The URL can be used to link to this page

Home My WebLink AboutD-1793 Instrument No. 02-43599 - LOVR Recorded 09/18/2008RECORI)V G REQUESTED BY: FIRST AAMERIC_A-N TITLE CO'_%iP.kNY R—ECOR DIN Y AND WHEN RECORDED MAIL TO: City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 111412 JULIE RODEWA San Luis Obispo County - Clerk/Recorder Recorded at the request of First American Title Company Doc #: 2008046974 MODIFICATION TO AGREEMENT TO PROVIDE AFFORDABLE RENTAL HOUSING AB 9/18/2008 8:00 AM Titles: 1 Pages: Fees 0.00 Taxes 0.00 Others 0.00 PAID $0.00 This Modification To Agreement to Provide Affordable Rental Housing ( "Modification ") is made as of August 1, 2008) by and between THE CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ( "City "), DE WITTE SLO, LLC, a California limited liability company ( "Owner "), with respect to that existing "Agreement Between City of San Luis Obispo and LOVR -SLO, LLC, To Provide Affordable Rental Housing Located at Los Osos Valley Road," dated as of May 21, 2002 (the "Original Agreement "), between the City -and Owner's predecessor, LOVR -SLO, LLC, a California limited liability company ( "LOVR "). All capitalized terms not. otherwise defined herein shall have the meaning given in the Original Agreement. RECITALS A. On May 21, 2002, City and LOVR entered into the Original Agreement in order to secure the obligation of LOVR and its successors.in interest to provide thirteen (1.3) affordable rental units on the Property (located at Lot 54, Tract 2401, recorded in the Official Records for the County of San Luis Obispo on May 28, 2002, in Book 20, Page 11 of .Maps, as Instrument No. 02- 43599) for a period,of thirty (30) years, as specified in the Original Agreement. B. Owner has entered into a contract for the sale of the Property to Rancho Obispo, LLC, a California limited liability company ( "Purchaser ") and has requested a modification of the Original Agreement, as set forth below, because the Original Agreement includes terms that would preclude any institutional lender from authorizing a loan necessary to close the purchase of the Property. As used herein, the term "institutional lender" shall mean any bank, thrift, savings association, state or federal chartered savings institution, savings and loan, or life insurance company having assets in excess of two billion. dollars. C. The modifications requested by Owner include a nonsubstantive clarification ensuring notice and the right of the institutional lender to cure any breach of the Original 01�b Modification to Affordable t ntal Housing Agreement • DeWitte, LLC Page 2 of 4 Agreement and a modification to the terms governing remedies for breach of the Original Agreement by Owner, which both City and Owner agree are obsolete. D. The modifications herein are required by the institutional lender on the Property to facilitate the close of escrow for the sale of the Property from Owner to Purchaser, and are desireable to the City in order to ensure the continued availability of the affordable rental units subject to the Original Agreement and certainty in the enforcement of the Original Agreement and this Modification. AGREEMENT NOW, THEREFORE, the City and Owner, in consideration of the mutual representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, subject to the terms and conditions hereinafter set forth, and intending to be legally bound, do hereby mutually agree as follows: 1. Section 7 (Compliance with Affordability Agreement) of the Original Agreement is hereby amended and shall be replaced in its entirety as follows: "Failure to comply with the terms of this Agreement shall constitute a breach of the conditions of the City Planned Development Permit approval, File No. 87 -00. In addition to any and all other remedies for breach of contract that that may be available to the City in law or equity, and those legal and administrative remedies available to the City for violations of the City of San Luis Obispo Municipal Code, pursuant to the terms of that Code, any rents, royalties, issues, profits, revenue, income and other benefits of the Property arising from the use and enjoyment of all or any portion thereof or from any lease or agreement pertaining thereto (the "Rents and Profits ") in violation of this Agreement, whether now due, past due, or to become due, and including all prepaid rents and security deposits, are hereby absolutely, presently and unconditionally assigned, transferred, conveyed and set over to the City to be applied by the City to the Affordable Housing Fund. .Further, City may bring an action at law or in equity to require Owner to terminate and/or rescind any rental contract that does not comply with the terms of this Agreement and%or to declare such contract void. It is understood and agreed that neither the foregoing assignment of Rents and Profits to City nor the exercise by City of any, of its rights or remedies shall be deemed to defeat the rental restriction set forth in the Agreement or to make City responsible or liable in any manner with respect to the Property or the use, occupancy, enjoyment or operation of all or any portion thereof. Further, the appointment of a receiver for the Property by any court at the request of City or by agreement. with Owner, or the entering into possession of the Property or any part thereof by such receiver, shall not be deemed to make City a mortgagee in possession or otherwise responsible or liable in any manner with respect to the Property or the use, occupancy, enjoyment or operation of all or any portion thereof. Modification to AffordablRental Housing Agreement • DeWitte, LLC Page 3 of 4 Notwithstanding anything to the contrary herein, the exercise by City of any of its rights or remedies in accordance with the terms of this Agreement shall not operate to render unenforceable, divest, invalidate, extinguish or impair the lien of any mortgage in favor of an institutional lender to secure repayment of a loan made to Owner, Purchaser or any successor or assign." 2. Section 9 (Inspections) of the Original Agreement hereby amended as follows: Page 4, last line to read: "Failure to correct such conditions within the cure period specified herein may result in the City exercising its legal rights to enforce this agreement as set forth in Section 7 of this Agreement." Add the following_paragranh: "As of the date of this Modification, Purchaser has applied for a purchase money loan and Washington Mutual Bank, a federal association ( "Lender" and an institutional lender as defined in this Agreement) has or is about to make a loan to Purchaser. In connection with such loan, City agrees that prior to City initiating any legal action to enforce this Agreement as set forth herein, City shall provide Lender with written notice of any non - compliance with this Agreement and will afford Lender the same opportunity to correct any such condition as is provided to Owner pursuant to this Agreement. From and after the date hereof, the foregoing notice and cure period shall be afforded any institutional lender that has made a loan to Owner, Purchaser or any party that owns and finances the Property from and after the date hereof, provided such party has notified the City in writing of its interest in the Property and the address to which any notices from the City should be sent. 3. Section 17 (Notices) of the Original Agreement is hereby amended to read as follows: , Notices required to be given to Lender shall be addressed as follows: Washington Mutual Bank P.O. Box 9178 Coppell, Texas 75019 -9178 Attn: Portfolio Administration 4. Except for the modifications set forth above, the Original Agreement shall remain in full force and effect. 5. With respect to this Modification and the rights afforded Lender and, any institutional lender, such parties are deemed to be third party benficiaries. r� u Modification to Affordable Rental Housing Agreement DeWitte, LLC Page 4 of 4 • 6. This Modification may be executed in one or more counterparts, each of which shall for all purposes .be deemed to be an original and all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. CITY OF SAN LUIS OBISPO a municipal corporation and Charter City By: Ken Hampian, City Administrative Officer ALL SIGNATURES MUST BE NOTARIZED Approved as to Form: CITY OF SAN LUIS OBISPO By: Jonathan P. Lowell, City Attorney OWNER ICE WITTE SLO, LLC, a California limited liability company By: Fr a Witte,, Mariager OWNER 4 J Manag Modification to Affordable Rental Housing Agreement DeWittei, LLC Page 4 of 4 b, This Modification may be executed .in one or more counterparts, each of which sliall.for all purposes be deemed to be an original and all of which shall constitute one and the Same agreement. IN WITNESS WHRREOF, the parties hereto have executed this Agreement as of the date first written above. CITY OF SAN LMS OBISPO OWNER a municipal corporation and Charter Ciry DE WITTE SLO, LLC, a California limited liability company By: 1 cn atnp�an, City. Administrative Officer ALL SIGNATURES MUST BE NOTARIZED Approved as to Fortin: CITY OF SAN LUIS OBISPO Y By: Jo P. Lowell, City Attorney OWNER By. - Acknowledgment State of California ) County of On /°�Cl/IS e. /� / before me. Q� D!?'I . /UO er ovally (here insert name and title of the officer) appeared 1- 2eki1/' who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he/she /they executed the same in his /her /their authorized capacity(ies), and that by his /Ker /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct- WITNESS RANSOM WITNESS my hand and official seal_ Commission # 1676235 -�; Notary Publio - California Santa Barbara County Signature_ My Comm. Expires Jul 15, 2010 (This area for notary stamp) STATE OF CALIFORNIA ) )SS COUNTY OF SAN LUIS OBISPO ) On August 20, 2008, before me Audrey Hooper, City Clerk, personally appeared Ken Hampian, City Administrative Officer, CITY OF SAN LUIS OBISPO, who proved to me on the basis of satisfactory evidence to be the personwhose name is/are-subscribed to the within instrument and acknowledged to me that heAkeAhey executed the same in hiso4wrMieir authorized capacity(ijK, and that by his/herAheir signature04-on the instrument the person, or the entity upon behalf of which the persono� acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature. CIA END OF DOCUMENT