan"). The legal description of the Property is set forth in the Legal Description
attached to this Option Agreement as Exhibit"A"and incorporated herein by this reference.
C. Subject to the terms and conditions of this Option Agreement, and in accordance
with the Loan Agreement, the Authority and City each desire to acquire an option to purchase
fee title to the Property from Borrower and Borrower desires to grant to Authority and City each
an option to purchase fee title to the Property from Borrower.
i
V5 1-23-20 a maim
Option Agreement
Page 1 of 13
I
Now, THEREFORE, for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged,the Parties agree as follows:
TERMS AND CONDITIONS
1. Grant and Basic Terms of Option.
1.1 As material inducement and consideration for the City and Authority to
enter into the Loan Agreement and provide the City Inclusionary Loan and the Authority
LMIHAF Loan, respectively, to Borrower, subject to the terms and conditions of this Option
Agreement,Authority and City shall each have an irrevocable option("Option")to purchase fee
title to the Property more particularly described on Exhibit "A," attached hereto and
incorporated heroin by this reference, together with all of Borrower's right, title and interest in
and to all improvements, easements, appurtenances, and other intangible property of Borrower
to the extent relating exclusively to said land (collectively herein, "the Option Property"). The
Parties acknowledge that the consideration received by the Parties constitutes "independent
consideration"for the rights set forth herein.
1.2 The term of the Option (the "Option Tenn") shall commence on the
Effective Date and automatically expire on the date that is the earlier to occur of (a) the
Construction Financing Event (as defined in the Loan Agreement); or (b) August 31, 2022,
unless duly exercised as provided below in this Option Agreement.
i
1.3 The purchase price for the Option Property shall be the sum of ONE
DOLLAR AND NO CENTS ($1.00)("Option Price").
1.4 The Option shall be exercised in accordance with the procedures set forth
in this Option Agreement.
2. Exercise of Option
2.1 Notice of Exercise. Upon the occurrence of any Option Triggering Event
described in Section 2.2 of this Option Agreement, below, not later than the expiration of the
Option Tern described in Section 1.2 of this Option Agreement, above,Authority and City shall
each have the right to exercise the Option, by delivering written notice (the"Option Notice")to
Borrower, or its successor or assignee, stating that Authority or City, as applicable, elects to
purchase the Option Property upon the terms and conditions set forth in this Option Agreement.
For purposes of this Option Agreement, if Authority or City delivers such Option Notice,
Authority or City, as applicable, may be referred to herein as the "Optionee" and whichever
entity,the Authority or City,that did not deliver the Option Notice shall be referred to herein as
the "Non-Optionee". The Authority Executive Director is hereby authorized to exercise the
Option on behalf of the Authority without any further approval by the Authority Board and the
City Manager is hereby authorized to exercise the Option on behalf of the City without any
fttrther approval by the City Council.
VS 1.23-20 aeMlm
Option Agreement
Page 2 of 13
i
1 1
2.2 Conditions Precedent to Right of Oplion. The right to exercise the Option
shall be conditioned upon the occurrence of any of the following events (any such event, an
"Option Triggering Event"): ;
i
(i) A material default by Borrower under the terms of any of the
Authority Instruments or City Instruments that is not cured within the time provided for therein; i
(ii) The failure of the Construction Financing Event to occur by the j
Outside Date for Construction Financing Event, as such date may have been extended pursuant
to the terms of the Loan Agreement;or
(iii) Expiration or termination of the Loan Agreement without the
Construction Financing Event occurring.
2.3 Termination of Ontion. Provided that neither Authority nor City has
delivered the Option Notice hereunder prior to the expiration of the Option Term, this Option
Agreement shall terminate and be of no Rather force or effect upon the final day of the Option
Term. In such event, if requested by Borrower, each of City and Authority shall execute a
quitclaim deed and/or termination of the Memorandum of Option to establish that the Option has
terminated.
2.4 QR=ing of Escrow. Subject to Sections 2.1 and 2.2, above,the Optionee
shall deliver to Escrow Holder a fully-executed copy of this Option Agreement within five (5)
business days after the Option Notice Date (as defined below). As used in this Option
Agreement, the tern "Option Notice Date" shall mean the date on which Optionee shall have
delivered the Option Notice to Borrower, or its successor or assignee, in accordance with this
Option Agreement. When the fully-executed copy of this Option Agreement is delivered to
Escrow Holder, as provided above, Escrow shall be deemed opened ("Opening of Escrow).
Escrow Holder shall immediately notify Optionee and Borrower, in writing, of the date of
Opening of Escrow.
3. Condition of Prog=.
3.1. Physical Conditions. At all times during the Option Term, Borrower shall
maintain the Option Property or cause the Option Property to be maintained in a safe, neat and
orderly condition in the same or substantially similar condition as of the Effective Date (the
"Required Site Conditions"). At any time after delivery of an Option Notice, Optionee, without
cost or expense to Borrower, shall have the right to perform such investigation of the physical
condition of the Option Property, as Optionee shall deem necessary. Upon notice from the
Optionee, Borrower shall promptly, without cost to the Optionee, take such actions as may be
necessary to restore the Option Property to the Required Site Conditions, to the reasonable
satisfaction of the Optionee; provided, however, that the cost of any restorative actions that
become necessary as a result of Optionee's investigations (the "Optionee Restorative Costs")
shall be home by Optionee. With the exception of any Optionee Restorative Costs,which shall
be the sole responsibility of Optionee, any and all costs, fees and expenses to restore the Option
Property to the Required Site Conditions to the reasonable satisfaction of the Optionee shall be
VS 1.3.20 exe Im
Option Agreement
Page 3 of 13
I �
I
j
the responsibility of Borrower and shall be paid by Borrower prior to conveyance of the Option
Property to the Optionee pursuant to this Option Agreement.
3.2 Environmental Conditions. Reference is hereby made to that certain j
Environmental Indemnity dated on or about the date hereof, in the form attached to the Loan
Agreement as Attachment No, 10 (the "Environmental Indemnity"), which was executed by
Borrower for the benefit of City and Authority. Borrower shall comply with the Environmental
Indemnity, and indemnify, defend and hold harmless City and Authority, and their respective
elected officials, members, officers, agents, employees, contractors and consultants, in j
accordance with the Environmental Indemnity.
3.3 Condition of Title. Unless and until this Option Agreement is
terminated or expires as provided in Section 2.3 above, Borrower shall have no right to
encumber the Option_ Property with any deed of trust, mortgage, easement, lease, or other
encumbrance against title to the Option Property or record any instrument against title to the
Option Property. At any time after delivery of an Option Notice, the Optionee shall have the
right to obtain a Title Policy (either CLTA or ALTA, at Optionee's option, including any
endorsements and other coverage reasonably requested by Optionee), in the liability amount of
the fair market value of the Option Property, as reasonably estimated by Optionee, insuring that
fee simple merchantable title to the Option Property will vest in the Optionee upon the Closing
Date (described below), free and clear of all recorded and unrecorded possessory interests, liens,
encumbrances, mortgages, deeds of trust, assessments, casements, leases and taxes, except those
approved in writing by the Optionee. All encumbrances existing as of the Effective Date shall
be deemed to have been approved in writing by the Optionee. Any and all costs, fees and
expenses to remove or satisfy any such possessory interests, liens, encumbrances, mortgages,
deeds of trust, assessments, easements, leases and taxes that arise after the Effective Date shall
be the responsibility of Borrower and shall be paid by Borrower prior to conveyance of the
Option Property to the Optionee pursuant to this Option Agreement.
4. Closing of Escrow.
4.1 Closing Date. .
4.1.1 Escrow shall close on or before 5:00 p.m. on the sixtieth(60th)day
after the Option Notice Date (the "Closing Date"). So long as the Option Notice is duly and
properly delivered prior to the expiration of the Option Term,the Closing Date may occur either
before or after the expiration of the Option Term.
4.1.2 The terms ".Close of Escrow" and/or "Closing" are used in this
Option Agreement to mean the time and date (which shall be as provided in Section 4.1.1) on
which the Chant Deed(as defined in Section 4.3.1) is filed for recording by Escrow Holder in the
Office of the County Recorder for Orange County,California.
4.2 Deposits to be Made by Optionee. At or before 5:00 p.m. on the last
business day immediately before the Close of Escrow,Optionee shall deliver to Escrow Holder:
VS 1-23-20 m=udw
Option Agreement
Page 4 of 13
i
4.2.1 Immediately available funds in a total amount equal to the Option
Price and any other sums payable by Optionee hereunder.
4.2.2 A reconveyance of the Optionee's Deed of Trust recorded against
the Property properly executed and acknowledged by Optionee.
4.2.3 The original promissory note which is secured by Optionee's Deed l
of Trust recorded against the Property marked"cancelled". j
4.2.4 If requested by Optionee, an instrument prepared by Optionee
terminating or modifying the Agreement Containing Covenants (as defined in the Loan
Agreement)properly executed and acknowledged by Optionee.
4.2.5 Any additional funds and/or instruments, properly executed and
acknowledged by Option", as appropriate, as may be necessary to comply with this Option
Agreement.
4.3 Deposits to be Made by Borrower. At or before 5:00 p.m. on the last
business day immediately before the Close of Escrow,Borrower shall deliver to Escrow Holder:
4.3.1 A grant deed conveying fee title to the Property (the "Grant
Deed"), properly executed and acknowledged by Borrower in the form attached to this Option
Agreement as Exhibit"B';
43.2 . A Certification of Non-Foreign Status certifying, pursuant to
Internal Revenue.Code Section 1445, that Borrower is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations),along with California Form 593-C.
433 If requested by Optionee, an instrument prepared by Optionee
terminating or modifying the Agreement Containing Covenants (as defined in the Loan
Agreement)properly executed and acknowledged by Borrower.
4.3.4 Any additional instruments, signed and properly acknowledged by
Borrower if appropriate, as may be necessary to Close Escrow and comply with this Option
Agreement.
4.3.5 Any additional funds as may be necessary to comply with this
Option Agreement.
4.4 . DODOsits to be Made by Non-Optionee. At or before 5:00 p.m. on the last
business day immediately before the Close of Escrow, Non-Optionee shall deliver to Escrow
Holder:
4.4.1 A reeonveyance of the Non-Optioneo's Deed of Trust recorded
against the Property properly executed and acknowledged by Non-Optionee.
V5 1.27de�eewim
Option Agreement
Page 5 of 13
4.4.2 The original promissory note which is secured by Non-Optionce's
Deed of Trust recorded against the Property marked"cancelled".
4.4.3 If requested by Optionee, an instrument prepared by Optionce
terminating or modifying the Agreement Containing Covenants (as defined in the Loan
Agreement)properly executed and acknowledged by Non-Optionee.
i
4.5 Possession. Exclusive possession of the Option Property shall be given to
the Optionee at the Close of Escrow.
5. Title Policy.
5.1 Al Close of Escrow,Title Company shall issue to Optionee the title policy
described in Section 3.3 above(the "Title Policy),with liability in the amount of the fair market
value of the Option Property (as determined by the Authority Executive Director or City
Manager, as applicable) and insuring fee title is vested in the Optionee in accordance with this
Option Agreement.
6, Snecifc Performance. If Borrower defauhs hereunder, the Authority or the City,
at its option,may each commence an action for specific performance of the terms of this Option
Agreement pertaining to such default.
7. Botmwer's Representations and Warranties. Borrower hereby agrees and
represents and warrants to Authority and City as follows, which representations and warranties
are true in all respects as of the date hereof and shall be true on the Close of Escrow:
7.1 Authority. Borrower has the legal power, right and authority to own
property and to enter into this Option Agreement and the documents referenced herein, and to
consummate the transactions contemplated hereby. The individuals executing this Option
Agreement and the documents referenced herein on behalf of Borrower have the legal power,
right and actual authority to bind Borrower to the terms and conditions hereof and thereof.
7.2 Requisite Action. As of the date hereof, all requisite action (corporate,
partnership or otherwise)has been taken by Borrower in connection with the entering into of this
Option Agreement and the documents referenced herein, and the consummation of the
transactions contemplated hereby.
7.3 Validity. This Option Agreement and all documents required hereby to be
executed by Borrower are and shall be valid, legally binding obligations of and enforceable
against Borrower in accordance with their terms, subject to principles of equity and laws
affecting creditors' rights generally.
8. Brokerage Commissions. Borrower hereby represents and warrants to Authority
and City that Borrower has made no statement or representation to, nor entered into any
agreement with, any broker,salesman or finder in connection with the transactions contemplated
by this Option Agreement. Borrower agrees to indemnify, defend, protect and hold the
V5 1-21d0 ex d=
Option Agreement
Page 6 of 13
I 1 �
Authority and City harmless from and against any claim, loss, damage, cost or liability for any
broker's commission or salesman's or finder's fee asserted as a result of its own act or omission
in connection with this transaction.
i
9. General Provisions.
9.1 Assignment This Option Agreement and the obligations of the Borrower
hereunder shall be binding upon Borrower and its successors and assignees as to the Option j
Property, and shall inure to the benefit of Authority, City, and their respective representatives,
successors and assigns, whether such succession or assignment is voluntary, involuntary, by
force of law or otherwise. Authority and City shall each have the right to assign this Option
Agreement or any interest or right under this Option Agreement or under the Escrow or to
appoint a nominee to act as Options under this Option Agreement. Authority and City shall
each have the right to assign this Option Agreement and its rights, duties and obligations
hereunder in its sole and absolute discretion so long as the assignee shall be bound by the terms
and conditions of this Option Agreement.
9.2 Attorneys' Fees. In any action between the Parties arising out of this
Option Agreement or the Escrow, or in connection with the Option Property,the prevailing party
in the action shall be entitled, in addition to damages, injunctive relief or other relief, to its
reasonable costs and expenses,including, without limitation,costs and reasonable attorneys' fees
fixed by the court.
9.3 Approval and Notices. Any notice, demand, approval, consent or other
communication required or desired to be given under this Option Agreement in writing may be
given by personal service, fax(with a hard copy to follow immediately),recognized overnight air
courier or by certified mail and shall be directed to the Parties to the address(es) in the Loan
Agreement. Any notice, demand, approval, consent or other communication given: (a)
personally shall be deemed to have been given upon receipt, (b) by recognized ovemight air
courier, freight prepaid, shall be deemed to have been given on the next business day, (c) by
certified mail shall be deemed to have been given on the third business day after it was deposited
in the U,S. mail, certified and postage prepaid. Notices shall be deemed to have been validly
given if given by either Authority's,City's, or Borrower's respective counsel in the manner set
forth above. In any case, in order for such notice, demand, approval, consent or other
communication to be given, the same shall be addressed to the party to be served at said address
or at such other address and/or to such other notice recipient of which that party may have given
notice under the provisions of this Section.
9.4 General Escrow Provisions. The Parties agree that this Option Agreement
shall also constitute instructions to Escrow Holder. In addition, the Borrower and Optionee
agree to execute and deliver to Escrow Holder, such reasonable and customary escrow
instructions in the usual form of Escrow Holder for the purpose of consummating the transaction
contemplated by this Option Agreement; provided, however, that any standard extension
provisions in such escrow instructions shall not apply, and in the event of any conflict or
inconsistency between the provisions of such escrow instructions and the provisions of this
VS 1.23.20 ex fw
Option Agreement
Page 7 of 13
1 1
Option Agreement, the provisions of this Option Agreement shall control. Escrow Holder shall
perform all custommy.functions of an escrow holder to consummate this transaction, including,
among other duties, calculation of the proration and closing costs required by this Option
Agreement, as well as serving as depository for all funds,instruments and documents needed for
the Close of Escrow. If the requirements relating to the duties or obligation of Escrow Holder
are unacceptable to Escrow Holder, or if Escrow Holder requires additional instructions, the
parties agree to make any deletions, substitutions and additions, as counsel for Borrower and
Optionee shall mutually approve, and which do not materially alter the terms of this Option
Agreement. Any supplemental instructions shall be signed only as an accommodation to Escrow
Holder and shall not be deemed to modify or amend the rights of Borrower and Optionee, as
between Borrower and Optionee, unless those signed supplemental instnlction expressly so
provide.
9.5 Prorations: Refundable Deposits. Property taxes and assessments on the
Property, and any rents, utilities and maintenance and other income and operating expenses for
the Property, shall be paid bylto Borrower as of Close of Escrow, based on the most current
statements and information available to Escrow Holder. Borrower shall be responsible for the
lien of supplemental taxes, if any, assessed pursuant to the provision of Chapter 3.5
(commencing with Section 75) of the Revenue and Taxation Code of the State of California for
acts or events occurring on or before Close of Escrow.
9.6 Payment of Costs. If Optionee exercises the Option hereunder as a result
of(i) an Option Triggering Event described in Section 2.2(i), or (ii) an early termination of the
Loan Agreement due to a default by Borrower that was not cured within the time provided
therein, then Borrower shall pay all closing costs, including without limitation, escrow fees,
recording fees, and title premiums. If Optionee exercises the Option hereunder as a result of any
reason other than as described in the immediately preceding sentence,then Optionee shall pay all
closing costs, including without limitation,escrow fees,recording fees, and title premiums:
9.7 Escrow Holder Authorized to Complete Documents. If necessary, Escrow
Holder is authorized to insert the date Escrow closes as the date of documents conveying
interests therein.
9.8 Recordation of Documents. Upon Close of Escrow, Escrow Holder shall
cause the Grant Deed, and any other recordable instruments to be filed for recordation in the
Office of the Orange County Recorder. Escrow Holder shall supply Borrower and Optionee with
conformed copies of documents submitted for recording.
9.9 Delivery of Documents and Funds. Upon Close of Escrow,Escrow Holder
shall deliver to Borrower and to Optionee all documents and funds to which each is entitled and
for whose benefit those documents and funds were delivered to Escrow Holder.
9.10 Performance by Escrow Holder. Escrow Holder is to be concerned only
with those Sections under this Option Agreement where Escrow Holder is given instructions to
perform certain acts or with those Sections where escrow holders generally and reasonably
would be expected to act.
V51-23.20"cmtlm
Option Agreement
Page 8 of 13
i
9.11 Predevelopment Costs. So long as the Loan Agreement has not been
terminated early due to a default by Borrower that was not cured within the time provided
therein, and Borrower is not in default under the Loan Agreement or under any of the City
Instruments or Authority Instruments(both terms as defined in the Loan Agreement), then prior
to the Close of Escrow, staff of Optionee shall bring an item before the governing board of
Optionee at a duly noticed public meeting of Optionee where Optionee will consider a request
from Borrower to be reimbursed for "Predevelopment Costs". Borrower acknowledges and
agrees that such consideration by Optionee is not a commitment that the request will be granted l
only a commitment to bring the matter to the governing board of Optionee for its consideration.
Borrower shall provide reasonable back-up documentation to support any Predevelopment Cost.
Borrower assumes the risk that, notwithstanding Optionee's consideration of the request,
Optionee may decide not to approve the request. The Parties in no way intend for this
Agreement to give rise to or create any relationship of partnership,joint venture, or any other
form of association of any kind or nature between any of them.
As used herein, the term "Predevelopment Costs" shall mean and refer to all out of
pocket costs incurred by Borrower and not otherwise paid for or reimbursed by the City or
Authority or another public entity in connection with (i) Borrower's acquisition of the Property,
including deposits and broker fees; (ii)design of and obtainment of entitlements for,the Project;
and (iii) any financing obtained by Borrower for the Project that is transferrable to City or
Authority(as applicable).
9.12 Effect of Early Termination of Loan Agreement Due to Lack of Available
nancin . Borrower,.City and Authority acknowledge and agree that a termination of the Loan
Agreement following a determination by any of Borrower, City, or Authority, in its reasonable
discretion, that the Project is not financially feasible, shall not constitute a default by Borrower,
so long as Borrower has diligently and in good faith applied for financing customarily utilized in
affordable housing transactions similar to the Project, but due to no fault of Borrower, Borrower
has not obtained sufficient financing to develop the Project.
9.13 Interpretation. This Option Agreement shall be construed under the laws
of the State of California in effect at the time of the signing of this Option Agreement. Each
Party acknowledges that it has been represented by independent counsel in connection with this
Option Agreement and that this Option Agreement is the result of negotiations between the
Parties hereto. Any uncertainty or ambiguity shall not be construed against any Party because
first Parry's counsel,as a matter of convenience or otherwise,prepared this Option Agreement in
its final form,
9.14 Titles. Captions and Sections. Titles and captions are for convenience
only and shall not constitute a portion of this Option Agreement. References to Section numbers
are to Sections as numbered in this Option Agreement unless expressly stated otherwise.
9.15 Gender. Etc. As used in this Option Agreement, masculine, feminine or
neuter gender and the singular or plural number shall each be deemed to include the others where
and when the context so dictates. As used in this Option Agreement, the terms"including" and
V5 1-23-20 excwtim
Option Agreement
Page 9 of 13
"include" shall have their most comprehensive meanings and shall be deemed to mean
"including,without limitation"and"include,without limitation," respectively.
9.16 No Waiver. A waiver by any Party of a breach of any of the covenants,
conditions or agreements under this Option Agreement to be performed by another party shall
not be construed as a waiver of any succeeding breach of the same or other covenants,
agreements,restrictions or conditions of this Option Agreement.
9.17 Modifications. Any alteration,change or modification of or to this Option
Agreement, in order to become effective, shall be made in writing and in each instance signed on
behalf of each Party.
9.18 Sevembiliri. If any term, provision, condition or covenant of this Option
Agreement or its application to any party or circumstances shall be held,to any extent, invalid or
unenforceable,the remainder of this Option Agreement,or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held Invalid or unenforceable, shall not be affected, and shell be valid and enforceable to the
fullest extent permitted by law.
9.19 Mercer of Prior Amements and Understandings.This Option Agreement,
together with the Loan Agreement,contains the entire understanding between the Parties relating
to the transaction contemplated by this Option Agreement. All prior or contemporaneous
agreements (other than those attached as exhibits to the Loan Agreement), understandings,
representations and statements,oral or written, are merged into this Option Agreement and shall
be of no further force.
9.20 Time of Essence. Time is expressly made of the essence with respect to
the performance by the Parties of each and every obligation and condition of this Option i
Agreement
9.21 Counte arts. This Option Agreement may be signed in multiple
counterparts which,when signed by all Parties,shall constitute a binding Agreement
9.22 Exhibits Incorporated by Referonce, All exhibits attached to this Option
Agreement are incorporated into this Option Agreement by reference.
9.23 Computation of Time. The time in which any act is to be done under this
Option Agreement is computed by excluding the first day (such as the day Escrow opens), and
including the last day, unless the last day is a holiday or Saturday or Sunday, in which case the
time shall be extended to the next business day.
9.24 Further Actions. Each Party agrees-to sign such other and further
instruments and documents and take such other and further actions as may be reasonably
necessary or proper in order to accomplish the intent of this Option Agreement.
VS 1-23-20 emeo em
Option Agreement
Page 10 of 13
915 Preliminary Change of Ownership Report. Optionee shall be fully
responsible for all matters in connection with the filing of a Preliminary Change of Ownership I
Report in accordance with the California Revenue and Taxation Code Section 480.3. ;
9.26 No Recordation. Neither this Option Agreement nor any memorandum
hereof shall be recorded or filed except for the Memorandum to be recorded pursuant to Section
9.28.
I
9.27 No Third Party Beneficiaries. This Option Agreement does not creak,
and it shall not be construed as creating, any rights enforceable by any person or entity not a
party to this Option Agreement except to the extent such person or entity is the beneficiary of
any indemnity,waiver or release contained herein.
i
9.28 Memorandum of Option. Concurrently with the execution of this Option .
Agreement,the Parties shall execute in a form suitable for recordation a Memorandum of Option
disclosing the grant of the Option; such Memorandum of Option to be in the form of Attachment
No. 12 to the Loan Agreement.
[Slgnatwes on Following Page]
I
VS 1-23-20e Ww
Option Agreement
Page 11 of 13
I
I
j I
IN WITNESS WHEREOF,the Parties have duly executed this Option Agreement as of
the Effective Date.
"BORROWER„ „CITY„
BEACH HOUSING PARTNERS LP THE CITY OF HUNfINGTON BEACH, a
a California limited partnership municipal corporation of the state of California
By: JHC-Beach LLC, a California limited
liability company By:
Its: Managing General Partner City Manager
By: Jamboree Housing Corporation, ATTEST:
a California nonprofit public
benefit corporation By:
City Clerk
Its: Manager
By APPROVED AS TO ly
Name: Michael Massie
Title: Chief Development
Officer By:
City Attorney
i
[Signatures on Following Page] j
VS 1-23-20 exe dw
Option Agreement
Page 12 of 13
... .. ..: . .. . , .. 1 i .. ._.:1 ._._ .. ..Y.4::'::I ... . . . . .
`I
IN WITNESS WHEREOF,the Parties have duly executed this Option Agreement as of
the Effective Date.
"BORROWER' "CITY" �.
BEACH HOUSING PARTNERS LP THE OF HUNT N BE CH, e j
a California limited partnership mun• ipal ration the state of California
By: JHC-Beacb LLC, a California limited
liability company By:
Its: Managing General Partner City Manager
By: Jamboree Housing Corporation, ATTEST:
a California nonprofit public > �
benefit corporation gy
City Clerk
Its: Manager
By APPROVED AS TO FORM:
Name: Michael Massie
Title: Chief Development
Officer By;
City Atto ney
i
i
[Signatures on Following Page]
I
VS I.1Y30 meeeutlaa
Option Agreement
Page 12 of 13
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On January 23, 2020 before me, Lisa DW Kennedy, Notary Public, personally
appeared Oliver Chi who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
i
i
1 certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
LISA O.W.KENNEDY
WITNESS my hand and official seal. Notary public.-Caw nis
Orono tounty
Ca rYnbn 2176901
WIN CONA:Will Fib 1 2021
i
Signatu (Seal)
"AUTHORITY"
N BEACH HOU AUTHORITY,
a pu tc b co ate an litic
i
l
By
Executive Director
ATTEST:
By:
Secretary
APPROVED AS TO FORM;
By: � V.—U, u,
r� ity ttomey
VS 1g3g0 wo=rdw
Option Agreement
Page 13 of 13
i
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
I
State of California
County of Orange
On January 23, 2020 before me, Lisa DW Kennedy, Nota7y Public, personally
appeared Oliver Chi who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
LISA O.W.KENNEOV
Natuy Pabac.-CalBorala
WITNESS my hand and official seal. 0441 county
commbdon!2178961
� — amm.f*ni Fab 1.2021
Signature .�1� I - (Seal)
I
EXHIBIT"A"
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Huntington Beach, County of Orange, State of California,
described as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 76,PAGE 4 OF PARCEL MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031.18
i
AAAA II
Recorded in Official Records,Orange County
Hugh Nguyen,Clerk-Recorder
RECORDING REQUESTED BY o IIIIDIIi�I�IIIlIIIIIIIIIIIII�I�IID�IIIIIIIIIIIII01133.00
WHEN RECORDED MAIL TO s c o o t t c a s 6 t t s .
AND MAIL TAX STATEMENTS TO: 2020000038041 8:00 am 01129/20
9 503A DI O 304
Beach Housing Partners LP 1650.00 1650.00 20.00 0.00 6.00 0.00 0.000.000.00 0.00 i
c/o Jamboree Housing Corporation
17701 Cowan Ave.,Suite 200 j
Irvine,CA 92614
I
Space above this line for Recorder's use only
GRANT DEED
APN: 159-031-18 T.RA.No. File No.NCS-956798-LA2
The undersigned Grantor declares: Documentary Transfer Tax is S ').300-0t) City Tmnsfor Tax S
p00
(X )computed on full value of property conveyed
( )computed on full value less value of liens and encumbrances mmalriing at time of sale
( )Unincorporated area; ( x )City of Huntington Bmch
FOR VALUE RECEIVED, FIVE POINTS PLAZA LLC, a California limited liability
company ("Grantor") hereby grants to BEACH HOUSING PARTNERS LP,a California limited
partnership ("Grantee') all that certain real property situated in the County of Orange, State of
California, described on Exhibit "1" attached hereto ("Property") together with (a) all
improvements owned by Grantor and located on the Property and all fixtures contained in any
such improvements, and (b) any and all casements, rights-of-way, privileges, rights and
appurtenances benefiting, appertaining or belonging to the Property, including, without
limitation, any and all streets and roads (whether opened or proposed) abutting the Property,
riparian rights, water or water rights and stock evidencing any such water rights, and/or oil, gas
or other.minerals laying under the Property.
[signatures appear on the following page.]
Mail Tax Statements to Return Address Above
1162QJ 4624 2a5at-01!S
16J ual/ISaO -1'
1
IN WITNESS WHEREOF,Grantor has executed this Grant Deed as of ;IRuWDM 1Qi_
2020,
GRANTOR: �
FIVE POINTS PLAZA LLC,
a California limite 1 1 any
13y:
Morad Golcheh Manager
I
' A Notary Public or other officer.completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy,or validity of that document.
State of Califsrt' )
County of Ln� Hfl -5 )
On �nnv2ry Zf `25Lt) ,before me, A Gold.,&V1 fllo�, � Pu��i� ,
( `r,q9use and tine of the officer)
Notary Public,personally appeared &"j Cra T
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/sheJthey executed the same
in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the
person(s),or the entity upon behalf of which the person(s)acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
i
ADAM S.GOLDMAN
Notary Vublk•Q11fbrnla
Lm Anjem Cw* g
[ommll5lon/2710773
=ADAMS.GOLDMAN My co0m.tsplrn An 13,2024 Iub0c•CallfornlaAA��ppala1 County _ItdM a i116732[e01cA5 Jan 13,2024
N510020397-0153
146242163101/22/20 -2-
EXHIBIT"1"
DESCRIPTION OF PROPERTY
Real property In the City of Huntington Beach, County of Orange, State of California,described as
follows:
PARCEL 2,IN THE CITY OF HUNTINGTON BEACH,COUNTY OF ORANGE, STATE OF CALIFORNIA,AS PER 1
MAP RECORDED IN BOOK 76, PAGE q OF PARCEL MAPS,IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
I
APN: 159-031-18
14624 163 111
IC61�]163 o01/I SRO -3-
ATTACHMENT NO. 12
MEMORANDUM OF OPTION
[behind this page]
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
RECORDING REQUESTED BY II I I II III II I II III I I I I III II NO FEE
AND WHEN RECORDED RETURN TO: * $ R 0 0 1 1 4 4 5 6 1 3 $
2020000038043 8:00 am 01/29/20
CITY OF HUNTINGTON BEACH 9 503A M 12 9
2000 Main Street 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 0.00
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION (this "Memorandum") is entered into as of
2020, by and among the City of Huntington Beach, a municipal
corporation of the State of California ("City"), the Huntington Beach Housing Authority, a
public body corporate and politic ("Authority"), and Beach Housing Partners LP, a California
limited partnership ("Borrower"). All capitalized terms used and not otherwise defined in this
Memorandum, but defined in the Option Agreement (as defined below), shall have the same
meaning in this Memorandum as in the Option Agreement.
I
j RECITALS
A. Borrower, City, and Authority have entered into that certain Option Agreement
and Joint Escrow Instructions (the "Option Agreement") dated 3A,.ttiir," 2% , 2020
("Effective Date"), pursuant to which Borrower has granted to Authority and City each an
irrevocable option to purchase ("Option") the real property more particularly described in
Exhibit"A"attached hereto,together with all improvements thereon("the Option Property").
B. Pursuant to the Option Agreement, the parties now desire to enter into this
Memorandum to provide record notice of the Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, it is hereby agreed as follows:
AGREEMENT
1. Option to Purchase. Borrower hereby grants to Authority and City each the
Option to purchase the Option Property for the price and upon all of the terms and conditions set
forth in the Option Agreement,which Option Agreement is incorporated herein by this reference.
i
2. Term of Option. The term of the Option (the "Option Term") shall commence on
the Effective Date and automatically expire on the date that is the earlier to occur of (a) the
V5 1-22-20 execution
Memorandum of Option
Page 1 of 4
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 159-031-18 FREE RECORDING REQUESTED
(Gov't Code Section 27383)
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION (this "Memorandum") is entered into as of
-3 u A N�-y 2$ , 2020, by and among the City of Huntington Beach, a municipal
corporation of the State of California ("City"), the Huntington Beach Housing Authority, a
public body corporate and politic ("Authority"), and Beach Housing Partners LP, a California
limited partnership ("Borrower"). All capitalized terms used and not otherwise defined in this
Memorandum, but defined in the Option Agreement (as defined below), shall have the same
meaning in this Memorandum as in the Option Agreement.
RECITALS
A. Borrower, City, and Authority have entered into that certain Option Agreement
and Joint Escrow Instructions (the "Option Agreement") dated 20 , 2020
("Effective Date"), pursuant to which Borrower has granted to Authority and City each an
irrevocable option to purchase ("Option") the real property more particularly described in
Exhibit"A" attached hereto,together with all improvements thereon ("the Option Property").
B. Pursuant to the Option Agreement, the parties now desire to enter into this
Memorandum to provide record notice of the Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, it is hereby agreed as follows:
AGREEMENT
1. Option to Purchase. Borrower hereby grants to Authority and City each the
Option to purchase the Option Property for the price and upon all of the terms and conditions set
forth in the Option Agreement,which Option Agreement is incorporated herein by this reference.
2. Term of Option. The term of the Option (the "Option Term") shall commence on
the Effective Date and automatically expire on the date that is the earlier to occur of (a) the
V5 1-22-20 execution
Memorandum of Option
Page I of 4
Construction Financing Event (as defined in that certain Acquisition Loan Agreement by and
between City, Authority, and Borrower entered into as of January 23, 2020); or (b) August 31,
2022, unless duly exercised as provided below in the Option Agreement.
3. Purpose of Memorandum of Option. This Memorandum is prepared for the
purpose of recordation only, and in no way modifies the provisions of the Option Agreement. In
the event that any provisions of this Memorandum are inconsistent with provisions of the Option
Agreement, the provisions in the Option Agreement shall prevail.
4. Governing Law. This Memorandum shall be construed and enforced in
accordance with the laws of the State of California.
5. Counterparts. This Memorandum may be executed by each party on a separate
signature page, and when the executed signature pages are combined, shall constitute one single
instrument.
[Signatures on Following Page]
V5 1-22-20 execution
Memorandum of Option
Page 2 of 4
IN WITNESS WHEREOF, Authority, City and Borrower have signed this Memorandum
as of the date first written above.
"BORROWER" "AUTHORITY"
BEACH HOUSING PARTNERS LP HUNTINGTON BEACH HOUSING
a California limited partnership AUTHORITY,
a public body corporate and politic
By: JHC-Beach LLC, a California limited
liability company
Its: Managing General Partner By:
Executive Director
By: Jamboree Housing Corporation,
a California nonprofit public ATTEST:
benefit co oration
JA-
By:
Its: Manager Secretary
By r
Name: Michael Massie APPROVED AS TO FORM:
Title: Chief Development
Officer
By:
City Attorney
[Signatures on Following Page]
V5 1-22-20 execution
Memorandum of Option
Page 3 of 4
IN WITNESS WHEREOF, Authority, City and Borrower have signed this Memorandum
as of the date first written above.
"BORROWER" "AUTHORITY"
BEACH HOUSING PARTNERS LP HUNTINGTON BEACH HOUSING
a California limited partnership AUTHORITY,
a pu bo corporar-4
litic
By: JHC-Beach LLC, a California limited
liability company O
Its: Managing General Partner By. •—,Executior
By: Jamboree Housing Corporation, �I1 U It
a California nonprofit public ATTEST:
benefit corporation
By:
Its: Manager Secretary
By
Name: Michael Massie APPROVED AS TO FORM:
Title: Chief Development
Officer
By.
1;" City AtYorley
[Signatures on Following Page]
V5 1-22-20 execution
Memorandum of Option
Page 3 of 4
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On January 23, 2020 before me, Lisa DW Kennedy, Notary Public, personally
appeared Oliver Chi who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
LISA D.W.KENNEDY
WITNESS my hand and official seal. Notar PubNC-California
Z Orange County Z
Commission #r 2178961
Mv Comm. Expires Feb 1. 2021
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy,or validity of that document.
STATE OF CALIFORNIA )
)SS.
COUNTY OF 0 j A jJ G f_ )
On N ItiA �_S before me, &-)J c' L)C'
personally appeared / j A; who proved to me on the 6asis of satisfactory
evidence to be the person(o whose named is/afe subscribed to the within instrument and
acknowledged to me that he/she4hey executed the same in his/hex4lwir authorized capacity(ies),
and that by his/herlthev signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(4 acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. 91my
JUDI LOWENTHALCOMM.#22773342NOTARY PUBLIC•CALIFORNIAOROGE COUNTY
COMM.EXP,JAN,25,2023'"
Signature 9 (Seal)
"CITY"
THE CIT OF HUNTINGTON BEACH,
a mu pa orporation of th tate of California
By:
City Manager
ATTEST:
By: 0 ' `f'lLk.(A�itfi`
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
V5 1-22-20 execution
Memorandum of Option
Page 4 of 4
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF c ciiti )
On a.o,)o before me, L5Q L 16� /�� =ati_ l� a�-,���►,�
persoiVally appe ed i ,,- C-11 I who proved to me on the asis of satisfactory
evidence to be the person(k) whose name()1-�ubscribed to the within instrument and
acknowledged to me that b-&&he 44ey executed the same in'hisoterfthgtr authorized capacity(ies)
and that byhis�i +rir signature(§) on the instrument the person(1 ), or the entity upon behalf of
which the person() acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. LISA D.W. KENNEDY
Notary Public-California
z y Orange County
_ Commission N 2178961
MY Comm.Expires Feb 1.2021
Signature (Seal)
r
Exhibit"A"
LEGAL DESCRIPTION
Real property in the City of Huntington Beach, County of Orange, State of California, described
as follows:
PARCEL 2, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGE 4 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 159-031-18
SUPPLEMENTAL
COMMUNICATION
,eating Date:
From:Jenny Braithwaite kntbrtnwtt,@,aol,com> Agenda Item No I
Date:October 31,2019
To:Erik.Peferson a,surfci hb.org,,Barbara.DeigleizeCa surfcity-h.b.org,Patrick.brenden(a7s«rf_ity_hb. iiki.hard s
urfeity-ham b.ora,mike.Posey1WSL1fciYy-hb.org.,kim.carr!a�surfcity-hb.oy
Cc:Ci=—ikes@s«rfcity-hb.orc�
I
Subject:Support for Jamboree Project
I
Dear Mayor Peterson and Fellow Council Members,
Thank you for your recent efforts to study with the hope of complying with the requirements to
become eligible to receive SB2 funding. At this time Homeless United of Huntington Beach j
urges you to vote yes on November 4 for the construction of the Jamboree senior housing
project behind Denny's in Huntington Beach. Part of our reasoning is economic.The 42 senior
units comprised of both affordable housing units and permanent supportive housing units
would help us to meet our RHNA requirements so that SB2 funds could be used for other
housing projects. It costs much less to house low-income senior citizens rather than to fund the
emergency medical services and police responses that would occur if they were homeless.
Building a few hundred housing units could lead to our receiving millions of dollars we already
pay to our state. Purchasing the land and partnering with Jamboree Housing to construct the
facility also will be efficient. Using an experienced builder with strong private management
skills, controlled access, and a solid facility,the senior housing center will be less contentious
than other housing projects we have considered.
3
The arguments for supporting the Jamboree project go beyond economics and quality of life.
Shouldn't we view homeless and low-income senior citizens with compassion?We must
consider moral and demographic factors. According to the Orange County Healthy Aging
Initiative,the number of people over age 65 is projected to nearly double by 2040,when almost
one in four residents will be 65 or older. The waiting list for senior citizens at Bowen Court is
approximately five years. Thirteen years have passed since HB City built more affordable
housing for senior citizens. Almost everyone would prefer to avoid the homelessness of elderly
residents, many of whom have mental and physical problems which have forced them to stop
working. Some of the needy seniors have lost their spouse and are unable to support
themselves when their social security funds are reduced.The majority of homeless senior '
citizens seek safe shelter and affordable housing. While neighbors to affordable housing sites
may complain about new construction,the alternative is inaction. As Chief Handy and interim
City Manager Dave Kiff aptly wrote, "Not being able to enforce our anti-camping laws,
continuing to give up our public spaces for something other than their intended use, and seeing
our fellow human beings destitute and ill in front of us is no alternative at all."
While there is no perfect place to build affordable senior housing,we all need to do our part to
address this issue. If we choose inaction instead of building the Jamboree development, it will
be more difficult to face legal challenges,and the city will have fewer resources to file its own
I
I
suits and pursue its own legal strategy. Homeless United urges each of you to educate the
public on the housing emergency crisis we face in Huntington Beach, in Orange County, and
throughout the state. Please vote with collective courage for the proposed Jamboree housing
development when it comes before you on November 4. In the long run we will all be glad we j
considered the quality of life along with economic, moral, demographic, and legal factors
supporting this decision.
Sincerely,
1
Homeless United of Huntington Beach Volunteers
Shirley Dettloff
Jenny Braithwaite
Galen Pickett
Cheri Atkinson
Karen Carroll
Michelle Kerns
Gigi Jackson
Howard Herdman
Natalie Moser
Ralph Bauer F
Patricia Goodman
1
i
a
}
i
3
f
j
{i
4
3
i
11/5/2019
Jamboree
HUNTINGTON BEACH
Acquisition Loan Agreement:
Between Huntington Beach & Jambo ee
Beach & Main Affordable Housing
Jamboree is a Nonprofit Corporation founded in 1990
Mission
Jamboree delivers high quality affordable housing and services that
transform lives and strengthen communities
Vision
Every person will live in a strong, healthy, sustainable community
State-Wide
Jamboree is California's second largest non-profit developer of
affordable housing
9
1
11/5/2019
y
�4� a� �r
(j��jj`j •per � ' !. � .--� + }- 'R• E�
Ellis venue `-
_.,
Beach Blvd and Main Street
Acquisition Loan Agreement
Jamboree is in contract to acquire the site
' for $3M
Requesting a $3M Acquisition Loan
Agreement from the City which will enable
them to secure other sources of funding
3% simple interest
Property reverts to City if construction
financing is not secured within specified
timeframe
Future Project: 43 extremely low and
very, senior units
2
11/5/2019
Jamboree __
Questi
•
3
Switzer, Donna
From: Dombo, Johanna
Sent: Monday, November 04, 2019 9:36 AM
To: Agenda Comment
Cc: Fikes, Cathy; CITY COUNCIL
Subject: FW: City Council, 11/4/19 Items 18, 19
AGENDA COMMENT
From: Galen Pickett<Galen.Pickett@csulb.edu>
Sent: Monday, November 04, 2019 8:58 AM
To: CITY COUNCIL<city.council@surfcity-hb.org>
Subject: City Council, 11/4/19 Items 18, 19
Honorable city council members:
I note with interest items 18 (19-1024 ) and 19 (19-1094) on the agenda for the upcoming Nov.4, 2019 city council
meeting. While independent and severable, the items are connected by the internal logic of our housing system and by
the legal challenges facing the city. In my view, both items deserve broad-based council support. It is my contention
that with these items the city is making important first steps toward rationalizing the various housing instabilities the
region and state are experiencing. Additionally, it seems clear that we are rapidly approaching our last chance to take
our first step.
Of the various lawsuits to which the city is a party,the suit brought by the state in Jan. 2019 and the Kennedy
Commission suit spring from the issues items 18 and 19 address. These suits stem from the reduction of affordable
housing in the housing element of the general plan, as you all are aware. The Jamboree development on Beach provides
permanent supportive housing for seniors in danger of experiencing housing instability, and thus cuts directly at the
underlying logic of both suits. Directing staff to create options for amendments to the housing element (and specifically
the Beach-Edinger Corridor Specific Plan) for council consideration likewise is a step toward making both suits moot,
with the added benefit of making the city eligible for state funding for the operation of facilities which would reduce the
pressure the city faces from Judge Carter in the wake of the Boise decision.
In this light, taking action is the surest way to preserve the autonomy of our charter city and to conserve our ability to
pursue an active legal strategy. The essence of political conservativism is to conserve the possibilities inherent in the
future by acting in the present to hedge against the downside of inaction. The downside of inaction here is
considerable: the financial pressure resulting from losing any one of these suits can squeeze out public safety spending,
the inability of the city to enforce anti-camping and curfew laws would result in as few as a couple of weeks an economic
catastrophe. Alternatively, taking the first steps outlined in items 18 and 19 preserves the autonomy of the city to
maintain planning authority and gives direct evidence to all parties of our earnest intent to resolve the intertwined
issues of homelessness, affordability, and quality of life.
With best wishes,
Prof. Galen T. Pickett SUPPLEMENTAL
Dept. of Physics and Astronomy COMMUNICATION
CSU Long Beach ) I
1250 Bellflower Blvd. Meetng Date: yl �(�
Long Beach, CA 90840
AgAnde Item No.:
http://www.csuIb.edu/-gpickett
2