HomeMy WebLinkAboutC-4382 - Affordable Housing Agreement Regarding the Property Located at 2800 Pacific View DriveWHEN RECORDED, RETURN TO:
City of Newport Beach
3000 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
Recordeq in OffidiplRecords, Orange County
RECEIVED
Tom Illl^d ?FEE
201100(O10 rrl 01/06/11
37 402 A17`.
0.00 0.00 Sr.imaggirtftmoo 0.00
(Free Recording Pursuant to Government Code §§ 6103 and 27383)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
APN: 458-321-04
FIRST AMENDMENT TO THE AFFORDABLE HOUSING AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
SEAVIEW LUTHERAN PLAZA, INC., REGARDING THE PROPERTY
LOCATED AT 2800 PACIFIC VIEW DRIVE, NEWPORT BEACH
This first amendment to the AFFORDABLE HOUSING AGREEMENT
("Amendment") entered into this I2tbday of October 2010, by and between City of
Newport Beach, a California municipal corporation and Charter City, ("City") and
Seaview Lutheran Plaza, Inc., a California nonprofit corporation ("Owner"), and is
made on the basis of the following facts, intentions and understandings:
RECITALS
A. Owner is the owner of the fee interest of that certain senior citizen residential
project of 100 affordable dwelling units commonly known as Seaview Lutheran
Plaza located at 2800 Pacific View Drive in the City of Newport Beach, County of
Orange, State of California, as more particularly described in the legal description
attached hereto as Exhibit "A" ("Property").
B.'.City and Owner entered into an Affordable Housing Agreement on September
22, 2009, recorded in the Official Records of Orange County on November 5,
2009.as Document No. 2009000601995 ("Agreement").
C. Pursuant to the Agreement, the City has paid One Hundred Twenty -Eight
Thousand Nine Hundred Fifty -One Dollars ($128,951) to date for work related to
the replacement of the Property's water distribution system ("Improvements").
D. As a result of the Improvements made to the property, the City, in accordance
with Title 17 of the California Administrative Code, has required the installation of
an approved backflow prevention device to prevent backflow into the public water
supply.
City of Newport Beach
Affordable Housing Agreement
Amendment No. 1
E. The double check detector assembly necessary to replace the Property's
unapproved single check valve is estimated to cost Twelve Thousand Three
Hundred Twenty Dollars ($12,320), including a ten percent (10%) contingency.
F. The remaining balance of funds remaining in the Agreement is Six Thousand
Forty -Nine Dollars ($6,049).
G. The parties desire to amend the Agreement to provide adequate funds to cover
the unanticipated cost related to the installation of an approved backflow
prevention device and to correct a scribner's error included in Exhibit "A" related
to the Property's APN.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. AGREEMENT FUNDS
Section 2, Agreement Funds, is amended to provide Owner funds for all work
performed in accordance with this Agreement in a not to exceed dollar amount of One
Hundred Forty -One Thousand Three Hundred Dollars ($141,300). The amended
sum is reflective of the additional Six -Thousand Three Hundred Dollars ($6,300)
necessary to cover unanticipated expenses associated with the City's requirement to
install an approved backflow prevention device.
2. REPLACEMENT OF EXHIBIT "A"
Exhibit "A" to the Agreement is deleted in its entirety and replaced with the
Exhibit "A" attached to this Amendment.
3. NO AMENDMENTS TO REMAINDER OF AGREEMENT
All other provisions of the Agreement shall remain in force and effect in their
original form.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed on the day and year first written above.
CITY OF NEWPORT BEACH,
a municip�alo rpyr�ign
By: O
Name: Keith Curry
Title: Mayor
SEAVIEW LUTHERAN PLAZA, INC.,
a California nonproDt corpora 'fin
By
N e: Charles
Title: Board Pres' ent
2
City of Newport Beach
Affordable Housing Agreement
Amendment No. 1
APPROVED AS TO FORM:
By: .\ c mam Qgeo'"
OFFICE OF THE CITY ATTORNEY Nam ' Joan E. Lambert
Title: Board Treasurer
By:
Name: David R. Hunt
Title: City Attorney aw ;a(`u
ATTEST:
By: 01;
$N
Name: Leilani I. Brown
Title: City Clerk
3
City of Newport Beach
Affordable Housing Agreement
Amendment No. 1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of O° A/l
J
On di cO6before me, L./LLOAA) 141/45 rtb/l ,( ( rne/
Date -IHere Insert Name and Title4t the r !� �3-�
personally appeared C &Es P & S AA,ib arm Ai. E. dome I
Name(s) of Signer(s)
L. WASHINGTON
Commission * 1840150• =
Notary Public - Calitornia
Orange County
M Comm. E i fires Mar 12?613
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s))/are subscribed to the
within instrument and acknowledged to me that
f�they executed the sam i/their authorized
capacity(ies), and that by h (h their signature(s) on the
instrument the person(s), or he 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 _e foregoing paragraph is
true and correct.
WITNESS my h
Signatu
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
4 f Title or Type of Document: >' V 4 T' 7g
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
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f 1 USiAkkA3
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited 0 General
O Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT
OF'.
UMBPRINT
GNER
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02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402•Chatsvorth, CA 91313-2402• www.NationalNotaryorg Item N5907 Reorder:Call Toll -Free 1-800-876-6827
Exhibit "A"
Property's Legal Description
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown
on a Map filed in Book 149, Pages 25 and 26 of Parcel Maps, in the Office of the
County Recorder of Orange County, California on August 25, 1980.
Copy of Parcel Map 80-712 Attached
Aka: Assessor's Parcel No. 458-321-04
4
City of Newport Beach
Affordable Housing Agreement
Amendment No. 1
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RECORDED AT THE REQUEST OF
AND WHEN RECORDED, RETURN TO:
City of Newport Beach
3000 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
Recorded in Official Records, Orange County
• C corder
li : +111 uIlIINIIIIIIN1M111111NO FEE
go 99 08:36am 11/05/09
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
- r
OFFICt 0.1 ,E s�
(Recording Fees Exempt Pursuant to Government Code §§ 6103 and 27383)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
APN: 458-321-04
AFFORDABLE HOUSING AGREEMENT CoNF0R
BETWEEN THE CITY OF NEWPORT BEACH AND Mao Cop r
SEAVIEW LUTHERAN PLAZA, INC., REGARDING THE PROPERTY
LOCATED AT 2800 PACIFIC VIEW DRIVE, CORONA DEL MAR
This AFFORDABLE HOUSING AGREEMENT ("Agreement") is entered into as of this
day of 22- September 2009 by and between the City of Newport Beach, a Califomia
municipal corporation and Charter City, ("City") and Seaview Lutheran Plaza, Inc., a Califomia
nonprofit corporation ("Owner"), and is made on the basis of the following facts, intentions and
understandings:
RECITALS
WHEREAS, providing and maintaining low and moderate income housing options in the
City of Newport Beach furthers the City's affordable housing goals and objectives as expressed
in the Housing Element; and
WHEREAS, City is a municipal corporation which has received funds from the payment
of affordable housing in -lieu fees by previous developers of market rate housing who did not
provide affordable housing units in compliance with City's Housing Element; and
WHEREAS, Owner is the owner of the fee interest of that certain senior citizen
residential project of 100 affordable dwelling units commonly known as Seaview Lutheran Plaza
located at 2800 Pacific View Drive in the City of Newport Beach, County of Orange, State of
California, as more particularly described in the legal description attached hereto as Exhibit A
(the "Property"); and
WHEREAS, Owner currently provides extremely -low and very low-income senior
housing under the Section 8 Program and intends to continue to use the Property to provide
extremely -low and very low-income senior housing; and
WHEREAS, the Property experienced a failure in the water distribution system during
the past year, which caused the temporary relocation of elderly tenants and emergency repairs
by Owner; and
City of Newport Beach
1 Affordable Housing Agreement
1
WHEREAS, Owner wishes to replace the entire water distribution system for the
purpose of avoiding future system failures and disruptions to tenants and preserving an
affordable housing resource for the future of Newport Beach; and
WHEREAS, Owner has invested approximately $66,000 in a project to replace the
horizontal water distribution system, which is complete. Further, Owner has agreed that it shall
use at least $84,000 released by the United States Department of Housing and Urban
Development ("HUD") from Owner's project reserves or from Owner's operating funds to replace
fifteen (15) of the thirty-five (35) vertical water distribution lines, exhausting all funds available to
Owner. Owner has applied to the City for funds from the City's affordable housing reserve to
complete replacement of the water distribution system (the "Improvements"); and
WHEREAS, City has relied on the information submitted by Owner therein, including the
Owner's financial resources, ownership and commitment to maintaining the affordable housing
use of the Property, to determine Owner's eligibility to receive assistance; and
WHEREAS, funding from City is essential for preserving the supply of affordable rental
units in the City of Newport Beach; and
WHEREAS, City desires to expend affordable housing in -lieu funds to complete the
Improvements and preserve the affordable housing units.
NOW, THEREFORE, the Recitals set forth above are a substantive part of this
Agreement and for good and valuable consideration the parties agree as follows:
Section 1. The term of this Agreement shall commence on the above written date, and shall
terminate on the March 26, 2039, unless terminated earlier as set forth herein.
Section 2. Agreement Funds. City does hereby agree to disburse to the Owner an amount
not to exceed One Hundred Thirty-five Thousand Dollars ($135,000) (the "Agreement Funds")
solely to pay for the Improvements in accordance with and subject to the terms and conditions
of this Agreement. The Agreement Funds shall only be disbursed by the City to Owner for the
properly documented costs of constructing the improvements as set forth in these Recitals that
exceed the Owner's expenditure of at least One Hundred and Fifty Thousand Dollars
($150,000), or such other amount agreed to by City and Owner.
Section 3. Conditions Precedent to Fund Disbursement.
(a) The Agreement Funds shall be disbursed in accordance with the following procedures:
1. Prior to disbursement of any Agreement Funds, Owner shall execute and deliver
to the City this Agreement and a copy of an executed contract by and between Owner and each
contractor providing for the completion of the Improvements, which agreements shall provide
the total costs of completing the Improvements; and
2. Prior to disbursement of any Agreement Funds, Owner shall obtain a Plumbing
Permit for the Improvements by City's Building Department; and
3. Prior to disbursement of any Agreement Funds, Owner shall provide the City
certificates of insurance by each contractor with original endorsements effecting coverage
City of Newport Beach
2 Affordable Housing Agreement
required by this Agreement and as set forth in detail in Exhibit B, which is attached hereto and
incorporated herein by this reference; and
4. Prior to disbursement of any Agreement Funds, Owner shall provide invoices and
other documents showing that Owner has expended the $150,000 to be used by Owner for
construction of the Improvements.
5. Upon verification by the City that Owner has complied with Section 3
Subsections (a) (1) through (4), the City shall disburse Owner for work in excess of $150,000,
within in ten (10) business days upon:
i. The submittal of invoices, documents and other information requested by
the City for work associated with the Improvements for which Owner is seeking disbursement;
and
ii. Written verification by Owner that the work has been satisfactorily
performed; and
The submittal of conditional lien releases from the contractor,
subcontractor and suppliers, in a form approved by the City, releasing Owner of liability upon
making of progress or final payments.
(b) The parties hereto agree that the City shall not be obligated to reimburse Owner and
Owner shall be required to reimburse the City within ten (10) business days, the entire amount
of any Agreement Funds paid Owner under this Agreement if any of the following conditions
occur.
1. The Owner does not obtain a final inspection for the Improvements by the City
Building Department; or
2. Owner fails to submit a lien release in such form as approved by City; or
3. Owner defaults in the performance of Owner's obligations under this Agreement;
or
4. If any of the Agreement Funds disbursed by City are not used for the
construction of the Improvements.
Section 4. Owner Responsibility.
The parties hereto acknowledge and agree as follows:
(a) The City and Owner are not entering into a joint venture. Nothing in this
Agreement shall be deemed to constitute approval for Owner or any of Owner's employees or
agents, to be the agents or employees of City.
(b) Owner shall contract for and be responsible for the Improvements. City and all
officers, employees and representatives thereof shall not be responsible in any manner: for any
loss or damages that may happen as a result of this Agreement the construction of the
Improvements or any part thereof; for any loss or damage to any of the materials or other things
used or employed in performing the construction of the Improvements, for injury to or death of
City of Newport Beach
3 Affordable Housing Agreement
any person either workers or the public; or for damage to property from any cause arising from
the construction of the Improvements by the Owner, its contractor or subcontractor, or its
workers, or anyone employed by Owner. The manner and means of conducting the work on the
Improvements are under the control of Owner, except to the extent they are limited by statute,
rule or regulation and the express terms of this Agreement.
(c) City shall have no responsibility or liability to Owner or any third party regarding
any action or failure of any contractor, subcontractor, supplier or third party and that City in no
way guarantees any of the work to be done or the materials to be supplied. City's sole
obligation with respect to the Improvements shall be for disbursement of the Agreement Funds
in accordance with the terms of this Agreement.
Section 5. Owner's Covenants to Maintain as Affordable Senior Housing. Owner shall
maintain all units at the Property, except for the Building Relief staff unit, defined below,
("Affordable Units") as affordable senior housing according to the following conditions:
(a) All one hundred (100) of the Affordable Units shall be one -bedroom units. One
(1) of these units may be utilized as an on -site "Building Relief" staff unit.
(b) With the exception of one (1) "Building Relief staff unit, all Affordable Units shall
be rented to persons or families eaming no more than fifty percent (50%) of the
County annualized median income ("Very Low -Income"). The wait -list for
Affordable Units shall give alternating preference to persons or families earning
no more than thirty percent (30%) of the Orange County ("County"), Califomia
annualized median family income ("Extremely -Low Income") in such a way as to
ensure that fifty percent (50%) of the annual new rentals are rented to Extremely -
Low Income persons or families.
(c) The annual gross rent shall be set by Owner's Section 8 contract with HUD.
Owner's Section 8 contract for 2009 sets gross rent for all one hundred (100) of
the one -bedroom units at $971 per month. Owner's HUD agreement limits the
tenant's share of the total monthly rent to no more than thirty percent (30%) of
the tenant's adjusted monthly net income. In the event that no Section 8
Contract is entered into with HUD for the Property or Affordable Units, all
Affordable Units shall be rented for an Affordable Rent. As used herein,
"Affordable Rent" means rent, a monthly amount which, together with utility
allowance, does not exceed: one twelfth (1/12th) of thirty percent (30%) of the
fifty percent (50%) of Median Income, adjusted by household size based on the
number of bedrooms in the unit.
(d) Owner will limit public occupancy of the Project to elderly and/or mobility -
impaired handicapped persons and families as defined in Section 202 of the
Housing Act of 1959 and applicable HUD regulations. The criteria governing
eligibility of tenants for admission to Section 8 units and the conditions of
continued occupancy shall be in accordance with the Housing Assistance
Payments contract on the Property and the HUD approved Resident Selection
Plan (RSP).
(e) Each Affordable Unit shall meet the affordability and eligibility criteria and
requirements of Section 4(b) of this Agreement for eighteen (18) years from the
CHy of Newport Beach
4 Affordable Housing Agreement
date the Section 202 Loan Agreement expires on, which occurs on March 26,
2021.
(f) Owner will be responsible for ensuring that persons or families who rent the
Affordable Units properly qualify to occupy the units under the terms of this
Agreement. Selection of the tenants of the Affordable Units shall be made on the
basis of criteria that are neutral as to race, religion, sex, creed, ethnic origin,
marital status, or any other constitutionally impermissible standard.
(g) Owner shall provide to City such information as is reasonably requested by City
or its agents in connection with City's annual monitoring of the Affordable Units
within ten (10) calendar days of the request and the information shall be verified
in writing by Owner under penalty of perjury. Such information shall include, at a
minimum, the following for each Affordable Unit:
i. Rental rate;
ii. Name of current tenant;
iii. Initial occupancy date of current tenant;
iv. Household size of current tenant;
v. Household income of current tenant, and information upon which Owner
relied to qualify current tenant. Once a tenant is qualified for occupancy
of an Affordable Unit, that tenant shall be deemed to have qualified for
occupancy. Thereafter, each tenant must be re -certified annually as to
his or her income for the purposes of determining their 30% monthly
rent share; and
vi. Interest and/or waiting list.
(h) Each Affordable Unit shall meet Section 8 Housing Quality Standards, local and
state housing and building codes, and be free and clear of lead -based paint hazards. Owner
shall maintain, at Owner's sole cost and expense, the Affordable Units and Property in good
condition, in good repair, and in decent, safe, sanitary and habitable living conditions during the
term of this Agreement.
Section 6. Covenants Recorded Against the Property. This Agreement shall be recorded in
the Official Records of Orange County, California. All of the covenants and restrictions set forth
in this Agreement shall be equitable servitudes and covenants running with the land pursuant to
applicable law, including, without limitation, California Civil Code section 1468. Each covenant
to do or refrain from doing some act on or affecting the Project is for the benefit of the Property.
Each covenant shall run with the Project, and any portion thereof, as applicable, and shall
benefit or be binding upon each successive owner during its ownership of the Property. The
covenants herein contained shall, subject to the provisions as to assignment, apply to and bind
the heirs, successors, executors, administrators and assigns of all the parties hereto; and all of
the parties hereto shall be jointly and severally liable hereunder. Upon expiration this
Agreement or after termination for cause and the repayment of the Agreement Funds and
interest, Owner and the City shall sign documents in recordable form (provided by the owner
giving notice and subject to approval by the City Attomey) as may be necessary to remove the
effect of this Agreement from the Property in the Official Records of Orange County.
Section 7. Indemnity; Hold Harmless. To the fullest extent permitted by law, Owner shall
indemnify, defend and hold harmless City, its City Council, boards and commissions, officers,
agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any
City of Newport Beach
5 Affordable Housing Agreement
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attomey's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a Claim;
collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to this
Agreement, any breach of the terms and conditions of this Agreement, any work performed or
services provided under this Agreement including, without limitation, defects in workmanship or
materials or Owner's presence or activities related to the Improvements or pursuant to this
Agreement (including, but not limited to, the negligent and/or willful acts, errors and/or
omissions of Owner, its principals, officers, agents, employees, vendors, suppliers, contractors,
consultants, subcontractors, suppliers anyone employed directly or indirectly by any of them or
for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Owner to indemnify
the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of
the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award
of attomey's fees in any action on or to enforce the terms of this Agreement. This indemnity
shall apply to all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be provided by
the Owner.
Section 8. Non -Discrimination.
(a) Owner shall be responsible for ensuring that persons or families who rent the
Affordable Units properly qualify to occupy the units under the terms of this
Agreement. Selection of the tenants of the Affordable Units shall be made on the
basis of criteria that are neutral as to race, religion, sex, creed, ethnic origin,
marital status, or any other constitutionally impermissible standard.
(b) Owner represents that it is an equal opportunity employer and it shall not
discriminate against any contractor, subcontractor, supplier, employee or
applicant for employment because of race, religion, sex, creed, ethnic origin,
marital status, or any other constitutionally impermissible standard.
Section 9.
Agreement.
Section 10.
(a)
Compliance. Owner agrees to strictly comply with all requirements of this
Default.
Termination for Cause. In the event the City determines that there has been
any fraud or deceit by Owner including, but not limited to, any material
misrepresentation by Owner, the City may, in its sole discretion, immediately
terminate this Agreement. In the event that either party fails or refuses to perform
any of the provisions of this Agreement at the time and in the manner required,
that party shall be deemed in default in the performance of this Agreement. If
such default is not cured within a period of five (5) calendar days, or if more than
five (5) calendar days are reasonably required to cure the default and the
defaulting party fails to give adequate assurance of due performance within five
(5) calendar days after receipt of written notice of default, specifying the nature of
such default and the steps necessary to cure such default, and thereafter
City of Newport Beach
6 Affordable Housing Agreement
diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
(b) Repayment. In the event of termination for cause as provided in Subsection (a)
of Section 9 of this Agreement, Owner shall within ten (10 calendar days repay
the entire amount of the Agreement Funds to the City plus interest which shall
bear a rate of ten percent (10%) from the date the Agreement Funds were
distributed to Owner. Agreement
(c) Acceptance of Service of Process. In the event that any legal action is
commenced by the Owner against the City, service of process on the City shall
be made by personal service upon the City Clerk, or in such other manner as
may be provided by law.
In the event that any legal action is commenced by City against Owner, service
of process on Owner shall be made in such manner as may be provided by law,
whether made within or outside the State of California.
Section 11. General Provisions.
(a) Notices. All notices, demands, requests or approvals to be given under the
terms of this Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices,
demands, requests or approvals from Owner to City shall be addressed to City at:
To City: City of Newport Beach
City Manager
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-1768
All notices, demands, requests or approvals from City to Owner shall be addressed to
Owner at:
To Owner: Attn: Board of Directors
Seaview Lutheran Plaza, Inc.
2800 Pacific View Drive
Corona del Mar, CA 92625-1138
With a copy to:
To Agent:
Agent for Service of Process
CARING Housing Ministries
2320 South Fremont Avenue
Alhambra, CA 91803
Either party may change its address for notice by giving written notice thereof to the
other party.
City of Newport Beach
7 Affordable Housing Agreement
(b) Amendment of Agreement. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by Owner and City.
(c) Owner Assignment Prohibited. In no event shall Owner assign or transfer any
portion of its rights or obligations under this Agreement without the prior express written consent
of City, which consent may be given or withheld in City's sole discretion. The sale, assignment,
transfer or other disposition of any of the issued and outstanding capital stock of Owner which
results in changing the control of Owner shall be considered a prohibited assignment. Control
means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of
the assets of the corporation.
(d) Owner to File Notices. Owner shall file or record any notices of completion,
cessation of labor, or any other notice that City deems necessary or desirable to protect its
interest hereunder.
(e) Actions. City shall have the right to commence, appear in, or defend any action
or proceeding purporting to affect the rights, duties, or liabilities of the parties hereunder, or the
disbursement of any proceeds of the Agreement Funds.
(f) Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
(g) Construction of Words. Except where the context otherwise requires, words
imparting the singular number shall include the plural number and vice versa, words imparting
persons shall include firms, associations, partnerships and corporations, and words of either
gender shall include the other gender.
(h) Partial Invalidity. If any provisions of this Agreement shall be declared invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions
hereof shall continue in full force and effect.
(1) Captions and Headings. Captions and headings in this Agreement are for
convenience of reference only, and are not to be considered in construing the Agreement.
(j) Joint and Several Liability. If Owner consists of more than one person, the
obligations of this Agreement shall be the joint and several obligations of all of them.
(k) Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties. This Agreement integrates all of the terms and conditions mentioned
herein or incidental thereto, and supersedes all prior negotiations, discussions and previous
agreements between City and Owner conceming all or any part of the subject matter of this
Agreement. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
(I) Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which might
otherwise apply.
City of Newport Beach
8 Affordable Housing Agreement
(m) Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or a
different character.
(n) Compliance with all Laws. Owner shall at its own cost and expense comply
with all statutes, ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Owner, its contractors and subcontractors shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements. The parties
expressly agree that it shall be Owner's obligation to determine whether the use of the
Agreement Funds requires the payment of prevailing wages for the construction of the
Improvements and to comply with any applicable laws, rules and regulations related to the
payment of prevailing wages.
(o) Conflicts of Interest. The Owner or its employees may be subject to the
provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially affected by this
Agreement, and (2) prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Owner shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds for immediate termination of this Agreement by
City. Owner shall indemnify and hold harmless City for any and all claims for damages resulting
from Owner's violation of this Subsection.
(p) Records. Owner shall keep records and invoices in connection with the
Improvement work. Owner shall maintain complete and accurate records with respect to the
costs incurred in the Improvement work and any expenditures and disbursements of the
Agreement Funds, for a minimum period of four (4) years, or for any longer period required by
law, from the date of final payment of any Agreement Funds under this Agreement. All such
records and invoices shall be clearly identifiable. Owner shall allow a representative of City to
examine, audit and make transcripts or copies of such records and invoices during regular
business hours. Owner shall allow inspection of all work, data, documents, proceedings and
activities related to the Agreement during the term of this Agreement and for a period of three
(3) years from the termination of this Agreement.
(q) Confidentiality. All documents, including drafts, notes and communications that
result from this Agreement, shall be kept confidential unless City authorizes in writing the
release of information.
(r) Cooperation. Owner agrees to work closely and cooperate fully with City and
any other agencies that may have jurisdiction or interest in this Agreement. City agrees to
cooperate with the Owner in the implementation of this Agreement.
(s) Non -Liability of Officials, Employees and Agents. No official, officer,
employee, agent, or representative of City shall be personally liable to Owner or its successors
and assigns for any loss arising out of or connected with this Agreement and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
official, officer or employee.
City of Newport Beach
9 Affordable Housing Agreement
(t) No Third Party Beneficiaries. The only parties to this Agreement are City and
Owner. This Agreement does not involve any third party beneficiaries, and it is not intended
and shall not be construed to benefit or be enforceable by any other person or entity.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year written below.
CITYOFN -ORTB
a munici.. corporation
By:
Name: dward
Title: Mayor
APPROVED AS TO FORM:
OFFICE F TNF�CITATTORNEY
By:
Name: David R. Hunt
Title: City Attorney
ATTEST:J_S
By:
Name: Leilani I. Brown
Title: City Clerk
SEAVIEW LUTHERAN PLAZA, INC.,
a California nonprofit corporation
By:
Na .
Title:
B
Na
Title: .Qo i
(Financial Officer)
,4
e• = r)
eP1
City of Newport Beach
10 Affordable Housing Agreement
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of L1L NGC
personally appeared BAN a/14&tC
Hameln) of gnerts)
before me Ll// n1 /045/b/VerbAist. J/CM�Y ?»tti
Here Insert Name and T1le the Officer
L. WASHINGTON
Commission ! 1840150
Notary Public • California
County
rt� Cnmm ExsiresMar12,2019
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the persor}{s�whose nameMjskifipsubscribed to the
within ins rument and acknowledged t me that
bcfsheR executed the : me in her/th u onzed
capacity and that by , i 1 erfttr signat r -on the
instrument the perst:' .r the entity upon behalf of
which the person r_' acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of Cali .gt: that the foregoing paragraph is
true and correct.
WITN
Si
OPTI
Though the information below is not required by taw, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
icial seal.
Signature of Notary Publ
Number of Pages:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner —0 Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited 0 General
❑ Attorney in Fact
❑ Trustee
0 Guardian or Conservator
❑ Other:
Signer Is Representing:
RIG HTTH EMS PRINT
OF SIGNER
Top of thumb here
(02037 Nalbrrel Notary Association• 9350 De Soto Ave.. P.O. Box MO• Cha6ivrth, CA 91313-2402• mvw.NalionaIJotaryag (tern 45907 Reorder: Gat Toll -Free 1-e008786827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of "r'
niA N6e
OnCr--Vgea-',26rftefore me
Date
personally appeared
LJLL14 N k 5briN67rjftJ lli0774A/ ?V6 L(C_
Namefat of SloneHat
L. WASHINGTON
Commission N 1e40150
Notary Public - California
Orange County
MXComm. Expires Mar 12_2013c
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(bf whose nam*k is/4 subscribed to the
within instrument and acknowledged to me that
he/sse(th)y executed the same in his/r/tir authorized
capacity , and that by his/{ rµs�tr signatureJ4on the
instrument the persop, 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
Signature
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Signature of Notary Public
Number of Pages:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing.
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner—❑ Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
02007 National Notary Association• 9350 De Soto Ale.,PO.Box 2402•Chatsworth. CA 913132402•www.NationalNotary.org Item 1/5907 Reorder: Gallbt-Ffee t-8068766827
Exhibit "A"
Legal Description
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a
Map filed in Book 149, Pages 25 and 26 of Parcel Maps, in the Office of the County Recorder of
Orange County, California on August 25, 1980.
Copy of Parcel Map 80-712 Attached
Aka: Assessor's Parcel No. 458 321 05
12 City of Newport Beach
Affordable Housing Agreement
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Exhibit "B"
Insurance Requirements
Insurance is to be placed with insurers with a Best's rating of no less than A:VII and insurers
must be a California Admitted Insurance Company.
Each Contractor shall furnish Owner with original certificates of insurance and with original
endorsements effecting coverage. The certificates and endorsements for each insurance policy
are to be signed by a person authorized by that insurer to bind coverage on its behalf. All
certificates and endorsements are to be received and approved by Owner and the City's Risk
Manager before work commences. Owner shall reserve the right to require from contractor
complete, certified copies of all required insurance policies, at any time, which shall be made
available by Owner to the City upon request.
Each contractor shall procure and maintain for the duration of the contract for the Improvements
insurance against claims for injuries to persons or damages to property, which may arise from
or in connection with the performance of the work by each contractor, his agents.
representatives, employees or subcontractors
1. Minimum Scope of Insurance
Coverage shall be at least as broad as:
(a) Insurance Services Office Commercial General Liability coverage "occurrence"
form number CG 0002 (Edition 11/85) or Insurance Services Office form number GL 0002
(Edition 1/73) covering Comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
(b) Insurance Services Office Business Auto Coverage form number CA 0002 0287
covering Automobile Liability, code 1 "any auto" and endorsement CA 0029 1288 Changes in
Business Auto and Truckers Coverage forms - Insured Contract.
(c) Workers' Compensation insurance as required by the Labor Code of the State of
Califomia and Employers Liability insurance.
2. Minimum Limits of Insurance
Coverage limits shall be no less than:
(a) General Liability: $1,000,000.00 combined single limit per occurrence for bodily
injury, personal injury and property damage. If Commercial Liability Insurance or other form
with a general aggregate limit is used, either the general aggregate limit shall apply separately
to the Project/location or the general aggregate limit shall be twice the required occurrence limit.
(b) Automobile Liability: $1,000,000.00 combined single limit per accident for bodily
injury and property damage.
City of Newport Beach
13 Affordable Housing Agreement
(c) Workers' Compensation and Employers Liability: Workers' compensation limits
as required by the Labor Code of the State of California and Employers Liability.
3. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
(a) General Liability and Automobile Liability Coverages
Owner, City, their officers, agents, officials, employees and volunteers are
to be covered as additional insureds as respects: liability arising out of activities performed by or
on behalf of each contractor, including the insured's general supervision of each contractor;
products and completed operations of each contractor; premises owned, occupied or used by
each contractor; or automobiles owned, leased, hired or borrowed by each contractor. The
coverage shall contain no special limitations on the scope of protection afforded to Owner, City,
their officers, officials, employees or volunteers.
ii. Each contractor's insurance coverage shall be primary insurance and/or
primary source of recovery as respects Owner, City, their officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by Owner, City, their officers, officials,
employees and volunteers shall be excess of the Contractor's insurance and shall not contribute
with it.
Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to Owner, City, their officers, agents, officials, employees and
volunteers.
iv. Each contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
(b) Workers' Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against Owner, City, their
officers, agents, officials, employees and volunteers for losses arising from work performed.
(c) All Coverages
Each insurance policy required shall be endorsed to state that coverage shall not be
suspended, voided, canceled, rescinded by either party, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt requested, has been
given to Owner and City.
City of Newport Beach
14 Affordable Housing Agreement