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HomeMy WebLinkAboutFCTC Family, LP - Agreement - 12-16-2022Recorded at Request of Old Republic Title Company I L4JO 0 ,,2 3 ("01 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 Recording requested by and when recorded return to: CALIFORNIA HOUSING FINANCE AGENCY Office of General Counsel 500 Capitol Mall, Suite 1400, MS 1440 Sacramento, CA 95814_ Fresno County Recorder Paul Dictos, CPA 2022-0149138 Recorded at the request of: ERECORDING PARTNERS NETWORK 12/16/2022 10:26 35 Titles:1 Pages:15 Fees: $61.00 CA SB2 Fees:$0.00 Taxes: $0.00 Total: $61.00 Exempt fro, n fee per GC 27388.1(a)(1); (space above this line for Recorder's use) fee cap of $225.0o reached PRIORITY AND SUBORDINATION AGREEMENT NOTICE: THIS PRIORITY AND SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN(S) OF SOME OTHER OR LATER INSTRUMENT. THIS PRIORITY AND SUBORDINATION AGREEMENT (this "Agreement") dated (solely for reference purposes) as of December 1, 2022, is entered into by and among the City of Fresno, a municipal corporation (the "City"), FCTC Family, LP, a California limited partnership (the "Borrower"), and the California Housing Finance Agency, a public instrumentality and a political subdivision of the State of California ("Ca1HFA") (each of the City, the Borrower and Ca1HFA are referred to herein as a "Party" and collectively as the "Parties") in connection with the issuance by CalHFA of those certain California Housing Finance Agency Limited Obligation Multifamily Housing Revenue Bonds (Sarah's Court Apartments) 2022 Issue W and California Housing Finance Agency Limited Obligation Multifamily Housing Revenue Bonds (Sarah's Court Apartments) 2022 Issue W-T (Taxable) (collectively, the "Bonds") for the purpose of funding a loan to the Borrower (the "Bond Loan") to finance the acquisition, construction and development of a 120-unit (including one manager's unit) multifamily residential rental housing project located in the City, within the County of Fresno, California (the "County"), on the real property site described in Exhibit A attached hereto and incorporated herein by this reference (the "Project"). Unless otherwise noted, references to instruments recorded in "Official Records" refer to instruments recorded in the official records of the County Recorder. RECITALS A. WHEREAS, Borrower and the City have or will encumber the Project with the following documents related to the financing and/or development of the Project: Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents 4157-9139-2323.3 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 Recording requested by and when recorded return to: CALIFORNIA HOUSING FINANCE AGENCY Office of General Counsel 500 Capitol Mall, Suite 1400, MS 1440 Sacramento, CA 95814 (space above this line for Recorder's use) PRIORITY AND SUBORDINATION AGREEMENT NOTICE: THIS PRIORITY AND SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN(S) OF SOME OTHER OR LATER INSTRUMENT. THIS PRIORITY AND SUBORDINATION AGREEMENT (this "Agreement") dated (solely for reference purposes) as of December 1, 2022, is entered into by and among the City of Fresno, a municipal corporation (the "Cit)"), FCTC Family, LP, a California limited partnership (the "Borrower"), and the California Housing Finance Agency, a public instrumentality and a political subdivision of the State of California ("CaIHFA") (each of the City, the Borrower and CaIHFA are referred to herein as a "Party" and collectively as the "Parties") in connection with the issuance by CaIHFA of those certain California Housing Finance Agency Limited Obligation Multifamily Housing Revenue Bonds (Sarah's Court Apartments) 2022 Issue W and California Housing Finance Agency Limited Obligation Multifamily Housing Revenue Bonds (Sarah's Court Apartments) 2022 Issue W-T (Taxable) (collectively, the "Bonds") for the purpose of funding a loan to the Borrower (the "Bond Loan") to finance the acquisition, construction and development of a 120-unit (including one manager's unit) multifamily residential rental housing project located in the City, within the County of Fresno, California (the "Coun)"), on the real property site described in Exhibit A attached hereto and incorporated herein by this reference (the "Project"). Unless otherwise noted, references to instruments recorded in "Official Records" refer to instruments recorded in the official records of the County Recorder. RECITALS A. WHEREAS, Borrower and the City have or will encumber the Project with the following documents related to the financing and/or development of the Project: Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -1- 4157-9139-2323.3 1. City of Fresno Permanent Local Housing Allocation Program Agreement, dated as of November 23, 2022 (the "PLHA Program Agreement") by and between the City and the Borrower and recorded on November 23, 2022, in the Official Records as Instrument No.2022-0142275; 2. Declaration of Restrictions, dated as of November 21, 2022 (the "PLHA Declaration") by and between the City and the Borrower, recorded on November 23, 2022, in the Official Records as Instrument No. 2022-0142276; 3. Deed of Trust Assignment of Rents, dated as of November 21, 2022, among the Borrower, Old Republic Title Company, as trustee, and the City, as beneficiary (the "PLHA Deed of Trust"), recorded on December 2022 in the Official Records as Instrument No. 2022- , 4. City of Fresno HOME Investment Partnerships Program Agreement, dated as of July 28, 2022, recorded on August 5, 2022, 2022 in the Official Records as Instrument No. 2022- 0099558 (the "HOME Program Agreement"); 5. Deed of Trust Assignment of Rents, dated as of July 28, 2022, recorded on August 5, 2022, in the Official Records as Instrument No. 2022-0099559 (the "HOME Deed of Trust"); 6. Declaration of Restrictions, dated as of July 28, 2022, recorded on August 5, 2022, in the Official Records as Instrument No. 2022-0099560 (the "HOME Declaration"); 7. City of Fresno Community Development Block Grant Program Agreement, dated as of July 28, 2022, recorded on August 5, 2022, in the Official Records as Instrument No. 2022- 0099561 (the "CDBG Program Agreement"); 8. Deed of Trust, dated as of July 28, 2022, recorded on August 5, 2022, in the Official Records as Instrument No. 2022-0099562 (the "CDBG Deed of Trust"); and 9. Declaration of Restrictions, dated as of July 28, 2022, recorded on August 5, 2022, in the Official Records as Instrument No. 2022-0099563 (the "CDBG Declaration"). The PLHA Program Agreement, the PLHA Declaration and the PLHA Deed of Trust are collectively referred to herein as the "PLHA Documents." The HOME Program Agreement, the HOME Declaration and the HOME Deed of Trust are collectively referred to herein as the "HOME Documents." The CDBG Program Agreement, the CDBG Declaration and the CDBG Deed of Trust are collectively referred to herein as the "CDBG Documents." The PLHA Documents, the HOME Documents and the CDBG Documents are collectively referred to herein as the "City Documents." RECITALS: A. As a condition to the issuance of the Bonds and the making of the Bond Loan, the Borrower has agreed to execute and deliver that certain Regulatory Agreement and Declaration of Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -2- 4157-9139-2323.3 Restrictive Covenants, dated as of December 1, 2022, between the Borrower and Ca1HFA, for the purpose of imposing certain restrictions on the Project (the "Bond Regulatory Agreement"), recorded in the Official Records as Instrument No. 2022-. substantially contemporaneously with this Agreement. B. It is a condition precedent to (i) CaIHFA issuing the Bonds and (ii) the making of the Bond Loan that the Bond Regulatory Agreement shall have priority over the City Documents. C. It is beneficial to all parties that CaIHFA issues the Bonds for the purpose of funding the Bond Loan, and in such connection the parties are willing to subordinate the City Documents. D. The Parties are entering into this Agreement in order to establish and confirm their relative rights and priorities regarding the Project under the City Documents and the Bond Regulatory Agreement. NOW THEREFORE, in consideration of the foregoing and other consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce CalHFA to issue the Bonds, the Parties agree that, regardless of the time or order in which the City Documents and the Bond Regulatory Agreement were executed, delivered, and recorded, such interests have and shall have the priorities described below. 1. PTiorily and Subordination. As between the Bond Regulatory Agreement and the City Documents, the Bond Regulatory Agreement shall have first priority. The City and Borrower hereby unconditionally subordinate the City Documents to the Bond Regulatory Agreement, including all extensions, modifications or additional advances made thereunder. Hereafter, the Bond Regulatory Agreement shall be, unconditionally, and shall remain at all times, an encumbrance on the Project prior and superior to the encumbrances of the City Documents and to all rights and privileges of the parties thereunder, and the encumbrances of the City Documents together with all rights and privileges of the parties thereunder shall hereby be subject to and made subordinate to the encumbrance of the Bond Regulatory Agreement. 2. Completion of Recording Information. If this Agreement is signed without completion of recording information as provided for above, the Parties hereto hereby authorize, request, and direct any title insurance company acting on the instructions of any of the Parties to insert such information prior to recording this Agreement. 3. Anome 's Fees & Costs. If any of the Parties shall take any action to enforce or otherwise relating to this Agreement, the prevailing Party or parties shall be entitled to recover reasonable attomey's fees and costs from the other party or Parties. 4. Amendments. Amendments to this Agreement shall be in writing and signed by all Parties. 5. Governing. This Agreement shall be construed in accordance with and be governed by the laws of California. Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -3- 4157-9139-2323.3 6. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. 7. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, it shall not invalidate or render unenforceable any other part of this Agreement. [SIGNATURE PAGE TO FOLLOW] Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents in 4157-9139-2323.3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY: CITY OF FRESNO, a California municipal corporation By: Name: G geanne A. White Title: Cit anager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Gl VCW Name: Tracy N. P ian Title: Supervising eputy City Attorney APPROVED AS TO FORM: TODD STERMER, CMC City Clerk By: I .i� Name: /T; na-. r ".1 a V Title: Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -5- 4157-9139-2323.3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. J STATE OF CALIFORNIA } COUNTY OF%O 0 } ss. On �L�++��` 2022, before me, Z01 afUAq_r a notary public, personally appeared h� ) ti , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) SARAHBOREN Notary Public - California z Y Fresno County i Commission aY 22B7920 My Comm. Expires May 9, 2023 BORROWER: FCTC FAMILY, LP, a California limited partnership By: Community Revitalization and Project Corporation, a California non-profit public benefit corporation Its: Managing General Partner By: David Rutledge Its: President By: Dominus Consortium Family, LLC, a California limited liability company Its: Administrative General Partner By: Negocios De Familia, LLC, a California limited liability company Its: Member By: Kashian Enterprises, a Limited Partnership Its: Managing Member By: Its: By: Lance-Kashian & Company, a California corporation Its: General Partner By: Salvador J. Gonzales Its: President Essayons, a Limited Partnership, a California limited partnership Member By: Pentori, a California corporation Its: General Partner By: Thomas G. Richards Its: President Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -6- 4157-9139-2323.3 CALHFA: CALIFORNIA HOUSING FINANCE AGENCY IIn Name: Title: Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -%- 4157-9139-2323.3 EXHIBIT A Legal Description The land referred to is situated in the County of Fresno, City of Fresno, State of Califomia, and is described as follows: Parcels A, B, C, D, E, F, and L of Parcel Map No. 2007-41 Phase II, according to the: map thereof filed for record August 5, 2022 in Book 77 of Parcel Maps, at Pages 22 through 25, Fresno County Records. APN: Being a portion of 313-101-24 Priority and Subordination Agreement - SaraKs Court Apartments Bond Regulatory Agreement and PLHA Documents -g- 4157-9139-2323.3 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) ss. County of ) On Public, personally appeared before me, a Notary , 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/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents (Seal) -9- 4157-9139-2323.3 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ss. County of On before me, a Notary Public, personally appeared , 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/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Priority and Subordination Agreement - Sarah's Court Apartments Bond Regulatory Agreement and PLHA Documents -10- 4157-9139-2323.3 CLERK'S CERTIFICATION A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California County of Fresno On December 8, 2022 before me, Tina M. Your, Records Supervisor, personally appeared, Georgeanne A. White, City Manager, City of Fresno, 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/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. S - L^ 4.7rN•. o w WITNESS my hand and official seal is f,,• -_. Todd Stermer, CIVIC City Clerk, City of Fresno By J,10r� Tina M. Your, Records Supf rvisor