HomeMy WebLinkAboutC-4398 - Housing Assistance Agreement to Share Equity for the Real Property Located at 378 23rd Street, Newport Beach, CaliforniaTERMINATION OF HOUSING ASSISTANCE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND DAVID KIFF
TO SHARE EQUITY FOR THE REAL PROPERTY LOCATED AT
378 23`d Street, Newport Beach, California (APN#119-333-12)
This Termination of Housing Assistance Agreement is entered into this jAday
of November 2012 by and between the City of Newport Beach, a California municipal
corporation and Charter City ("City") and David Kiff, an individual ("Employee') and is
made with reference to the following:
A. Charter Section 501 required Employee to reside within the City.
B. On October 13, 2009, City and Employee entered into a Housing
Assistance Agreement ("Housing Agreement") for the purchase of a home located at
378 23d Street, Newport Beach, California (APN#119-333-12) ("Property").
C. Under the terms of the Housing Agreement the City loaned the Employee
$471,250.00 to purchase the Property.
D. Charter Section 501 was repealed by the City's residents at the 2010
General Election.
E. Employee sold the Property and repaid the City $471,250.00, which
represents the total amount of money loaned to Employee under the Housing
Agreement.
NOW, THEREFORE, City and Employee acknowledge adequate consideration
has been provided to induce both parties to enter into this agreement and the parties
agree as follows:
1. Termination of Housing Agreement.
The October 13, 2009 Housing Assistance Agreement entered into between the
City and Employee for the purchase of a home located at 378 23`d Street, Newport
Beach, California (APN#119-333-12) is hereby terminated and of no further effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date set forth above.
APPROVED AS TO FORM:
THE CITY AT EY'S OFFICE
OBy: dr
Aaronarl3, City Atto ney
CITY OF NEWPORT BEACH
EMPLOYEE, an Individual
By: 6-
D6v!4 Kiff
THE CITY OF NEWPORT BEACH,
a Charter City andipipal Corporation
Nancy Gr er, Mayor
CITY OF WPORT BEACH
ATTEST:
By: 04A , laj�
Leilani I. Brown, City Clerk
CITY OF NEWPORT BEACH
`%�oaNIlk
i
RECORDNGRF.OtE31t9)BY: .
ANOaa119I RECOROEO W dtTO:
M Of Newport Beach
3300 Newport Btld.
P.O. BOK 1765
Newport Beach, CW=k
Atln: Gly Clerk
SPACE ABOVE THIS UNE IS FOR aECORaM UM
This DEED OF TRUST, made on this ZZ- day of 02W2X 2009, behveen David M and Leslie Thomas Lochner
(domestic partners as joint tenmrT4 individuals herein caned TRUSTOR, whose address is 378 2e Street, Newport Beach,
Caftmia 92880.3609 (APN# 119333.12),
FIRST. AMERICAN 1I71 -E INSURANCE COMPANY. a California corporation, herein Caked TRUSTEE, and. the City of Newport
Beach, a Cafficli armmktpal corporation and Charter City, herein caped BENEFICM,
NmNESSETN: That Tlustorgrants to Trustee in trusL me power of sale, that property In the City of Newport Beach, County .
of Orange, State of Oafifomia, described as:
378231° $beet, Newport sea* CapPom(a 926603609 (APN# 11"33-12) ..
together with. The rens. issues and profis ftweo4 subject, however. to the FIA pov.'ormM W*W ty harelnef ar tfaW to and conferred
Wort Beneficiaryto-W and apply such rents,lewes and lAofisfor the preplan ofseorabtg (1) payment of the sum of $471250110 with
Interest thereon according to 91e tams or a.prolvdssay ride or notes of over date herewith mads by Trustor. payable to order of
Benefrdary, and telanelom Orrenerals thered (2) the perforroanre of each egrecmnR"ofTruatoriKppdrated by reference drContained
been and (3) paymerd or addtional"arms and interest thereat which may hereafter be barred to Tmstm', or in mlccessers wIrssigna,
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within reference thereto. inooryoratedherein and made a part of tds Deed of Trost for aA purposes as fully as if set forth at
length herein, and Beneficiary may d erga for a statement regarding the obligation seared hereby, provided the charge
therefor does not exceed the mw*num Ibwed by law. .
The unders�d Tmstort req that a copy of any notes of defaut and any notice of sale hereunder be malled to him at
his address fcereinbefore settar�th� ..
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
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County of
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) Ware subscribed to
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I certify underPENALTY OF PMUURY under the laws of the State of California that the foregoing paragraph
is ttue and correct.
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DONOTREWRD
The Pobmp Is a copy dSubd'wWmmAand B dtlie ft4bW Deed dTnntWofdad in each cmadyIn Cdbmia m sWAdin do kmgft Deed dTust
WW hoNpomted bi'lataeaw In SM DmdoTTMt asbeBg a pad#med s Ise ledh 9 Impow ah
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d) Tlp(&ryald to ddnildwy hanyV*wkhany such
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aasgned and ahatbe fflid bBenattcfa9who nwyappyu reNase s� modes reoehed by hFn hHn oma mauls and aft the same elfactas ohms
Lague dais. Bemfidaryaaes a►aaNe his dpideyhabreipRe W'oa4Apaymed .
rMpo
rb cf ad new,iw agmen rtfthe debwoesryandC Twswo.. .
pwpidwry Person arprimal yewadebadnegs ajoh hereby, innom
p a pW HuaeohJoki a pang any easenaa Huxean,.mjoin a airy esarobn .
awmd heebyham bmapaK and upon a m dwofftDeedand MW note to
rwimd as Banek oy hersh In gds Deed, vdmnevm the mid so mgt*M da mmw&w 9aah,r mdudas the temhdne ami* ,,ew, and she
ahgWarewnbatMdudes IbapkW. .
e) That Tna<ae accepts ftTm5t*%0h M Deed. 4110 eo a eM adumwk*d, is Made a oft vacant as provided by taw. TwNa
Ente&Adbeeno4fyvImhw bofpen6np aab ummenYotlmr Dead olTNefma(aiyadtanmproceedlnp6YdddtTrvsm,Baneflderym
T� dwtl be. a padY Iedasa bmyild byTrustea, .
DO NOT RECORD REQUEST FOR FULL RECOMEYANCE
TO MRSTAMERICAN ME INSURANCE COMPANY, TRUSTEE
Mayor C4yaf NewPod Beach
Please mail Deed of Trust, Note mid Reconveyance� y Cq'arNewpmtBmdr .
City of Newport Beach :
3300 Newport Blvd
P.O. Box 1768
Newport Beach, California 92666.8915Aft CRY Clark
'
Do Not lose or destroy this Deed of Tnut OR THE NOTE which It secures. Both must be delivered to the
Trustee forcancellation before moonveyanco will be made.
DEED OF TRUST
WITH POWER OF SALE
First American
77ffe Insurance . . .
Company
TRUSTEE
CERTIFIED TO BE A TRUE ANO
.• - t_x oµ."x"' HXA(x C,Qgy OP'SMSCR TGWAL
COAST CiTTES,BSCROW r
Order No. d
Escrow No.
Loan No.
WHEN RECORDED MAIL TO: � d1i Official Records, Orange County
e irez, AssistantClerk-Recorder
Attn:
3300 Newport Blvd. City of Newport eathtxIsIIII��IIIIII�IIII��1I�I�I'III�I4III��IIII�I
PO BOX 1768 T'np20130001845691:16 pm 03/27/13
Newport Beach, CA 92658-8915 v 1 409 R01 1
f ift.00 0.00 0.00 0.00 0.00 0.00 0.00
RECORDING REQUESTED BY
FIRST AMERICAN TITLE INSURANCE COMPANY
SPACE ABOVE THIS LINE FOR RECORDER'S USE
FULL RECONVEYANCE
FIRST AMERICAN TITLE INSURANCE COMPANY, a Corporation, Trustee under the Deed of Trust executed by David I(iff and
Leslie Thomas Lochner (domestic partners as joint tenants), individuals herein called Trustor, and recorded on October 23, 2009
as 2009000578790 of Official Records in the Office of the County Recorder of Orange County, California, having been requested in
writing by the holder of the obligation secured by said Deed of Trust, to reconvey the estate granted to Trustee under said Deed of �F
Trust, does hereby reconvey unto the person or persons legally entitled thereto, without warranty, all the estate, title and interest
acquired by Trustee under said Deed of Trust in and to the property described as follows: As shown on Deed of Trust
APN No.: 119-333-12
As provided in said Deed of Trust this Reconveyance is made without affecting the personal liability of any person or the corporate
liability of any corporation for the payment of the indebtedness mentioned as secured thereby, nor shall it affect any rights or obligations
of any of the parties to said Deed of Trust.
IN WITNESS WHEREOF, said FIRST AMERICAN TITLE INSURANCE COMPANY, Trustee, has caused its corporate name and
seal to be hereto affixed by its Authorized Agent, thereunto duly authorized.
Dated: January 28, 2013
1 is
tte,Insurance Company
By:
Paul Richards, Authorized Agent
STATE OF Utah }
)
ZIStE Ipf
COUNTY OF Salt Lake
aPoq^_
On January 28, 2013 before me, Laura Meier, a notary public, personally appeared
SFPi[NBFP 11. =
.
16B • !a
Paul Richards, who proved to me on the basis of satisfactory evidence to be theytiPoa+`"�
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their 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
Utah that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.; LAURA iViEIER
NOTARY PUBLIC -STATE OF UTAH
� ��:,,` '•! My Comm. 2013
,
Signature [� _-. G! �.y-,�'� Commission 5782
/� A ,Q..P # 579277
(This area for official notarial seal)
A-1320 (1/94)
Please mail Deed of Trust, Note and Reconveyance to:
City of Newport Beach
3300 Newport Blvd
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE DYNN'11P ERtDP G
The undersigned is the legal owner and holder of the Promissory
Deed of Trust dated October 22, 2009 ("Promissory Note"), and of all other
indebtedness secured by the foregoing deed of trust entered into on October 22, 2009,
("Deed of Trust") between David Kiff, an individual (`Trustor"), whose address was 378
23`d Street, Newport Beach, California 92660-3609 (APN # 119-333-122), First
American Title Insurance Company, a California Corporation ("Trustee"), and the City of
Newport Beach, a California municipal corporation and Charter City ('Beneficiary").
Said Promissory Note, together with all other indebtedness secured by said Deed of
Trust have been fully paid and satisfied; and you are hereby requested and directed, on
payment to you of any sums owing to you under the terms of said Deed of Trust, to
cancel said Promissory Note above mentioned, and all other evidences of indebtedness
secured by said Deed of Trust delivered to you herewith, together with the said Deed of
Trust, and to reconvey, without warranty, to the parties designated by the terms of said
Deed of Trust, all the estate now held by you under the same.
Dated: d, 113
F/tvI
• .` •AR ;
Attachments: (1) Deed of Trust
(2) Promissory Note
THE CITY OF NEWPORT BEACH,
a Cha Ci nd Munic al Corporation
By:`_
Nancy Gtr er, Mayor
ATTEST:
By:
Leilani I. Brown, City Clerk
�4,WPpRT
CITY OF
NEWPORT BEACH
a
C�<rFORTI�T City Council Staff Report
Neil 13 2.012
November 13, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Attorney's Office
Aaron C. Harp, City Attorney
949-644-3131, aharp@newportbeachca.gov
PREPARED BY: Michael Torres, Acting Assistant City Attorney
APPROVED: 6jt A
TITLE: Termination of Housing Assistance Agreement with the City
Manager, and Release of Associated Promissory Note and Deed of
Trust
ABSTRACT:
Prior to its repeal by the voters in 2010, Section 501 of the City of Newport Beach's
("City") Charter required the City Manager to reside within the City. To implement this
requirement, the City Council adopted Resolution No. 2009-61, authorizing an equity
sharing agreement to enable the City Manager to purchase a home within the City. On
October 13, 2009, the City and the City Manager entered into a Housing Assistance
Agreement ("Housing Agreement") providing the City Manager with a loan of
$471,250.00 to purchase a home within the City. The City Manager used the loan from
the City to purchase a home located at 378 23'd Street, Newport Beach, California,
Assessor Parcel No. 119-333-12 ("Property"), The City Manager has since sold his
home, based upon the re -payment formula provided in the Housing Agreement, the City
Manager owes the City $457,623. However, the City Manager has re -paid the City
$471,250.00, the full loan amount, which is $13,627 more than the City Manager was
obligated to pay under the terms of the Housing Agreement.
RECOMMENDATION:
(1) Authorize the Mayor to execute the attached agreement terminating the Housing
Agreement between the City and the City Manager.
(2) Acknowledge the promissory note recorded against the Property is discharged and
direct the City Clerk to mark the promissory note as "PAID IN FULL."
(3) Authorize the Mayor, City Clerk and City Attorney to take all required actions,
including executing the attached Request for Full Reconveyance and transmit the same
Termination of Housing Assistance Agreement with the City Manager, and Release of
Associated Promissory Note and Beed of Trust
November 13, 2012
Page 2
to First American Title Insurance Company, to release the second deed of trust against
the Property.
FUNDING REQUIREMENTS:
On September 26, 2012, the City received a wire transfer from West Coast Escrow, on
the City Manager's behalf, in the amount of $471,250,00. There are no expenses
associated with this item.
Mr. David Kiff has served as the City Manager since September 12, 2009. Charter
Section 501, now repealed, previously required the City Manager to reside within the
City. To assist with the purchase of a residence in the City, the City Council adopted
Resolution No. 2009-61 providing the City Manager up to $550,000.00 for the purchase
of a home. The City Manager borrowed $471,250.00 from the City to purchase the
Property. The City's loan to the City Manager was secured by a recorded second deed
of trust and promissory note. The $471,250.00 represented 50.4% of the $935,000.00
purchase price of the Property. The City Manager recently sold the Property for
$995,000.00.
Pursuant to the terms of the Mousing Agreement, the City and the City Manager were to
share in all appreciation/depreciation of the Property's value on a cost basis in
proportion to the amount loaned to the City Manager by the City, as adjusted by any
improvements made to the Property by the City Manager. As the Property was
improved by the City Manager, at the time of the Property's sale, the City Manager is
required to reimburse the City according to the following formula:
(Final Property Sale Price - Employee -Paid Closing Costs - Documented Hard Costs [e.g.,
improvements])
X
50.4% _
Final Equity Repayment
Based upon this formula, the City Manager owes the City approximately $457,623 (e.g.,
$995,000.00 - $58,323.00 — $28,714.00 x 50.4% = $457,623). A breakdown of the
various amounts is provided below:
Termination of Housing Assistance Agreement with the City Manager, and Release of
Associated Promissory Note and Deed of Trust
November 13, 2012
Page 3
Purchase Price (October 2009) 935,000
City Equity Amount 471,250
City Equity Share 50.40%
Difference Paid by Homeowner $ 463,750
Sale Price (SePtember2012) 935,000
Closing Costs Paid by Seller
Owners title policy 2,319,00
Doc transfer tax 1.094.00
Escrow fees
Additional settlement fees
Subtotal closing cosi
>ortion of Remodeling Costs
)esfgn costs
-
Matt White Custom Homes
- Sepulveda Building Materials
- Newport Custom Woodworking
-Trading Past Fan Co
- Miter Craft Supply
- Miter Craft Supply
- Miter Craft Supply
- Newport Glass Company
Subtotal, Portion of Remodeling Costs
ormula in Housing Assistance Agreement
Vire-trans-erred back to City on 9.2&22
rom West Coast Escrow
lee Attachment SA - West Coast Es crow
524,875.00
1,940.00
3,220.00
$ 58,323
SeeAttachment3B
$ 7,167.69
138.00
$14,970.00
$ 978.59
795.97
$ 28,714
final Property Safe Price
$
995,00
mployee-Paid Closing Costs
$
.58,323
acumented Hard Costs
28,714
Subtotal
907,963
Subtotafx5o,4%
$
457,623 Final Equity Payment Due City
Amount Waived
13,627
On September 26, 2012, the City received a wire transfer sent by West Coast Escrow,
on the City Manager's behalf, in the amount of $471,250.00. This wire transfer
Termination of Housing Assistance Agreement with the City Manager, and Release of
Associated Promissory Note and Deed of Trust
November 13, 2012
Page 4
represented the full loan amount received by the City Manager and did not include the
offsets the City Manager was entitled to under the Housing Agreement for the
improvements made to the Property. Thus, the City Manager paid the City $13,627
more than the City was legally entitled to under the Housing Agreement. In light of this
payment, City staff recommends the City Council terminate the Housing Agreement and
release the second deed of trust and promissory note.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
C'a
Aaron Harp, City A orney
City Attorney's Office
Attachments: (1) Agreement to Terminate Housing Agreement
(2) Request for Full Reconveyance
(3A, 3B) Supporting records, invoices provided by Kiff
TERMINATION OF HOUSING ASSISTANCE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND DAVID KIFF
TO SHARE EQUITY FOR THE REAL PROPERTY LOCATED AT
378 23`d Street, Newport Beach, California (APN#119-333-12)
This Termination of Housing Assistance Agreement is entered into this _ day
of November 2012 by and between the City of Newport Beach, a California municipal
corporation and Charter City ("City") and David Kiff, an individual ("Employee") and is
made with reference to the following:
A. Charter Section 501 required Employee to reside within the City.
B. On October 13, 2009, City and Employee entered into a Housing
Assistance Agreement ("Housing Agreement") for the purchase of a home located at
378 23`d Street, Newport Beach, California (APN#119-333-12) ("Property").
C. Under the terms of the Housing Agreement the City loaned the Employee
$471,250.00 to purchase the Property.
D. Charter Section 501 was repealed by the City's residents at the 2010
General Election.
E. Employee sold the Property and repaid the City $471,250.00, which
represents the total amount of money loaned to Employee under the Housing
Agreement.
NOW, THEREFORE, City and Employee acknowledge adequate consideration
has been provided to induce both parties to enter into this agreement and the parties
agree as follows:
1. Termination of Housing Agreement.
The October 13, 2009 Housing Assistance Agreement entered into between the
City and Employee for the purchase of a home located at 378 23`d Street, Newport
Beach, California (APN#119-333-12) is hereby terminated and of no further effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date set forth above.
EMPLOYEE, an Individual
By: 1
DN4 Kiff L
THE CITY OF NEWPORT BEACH,
a Charter City and Municipal Corporation
0
Nancy Gardner, Mayor
CITY OF NEWPORT BEACH
ATTEST:
By:
Leilani 1. Brown, City Clerk
CITY OF NEWPORT BEACH
APPROVED AS TO FORM:
THECITY A EY'S OFFICE
By i-- .(
Aaron . ar , City Attolmey
CITY OF NEWPORT BEACH
PI A
A
Alt
Please mail Deed of Trust, Note and Reconveyance to:
City of Newport Beach
3300 Newport Blvd
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the Promissory Note Secured by
Deed of Trust dated October 22, 2009 ("Promissory Note"), and of all other
indebtedness secured by the foregoing deed of trust entered into on October 22, 2009,
("Deed of Trust") between David Kiff, an individual ("Trustor"), whose address was 378
23r° Street, Newport Beach, California 92660-3609 (APN # 119-333-122), First
American Title Insurance Company, a California Corporation ("Trustee"), and the City of
Newport Beach, a California municipal corporation and Charter City (Beneficiary").
Said Promissory Note, together with all other indebtedness secured by said Deed of
Trust have been fully paid and satisfied; and you are hereby requested and directed, on
payment to you of any sums owing to you under the terms of said Deed of Trust, to
cancel said Promissory Note above mentioned, and all other evidences of indebtedness
secured by said Deed of Trust delivered to you herewith, together with the said Deed of
Trust, and to reconvey, without warranty, to the parties designated by the terms of said
Deed of Trust, all the estate now held by you under the same.
THE CITY OF NEWPORT BEACH,
a Charter City and Municipal Corporation
Nancy Gardner, Mayor
ATTEST:
Leilani 1. Brown, City Cleric
APPROVED AS TO FORM:
THE CITY• - OFFICE
By:Ll�
Attachments: (1) Deed of Trust
(2) Promissory Note
01
RECORD W 10 REeOEs1®BY:
ANDYAORECO rWeDUAILT&I
City
e"
111
3=4=
P.O. Box 1768
Newport Beach. Cdftria 9ws"915
Attn: City Clark
SPACE ABM TM UPX 10 FOR RE0000MMUSE
Ibis DEED Or TRUST. Rude on ft j2 day Of —W—k—W 2009. Wwom David M and Leslie Thmm tochner
(doamfic partners Individuals herein cakd TRUSTOR, wime, address Is 378 23!SbvK Nempmt Begg*
Caomia 92866,6W (APN# 11"33-12),
FIRST AMERICAN TffW INSURANCE COMPANY, a Cardbmia corporation, herein called TRL*113, and. the C* Of Nmpod
Beach. a CaMbada naundpal corporaW and Charter City, berem called m4alOMY,
VXNESSETH: That Trusher grant to Tomitige in trust, with power of sale, that property In the 04 of Newitport Beach, County
of Orzgg State of California, described as;
37823r 13beet Newport Beach, Cardbm[4 92660-M (APN# 119,333-12) -
couirly
006K
PACE
COUNTY
BOOK
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within retarence thereto, Incorporated herein and made a part of this !lead of Trust for al puip�e� as fully as if set fort! at
length herein, and Berakfary may for a statement
ment regarding the obtigabon seaaad hereby, Voyided the charge
therefor does riot exceed the M tnum
The undersigned Trustor, tre�qquesta that a copy of any notice of default and any notice of sale hereunder be mailed to him at
his address herefnbetoreastfatt. .
COUtMOFORANGE )SS
On g)hefaemarAtA9�Pu personally appeared
parre�nahy k0own to oro Dorproud mare on the basis of
safistactmy ovkfor e) to be the posan(e) whose rw auets) Ware
wAoalbed re the wfitda lastunent and arbpiNatgad to me
Mat.bef9mAhey omaded to owns to hlshrednreV outhoomrt
oaPaoftY(,e$), and !rat tYhist4atret aitrhattuti(s) ,on the
irstrurnent the petson(s), arthe antYy upon behalf of witch the
pehsrxf(s) cried, erscu8rd t>e 6hstioaad,
Davit tmt
Tr_:
telae 3irxrmalnchaar
Truster
ThOw
Tmswr
(nils ef�torofsdef getv9aT.saat - .
CERTIFIED TO BE A TRUE AND .
EXALT COPY OFTHE ORIGINAL
COAST CITIES ESCROW
l2 �..
0
CALIFORNIA. ALL-PURPOSE
CERTMCATE i
OF ACKNOWLEDGAIENT
Stun of Caffornia
County of o
., i i'd'1 before
who proved to me on the basis of satisfactory evideawto be the person(s) whose name(s) Ware sobsoi4bed to
the within msfrnmeat and aetmowledged to me Vol hetshemm eaeovtcd the same is hb#XWlteir4ulh4riwd.
capa =les),andthatbyhis/horhheirsignafitre(s)ontheinshutnentthepersou(s),ordieonfityupoabeWof
Wch the person(s) acted, executed fhe insfnumat.
I certify under M*NALIY OF PMUMY under the taws of the &a£eof California that 9u foregoing paragraph
is true and correct
- ADDMONAL OMONAL 0MRWATfoN
A INS7RiTC1YOE�SFORCOMPiE'fIN0'RiiSFORM
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,q DONOTNEODRD
The W AV is a copy pfS&&d'abbM ASM 8 of ft S: "Deed of Taut MO(ded In oWh MM In Capkxnis ea SUW Ingo Wie ON Deed of Tara
oao4McvpQMW byrefaw haaid Dmd OfTNbtas beho a pad V*MOO59W fmM atbr0h#Weh
mused es SenoW y here§r. In ft fes, wtsnevar En owAwd so mq, the ma=Axt gMxW 6x4 des Era Junko" sadtor fwtAr, sad !Y
eMrEdarn 9) lIdTmW Etapksffi.. .
1a to rw* a acceab wowftTMdWhmofpw.& sale
Clead, day oom De d o Tn o wofad. is Wades pcblic"h MOW w pravked lr/law. Tiwba
T W oo�eedto notV wOm btreieWplpsn6ag aak umkr env o9er Dead ofrnataafmry sdkm arpro�adltg.M WdcSTdatar, te9 Yor
TnmlemNraC be* wrowdasc dagtt brTaartea.
DO ROT RECORD REOUESTFOR FULL RECON%EYANCE
TO FIRSTANWRICAN VLE INSURANCE COMPANY. TRUSTEE
Gtnn CdYofNawpod8sadt
CdYAd=ey, C(VofNewpodaeadi
Please mall Deed of Trust, Note aid Reoonveyamx. to: .
C*y of Newport Beach
$3DD,Ne�IMrE 6hd '
P:0. Boz 1768
Newport Beach, Calltomia 9265841915 .
Atn: City Clerk
Do Not lose or destroy this Deed of Trust OR TIM ROTE which It secures:. Hots must be delivered to the
Trustee for cancellation before leconveyar"ww he made. .
DEED OF TRUST
WITH POWER OF SALE
FirstAmencan
Title Insurance
compony
TRUSTEE .
CERTIFIED TOBE A TRUE AND
^k.1BXACi.,C.4PXQF-.: (7RTCrINAL -
PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Loan Amount $474,250.00
;Note Date: October LZ, 2009`
FOR VALUE RECEIVE=D; the undersigned (`Maker's hereby promises to pay to
the order of the THE CIT`( OF NEWPORT BEACH. a Catifomia .municipal corporation
and Charter City ("Holder"); at a place designated by Holter, the principal sum of
FOUR HUNDRED AND SEVENTY-ONE THOUSAND TWO -HUNDRED AND FIFTY
DOLLARS ($671,250.00) or so numb thereof as is disbursed for the account of Maker.
The -obligation of Maker to Holder hereunder.shall be secured by a'deed of trust:•
CSecond Deed of Trust') made by Maker encumbering Its ownership hrtelest In the
real property located at 378 2314 Street, Newport Beach, Calif imla with an APN# 119-
333-12 ("Property`). 'The obligation of Maker set forth in this Promissory Note is
subject to acceleration as set forth in Second Deed of Trust Unless expressly defined
herein; all capitalized terms used herein 'shall have the meaning ascribed to them In that
certain Housing Assistance Agreement Between the City of Newport Beach aid David"
Kiff to Share Equity for the Real Pieperfy Located at 378 23 Street, -Newport Beach,
• CA ('Housing Agreernemry entered Into by and between Maker and Holler.
1. City] Lm. This Promissory Note evidences the obligation of. Maker to
Holder forthe repayment of funds loaned to.Maker by Holder CEqulty Conttibutton"j to
finance the purchase of the Property pursuant to the -Housing Agreement. Except as
otherwise permitted In the HoLming Agreement Maker shall not make any sale;
assignment or conveyance, or transfer in any other form, of Maker's ownership interest
in the Property, or any part therobf, or Interest therei
shall then deliver this Promissory Note to the trustee of the Second Deed of Trust that
secures this-Pnomissay Note for the trusteWs delivery to Maker in. conjunction with'the.'
reconveyance of the Second Deed ofTlusL
(c) DIsbumgmerd of the CRY loan. Holder shalt disburse the Equity
Crndribution to Maker as set forth In the Housing Agreement
3: Prepavmeerd. This Promissory Note may be prepaid in. whole or In part at .
,anytime without the payment of any prepayment penally
.4.. AccelerafonofObligation . Upon the occurrence of an uncured event of
default of Maker underthis Promissory Note, the Second peed of Trustor the Housing
Agreement, and the expiration of any notice and cone period provided therein or herein,
and upon thirty (30) days prior Written notice to Maker, Holier may. at its. option, declare
this Promissory Note and the entire outstanding Indebtedness Hereby evidenced to be
Immediately due and payable and collectible then or thereafter as Heider may elect,
regardless of date of -maturity.
S. Cottertion Costs: Atcmevs' Fees. if any attorney is engaged by
Holder or Maker because of arty, uncured event of default under' Ods Promissory Note or
Me Second treed of Trust or to enforce :any provisions of either instrument, whether or
not suit is filed hereon, Holder and Maker shall bear their own attorney's fees and costs..
6.. Severability The umentorceablitty or Invalidity, of any provision or
provisions of this Promissory Note as to any persons or circumstances shall not render
that provision or those provisions unelforceabfe or Invalid as to any other provisions or
circumstances, and all provisions hereof, in all other respects, shall remain valid and
onforesabie�
T. Modifications. Neither this Promissory Note nor any term hereof may .
be waived, amended, discharged, modified, changed orterminated orally; nor shalt any
waiver of anypprovidfon hereof be effective unless by an Instrument In writing signed by .
Maker and Halder,
8. ysu ,Natwmstarrdirg'any provision In.Ods Promissory Note. Second ..
,Deed of Ttust or other°loan document, the total liability for paymord In the nature of
Interest shalt not oxcoed the limit now Imposed by applicable taws of the State of
California. ;
9, Governing law This Promissory Note, tics • been executed and
delivered by Maker In the State of California and ;s to be governed Arid construed In'
accordanoe with Ore taws thereof. Venue tit OMHg0 County; Caiifomfa:
fSIGNATifRES ON FOLLOWING PAGE]
CBRTVIHD TO BE A TRUE AND ,
EXACT COPY OV THE ORIGINAL
COAST6t[SESCROW .-
BY.,. Cf4Kr- .
IN WITNESS WHEREOF; maker has executed this Promissory Note as. of,the
date and yearfirst above written.
MAKER
By- David Yjff
APPROVED AS TO FORM.
1 WX
By: Attorney for DaWIQff
IBM
Ptl,u ,5n
ST -04253 As of 612012 3:06:48 PM
Page 1
�y) West Coast Escrow
yyST COAD 140 Newport Center Drive 9100 Newport Beach CA 92660
ESCOW Phone: (949) 721-5000
____
„;; Fax: (949) 721-5010
Escrow Officer: Julie McMillan ST -04253 -JM
Seller's Final Settlement Statement
Property: 378 23rd Street
Closed Date:
9/512012
Newport Beach, CA 92660
Seiler: David A. Kiff and Leslie Thomas Lochner
Escrow Number:
ST -04253 -JM
Debits
Credits
Purchase Price
Contract Sales Price
$995,000.00
Receipts
Seller Paid Closing Costs -Owners Title Policy
$2,319.00
Seller Paid Closing Costs -Documentary Transfer Tax
$1,094.50
Payoff
Principal to BANK OF AMERICA
$394,385.51
Daily interest charges to 9!6/2012 to BANK OF AMERICA
$1,943.61
Borrowers protection plan to BANK OF AMERICA
$198.61
Statement Fee to BANK OF AMERICA
$60.00
Reconveyance Fee to BANK OF AMERICA
$45.00
Recording Fee to BANK OF ,AMERICA
$9.00
Payoff 2
Principal to CITY OF NEWPORT BEACH
$471,250.00
Sales Commission
Listing Commission to COLDWELL BANKER - LIDO ISLE
$24,875.00
Selling Commission to TELES PROPERTIES
$24,875.00
Prorations
County Taxes (Unpaid) 4926.3800/6 mos 07/01/12 to 09105/12
$1,751.60
Escrow Fees
Escrow Fee
$1,891.00
Archival Fee
$39.00
Overnight Mail
$10.00
Title Charges
Wire Fee
$35.00
Sub -Escrow Fee
$62.50
Additional Settlement Fees
Pest inspection to ANTIMITE TERMITE AND PEST CONTROL
$2,365.00
Home Warranty to FIRST AMERICAN HOME BUYERS PROTECTION
$580.00
Zone Disclosure to PROPER'T'Y ID
$114.00
Application Fee
$161.00
Proceeds or Balance Due
Seller Proceeds
$15,000.00
Seller Proceeds
$51,935.67
Balance Due
$0,00
Totals:
$995,000.00
$995,000.00
Save this Statement for Income Tax purposes.
l JMill Ill'i
A44136
TTIW ITE
CUSTOM HOMES
May 6, 2010
Dr. Tom Lochner
David Kiff
496 Old Newport Blvd, Suite 4
Newport Beach, CA 92663
Re: 378 23rd Street
Dr. Lochner & Mr. Kiff,
Enclosed please find for your review the funding request package for the above referenced property.
Please make check payable to Matt White Custom Homes for the following:
Fund Date: 5/15/2010
Reimbursement Amount: $ 6,232.77
WCH Management Fee (15%): 934.92
Total Current Funding: $ 7,167.69
Deposit - Payment : $ (2,000.00)
Please feel free to call me at (949) 274-3152 should you require further assistance.
Sincerely,��
Jennifer Plukarski
Controller
3090 PULLMAN STREET - COSTA MESA, CALIFORNIA 92626 • TEL (714 ) 557-1.325. FAX (714) 557-1838
✓AUTY'
28092 FORBES RD., LAGUNA NIGUEL, CA 92677 (949; 3472100 FAX: MAW 347-2102
359 E. GARDENA BLVD., GARDENA, CA 90248 13101436-1400 FAX- 1310) 436-1402
32-605 HARRY OLIVER TRAIL, THOUSAND PALMS, CA 92276 PEW 4041500 FAX; (760) 4041502
a 1485 S. WATERMAN AVE., SAN BERNARDINO, CA 92408 (909} 915.1800 FAX: 1909) 915-1802
84-275 CABAZON RD. INDIO, CA 92201 47001393-5300 FAX; 17601393-5302
BUILDING MATERIALS WEBSITE: WWW.SEPULVEDA,COM EMAIL: INFO@SEPULVEDA.COM
"Service that Delivers" CELEBRATING 50 YEARS OF SERVICE H1111111111111111111111111
BRICK . TILE . BLOCK . SAND . GRAVEL . CEMENT . STEEL , STONE . LANDSCAPE SUPPLIES . PRECAST
FIREWOOD. 8SQ'S , GRAFFITI PROTECTION PRODUCTS . WATEPROOFING & DECK SYSTEMS . TOOLS
SOLD
TO:
LOCHNER, TOM
378 23RD ST.
NEWPORT BEACH CALIFORNIA 92663,.
***** CASH SALE *****
SHIP
TO:
92663
10/08/10
t A=TT. N,
ENT90EC1-SY1
JOB P, ONE:
[QEF. No,
145367
TOM LOCHNER
ANIBAL
949-395.7999
1818660
QUANTITY'
7TNt1b,10 S"i'TIQN
LIST' '" E#{Nt
NET '.JC1
EN5It3N
300xxxxxx
SFCSR2 LB SANTA FE COP 2" SQ'S/RECT'S.(EUR0)
0.423
LB
0
0.423
126.90
THIS MATERIAL IS 2" THICK +- 1/2" AND SIZE RANGE
FROM 8" X 8" UP TO 18" X 18"
Natural Products including stone and slate .may vary
is size
thickness, texture and color. They may flake, rust
or even
han
e
color after installation. Many factors including
size of pieces,
'.thickness, density, joint size and: water make it;
very diffi
ult
t
accurately estimate square foot coverage. Any discussion
a staf
member has had with you or any coverage guides we
have supplied
a
e
to be used as a guideline only. As the consumer,
you are fully
responsible for your project needs... We will delier
the :.qu
tit
nd
type of material ordered with nowarrant of cove
age,:orth
t the
goods shall be fit for any particular purpose.
WARNING- This Product May Contain Chemicals Kno
To The State.
£
California To Cease Cancer, Or Birth Defects Or Other
Reproduct
v
Harm.
ADVERTENCIA: Este producto puede contiene components
qumico
:co
p
ido
an el Estado de California como'causante -de encs
, defectos
de:
nacimiento y otros daos al sistema reproductor.
(XXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXX
XXX
X
XXXXXXXXX
XXXXXXXXX
THANKS TO EVERYONE THAT HELPED MAKE THIS YEAR'S GOLF
NOTE(:'-
TOURNAMENT A RESOUNDING SUCCESS! SEE YOU NEXT YEAR!
SUBTOTAL
126.90
TAKEN BY
MAP REF,
DELIVERY DAY
I EST, TIME
LOADED 8WDELIVERED BY:
TRUCK NO.
LOAD
STOP
8 75%TAx
U �a
11,10
Spec, Inst.Thank you for your business.
$138.00
amt. Tendered: $138.00 Change: $0.00
TOTAL.
4/C 5466 $738.00 FXD: 02/29/12
K ! p I n =R PM' ,{� PM ( 13:27:33 08 Oct 2010
)ME OF NONdJABIL, 4TVN RIRWit� 'MATERIALS IS NOT RESPORbEI�EE FOR ANY INJURT')SR A�CiDEEM TO PERSON OR YENIZ'LE WHILETDN PREMIRPR. NIATnMFR1AVPH IN S InLnFn AT YnlIR nWN WAK
INSTALLATION TAXES PLACETHEPURCHASER AGREES TO THE TERMS
***INVOICE***
Sept. 22, 2010
Invoice for:
Tom Lochner
37823 d Street
Newport Beach, CA
Proposal for built-in, unfinished cabinets with melamine and pre -finished plywood
interiors, Adobe doors, soft close bottom mount slides for the following locations:
Kitchen left of fridge .................... ........... I ........ ,. $870.00
Master bath Pullman ............. . ........... . ...... . . . ...... $2,575.00
Secondary bath pullman ......................................$2,125.00
Living room stereo and TV . . ............ . ..................... $3,580.00
Finish for living room ........................................$1,175.00
Mantel ..................................................... $425,00
Laundry ...................................................$3,140A0
Bookcase................................................... 980.00
Total.....................................................$ fRs
Paid on account .............................................. 4 565.0
Balance ..................................................$10,305.00
This invoice ................................................$8,000.00
7'�f ( 9�-Fsx� Gclt
'7rf 1/SV - yasv
1535 WHITTER9UNIT C-10 - COSTA ME.SAyCA 92(927 � 949/631-G397
FAN @GMPANY
TRADING POST FAN COMPANY
FOR 30 YEARS IN A ROW...
CASABLANCA STORE IN AMERICA!
GREG PRICE
-lip 9price0tradingpostfanco.com
6952 WARNER AT GOLDENWEST
HUN 714/848-4353 - FECHaCALIFORNIA 2647
Fax: 714 8448 8 93
TOTAL „ $978.59
ENPI #!#
AN at
NAME:
CARDMEMBER ACHNOAEHE5 RECEIFT OF DODDS
AND/4B SERVICES IN THE AMOUNT OF THE
TOTAL SHOD! HEREON AND AGREES TO PERFORM
THE OBLIGATIONS SET FORTH BY THE
CARDPR:iws AGREEMENT ON THE IslATER
THANKS FOR USING VISA'
CUSTOMER COPY
Narner Avenue Cc Goldenwes
n#ington Beach, CA 42647
148-4353 + Fax: (714) 848-4353
SHIPMENT DATE: 05124/11
SHIPPING AGENT:
SHIPPING SERVICE:
SHIP TO:
INVOICE
09124,11 418[11 PPRFR A - _.
INVOICE NO.:
ORDER NO.: -..
POSTING DATE
SHIP ID:
in
SALESPERSON: Greg Price
PHONE: (714) 848 -435-
E -NAIL gprice.@tradingpa.=.t;
Emerson EN1852WW 3 3 779.95 69-95
Blades Std 21 Appliance White
Emerson EMSW405 3 3 a 7-A 9"a
4 -Speed Wall Control RCFP Rcvr
White Ivory or Light Almond
Battery included
TOTAL QTY.: 9 9
TOTAL ORIGINAL ORDER {SO -544862}:
PAYMENT HISTORY
05/24/11 VISA REF: 5175/8658
978.59
NET AMOUNT:
9785959 8.75/ SALES TAX:
THANK
YOU
TOTAL PAID: 978.59
TOTAL ORIGINAL ORDER BALANCE DUE: Q,06
INCLUDE`Mr
FREE! 0.00 ..
Im
.-
78.74
TOTAL: 978.53
DEPOSIT APPLIED: -978.59
BALANCE DUET-
Ar
PAID IN FULL
ORDER COMPLE T E
TRADING
`
RECEIVED
POST
QUANTITY
THIS REGULAR
SALE SPECIAL
TOTA -.
"^ ORDERED
INVOICE PRICE
PRICE PRICE
PRICE "I ...
3
3 439.95
364-94 299.95
899.85
Emerson EN1852WW 3 3 779.95 69-95
Blades Std 21 Appliance White
Emerson EMSW405 3 3 a 7-A 9"a
4 -Speed Wall Control RCFP Rcvr
White Ivory or Light Almond
Battery included
TOTAL QTY.: 9 9
TOTAL ORIGINAL ORDER {SO -544862}:
PAYMENT HISTORY
05/24/11 VISA REF: 5175/8658
978.59
NET AMOUNT:
9785959 8.75/ SALES TAX:
THANK
YOU
TOTAL PAID: 978.59
TOTAL ORIGINAL ORDER BALANCE DUE: Q,06
INCLUDE`Mr
FREE! 0.00 ..
Im
.-
78.74
TOTAL: 978.53
DEPOSIT APPLIED: -978.59
BALANCE DUET-
Ar
PAID IN FULL
ORDER COMPLE T E
'RAFT SUPPLY
J, AVE
wA x}2626
�H
TO
LOCHNER
Nam
P O Number r
'Item Code Description Quantity
PLANTATION SHUTTER DOORS
3' LVR-+OPERABLE t -FINISHED
PAIR 2/6 X 6/8 X 1-3/8"
- LOUVER 2 -PANEL PRIMED PINE
P.1H (tr),5-N" FJ JAMB
,DWIN 91e3S:260 - 3,5x3,5 hinges
pifTvvisa 1115.IU
k J ou for allowing Alitet Craft Supply the opportunity to service your moulding needs '�'��,
❑ITER CRHrT 5UPPLY
2990-C REO HILL AVENUE
COSTA MESA, CA 92626
(714) 556-2600
Sale
Merchant ID: 592929804193753
term ID: W259S2
31,15/10
19:00: 42
p
Batchu: 000144 trY Method 0S
UISA
Sea,a: 0 Appr todC MW
Iota I: $ 1,921,71
APPROVED
Cus tue,er CoPY
ip To
•30 - revised per notes
23rd STREET
PORTBCH, A
-9 49-244-770
Invoice
Rate Invoice #
813112010 24416
92:2
107,2
project
Amount
8435T
9600T
345.00T
9125T
10725T
20.161'
324.13T
Subtotal $1.206.98'
Sales Tax (8.750/c
$105,61
Supply the:Opportuniq, to service your moulding needs. Total $1,312.59
PPL
1nvnir+cs
91212010 >24456
Shin To
PO, Number
Terms
Rep
Shlp
Via
Project
Due on receipt "
9211010
WILL CALL'
Item Code
Description
Quantity
Price Each
Amount
13ALDWfN
BA5405,102 - PRIV - CLASSIC KNOB & ROSETTE
3
b2 50
187:50'r
�ALDWIN
BA5405,102L260 - PRIV - CLASSIC KNOB Fa ROSETIT
2
b2.50
125.00'P
SPLIT FINISH-.102'EXTERIOR+.260 INTERIOR
8ALWVIN
6,51035.102 3,5X3,5 O R,B. SQ.CORNER HINGE -
9
OR13(EAtH)
23.12533
208.13T
I3ALD1VIN
BA1035,26035X3.5- CHROME SQ.CORNER HINGE-
,
ORB(EACH)
6
2312533
133.75T
IIALDWIN
BA0465.102 - EDGE PULL
r1L DWLN
BA0465 260- EDGE PULL
1
10.00
10,00'r
I
1600
10.00T
ROUND FLUSH PULL (2-118") - O.R,B] I Ob
2
10,50`
?21
ROUND FLUSH PULL (2-L`8") - CHRONIEiUS26
2
10.50;
2 COOT
2 LOOT
Rj iGHT
SHIPPING HANDLING CHARGE
i
10 55
10.55T
Subtotal $731.93
Sales Tax (8.75%) $64,04
Chank you for allowing Miter Craft Supply the bppottumty to service
}your moulding needs
'
Total
;
$795.97
WPORZIrL GLASS
407 30TH STREET
NEWPORT BEACH, CA 92663
(949) 673-1811
FAX (949) 673-1897
GP -153-2
PRINTED IN U.S.A. LJ " 9UJ -
caM1 K �i Yr `5'�.N 5.,,.�% y../}
THIS HOUSING ASSISTANCE AGREEMENT (`Agreement") is entered into this
13" Day of October 2009 by and between the City of Newport Beach, a California
municipal corporation and Charter City ("City") and DavM Kiff, an Individual
("Employee") and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the City's Charter.
B. On September 12„ 2009, Employee entered into an Employment
Agreement with City to serve as C ty's City Manager.
C. Section 12 and Exhibit "A" of the Employment Agreement provide
incentives to the Employee in the form of an equity contribution of up to Five Hundred
and Fifty Thousand Dollars ($550,000) to allow Employee to relocate within the
incorporated boundaries of Newport Beach.
D. Employee now desires to re -locate his personal residence into the City
and exercise his rights to the equity contribution provided in the Employment Agreement
by purchasing real property located at 378 23"' Street, Assessor Parcel Number 119-
333-12 ("Property,"),
E. City desires to provide Employee with an equity contribution to purchase
the Property upon the terms and conditions contained in this Agreement.
F. City and Employee acknowledge adequate consideration has been
provided to induce both parties to enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
i9mW9010MI,
Pursuant to the August 18, 2009 Employment Agreement between the City and
Employee, the City hereby agrees to provide Employee with Four Hundred Seventy -
One Thousand Two Hundred Fifty Dollars ($471,250.00) to purchase the Property
("Equity Contribution"). $471,250,00 is 50.4% of $935,000.00. The City and Employee
will share in all appreciation/depreciation of the Property's value on a cost basis in
proportion to the Equity Contribution's overall percentage of the total purchase price, as
Housing ,Assistance Agreement
Page 2 of 12
adjusted by any improvements that the Employee or his contractor makes to the
Property in accordance with Section 2.
At the time the property is sold, the payment made to the City reflective of its
Equity Contribution ("Final Equity Repayment') shalt be made in accordance with either
of the below conditions, whichever its applicable:
A. if the Property is not "improved by the Employee further beyond ordinary
maintenance of the Property, the Final Equity Repayment shall be calculated as
follows:
(Final Properly Sale Price — Employee -Paid Closing Costs) X
50.4%
Final Equity Repayment
B. if the Property is improved by the Employee or his contractor In accordance with
Section 2, the Employee shall retain all invoices for materials and labor charges and
has the burden of establishing the costs of all Investments into the Property. Such
improvements must be documented hard costs including materials and tabor
("Documented Hard Costs"), but shall not include soft costs such as personal efforts
of Employee or other owners. in this case, the Final Equity Repayment shall be
calculated as follows:
(Final Property Sale Price — Employee -Paid Closing Costs — Documented Hard Costs)
X
50A% ==
Final Equity Repayment
The Equity Contribution (as adjusted for appreciationidepreciation) shall be
repaid by the Employee to City within twelve (12) months of the Employee's termination
of employment or retirement, unless otherwise agreed to by the City in writing.
1.1 Employee's Financing of Property. Employee shall secure
financing from City rational Bank or Bank of America ("Bank") and enter into Escrow to
purchase the Property. Employee shaii provide a deposit of five percent (5%) of the
Property's total purchase price. In addition, Employee shall obtain a conventional loan
("Loan") from Bank.
1.2. Delivery of Equity Contribution. City shall deposit the Equity
Contribution in "good funds' according to the terms of Escrow between the Employee
and Bank to purchase the Property. "Good funds' shall mean a wire transfer of funds,
check drawn on or issued by the offices of a financial institution located in the State of
California, or cash.
Housing Assistance Agreement
Wage 3 of 12
With City's prior written consent, Employee may remodel or construct
improvements on the Property. The City's written consent shall contain a dollar amount
agreeable to troth parties for the cost of the remodel or improvement(s).
Notwithstanding any provision in this Agreement to the contrary, Employee shall be
entitled to recover the cost of the remodel or improvement(s) from the sale or transfer of
the Property before repayment of the City's Equity Contribution.
3. TAXES. MAINTENANCE AND ASSOCIATED EXPENSES
Employee shall be one hundred percent (100%) responsible for all debt service
on the loan, maintenance, taxes, liability insurance and any liabilities occurring on or
arising from the Property, and any and all expenses associated with the Property. The
City has no obligation and assumes no liabilities with respect to the Property other than
providing the Equity Contribution in Section 1 of this Agreement. Emptoyee expressly
assumes any and all liabilities arising from the Property as between he and the City.
4A City. City agrees that on or before 1:00 p.m. on the business day
preceding the Property's Escrow closing date, City will deposit with the escrow holder all
additionai documents (executed and acknowledged, if appropriate) which are necessary
to comply w4h the terms of this Agreement, snciud'sng, without limitation, items and
instruments as may be necessary for escrow hoider to effectuate the terms of this
Agreement.
4.2 Employee. Employee agrees that on or before 1:00 p.m. on the
business day preceding the Property's Escrow closing date, Employee will deposit with
escrow holder such items and instruments (executed and acknowledged, if appropriate)
as may be necessary for the escrow holder to comply with this Agreement.
Employee shah execute in a form substantially similar to Exhibit "A" attached
hereto and incorporated by this reference, a Deed of Trust in favor of City for the
amount of City's Equity Contribution ("Second Deed of Trust"). Within ten (10) business
days of the Property's close of Escrow and satisfaction or waiver of all conditions
precedent, City shall cause the Second Deed of Trust to be recorded with the Orange
County Recorder's Office with a copy to the City Clerk for the City of Newport Beach.
Employee shall also execute in a form substantially similar to Exhibit "B" attached
hereto and incorporated by this reference, a Promissory Note in favor of the City for the
amount of the City's Equity Contribution secured by the Second Deed of Trust, This
Agreement, the Promissory Note and the Second Deed of Trust shat€ act as a "second
mortgage" on the property and secure the City's interest in the Property pursuant to this
Agreement. This Agreement, the Promissory Note and the Second Deed of Trust shaft
Housmg Assistance Agreement
Page 4 oi12
be second to the mortgage secured by Bank but superior to all other liens and
encumbrances that may attach to the Property in the future,
6. CONDITIONS PRECEDENT TO C, LOSE OF ESCROW
6.1 Conditions to City's Obligations. The obligations of City under
this Agreement shall be subject to the satisfaction or written waiver, in whole or in part,
by City of each of the following conditions precedent.
(a) City has approved in writing the condition(s) of title.
(b) Escrow holder holds and will deliver to City the instruments,
if any, accruing to City pursuant to this Agreement,
(c) The due performance by Employee of each and every
undertaking and agreement to be performed by Employee hereunder, and
representation by Employee of the truth of each representation and warranty made in
tNs Agreement. For purposes of this subsection (c) only, a representation that is limited
to Employee's knowledge or notice shall be false if the factual matter that is subject to
the representation is false, notwithstanding any lack of knowledge or notice to
Employee,
(d) City's approval of any other conditions specified in this
Agreement
In the event each of the conditions set forth above is not fulfiMed or waived
in writing by City prior to the Property's Escrow closing date, City may, at its option,
terminate this Agreement, thereby releasing both parties from further obligations
hereunder (except for those that by their terms survive the termination of this
Agreement), and all funds shall be immediately returned by the Employee/escrow
holder to City without notice or further action by either party. Nothing in this section
shall be construed as releasing any party from EiabMy 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.
6.2 Conditions to Employee's Obligations. The obligations of
Employee under this Agreement shall be subject to the satisfaction or written waiver, in
whole or in part, by Employee of each of the following conditions precedent: The due
performance by City of each and every undertaking and agreement to be performed by
City hereunder.
6.3 Satisfaction of Conditions. Where satisfaction of any of the
foregoing conditions requires action by City or Employee, each party shall use its
diligent best efforts; in good faith, and at its own cost, to satisfy such condition.. Where
satisfaction of any of the foregoing conditions requires the approval of a party, such
approval shall be in such party's sole and absolute discretion.
Housing Assistarrc,e Agreement
Page 5 of 12
7.1 Environmental Maims. Employee shall retain all liability under alt
Environmental Laws asserted at any time in connection with any set of facts or
conditions existing in, on or about or arising from the Employee's ownership/occupancy
of the Property CRetained Environmental Liabilities"). For purposes of this Agreement„
"Environmental Laws" shall mean all federal, state or focal statutes, regulations,
ordinances, codes or rules as such have been or may hereafter be enacted, adopted,
amended or supplemented and all common law causes of action relating to the
protection of human health or the environmental, including without limitations the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601 at seq,), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. Sections 7401, at seq.), the Toxic Substance Control Act,
as amended (15 U.S.C. 2601, at seq.), the Safe Drinking Water Act, as amended (42
U.S.C. Sections 300f, et seq,), the Federal Insecticide, Fungicide and Rodenticide Act,
as amended (7 U.S.C. Sections 136, et seq.) and the Clean Air Act, as amended (42
U.S.C. 7401, et seq.), and private rights of action for nuisance or damages to property
or persons, Notwithstanding any other provision of this Agreement, the provisions of
this section shall survive the termination of this Agreement.
A Representations and Warranties. Employee hereby makes the
following representations and warranties to City, each of which (I) is material and refied
upon by City in making its determination to enter into this Agreement; and (if) to
Employee°s actual knowledge, is true in all respects as of the date hereof:
(a) There are no pending or threatened litigation, allegations,
lawsuits or claims, whether for personal injury, property damage, property taxes,
contractual disputes or otherwise, which do or may affect the Property or the operation
or value thereof, and there are no actions or proceedings pending or, to the best of
Employee's knowledge, threatened against Employee before any court or administrative
agency in any way connected with the Property and neither the entering into of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute or result in a violation or breach by Employee of any judgment, order, writ,
injunction or decree issued against or imposed upon him. There is no action, suit,
proceeding or investigation pending or threatened against Employee which would
become a cloud on City's interest in the Property or have a material adverse impact
upon the Property or any portion thereof or which questions the validity or enforceability
of the transaction contemplated by this Agreement or any action taken pursuant hereto
in any court or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality.
(b) There are no contracts or other agreements affecting the
Property that would adversely affect City's rights with respect to the Property.
Housing Assistance Agreement
Pane B of 32
(c) There are no contingent liabilities arising out of the
ownership or operation of, or affecting, the Property or any part thereof which wouid be
bindng upon the City.
(d) As of the Property's close of Escrow, the Property will not be
subject to any leases, subleases, easements, or any other possessory interests.
All representations and warranties made hereunder are in addition to any
representations and warranties implied by law and in no event shall this section be
construed to limit, diminish or reduce any obligation of disclosure implied upon
Employee by law. All of the representations and warranties of Employee set forth in this
Agreement shall survive the Property's close of Escrow and shall not be deemed to
have merged in any document delivered at the closing, Emp€oyee shall indemnify City
against and hold City harmless from any and all toss, damage, liability or expense,
including court costs and reasonable attorneys' fees, which City may reasonably incur
or sustain in connect#on with (i) any breach of Employee's representations and/or
warranties contained herein; (ii) the facture of Employee to fulfill any of its covenants or
agreements under this Agreement; (M) any and all liabilities, claims, demands or
damages made or incurred by third -parties, whether direct, contingent or consequential,
in any way related to or arising from the Employee's ownership, use, operation or
occupancy of the Property; or (iv) in any way relating to the Retained Environmental
Liabilities set forth in this Agreement. City shall notify Employee of any prospective
claim for breach of representation or warranty promptly after City has actual notice of a
breach of the relevant representation or warranty.
8.2 Changed Circumstances. If Employee becomes aware of any
fact or circumstance which would change or render incorrect, in whole or in part, any
representation or warranty made by Employee under this Agreement, whether as of the
date given or any time thereafter and whether or not such representation or warranty
was based upon Employee's knowledge and/or belief as of a certain date, Employee
will give immediate written notice of such changed fact or circumstance to City, but such
notice shall not release Employee of his liabilities or obligations with respect thereto.
9. DEFAULTS; ENFORCE/EN
9.1 Defaults and Right to Cure, Failure or delay by either party to
timely perform any covenant of this Agreement constitutes a default under this
Agreement, but only if the party who so fails or delays does not commence to cure,
correct or remedy such failure or delay within ten (10) calendar days after receipt of a
written notice specifying such failure or delay, and does not thereafter prosecute such
cure, correction or remedy with diligence to completion. The injured party shall give
written notice of default to the party in default, specifying the default complained of by
the injured party. Except as required to protect against further damages, the injured
party may not institute proceedings against the party in default until ten (90) calendar
days after giving such notice. Failure or delay in giving such notice shall not constitute
a waiver of any default, nor shall it change the time of default.
Housing Assistance Agreement
Page 7 of 12
10. MISCELLANEOUS
10.1 Successors and Assigns. Employee shall not transfer, sell,
hypothecate, or assign the Property without the prior written authorization of City. Any
attempt to transfer, sell, hypothecate, or assign the Property without the City's express
written authorization shall be null and void.. This Agreement shall be binding upon the
parties hereto and their respective heirs, representatives, transferees, sucoessors and
assigns. The transfer of all or any part of the interest of any party hereunder in the
Property shall not release Employee of his obligations under this Agreement.
10.2 indemnity. To the fullest extent permitted by law, Employee shah
indemnify, defend and hold harmless City,. its C?ty Council, boards and commissions,
officers, agents, vo€unteers, and employees (collectively, the `"Indemnified Parties) from
and against any and all claims (including, wathout 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, attorney'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 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
Employee's presence or activities conducted on the Property (including the negligent
and/or willful acts, errors and/or omissions of Employee).
NoWthstanding the foregoing, nothing herein shalt be construed to require
Employee to indemnity 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 attorney's fees in any action on or to
enforce the terms of this Agreement. This indemnity shall apply to all claims and €€aUlty
regardless of whether any insurance policies are apps^cable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by the Employee.
10.3 Time of Essence. Time is of the essence in this Agreement and
with respect to each covenant and condition hereof. City and Employee each
specifically agrees to strictly comply and perform its obligations herein in the time and
manner specified and waives any and all rights to claim such compliance by mere
substantial compliance with the terms of this Agreement,
10.4 Time Period Computations. Ali periods of time referred to in this
Agreement shall include all Saturdays, Sundays and California state or national holidays
unless the reference is to business days, in which event such weekends and holidays
shall be excluded in the computation of time and provide that if the last date to perform
any act or give any notice with respect to this Agreement shall fall on a Saturday,
Sunday or California state or national holiday, such act or notice shall be deemed to
have been timely performed or given on the next succeeding day which is not a
Saturday, Sunday or California state or national holiday.
Housing Assistance Agreement
Page 8 of 12
10.5 Authority. Each individual executing this Agreement on behalf of
Ernpsoyee and City represents that he or she is duly authorized to execute and deliver
this Agreement on behalf of each respective party. Upon request of either party City
and Employee agree to deliver such documents reasonably necessary to evidence the
foregoing.
10.6 interpretation; Venue, Governing Law. This Agreement shalt be
construed according to its fair meaning and as if prepared by both parties hereto. This
Agreement shall be construed in accordance with the laws of the State of California in
effect at the time of the execution of this Agreemem and any litigation shall be venued in
the court of applicable jurisdiction in the County of Orange, California. Titles and
captions are for convenience only and shall not constitute a portion of this Agreement.
As used in this Agreement, masculine, feminine or neuter gender and the singular or
plural number shall each be deemed to include the others wherever and whenever the
context so dictates.
10.7 No Waiver. No delay or omission by any party hereto in exercising
any right or power accruing upon the compliance or failure of performance by the other
party hereto under the provisions of this Agreement shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either party hereto of a breach of
any of the covenants, conditions or agreements hereof to be performed by the other
party shall not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof.
10.8 Modifications, Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made by written instrument or
endorsement thereon and in each such instance executed or behalf of each party
hereto.
10.3 Severability. If any terra, provision, condition or covenant of this
Agreement or the application thereof to any party or circumstances shall, to any extent,
be held invalid or unenforceable, the remainder of this instrument, or the application of
such 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
thereby, and each term and provision of this Agreement shall be valid and enforceable
to the €ullest extent permitted by law.
10.10 Merger of Prior Agreements and Understandings. This
Agreement and other documents incorporated herein by reference contain the entire
understanding between the parties relating to the transaction contemplated hereby and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein and shall be of no further force or effect.
10.11 Execution in Counterpart, This Agreement may be executed in
duplicate counterparts, each of which shall be deemed an original and all of which shall
constitute an agreement to be effective as of the date of signing. Further, signatures
transmitted and memorialized by facsimile shall be deemed to have the same weight
Housing Assistance Agreement
Pager 9 of 12
and effect as an original signature. The parties may agree that an original signature will
be substituted at some later time for any facsimile signature.
10.12 Notices. Any notice which either party is required to provide under
this Agreement or may desire to give to the other party must be in writing and shall be
effective (i) when personally delivered by the other party or messenger or courier
thereof: (i) three (3) business days after deposit in x the United States mail, registered or
certified; (iii) twenty-four (24) hours after deposit before the (laity deadline time with a
reputab€e overnight courier or service; or (iv) upon receipt of a teiecopy or fax
transmission, provided a hard copy of such transmission shall be thereafter delivered in
one of the methods described in the foregoing (i) through (iii); in each case postage fully
prepaid and addressed to the respective parties as set forth below or to such other
address and to such other persons as the parties may hereafter designate by written
notice to the other parties hereto:
To Employee
David Diff
At the home address then shown in Empa oyer`s files
To City:
City Clerk
City of Newport Beach
3300 Newport Blvd.
P.O_ Box 1768
Newport Beach, CA 92658
(949)644-3020
and
City Attorney
City of Newport Beach
3300 Newport Blvd,
P.0, Box 1768
Newport Beach, CA 92658
(949)644-3139
[SIGNATURES ON FOLLOWING PAGE]
Nosing Assistance Agmement
Page 10 of 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By
David R. -Hunt, City A'tio' m e I y
CITY OF NEWPORT BEACH
EMPLOYEE
5_;_.Da bid, 'A
IA
By. Attorney for bavid
MAMWArAlla M,*rq
ME
CITY OF NEWPORT BEACH
ATTEST,,'
By:
Leilani I. Brown, Citytlerk
CITY OF NEWPORT1,43EACH
[END OF SIGNATURES]
Housing Assistance Agreement
Page 11 of 12
Exhibit "A"
Second Deed of Trust
RECORDING REQi;ESTED 67,
f -AD VYH' Ff P EX CRZIF D MA 4 TO
City of Newport Beach
-V300 'Newport Blvd
P.O. Box 1768
Newp-ort Beach, California 92658-8915
Atm: City Clerk
SPACE ABOVE TFPS LINE 16 FOR RECORDER'S USE
A PX', Order No.: Escrow No.;
DEED OF TRUST WITH ASSIGNMENT OF RENTS (SHORT FORML_
This DEED OF TRUST. made or, this _ day of i,__ _ 4009, Oeiwelan DavW Kilf, an iriovidval herein caPed TRUSTOR,
whose address is 378 23"4 Street, Newpor', Beach, California 92660-3609 (APN# 11 cu333-12),
FIRST AMERICAN TITLE iNSURANCE COMPANY, a C911forma corporation, herein called TRUSTEE, and the City of Newport
Beach, a California municipal corporation and Charter Qty, herein called BENEFICIARY,
WITNESSETH: Thal Trustor grants to Trustee in trust, with power of sale, that property in the City of Newport Beach, County
of Orange, State of California, described as:
378 23'd Street, Newport Beach, Calfforraa 92660-3609 (APN# 119-333-12)
together with the varts, issues and profits thereof, sublect, however, to the rigid, power and authority hercinafter given to and contented
cipon, Boncfcary to c0led and apply such roasts, issues and profits for the lawpuse of, securing (1) paymont of the sum of S471,250,00 with
nturest Inereon according to the terms or a promistioiy noes or rr#es 0 even date huromiln snade by 1rutAix payab;u to orac,, of
i3enctfaary, and extensions or renewals thereof. (2) the performar(a of each agraernatnt & Trusle; mortrporated by rafesencz, (if contained
here4l' and (3) payrnert of adcnVmai sums and interest thereon which rnay hereafter be kianed loTiustor, or his suocpsscns or assigns,
whei, ev;denced by alrornrsszey ,rete Or noes mvmq that they afe, se ckiroo by this Deed of Trust
To protect the security ra tl-,is Deed of Trust, and with respect to the properly above descTAxA. Trustor expressly makes each and all of the
agreements, and adopts and agrees to perform and be bound by each ,and aQ of the terms and provisions set forth in sutxfvis6on A. and it
Is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitous deed of trust recorded in Orange
County August 17, 1964, and in ail other counties August 18, 1964, in the book and at the page of Official Records in file office of the
county recorder of the county where said property is located, noted below opposite the name of such county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Xarnee,e 11188 656 Kicas 858 713 placer 102111 379 Sierra 38 187
Alpine I ilkn—ll Lake 437 110 plu"'as 166 11 307 stsk'y` 506 762
Av,,id,w 133 428 Lasser, 192 �,Sr P"'t.. S'de MR 347 wa"'T 1261 162=
p"je 1330 ^_13 Lo. A, 4wq& T-3818 874 sacrame"m 114 scrnma gre 427
cAci'eas 1;1J %Aader'l 917 tsG SX" R:mlc 19 111') 56
Cr -"aa 3qi Ms"n Arz'49 P, 641 Ma rt'5 �I'll
I cowa A'ge I kialpsaa 40 4t„l $aq A "oA 511*1 Ts+'A"'q 4V ls3
l"e= NGIlt 'Cl S49 667 98 sa"I i915A: 2C-1 Tnrvs, i ,),I 51q,"
P MM40 704 635 ^h'f sa', L"s oetno 1311 13" T.wa 25J,)
"A
F73 k4=%' iqV3 ,,in imam 4711$ 1,15 t" vA"Re �x7 isp
460 if, tk—o c'9 lil6i 651 ve'VA XIC7 2"s7,
tris £3 monwa j 361y 2;,3 swe'a Clara r11r26 811;4 Y01Q l69 1r,
ImDej'aj 110 701 Nara 7,",4 74. Sarra or= 1t-11-115 61911 Y"s '1336 6:93
Inti 166 tT72 Ne oda 36111 :14 shaaa VVI r 3
Ken' 366 CIX" Orange 1182 18 San Creno eERILS 5 6e * 1964, Page 10774
shall inure to and bind the parties hereto, with respect to the property above closoribed. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are by the
within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at
tenoth h aretn and Ber,efciory may cha-ge for a sta erneM regarOn F the ob'-tgat,on secured hereby, pray^vide d the charge
the,,efur does rtt exree d the r taxlr cm-i ak,)'wed by taw
The unde-si ned Trustor„ e.rIje is x`tat a r.,raay of any ,not,,ca, of def auo and any ,,Vice of sate hereunder be mailed to hl,m of
his address here¢ndeff,,e ret forth.
Dated: 2008
STATE OF CALIFORNIA
COUNTY OF ORANGE }tis
DiR-=;3 Kiff
On before me, . Notary Pueaic, personaariy apgcared
p�arscaxnwq known to arra. {rs proyvd to me on tho basis (if _.._._....._
satEstacfrsry evdencel to be the person{ i W=sc : n:amo(s) aware
sobsnboat to trt, Mhin onstrtsmonl and acknaaateigod to me ""mraar
tia;st he'shehhoy executed 0e same 'hn nis herr' mir authonzed
cnaDa.+ty(in_s):, and that by hisber.'their s;tnalure{s) on the ..._...._
instrument the person{tt) or the entity upon b-ohalf of wNch the
person,ts) acted, executed the instrument. Tarztor
WITNESS my hand and official seal.
Signature____,_..._._.�._......_..,._..._._..._ Tra�stor
(11xs area fur ort._ =int,axai .^yea±i
DO NOT Re.::CORD
The ,t,W vn s,, is ;a copy of SueC. resiaris A anvi S of fisf:hcaa D.a:ai ,sf Tr..ust =Fs::orcied m each rou,,y a Ca4unva a . t, f, . i m ! e kir�qoi% Dear? of Trust
aria e, ....nrrra.,as,a;' y r , i, n oe in s d Coed of Tn,st ars bung a bre vet Ihas er" tsv il set scrtri at wnWn tforein.
A.. To pmts riot tho soo,irty ri ti`s Deed of Trust. Tnasio: dycees'
A 1 To kyreii esld pepa:ty, in good ss`d.C4on ar16 forai, not O+ remuse or demoi-sh any buliomg themvr „. <"xymr'iw: c or rocs®xe Oromp;
r„smcm4 as h:xan. to tlss whei�mv Uxv eantra 10 rt assures, t"e masculin gnndw inch ;5 .. ,lc eaenr r, sic am;'nr neuter, and ttse
up „ar m=aq)er rndudea ti,e p1we
ge Thai ; h,mgoa xzpt,,, th,s Trust whr�, itus C4;,1, duly xXecwra; and ,acknowledged ,s mach a rmbiic rr' zrd i& t rov6+ted t+ Pau. Trustee
rerr+to ,ad€?y ary oartyneretu of pendinta sate to clv an afar peers o. Tris# ar of arr; scut>„ ar o.tdctt Txssrvc, bene c y 4a
Tr” % z -aa � ,'.'.e a psarty urh ;;s b�jght br TtnStb:e..
TO FIRST A "i: R. Cr"iN TITLE lNSURANC:.c. COt "PANY, T-JUST's E,
REQW'-ST FOR FULL RECONVEYANCE
The rages oerner:?Swi hUd T of Mt note 'V noiea, A-11 of ars other.-n,et'tesh,rw s;,r,Cxr sv bj q . icvegoo4 Deed of , -,v
Sa_d note eTmes ag;;,i,e raven att otner rrn tyyx¢edTe ~xs se ..vr e'.Tr ,. y r.a'o x� V,;<° of T rust have V,y P,s.d anu; s;sl e ,.? am: y, a ale hereby
request s4 anc a "zrscted. !:n payment ,w ''m of any scam.w 4r vvj far p.r„ u'~ e S^a we of rad Dev'W of Tn,c', to r trs.�i a.x,tt nat,. fyr rkSSr'.= a3iare
menr onod, and ae other ewd&%es of ndebtdd,nss sm> rpd i,y said Cmsd of Tr,',, de�, e,ed to Yoe h'erew „a,,a`f�:n, Tw1h Bir. „o-ae rwed a° Y'rrast' sncr
to ret on't'y, v ,t xul wanarey, to the paries t.e,, g--,ak; , by the tn"s ov smd Lam,:, of T „t, an ate estate Mw T t,e,Pd n, ymj as +Vee ...e same,
Dated
e'ayca. City a` N"wTk"rt BoacB
City AStomey, City of t3ecv}xrd t+r,�acn
Rease mail Deed of Trust, Note and Reconveyance to,
City of Newport Beach
3300 Newport Blvd
P.O. Box 1708
Newport Beach, California 92558-8915
Attn: City Clerk
Do Not Bose or destroy this Creed of Trust OR THE NOTE which it secures. Both must be delivered to the
Trustee for cancellation before reconveyance will be made.
Y
First American
Title insurance
G moan)
TRUSTEE
Housing Assistance Agreement
Page 12 of 12
Exhibit "8'
Promissory Mote
PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Loan Amount: $471,250.00
Note Date: October 2009
FOR VALUE RECEIVED, the undersigned ("Maker") hereby promises to pay to
the order of the THE CITY OF NEWPORT BEACH, a California municipal corporation
and Charter City ("Holder), at a place designated by Holder, the principal sum of
FOUR HUNDRED AND SEVENTY-ONE THOUSAND TWO -HUNDRED AND FIFTY
DOLLARS ($471,250.00) or so much thereof as is disbursed for the account of Maker.
The obligation of Maker to Holder hereunder shall be secured by a deed of trust
("Second Deed of Trust") made by Maker encumbering its ownership interest in the
real property located at 378 23`d Street, Newport Beach, California with an APN# 119-
333-12 ("Property'), The obligation of Maker set forth in this Promissory Note is
subject to acceleration as set forth in Second Deed of Trust. Unless expressly defined
herein, all capitalized terms used herein shall have the meaning ascribed to them in that
certain Housing Assistance Agreement Between the City of Newport Beach and David
Kiff to Share Equity for the Real Property Located at 378 23rd Street, Newport Beach,
CA ("Housing Agreement") entered into by and between Maker and Holder.
1. Cid Loan. This Promissory Note evidences the obligation of Maker to
Holder for the repayment of funds loaned to Maker by Holder ("Equity Contribution") to
finance the purchase of the Property pursuant to the Housing Agreement. Except as
otherwise permitted in the Housing Agreement, Maker shall not make any sale,
assignment or conveyance, or transfer in any other form, of Maker's ownership interest
in the Property, or any part thereof, or interest therein without the express written
consent of Halder.
2. Additional Terms.
(a) Term. The term of this Promissory Note shall be from the date
indicated above and until the Property is sold or transferred by Maker and Holder is re-
paid its portion of the Equity Contribution pursuant to the Housing Agreement,
(b) Repayment. The Holder and Maker will share in all
appreciation/depreciation of the Property's value on a cost basis in proportion to the
Equity Contribution's overall percentage of the total purchase price. The Property's total
purchase price is Nine Hundred and Thirty -Five Thousand dollars ($935,000.00); thus,
the Holder is entitled to fifty point four percent (50.4%) of the Property's value (i.e., the
Equity Contribution's percentage of the total purchase price) at the time the Property is
transferred or sold. Notwithstanding the transfer or sale requirements provided in this
section, the Equity Contribution (as adjusted for appreciation/depreciation) shall be
repaid by the Maker to Holder within twelve (12) months of the Maker's termination of
employment or retirement, unless otherwise agreed to by the Holder in writing,
At the end of the term of this Promissory Note and discharge of this Promissory
Note as set forth above, Holder shall mark this Promissory Note "PAID IN FULL" and
shall then deliver this Promissory Note to the trustee of the Second Deed of Trust that
secures this Promissory mote for the trustee's delivery to Maker in conjunction with the
reconveyance of the Second Deed of Trust.
(c) Disbursement of ttq. C y Loan. Holder shall disburse the Equity
Contribution to Maker as set forth in the Housing Agreement.
3. Rreoavment. This Promissory Dote may be prepaid in whole or in part at
any time without the payment of any prepayment penalty.
4. Acceleration of ONigation. upon the occurrence of an uncured event of
default of Maker under this Promissory Note, the Second Deed of Trust or the Mousing
Agreement, and the expiration of any notice and cure period provided therein or herein,
and upon thirty (30) days prior written notice to Maker, Molder may, at its option, declare
this Promissory Note and the entire outstanding indebtedness hereby evidenced to be
immediately due and payable and co=iectible then or thereafter as Molder may elect,
regardless of the date of maturity.
5. Collection Costs-Attornevs' Fees. If any attorney is engaged by
Holder or Maker because of any uncured event of default under this Promissory Note or
the Second Deed of Trust or to enforce any provisions of either instrument, whether or
not suit is filed hereon, Holder and Maker shall bear their own attorney's fees and costs.
6. Severability The unenforceability or invalidity of any provision or
provisions of this Promissory Note as to any persons or circumstances shall not render
that provision or those provisions unenforceable or invalid as to any other provisions or
circumstances, and all provisions hereof, in all other respects, shall remain valid and
enforceable.
7. Modifications. Neither this Promissory Note nor any term hereof may
be waived, amended, discharged: modified, changed or terminated orally; nor shall any
waiver of any provision hereof be effective unless by an instrument in writing signed by
Maker and Holder.
8. usury. Notwithstanding any provision in this Promissory Note, Second
Deed of Trust or other loan document, the total inability for payment in the nature of
interest shall not exceed the timet now imposed by applicable laws of the State of
California.
9, Governino Law. This Promissory Note has been executed and
delivered by Maker in the State of California and is to be governed and construed in
accordance with the laws thereof. Venue in Orange County, California.
I= ZMA 011V
• s: s
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
date and year first above written.
F
APPROVED AS TO FORM:
By: Attorney for David
c-g3gt
HOUSING ASSISTANCE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND DAVID KIFF
TO SHARE EQUITY FOR THE REAL PROPERTY LOCATED AT
37823 Id Street, Newport Beach, California (APN#119-333-12)
THIS HOUSING ASSISTANCE AGREEMENT ("Agreement") is entered into this
13th Day of October 2009 by and between the City of Newport Beach, a California
municipal corporation and Charter City ("City') and David Kiff, an individual
("Employee") and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the City's Charter.
B. On September 12, 2009, Employee entered into an Employment
Agreement with City to serve as City's City Manager.
C. Section 12 and Exhibit "A" of the Employment Agreement provide
incentives to the Employee in the form of an equity contribution of up to Five Hundred
and Fifty Thousand Dollars ($550,000) to allow Employee to re -locate within the
incorporated boundaries of Newport Beach.
D. Employee now desires to re -locate his personal residence into the City
and exercise his rights to the equity contribution�rovided in the Employment Agreement
by purchasing real property located at 378 23` Street, Assessor Parcel Number 119-
333-12 ("Property").
E. City desires to provide Employee with an equity contribution to purchase
the Property upon the terms and conditions contained in this Agreement.
F. City and Employee acknowledge adequate consideration has been
provided to induce both parties to enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
TERMS AND CONDITIONS
1. EQUITY CONTRIBUTION
Pursuant to the August 18, 2009 Employment Agreement between the City and
Employee, the City hereby agrees to provide Employee with Four Hundred Seventy -
One Thousand Two Hundred Fifty Dollars ($471,250.00) to purchase the Property
("Equity Contribution"). $471,250.00 is 50.4% of $935,000.00. The City and Employee
will share in all appreciation/depreciation of the Property's value on a cost basis in
proportion to the Equity Contribution's overall percentage of the total purchase price, as
Housing Assistance Agreement
Page 2 of 12
adjusted by any improvements that the Employee or his contractor makes to the
Property in accordance with Section 2.
At the time the property is sold, the payment made to the City reflective of its
Equity Contribution ("Final Equity Repayment") shall be made in accordance with either
of the below conditions, whichever is applicable:
A. If the Property is not improved by the Employee further beyond ordinary
maintenance of the Property, the Final Equity Repayment shall be calculated as
follows:
(Final Property Sale Price — Employee -Paid Closing Costs) X
50.4% =
Final Equity Repayment
B. If the Property is improved by the Employee or his contractor in accordance with
Section 2, the Employee shall retain all invoices for materials and labor charges and
has the burden of establishing the costs of all investments into the Property. Such
improvements must be documented hard costs including materials and labor
("Documented Hard Costs"), but shall not include soft costs such as personal efforts
of Employee or other owners. In this case, the Final Equity Repayment shall be
calculated as follows:
(Final Property Sale Price — Employee -Paid Closing Costs — Documented Hard Costs)
X
50.4% =
Final Equity Repayment
The Equity Contribution (as adjusted for appreciation/depreciation) shall be
repaid by the Employee to City within twelve (12) months of the Employee's termination
of employment or retirement, unless otherwise agreed to by the City in writing.
1.1 Employee's Financing of Property. Employee shall secure
financing from City National Bank or Bank of America ("Bank") and enter into Escrow to
purchase the Property. Employee shall provide a deposit of five percent (5%) of the
Property's total purchase price. In addition, Employee shall obtain a conventional loan
("Loan") from Bank.
1.2. Delivery of Equity Contribution. City shall deposit the Equity
Contribution in "good funds" according to the terms of Escrow between the Employee
and Bank to purchase the Property. "Good funds" shall mean a wire transfer of funds,
check drawn on or issued by the offices of a financial institution located in the State of
California, or cash.
Housing Assistance Agreement
Page 3 of 12
2. EMPLOYEE'S IMPROVEMENTS TO THE PROPERTY
With City's prior written consent, Employee may remodel or construct
improvements on the Property. The City's written consent shall contain a dollar amount
agreeable to both parties for the cost of the remodel or improvement(s).
Notwithstanding any provision in this Agreement to the contrary, Employee shall be
entitled to recover the cost of the remodel or improvement(s) from the sale or transfer of
the Property before repayment of the City's Equity Contribution.
3. TAXES, MAINTENANCE AND ASSOCIATED EXPENSES
Employee shall be one hundred percent (100%) responsible for all debt service
on the loan, maintenance, taxes, liability insurance and any liabilities occurring on or
arising from the Property, and any and all expenses associated with the Property. The
City has no obligation and assumes no liabilities with respect to the Property other than
providing the Equity Contribution in Section 1 of this Agreement. Employee expressly
assumes any and all liabilities arising from the Property as between he and the City.
4. ADDITIONAL DOCUMENTS REQUIRED FROM CITY AND EMPLOYEE
4.1 City. City agrees that on or before 1:00 p.m. on the business day
preceding the Property's Escrow closing date, City will deposit with the escrow holder all
additional documents (executed and acknowledged, if appropriate) which are necessary
to comply with the terms of this Agreement, including, without limitation, items and
instruments as may be necessary for escrow holder to effectuate the terms of this
Agreement.
4.2 Employee. Employee agrees that on or before 1:00 p.m. on the
business day preceding the Property's Escrow closing date, Employee will deposit with
escrow holder such items and instruments (executed and acknowledged, if appropriate)
as may be necessary for the escrow holder to comply with this Agreement.
5. PROMISSORY NOTE AND RECORDATION OF DEED OF TRUST
Employee shall execute in a form substantially similar to Exhibit "A" attached
hereto and incorporated by this reference, a Deed of Trust in favor of City for the
amount of City's Equity Contribution ("Second Deed of Trust"). Within ten (10) business
days of the Property's close of Escrow and satisfaction or waiver of all conditions
precedent, City shall cause the Second Deed of Trust to be recorded with the Orange
County Recorder's Office with a copy to the City Clerk for the City of Newport Beach.
Employee shall also execute in a form substantially similar to Exhibit "B" attached
hereto and incorporated by this reference, a Promissory Note in favor of the City for the
amount of the City's Equity Contribution secured by the Second Deed of Trust. This
Agreement, the Promissory Note and the Second Deed of Trust shall act as a "second
mortgage" on the property and secure the City's interest in the Property pursuant to this
Agreement. This Agreement, the Promissory Note and the Second Deed of Trust shall
Housing Assistance Agreement
Page 4 of 12
be second to the mortgage secured by Bank but superior to all other liens and
encumbrances that may attach to the Property in the future.
6. CONDITIONS PRECEDENT TO CLOSE OF ESCROW
6.1 Conditions to City's Obligations. The obligations of City under
this Agreement shall be subject to the satisfaction or written waiver, in whole or in part,
by City of each of the following conditions precedent:
(a) City has approved in writing the condition(s) of title.
(b) Escrow holder holds and will deliver to City the instruments,
if any, accruing to City pursuant to this Agreement.
(c) The due performance by Employee of each and every
undertaking and agreement to be performed by Employee hereunder, and
representation by Employee of the truth of each representation and warranty made in
this Agreement. For purposes of this subsection (c) only, a representation that is limited
to Employee's knowledge or notice shall be false if the factual matter that is subject to
the representation is false, notwithstanding any lack of knowledge or notice to
Employee.
(d) City's approval of any other conditions specified in this
Agreement.
In the event each of the conditions set forth above is not fulfilled or waived
in writing by City prior to the Property's Escrow closing date, City may, at its option,
terminate this Agreement, thereby releasing both parties from further obligations
hereunder (except for those that by their terms survive the termination of this
Agreement), and all funds shall be immediately returned by the Employee/escrow
holder to City without notice or further action by either party. Nothing in this section
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.
6.2 Conditions to Employee's Obligations. The obligations of
Employee under this Agreement shall be subject to the satisfaction or written waiver, in
whole or in part, by Employee of each of the following conditions precedent: The due
performance by City of each and every undertaking and agreement to be performed by
City hereunder.
6.3 Satisfaction of Conditions. Where satisfaction of any of the
foregoing conditions requires action by City or Employee, each party shall use its
diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where
satisfaction of any of the foregoing conditions requires the approval of a party, such
approval shall be in such party's sole and absolute discretion.
Housing Assistance Agreement
Page 5 of 12
7. ADDITIONAL COVENANTS OF EMPLOYEE
7.1 Environmental Claims. Employee shall retain all liability under all
Environmental Laws asserted at any time in connection with any set of facts or
conditions existing in, on or about or arising from the Employee's ownership/occupancy
of the Property ("Retained Environmental Liabilities"). For purposes of this Agreement,
"Environmental Laws" shall mean all federal, state or local statutes, regulations,
ordinances, codes or rules as such have been or may hereafter be enacted, adopted,
amended or supplemented and all common law causes of action relating to the
protection of human health or the environmental, including without limitations the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601 et seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act, as amended (33 U.S.C. Sections 7401, et seq.), the Toxic Substance Control Act,
as amended (15 U.S.C. 2601, et seq.), the Safe Drinking Water Act, as amended (42
U.S.C. Sections 300f, et seq.), the Federal Insecticide, Fungicide and Rodenticide Act,
as amended (7 U.S.C. Sections 136, et seq.) and the Clean Air Act, as amended (42
U.S.C. 7401, et seq.), and private rights of action for nuisance or damages to property
or persons. Notwithstanding any other provision of this Agreement, the provisions of
this section shall survive the termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties. Employee hereby makes the
following representations and warranties to City, each of which (i) is material and relied
upon by City in making its determination to enter into this Agreement; and (ii) to
Employee's actual knowledge, is true in all respects as of the date hereof:
(a) There are no pending or threatened litigation, allegations,
lawsuits or claims, whether for personal injury, property damage, property taxes,
contractual disputes or otherwise, which do or may affect the Property or the operation
or value thereof, and there are no actions or proceedings pending or, to the best of
Employee's knowledge, threatened against Employee before any court or administrative
agency in any way connected with the Property and neither the entering into of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute or result in a violation or breach by Employee of any judgment, order, writ,
injunction or decree issued against or imposed upon him. There is no action, suit,
proceeding or investigation pending or threatened against Employee which would
become a cloud on City's interest in the Property or have a material adverse impact
upon the Property or any portion thereof or which questions the validity or enforceability
of the transaction contemplated by this Agreement or any action taken pursuant hereto
in any court or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality.
(b) There are no contracts or other agreements affecting the
Property that would adversely affect City's rights with respect to the Property.
Housing Assistance Agreement
Page 6 of 12
(c) There are no contingent liabilities arising out of the
ownership or operation of, or affecting, the Property or any part thereof which would be
binding upon the City.
(d) As of the Property's close of Escrow, the Property will not be
subject to any leases, subleases, easements, or any other possessory interests.
All representations and warranties made hereunder are in addition to any
representations and warranties implied by law and in no event shall this section be
construed to limit, diminish or reduce any obligation of disclosure implied upon
Employee by law. All of the representations and warranties of Employee set forth in this
Agreement shall survive the Property's close of Escrow and shall not be deemed to
have merged in. any document delivered at the closing. Employee shall indemnify City
against and hold City harmless from any and all loss, damage, liability or expense,
including court costs and reasonable attorneys' fees, which City may reasonably incur
or sustain in connection with (i) any breach of Employee's representations and/or
warranties contained herein; (ii) the failure of Employee to fulfill any of its covenants or
agreements under this Agreement; (iii) any and all liabilities, claims, demands or
damages made or incurred by third -parties, whether direct, contingent or consequential,
in any way related to or arising from the Employee's ownership, use, operation or
occupancy of the Property; or (iv) in any way relating to the Retained Environmental
Liabilities set forth in this Agreement. City shall notify Employee of any prospective
claim for breach of representation or warranty promptly after City has actual notice of a
breach of the relevant representation or warranty.
8.2 Changed Circumstances. If Employee becomes aware of any
fact or circumstance which would change or render incorrect, in whole or in part, any
representation or warranty made by Employee under this Agreement, whether as of the
date given or any time thereafter and whether or not such representation or warranty
was based upon Employee's knowledge and/or belief as of a certain date, Employee
will give immediate written notice of such changed fact or circumstance to City, but such
notice shall not release Employee of his liabilities or obligations with respect thereto.
9. DEFAULTS: ENFORCEMENT
9.1 Defaults and Right to Cure. Failure or delay by either party to
timely perform any covenant of this Agreement constitutes a default under this
Agreement, but only if the party who so fails or delays does not commence to cure,
correct or remedy such failure or delay within ten (10) calendar days after receipt of a
written notice specifying such failure or delay, and does not thereafter prosecute such
cure, correction or remedy with diligence to completion. The injured party shall give
written notice of default to the party in default, specifying the default complained of by
the injured party. Except as required to protect against further damages, the injured
party may not institute proceedings against the party in default until ten (10) calendar
days after giving such notice. Failure or delay in giving such notice shall not constitute
a waiver of any default, nor shall it change the time of default.
Housing Assistance Agreement
Page 7 of 12
10. MISCELLANEOUS
10.1 Successors and Assigns. Employee shall not transfer, sell,
hypothecate, or assign the Property without the prior written authorization of City. Any
attempt to transfer, sell, hypothecate, or assign the Property without the City's express
written authorization shall be null and void. This Agreement shall be binding upon the
parties hereto and their respective heirs, representatives, transferees, successors and
assigns. The transfer of all or any part of the interest of any party hereunder in the
Property shall not release Employee of his obligations under this Agreement.
10.2 Indemnity. To the fullest extent permitted by law, Employee 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 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, attorney'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 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
Employee's presence or activities conducted on the Property (including the negligent
and/or willful acts, errors and/or omissions of Employee).
Notwithstanding the foregoing, nothing herein shall be construed to require
Employee 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 attorney'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 Employee.
10.3 Time of Essence. Time is of the essence in this Agreement and
with respect to each covenant and condition hereof. City and Employee each
specifically agrees to strictly comply and perform its obligations herein in the time and
manner specified and waives any and all rights to claim such compliance by mere
substantial compliance with the terms of this Agreement.
10.4 Time Period Computations. All periods of time referred to in this
Agreement shall include all Saturdays, Sundays and California state or national holidays
unless the reference is to business days, in which event such weekends and holidays
shall be excluded in the computation of time and provide that if the last date to perform
any act or give any notice with respect to this Agreement shall fall on a Saturday,
Sunday or California state or national holiday, such act or notice shall be deemed to
have been timely performed or given on the next succeeding day which is not a
Saturday, Sunday or California state or national holiday.
Housing Assistance Agreement
Page 8 of 12
10.5 Authority. Each individual executing this Agreement on behalf of
Employee and City represents that he or she is duly authorized to execute and deliver
this Agreement on behalf of each respective party. Upon request of either party City
and Employee agree to deliver such documents reasonably necessary to evidence the
foregoing.
10.6 Interpretation; Venue; Governing Law. This Agreement shall be
construed according to its fair meaning and as if prepared by both parties hereto. This
Agreement shall be construed in accordance with the laws of the State of California in
effect at the time of the execution of this Agreement and any litigation shall be venued in
the court of applicable jurisdiction in the County of Orange, California. Titles and
captions are for convenience only and shall not constitute a portion of this Agreement.
As used in this Agreement, masculine, feminine or neuter gender and the singular or
plural number shall each be deemed to include the others wherever and whenever the
context so dictates.
10.7 No Waiver. No delay or omission by any party hereto in exercising
any right or power accruing upon the compliance or failure of performance by the other
party hereto under the provisions of this Agreement shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either party hereto of a breach of
any of the covenants, conditions or agreements hereof to be performed by the other
party shall not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof.
10.8 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made by written instrument or
endorsement thereon and in each such instance executed on behalf of each party
hereto.
10.9 Severability. If any term, provision, condition or covenant of this
Agreement or the application thereof to any party or circumstances shall, to any extent,
be held invalid or unenforceable, the remainder of this instrument, or the application of
such 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
thereby, and each term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
10.10 Merger of Prior Agreements and Understandings. This
Agreement and other documents incorporated herein by reference contain the entire
understanding between the parties relating to the transaction contemplated hereby and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein and shall be of no further force or effect.
10.11 Execution in Counterpart. This Agreement may be executed in
duplicate counterparts, each of which shall be deemed an original and all of which shall
constitute an agreement to be effective as of the date of signing. Further, signatures
transmitted and memorialized by facsimile shall be deemed to have the same weight
Housing Assistance Agreement
Page 9 of 12
and effect as an original signature. The parties may agree that an original signature will
be substituted at some later time for any facsimile signature.
10.12 Notices. Any notice which either party is required to provide under
this Agreement or may desire to give to the other party must be in writing and shall be
effective (i) when personally delivered by the other party or messenger or courier
thereof; (ii) three (3) business days after deposit in the United States mail, registered or
certified; (iii) twenty-four (24) hours after deposit before the daily deadline time with a
reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax
transmission, provided a hard copy of such transmission shall be thereafter delivered in
one of the methods described in the foregoing (i) through (iii); in each case postage fully
prepaid and addressed to the respective parties as set forth below or to such other
address and to such other persons as the parties may hereafter designate by written
notice to the other parties hereto:
To Employee:
David Kiff
At the home address then shown in Employer's files
To City:
City Clerk
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
(949)644-3020
and
City Attorney
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
(949)644-3139
[SIGNATURES ON FOLLOWING PAGE]
Housing Assistance Agreement
Page 10 of 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By
David R. Hunt, City Attomey
CITY OF NEWPORT BEACH
EMPLOYEE
% A CL \
By: Dai iff
APPROVED AS TO FORM:
uIA
By: Attorney for David Kiff
THE TY OF NEW ORT\ BEACH,
a Cinaftkir CiW a4d rounioipal Corporation
CITY OF NEWPORT BEACH
ATTEST'
^
By: IxJ
Leilan1 I. Brown, City lerk
CITY OF NEWPOACH
[END OF SIGNATURES]
Housing Assistance Agreement
Page 11 of 12
Exhibit "A"
Second Deed of Trust
RECORDING REQUESTED BY:
AND WHEN RECORDED MAILTO:
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE
A.P.N.: Order No.: Escrow No.:
DEED OF TRUST WITH ASSIGNMENT OF RENTS (SHORT FORM)
This DEED OF TRUST, made on this _ day of 2009, between David Kiff, an individual herein called TRUSTOR,
whose address is 378 23d Street, Newport Beach, California 92660-3609 (APN# 119-333-12),
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and the City of Newport
Beach, a California municipal corporation and Charter City, herein called BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Newport Beach, County
of Orange, State of California, described as:
378 23rd Street, Newport Beach, California 92660-3609 (APN# 119-333-12)
together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of $471,250.00 with
interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of
Beneficiary, and extensions or renewals thereof, (2) the performance of each agreement of Trustor incorporated by reference or contained
herein and (3) payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or assigns,
when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the
agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it
is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange
County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of the
county recorder of the county where said property is located, noted below opposite the name of such county, namely:
COUNTY BOOK PAGE. COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumes 166 1307 Sisklyou 506 762
Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56
Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585
Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183
Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 595
EI Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cnrz 1638 607 Yuba 398 693
Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are by the
within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at
length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge
therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at
his address hereinbefore set forth.
Dated: 2009
STATE OF CALIFORNIA
COUNTY OF ORANGE )SS
On before me, , Notary Public, personally appeared
, personally known to me (or 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/she/they 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.
WITNESS my hand and official seal.
Signature
David Kiff
Trustor
Trustor
Trustor
Trustor
(This area for official notarial seal)
1,10 IdolAdXdal:ior,
The following is a copy of Subdivisions A,and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed of Trust
and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust. Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore promptly and in
good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed
and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon, not to
commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law, to cultivate, irrigate, fertilize, fumigate, prune
and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not exduding the
general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under
any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or
at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and
to pay all costs and expenses, induding cost of evidence of tide and attorneys fees in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay; at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water
stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all
costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and
without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may; make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes;
appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase,
contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such
powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the dale hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured
hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when. said statement is demanded.
B. It is mutually agreed:
1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby
assigned and shall be paid to Beneficiary who may apply or release such monies received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment
when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this
Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may: reconvey any part of said property; consent to themaking of any map or plat thereof; join in granting any easement thereon, or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary staling that all sums secured hereby have been paid, and upon surrender of this Deed and said note to
Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees. Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto".
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon
any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for
or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable allomey's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon
and taking possession of said property, the collection of such rents, issues and profits and the. application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may
declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with
Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given
as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole
or in separate parcels. and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at
time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time
thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its
deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be
condusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including costs of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed
by law in effect at the dale hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly
acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of proper
substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights,
powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this
Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this Deed, whenever the context so requires, the. masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee
is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or
Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
TO FIRST AMERICAN TITLE INSURANCE COMPANY. TRUSTEE:
REQUEST FOR FULL RECONVEYANCE
The undersigned is the legal owner and holder of the note or notes. and of all other indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and safisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, and all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith. together with the said Deed of Trust, and
to reoonvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated:
Mayor, City of Newport Beach
Attorney, City of Newport
Please mail Deed of Trust, Note and Reconveyance to:
City of Newport Beach
3300 Newport Blvd
P.O. Box 1768
Newport Beach, California 92658-8915
Attn: City Clerk
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the
Trustee for cancellation before reconveyance will be made.
0 0
WITH POWER OF SALE
First American
Title Insurance
Company
TRUSTEE
Housing Assistance Agreement
Page 12 of 12
Exhibit "B"
Promissory Note
PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Loan Amount: $471,250.00
Note Date: October 2009
FOR VALUE RECEIVED, the undersigned ("Maker") hereby promises to pay to
the order of the THE CITY OF NEWPORT BEACH, a California municipal corporation
and Charter City ("Holder"), at a place designated by Holder, the principal sum of
FOUR HUNDRED AND SEVENTY-ONE THOUSAND TWO -HUNDRED AND FIFTY
DOLLARS ($471,250.00) or so much thereof as is disbursed for the account of Maker.
The obligation of Maker to Holder hereunder shall be secured by a deed of trust
("Second Deed of Trust") made by Maker encumbering its ownership interest in the
real property located at 378 23`d Street, Newport Beach, California with an APN# 119-
333-12 ("Property"). The obligation of Maker set forth in this Promissory Note is
subject to acceleration as set forth in Second Deed of Trust. Unless expressly defined
herein, all capitalized terms used herein shall have the meaning ascribed to them in that
certain Housing Assistance Agreement Between the City of Newport Beach and David
Kiff to Share Equity for the Real Property Located at 378 23rd Street, Newport Beach,
CA ("Housing Agreement") entered into by and between Maker and Holder.
1. City Loan. This Promissory Note evidences the obligation of Maker to
Holder for the repayment of funds loaned to Maker by Holder ("Equity Contribution") to
finance the purchase of the Property pursuant to the Housing Agreement. Except as
otherwise permitted in the Housing Agreement, Maker shall not make any sale,
assignment or conveyance, or transfer in any other form, of Maker's ownership interest
in the Property, or any part thereof, or interest therein without the express written
consent of Holder.
2. Additional Terms.
(a) Term. The term of this Promissory Note shall be from the date
indicated above and until the Property is sold or transferred by Maker and Holder is re-
paid its portion of the Equity Contribution pursuant to the Housing Agreement.
(b) Repayment. The Holder and Maker will share in all
appreciation/depreciation of the Property's value on a cost basis in proportion to the
Equity Contribution's overall percentage of the total purchase price. The Property's total
purchase price is Nine Hundred and Thirty -Five Thousand dollars ($935,000.00); thus,
the Holder is entitled to fifty point four percent (50.4%) of the Property's value (i.e., the
Equity Contribution's percentage of the total purchase price) at the time the Property is
transferred or sold. Notwithstanding the transfer or sale requirements provided in this
section, the Equity Contribution (as adjusted for appreciation/depreciation) shall be
repaid by the Maker to Holder within twelve (12) months of the Maker's termination of
employment or retirement, unless otherwise agreed to by the Holder in writing.
At the end of the term of this Promissory Note and discharge of this Promissory
Note as set forth above, Holder shall mark this Promissory Note "PAID IN FULL" and
shall then deliver this Promissory Note to the trustee of the Second Deed of Trust that
secures this Promissory Note for the trustee's delivery to Maker in conjunction with the
reconveyance of the Second Deed of Trust.
(c) Disbursement of the City Loan. Holder shall disburse the Equity
Contribution to Maker as set forth in the Housing Agreement.
3. Prepayment. This Promissory Note may be prepaid in whole or in part at
any time without the payment of any prepayment penalty.
4. Acceleration of Obligation. Upon the occurrence of an uncured event of
default of Maker under this Promissory Note, the Second Deed of Trust or the Housing
Agreement, and the expiration of any notice and cure period provided therein or herein,
and upon thirty (30) days prior written notice to Maker, Holder may, at its option, declare
this Promissory Note and the entire outstanding indebtedness hereby evidenced to be
immediately due and payable and collectible then or thereafter as Holder may elect,
regardless of the date of maturity.
5. Collection Costs; Attorneys' Fees. If any attorney is engaged by
Holder or Maker because of any uncured event of default under this Promissory Note or
the Second Deed of Trust or to enforce any provisions of either instrument, whether or
not suit is filed hereon, Holder and Maker shall bear their own attorney's fees and costs.
6. Severability. The unenforceability or invalidity of any provision or
provisions of this Promissory Note as to any persons or circumstances shall not render
that provision or those provisions unenforceable or invalid as to any other provisions or
circumstances, and all provisions hereof, in all other respects, shall remain valid and
enforceable.
7. Modifications. Neither this Promissory Note nor any term hereof may
be waived, amended, discharged, modified, changed or terminated orally; nor shall any
waiver of any provision hereof be effective unless by an instrument in writing signed by
Maker and Holder.
8. Usury. Notwithstanding any provision in this Promissory Note, Second
Deed of Trust or other loan document, the total liability for payment in the nature of
interest shall not exceed the limit now imposed by applicable laws of the State of
California.
9. Governing Law. This Promissory Note has been executed and
delivered by Maker in the State of California and is to be governed and construed in
accordance with the laws thereof. Venue in Orange County, California.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
date and year first above written.
MAKER
By: David Kiff
APPROVED AS TO FORM:
By: Attorney for David Kiff
F—-I
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
X1398
�i�; 1 v 20n9
Agenda Item No. 14
October 13, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Attorney's Office
David Hunt, City Attorney
949/644-3131 or dhunt@newportbeachca.gov
SUBJECT: Implementation of Housing Assistance Agreement with the City Manager to
Share Equity
ISSUE:
How should the City implement the City Manager's equity -sharing housing assistance
program, as provided for in Resolution 2009-61?
RECOMMENDATION:
Authorize the Mayor to execute the Housing Assistance Agreement to Share Equity for
the City Manager in substantially the form attached.
DISCUSSION:
Resolution 2009-61 enacted the City Manager's compensation program, as well as
authorizing an equity sharing agreement with the City Manager to enable him to meet the
City Charter's obligation to reside in Newport Beach. Section 501 of the City Charter
reads as follows:
Section 501. Residence.
The City Manager need not be a resident of the City at the time of his appointment, but
he shall establish his residence within the City within ninety days after his appointment,
unless such period is extended by the City Council, and thereafter maintain his
residence within the City during his tenure of office.
The equity sharing agreement (as attached) would implement the equity sharing
arrangement described within Resolution 2009-61. Generally, the terms of the equity
sharing are as follows:
• The City would contribute $471,250.00 towards the property's purchase.
• 4ousing Assistance Agreement
October 13, 2009
Page 2
• "Upon s�W of the property or at a point not less than twelve (12) months after the City
Manager's employment ends with the City, the City is entitled to 50.4% of any equity
resulting from the sale of the property.
• The City Manager is required to meet all other obligations of the property, including
taxes, utilities, and his mortgage obligations; the obligation will be memorialized in a
promissory note; and
• A Deed of Trust in favor of City for the amount of City's Equity Contribution (Second
Deed of Trust) shall be recorded in the amount of the City's equity contribution. (The
agreement will be revised to reflect the note and the deed of trust and that Mr. Kiff will
cover all closing costs.)
Funding Issues. A budget amendment is not required for this action. The Administrative
Services Department would record the payment as a receivable when the money is
loaned. Because the item is a long-term receivable, Admin Services would reserve fund
balance for the amount. Any gain or loss is recorded when the loan is repaid as revenue
or expense, and the fund balance designation is then removed.
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act
(72 hours in advance of the public meeting at which the City Council considers the item).
Submitted by:
David Hunt
City Attorney
Attachments: Housing Assistance Agreement
•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
(Recording Fees Exempt Pursuant to Government Code §§ 6103 and 27383)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
APN: (119-333-12)
HOUSING ASSISTANCE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND DAVID KIFF
TO SHARE EQUITY FOR THE REAL PROPERTY LOCATED AT
378 23`d Street, Newport Beach, CA
THIS HOUSING ASSISTANCE AGREEMENT ("Agreement") is entered into this
• 13th Day of October 2009 by and between the City of Newport Beach, a California
municipal corporation and Charter City ("City") and David Kiff, an individual
("Employee") and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the City's Charter.
B. On September 12, 2009, Employee entered into an Employment
Agreement with City to serve as City's City Manager.
C. Section 12 and Exhibit "A" of the Employment Agreement provide
incentives to the Employee in the form of an equity contribution of up to Five Hundred
and Fifty Thousand Dollars ($550,000) to allow Employee to re -locate within the
incorporated boundaries of Newport Beach.
D. Employee now desires to re -locate his personal residence into the City
and exercise his rights to the equity contribution�rovided in the Employment Agreement
by purchasing real property located at 378 23 Street, Assessor Parcel Number 119-
333-12 ("Property").
• E. City desires to provide Employee with an equity contribution to purchase
the Property upon the terms and conditions contained in this Agreement.
Housing Assistance AgrOment •
Page 2 of 10
F. City and Employee acknowledge adequate consideration has been •
provided to induce both parties to enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
TERMS AND CONDITIONS
1. EQUITY CONTRIBUTION
Pursuant to the August 18, 2009 Employment Agreement between the City and
Employee, the City hereby agrees to provide Employee with four hundred seventy-one
thousand two hundred fifty dollars ($471,250.00) to purchase the Property ("Equity
Contribution"). The City and Employee will share in all appreciation/depreciation of the
Property's value on a cost basis in proportion to the Equity Contribution's overall
percentage of the total purchase price. The Property's total purchase price is nine
hundred thirty-five thousand dollars ($935,000.00); thus, the City is entitled to fifty point
four percent (50.4) of the Property's value (i.e., the Equity Contribution's percentage of
the total purchase price) at the time the Property is transferred or sold. Notwithstanding
the transfer or sale requirements provided in this section, the Equity Contribution (as
adjusted for appreciation/depreciation) shall be repaid by the Employee to City within
twelve (12) months of the Employee's termination of employment or retirement, unless
otherwise agreed to by the City in writing.
1.1 Employee's Financing of Property. Employee shall secure •
financing from (Enter Name of Bank) and enter into Escrow to purchase the Property.
Employee shall provide a deposit of five percent (5%) of the Property's total purchase
price. In addition, Employee shall obtain a conventional loan from (Enter Name of
Bank) (the "Loan").
1.2. Delivery of Equity Contribution. City shall deposit the Equity
Contribution in "good funds" according to the terms of Escrow between the Employee
and (Enter Name of Bank) to purchase the Property. "Good funds" shall mean a wire
transfer of funds, check drawn on or issued by the offices of a financial institution
located in the State of California, or cash.
2. EMPLOYEE'S IMPROVEMENTS TO THE PROPERTY
With City's prior written consent, Employee may remodel or construct
improvements on the Property. The City's written consent shall contain a dollar amount
agreeable to both parties for the cost of the remodel or improvement(s).
Notwithstanding any provision in this Agreement to the contrary, Employee shall be
entitled to recover the cost of the remodel or improvement(s) from the sale or transfer of
the Property before repayment of the City s Equity Contribution.
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• 3. TAXES, MAINTENANCE AND ASSOCIATED EXPENSES
Employee shall be one hundred percent (100%) responsible for all debt service
on the loan, maintenance, taxes, liability insurance and any liabilities occurring on or
arising from the Property, and any and all expenses associated with the Property. The
City has no obligation and assumes no liabilities with respect to the Property other than
providing the Equity Contribution in Section 1 of this Agreement. Employee expressly
assumes any and all liabilities arising from the Property as between he and the City.
4. ADDITIONAL DOCUMENTS REQUIRED FROM CITY AND EMPLOYEE
4.1 City. City agrees that on or before 1:00 p.m. on the business day
preceding the Property's Escrow closing date, City will deposit with the escrow holder all
additional documents (executed and acknowledged, if appropriate) which are necessary
to comply with the terms of this Agreement, including, without limitation, items and
instruments as may be necessary for escrow holder to effectuate the terms of this
Agreement.
4.2 Employee. Employee agrees that on or before 1:00 p.m. on the
business day preceding the Property's Escrow closing date, Employee will deposit with
escrow holder such items and instruments (executed and acknowledged, if appropriate)
IS as may be necessary for the escrow holder to comply with this Agreement.
5. RECORDATION OF AGREEMENT AND DEED OF TRUST
Employee shall execute in a form substantially similar to Exhibit A attached
hereto and incorporated by this reference, a Deed of Trust in favor of City for the
amount of City's Equity Contribution (Second Deed of Trust). Within ten (10) business
days of the Property's close of Escrow and satisfaction or waiver of all conditions
precedent, City shall cause this Agreement and Second Deed of Trust to be recorded
with the Orange County Recorder's Office with a copy to the City Clerk for the City of
Newport Beach. This Agreement and Second Deed of Trust shall act as a "second
mortgage" on the property and secure the City s interest in the property pursuant to this
Agreement. The Agreement and Second Deed of Trust shall be second to the
mortgage secured by (Enter Name of Bank) but superior to all other liens and
encumbrances that may attach to the Property in the future.
6. CONDITIONS PRECEDENT TO CLOSE OF ESCROW
6.1 Conditions to City's Obligations. The obligations of City under
this Agreement shall be subject to the satisfaction or written waiver, in whole or in part,
by City of each of the following conditions precedent:
(a) City has approved in writing the condition(s) of title.
• (b) Escrow holder holds and will deliver to City the instruments,
if any, accruing to City pursuant to this Agreement.
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(c) The due performance by Employee of each and every •
undertaking and agreement to be performed by Employee hereunder, and
representation by Employee of the truth of each representation and warranty made in
this Agreement. For purposes of this subsection (c) only, a representation that is limited
to Employee's knowledge or notice shall be false if the factual matter that is subject to
the representation is false, notwithstanding any lack of knowledge or notice to
Employee.
(d) City's approval of any other conditions specified in this
Agreement.
In the event each of the conditions set forth above is not fulfilled or waived
in writing by City prior to the Property's Escrow closing date, City may, at its option,
terminate this Agreement, thereby releasing both parties from further obligations
hereunder (except for those that by their terms survive the termination of this
Agreement), and all funds shall be immediately returned by the Employee/escrow
holder to City without notice or further action by either party. Nothing in this section
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.
6.2 Conditions to Employee's Obligations. The obligations of •
Employee under this Agreement shall be subject to the satisfaction or written waiver, in
whole or in part, by Employee of each of the following conditions precedent: The due
performance by City of each and every undertaking and agreement to be performed by
City hereunder.
6.3 Satisfaction of Conditions. Where satisfaction of any of the
foregoing conditions requires action by City or Employee, each party shall use its
diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where
satisfaction of any of the foregoing conditions requires the approval of a party, such
approval shall be in such parry's sole and absolute discretion.
7. ADDITIONAL COVENANTS OF EMPLOYEE
7.1 Environmental Claims. Employee shall retain all liability under all
Environmental Laws asserted at any time in connection with any set of facts or
conditions existing in, on or about or arising from the Employee's ownership/occupancy
of the Property ("Retained Environmental Liabilities"). For purposes of this Agreement,
"Environmental Laws" shall mean all federal, state or local statutes, regulations,
ordinances, codes or rules as such have been or may hereafter be enacted, adopted,
amended or supplemented and all common law causes of action relating to the
protection of human health or the environmental, including without limitations the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as •
amended (42 U.S.C. Sections 9601 at seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
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• Act, as amended (33 U.S.C. Sections 7401, et seq.), the Toxic Substance Control Act,
as amended (15 U.S.C. 2601, et seq.), the Safe Drinking Water Act, as amended (42
U.S.C. Sections 300f, et seq.), the Federal Insecticide, Fungicide and Rodenticide Act,
as amended (7 U.S.C. Sections 136, et seq.) and the Clean Air Act, as amended (42
U.S.C. 7401, et seq.), and private rights of action for nuisance or damages to property
or persons. Notwithstanding any other provision of this Agreement, the provisions of
this section shall survive the termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties. Employee hereby makes the
following representations and warranties to City, each of which (i) is material and relied
upon by City in making its determination to enter into this Agreement; and (ii) to
Employee's actual knowledge, is true in all respects as of the date hereof:
(a) There are no pending or threatened litigation, allegations,
lawsuits or claims, whether for personal injury, property damage, property taxes,
contractual disputes or otherwise, which do or may affect the Property or the operation
or value thereof, and there are no actions or proceedings pending or, to the best of
Employee's knowledge, threatened against Employee before any court or administrative
agency in any way connected with the Property and neither the entering into of this
Agreement nor the consummation of the transactions contemplated hereby will
•
constitute or result in a violation or breach by Employee of any judgment, order, writ,
injunction or decree issued against or imposed upon him. There is no action, suit,
proceeding or investigation pending or threatened against Employee which would
become a cloud on City's interest in the Property or have a material adverse impact
upon the Property or any portion thereof or which questions the validity or enforceability
of the transaction contemplated by this Agreement or any action taken pursuant hereto
in any court or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality.
(b) There are no contracts or other agreements affecting the
Property that would adversely affect City's rights with respect to the Property.
(c) There are no contingent liabilities arising out of the
ownership or operation of, or affecting, the Property or any part thereof which would be
binding upon the City.
(d) As of the Property's close of Escrow, the Property will not be
subject to any leases, subleases, easements, or any other possessory interests.
All representations and warranties made hereunder are in addition to any
representations and warranties implied by law and in no event shall this section be
construed to limit, diminish or reduce any obligation of disclosure implied upon
•Employee by law. All of the representations and warranties of Employee set forth in this
Agreement shall survive the Property's close of Escrow and shall not be deemed to
have merged in any document delivered at the closing. Employee shall indemnify City
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against and hold City harmless from any and all loss, damage, liability or expense, •
including court costs and reasonable attorneys' fees, which City may reasonably incur
or sustain in connection with (i) any breach of Employee's representations and/or
warranties contained herein; (ii) the failure of Employee to fulfill any of its covenants or
agreements under this Agreement; (iii) any and all liabilities, claims, demands or
damages made or incurred by third -parties, whether direct, contingent or consequential,
in any way related to or arising from the Employee's ownership, use, operation or
occupancy of the Property; or (iv) in any way relating to the Retained Environmental
Liabilities set forth in this Agreement. City shall notify Employee of any prospective
claim for breach of representation or warranty promptly after City has actual notice of a
breach of the relevant representation or warranty.
8.2 Changed Circumstances. If Employee becomes aware of any
fact or circumstance which would change or render incorrect, in whole or in part, any
representation or warranty made by Employee under this Agreement, whether as of the
date given or any time thereafter and whether or not such representation or warranty
was based upon Employee's knowledge and/or belief as of a certain date, Employee
will give immediate written notice of such changed fact or circumstance to City, but such
notice shall not release Employee of his liabilities or obligations with respect thereto.
9. DEFAULTS; ENFORCEMENT
9.1 Defaults and Right to Cure. Failure or delay by either party to •
timely perform any covenant of this Agreement constitutes a default under this
Agreement, but only if the party who so fails or delays does not commence to cure,
correct or remedy such failure or delay within ten (10) calendar days after receipt of a
written notice specifying such failure or delay, and does not thereafter prosecute such
cure, correction or remedy with diligence to completion. The injured party shall give
written notice of default to the party in default, specifying the default complained of by
the injured party. Except as required to protect against further damages, the injured
party may not institute proceedings against the party in default until ten (10) calendar
days after giving such notice. Failure or delay in giving such notice shall not constitute
a waiver of any default, nor shall it change the time of default.
10. MISCELLANEOUS
10.1 Successors and Assigns. Employee shall not transfer, sell,
hypothecate, or assign the Property without the prior written authorization of City. Any
attempt to transfer, sell, hypothecate, or assign the Property without the City's express
written authorization shall be null and void. This Agreement shall be binding upon the
parties hereto and their respective heirs, representatives, transferees, successors and
assigns. The transfer of all or any part of the interest of any party hereunder in the
Property shall not release Employee of his obligations under this Agreement.
10.2 Indemnity. To the fullest extent permitted by law, Employee shall •
indemnify, defend and hold harmless City, its City Council, boards and commissions,
officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from
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• and against any 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, attorney'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 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
Employee's presence or activities conducted on the Property (including the negligent
and/or willful acts, errors and/or omissions of Employee).
Notwithstanding the foregoing, nothing herein shall be construed to require
Employee 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 attorney'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 Employee.
10.3 Time of Essence. Time is of the essence in this Agreement and
with respect to each covenant and condition hereof. City and Employee each
• specifically agrees to strictly comply and perform its obligations herein in the time and
manner specified and waives any and all rights to claim such compliance by mere
substantial compliance with the terms of this Agreement.
10.4 Time Period Computations. All periods of time referred to in this
Agreement shall include all Saturdays, Sundays and California state or national holidays
unless the reference is to business days, in which event such weekends and holidays
shall be excluded in the computation of time and provide that if the last date to perform
any act or give any notice with respect to this Agreement shall fall on a Saturday,
Sunday or California state or national holiday, such act or notice shall be deemed to
have been timely performed or given on the next succeeding day which is not a
Saturday, Sunday or California state or national holiday.
10.5 Authority. Each individual executing this Agreement on behalf of
Employee and City represents that he or she is duly authorized to execute and deliver
this Agreement on behalf of each respective party. Upon request of either party City
and Employee agree to deliver such documents reasonably necessary to evidence the
foregoing.
10.6 Interpretation; Venue; Governing Law. This Agreement shall be
construed according to its fair meaning and as if prepared by both parties hereto. This
Agreement shall be construed in accordance with the laws of the State of California in
• effect at the time of the execution of this Agreement and any litigation shall be venued in
the court of applicable jurisdiction in the County of Orange, California. Titles and
captions are for convenience only and shall not constitute a portion of this Agreement.
As used in this Agreement, masculine, feminine or neuter gender and the singular or
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plural number shall each be deemed to include the others wherever and whenever the •
context so dictates.
10.7 No Waiver. No delay or omission by any party hereto in exercising
any right or power accruing upon the compliance or failure of performance by the other
party hereto under the provisions of this Agreement shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either party hereto of a breach of
any of the covenants, conditions or agreements hereof to be performed by the other
party shall not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof.
10.8 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made by written instrument or
endorsement thereon and in each such instance executed on behalf of each party
hereto.
10.9 Severability. If any term, provision, condition or covenant of this
Agreement or the application thereof to any party or circumstances shall, to any extent,
be held invalid or unenforceable, the remainder of this instrument, or the application of
such 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
thereby, and each term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. •
10.10 Merger of Prior Agreements and Understandings. This
Agreement and other documents incorporated herein by reference contain the entire
understanding between the parties relating to the transaction contemplated hereby and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein and shall be of no further force or effect.
10.11 Execution in Counterpart. This Agreement may be executed in
duplicate counterparts, each of which shall be deemed an original and all of which shall
constitute an agreement to be effective as of the date of signing. Further, signatures
transmitted and memorialized by facsimile shall be deemed to have the same weight
and effect as an original signature. The parties may agree that an original signature will
be substituted at some later time for any facsimile signature.
10.12 Notices. Any notice which either party is required to provide under
this Agreement or may desire to give to the other party must be in writing and shall be
effective (i) when personally delivered by the other party or messenger or courier
thereof; (ii) three (3) business days after deposit in the United States mail, registered or
certified; (iii) twenty-four (24) hours after deposit before the daily deadline time with a
reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax
transmission, provided a hard copy of such transmission shall be thereafter delivered in
one of the methods described in the foregoing (i) through (iii); in each case postage fully •
prepaid and addressed to the respective parties as set forth below or to such other
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• address and to such other persons as the parties may hereafter designate by written
notice to the other parties hereto:
To Employee:
David Kiff
At the home address then shown in Employer's files
To City:
City Clerk
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
(949) 644-3020
and
City Attorney
• City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
(949) 644-3139
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of •
the date set forth above.
EMPLOYEE
By: David Kiff
APPROVED AS TO FORM:
By: Attorney for David Kiff
THE CITY OF NEWPORT BEACH,
a Charter City and Municipal Corporation
By: Ed Selich, Mayor
CITY OF NEWPORT BEACH
ATTEST:
0
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By
David R. Hunt, City Attorney
CITY OF NEWPORT BEACH
Leilani I. Brown, City Clerk
CITY OF NEWPORT BEACH
[END SIGNATURES]
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