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
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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
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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
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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
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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
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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