HomeMy WebLinkAbout1992-484
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RESOLUTION NO. 92-484
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND PACIFIC STAR DEVELOPMENT,
INC., A CALIFORNIA CORPORATION PERTAINING TO THE
DEVELOPMENT OF A LOW AND MODERATE INCOME HOUSING
PROJECT
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"City"),
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WHEREAS, the City of San Bernardino, California (the
is a municipal corporation and a charter city duly
created and existing pursuant to the Constitution and the laws of
the State of California; and
WHEREAS, the Community Development Commission of the
city of San Bernardino (the "Commission") on behalf of the
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Redevelopment Agency of the City of San Bernardino (the
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"Agency"), is a redevelopment agency, a public body, corporate
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and politic of the State of California, organized and existing
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pursuant
to
the
community
Redevelopment
Law
(Part
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of
Division 24) commencing with section 33000 of the Health and
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Safety Code of the State of California (the "Act)"; and
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WHEREAS, the Redevelopment Plan for the uptown
Redevelopment Project (the "Redevelopment Plan") was previously
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approved and adopted by the Mayor and Common Council of the City
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of San Bernardino
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the Council; and
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(the "Council") by duly authorized Ordinance of
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WHEREAS, the Redevelopment Plan provides for the
redevelopment of real property pursuant to the Redevelopment Plan
both within and outside of the redevelopment project area which
is subject to the Redevelopment Plan (the "Project Area") by
owners thereof or by parties seeking to acquire real property
from the Agency; and
WHEREAS, section 33391 of the Act provides that a
redevelopment agency may acquire any real or personal property
within a redevelopment project area or for the purposes of
redevelopment and section 33430 of the Act provides that a
redevelopment agency may dispose of any real or personal property
within a redevelopment project area or for the purposes of
redevelopment; and
WHEREAS, the Agency and Pacific Star Development, Inc.,
a California corporation (the "Developer") desire to enter into
a certain Disposition and Development Agreement (the
"Agreement"), a copy of which is attached hereto as Exhibit "A"
and incorporated herein by reference, pursuant to which, among
other matters, the Developer would acquire from the Agency
certain real property (the "Property") which is described in
Attachment "1" to the Agreement. The Property is located
adjacent to the Project Area. The acquisition of the Property
would be for purposes of the redevelopment thereof, as described
in the Agreement, including construction by the Developer of
approximately ten (10) detached single family dwelling units to
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be occupied by low and moderate income households (the
"Project"); and
WHEREAS, the Agency Staff has prepared and made
available for public inspection a certain Summary Report (the
"Summary") concerning the proposed Agreement, as required by
Health and Safety Code section 33433, a copy of which is on file
with the Agency and is incorporated herein by reference; and
WHEREAS, the City has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33433 concerning the proposed sale of the
Property by the Agency to the Developer pursuant to the proposed
Agreement; and
WHEREAS, the City has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33431 concerning the proposed sale of the
Property by the Agency to the Developer pursuant to the proposed
Agreement; and
WHEREAS, based upon evidence and testimony submitted to
the Council, it is reasonable and appropriate for the Council to
approve the proposed Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
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SECTION 1. The Council finds and determines that
2 the development of the Property as described in the proposed
3 Agreement is within the scope, terms and provisions of the
4 Redevelopment Plan.
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6 SECTION 2. The City has held a public hearing on
7 the disposition of the Property in accordance with Health and
8 Safety Code sections 33431 and 33433 and hereby accepts and
9 approves the Summary as prepared by Agency Staff.
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11 SECTION 3. The Council hereby finds and determines
12 that the conveyance of the Property to the Developer pursuant to
13 the terms of the Agreement for less than fair market value and
14 the provision of redevelopment assistance as more fully described
15 in the Agreement is reasonable and necessary to effectuate the
16 purposes of the Redevelopment Plan in that it will permit the
17 Developer to develop the Property in order to eliminate blight,
18 to create employment opportunities, to increase the value of real
19 property in the Project Area and to provide much needed low and
20 moderate income housing within the City.
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22 SECTION 4. The Council hereby approves the proposed
23 Agreement and the conveyance of the Agency I s interest in the
24 Property to the Developer.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT
2 AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND PACIFIC STAR DEVELOPMENT, INC., A CALIFORNIA
3 CORPORATION PERTAINING TO THE DEVELOPMENT OF A LOW AND MODERATE
INCOME HOUSING PROJECT
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SECTION 5.
The findings and determinations herein
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shall be final and conclusive. This Resolution shall take effect
upon the date of its adoption.
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adopted
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I HEREBY CERTIFY that the foregoing Resolution was duly
Council
the
City
and
of
by
the
Common
Mayor
regular
meeting
San Bernardino at a
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thereof, held on the 21st
day of
Op-cember
1992, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
15 REILLY
HERNANDEZ
16 MAUDSLEY
MINOR
17 POPE-LUDLAM
MILLER
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'-City Clerk
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The foregoing resolution is hereby
day ot~ e-~\?_'\~".:>"JL, 1992.
24 Approved as to form and legal content:
JAMES F. PENMAN
25 City Attorney
26 By: ~~)
../
27 SBEO\OOOI\DOC\629
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of
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EXHIBIT "A"
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DISPOSITION AND DEVELOPMENT AGREEMENT
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1 STATE OF CALIFORNIA )
2 OUNTY OF SAN BERNARDINO )
CITY OF SAN BERNARDINO )
3 I, ci ty Clerk of the City of
San Bernardino, DO HEREBY CERTIFY that the foregoing and attached
4 copy of Mayor and Common Council of the city of San Bernardino
Resolution No. is a full, true and correct copy of that
5 now on file in this office.
ss
6 IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Mayor and Common Council of the
7 city of San Bernardino this day of
1992.
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city Clerk
City of San Bernardino
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RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
WHEN RECORDED MAIL TO:,
ECOROKIC DEVELOPMENT AGElIICY - HOUSIRG DIVISION
CITY OF SAN BERNARDINO
201 North "E" Street, Third Floor,
San Bernardino, California 92401-1507
(Space above for Recorder's Use)
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
PACIFIC STAR DEVELOPMENT, INC.,
A California Corporation
TABLE OF CONTENTS
Bm
ARTICLE I
SUBJECT OF AGREEMENT
Section 1.01. Purposes of Agreement 1
Section 1.02. The Project Area. . . 1
section 1.03. Parties to the Agreement 1
section 1.04. Prohibition Against Change in Ownership,
Management and Control of Developer, for
Assignment of Agreement . . . . . . . . . . . 2
Section 2.0l.
Section 2.02.
Section 2.03.
section 2.04.
Section 2.05.
Section 2.06.
section 2.07.
section 2.08.
section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
ARTICLE II
DISPOSITION OF PROPERTY
Disposition and Purchase of Property
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Developer's Purchase Price. . . . .
3
Damages and Remedies for Agency's Failure
to Convey Property
Good Faith Deposit
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Escrow . .
. . . .
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Conveyance of Title and Delivery of Possession 6
Form of Deed
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Condition of Title 6
Conditions for Close of Escrow 6
Time and Place for Delivery of Documents
to Escrow ....... .... .. 7
Payment of the Consideration and Recordation
of the Grant Deed(s) and other Documents 7
Title Insurance
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Taxes and Assessments
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section 2.14. Zoning of the Property and Environmental
Approvals . . . . . . .
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section 2.15. Condition of the Property
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Section 2.16. Submission of Evidence of Financing
Commitments . . . . . . . . . . . . . . . . . 9
section 3.0l.
Section 3.02
Section 3.03.
Section 3.04.
Section 3.05.
Section 3.06.
Section 3.07.
Section 4.0l.
Section 4.02.
section 4.03.
Section 4.04.
Section 4.05.
ARTICLE III
DEVELOPMENT OF THE SITE
Development by Developer
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Responsibility of the Agency 17
Taxes, Assessments, Encumbrances and Liens 18
Prohibition Against Transfer 18
Security Financing; Right of Holders 19
Right of the Agency to Satisfy Other Liens on
the Property after Conveyance of Title 22
Certificate of Completion
. . . . . . .
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ARTICLE IV
USE OF THE SITE
Uses. .
. . .
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Maintenance of the Property 25
Obligation to Refrain from Discrimination 26
Form of Nondiscrimination and Nonsegregation
Clauses . . . . . . . . . . . 26
Effect and Duration of Covenants . . . . .. 27
ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
section 5.01. Defaults - General
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Section 5.02. Legal Actions
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Section 5.03. Rights and Remedies are Cumulative
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:am
section 5.04. Damages . . . . . .
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Section 5.05. Specific Performance 29
section 5.06. Rights and Remedies of Termination 29
Section 5.07. Right to Reenter, Repossess, Terminate and
Revest . . . . . . . . . . . . . . . 31
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices, Demands and Communications Between
the Parties . . . 34
Section 6.02. Conflict of Interest 34
Section 6.03. Warranty Against Payment of Consideration for
Agreement . . . .. .... .. . . . 35
Section 6.04. Nonliability of Agency Officials and Employees 35
Section 6.05. Enforced Delay:
Performance
Extension of Time of
. . . . . . . .
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Section 6.06. Inspection of Books and Records
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Section 6.07. Approvals
. . . . . . .
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Section 6.08. Real Estate Commissions
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section 6.09.
Indemnification
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Section 6.10. Release of Developer from Liability
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Section 6.11. Attorneys' Fees
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Section 6.12. Dispute Resolution
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Section 6.13. Effect......
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ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.01.
Entire Agreement . . . . . . . . . . .
. . . .
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ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01.
Execution and Recordation
. . . . . . . . . .
EXHIBIT "A" - LEGAL DESCRIPTION
EXHIBIT "B" - SCOPE OF DEVELOPMENT
EXHIBIT "B-1"-RENDERINGS
EXHIBIT "C" - GRANT DEED
EXHIBIT "0" - SCHEDULE OF PERFORMANCE
EXHIBIT "E" '- CERTIFICATE OF COMPLETION
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THIS AGREEMENT is entered into by and between the
Redevelopment Agency of the City of San Bernardino (the "Agency"),
and Pacific Star Development, Inc., a California corporation (the
"Developer"). The Agency and the Developer agree as follows:
ARTICLE I
SUBJECT OF AGREEMENT
Section 1. 01. Purposes of Aareement. The purpose of
this Disposition and Development Agreement (the "Agreement") is to
effectuate redevelopment within the boundaries of the City of San
Bernardino (the "City") by providing for the purchase and the
redevelopment by the Developer of certain real property generally
located on the west side of North E Street between 27th Street and
28th Street which real property is in proximity to the duly
established uptown Redevelopment Project Area of the City (the
"Project Area"), and which is more fully described in Exhibit "A"
attached hereto and incorporated herein by reference (the
"Property"). The purchase and the redevelopment of the Property by
the Developer pursuant to this Agreement, and the fulfillment
generally of the Agreement, are in the vital and best interests of
the city, the Agency, and the health, safety, morals, and welfare
of the City'S residents, and are in accord with the public purposes
and provisions of applicable federal, state and local laws and
requirements.
section 1.02. The Pro; ect Area. The Redevelopment Plan
for the Uptown Project Area was approved and adopted by the City
Council of the city of San Bernardino by Ordinance No. MC-527 in
accordance with the provisions of the Community Redevelopment Law
of the State of California (the "Community Redevelopment Law").
This Agreement shall be subject to the provisions of the Community
Redevelopment Law. The Agency represents and warrants that the
uses and improvements to be constructed on the Property in
accordance with the Scope of Development attached hereto as Exhibit
"B" and incorporated herein by reference, which essentially
consists of the development of ten (10) single family detached
residential units to be occupied by low and moderate income
households (the "Project"), comply with the provisions of the
Community Redevelopment Law.
section 1.03. Parties to the Aareement.
a. The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized
and existing under Chapter 2 of the Community Redevelopment
Law, Health and Safety Code Section 33000, et sea. The
principal office of the Housing Division of the Agency is
located at 201 North "E" Street, Third Floor, San Bernardino,
California, 92401-1507. As used in this Agreement, the term
"Agency" shall be deemed to include the Agency and any
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ll.ssignee and/or successor to the Agency or to its rights,
powers and responsibilities under this Agreement.
b. The Developer is Pacific star Development, Inc., a
California corporation. The principal office of the Developer
for purposes of this Agreement is located at 13310 Armagosa
Road, Victorville, California, 92392, Tel: (619) 245-1225 ,
and for purposes of section 6.01 hereof, any and all notices,
demands or communications shall be sent to the Developer
addressed to the attention of "Stan Mullins." Prior to the
Agency's consideration of this Agreement and, in addition, on
or before ten (10) calendar days prior to the close of escrow,
as set forth hereafter, the Developer shall provide to the
Agency satisfactory evidence of the legal formation and
existence of the Developer and the good standing of the
Developer with the State of California (the "State") to
transact business within the State, to hold title to the
Property and to develop the Project, as hereinafter defined.
section 1.04. Prohibition Aaainst Chanae in Ownership.
Manaaement and Control of Developer. for Assianment of Aareement.
a. The qualifications and identities of the persons and
entities comprising the Developer are of particular concern to
the Agency. It is because of these qualifications and
identities of the Developer that the Agency has entered into
this Agreement with the Developer. No voluntary or
involuntary successor in interest of the Developer shall
acquire any rights or powers under this Agreement, except as
expressly set forth herein.
b. Except as otherwise provided in this Agreement, the
De~eloper shall not assign all or any part of this Agreement
pr~or to the issuance of a Certificate of Completion
applicable to all portions of the Property without the prior
written approval of the Agency, which approval shall not be
unreasonably withheld.
c. The Developer shall promptly notify the Agency in
writing of any and all changes whatsoever in the identity of
the parties either comprising or in control of the Developer,
as well as any and all changes in the interest or the degree
of control of the Developer by any such party, of which
information the Developer or any of its members, officers or
shareholders has been notified or may otherwise have knowledge
or information. This Agreement may be terminated by the
Agency if there is any significant or material change, whether
voluntary or involuntary, in membership, ownership, management
or control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that
has not been approved by the Agency at the time of such
change, prior to issuance of a Certificate of Completion for
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the Property as hereinafter provided; provided, however, that:
(a) the Agency shall first notify the Developer in writing of
its intention to terminate this Agreement pursuant hereto, and
(b) the Developer shall have twenty (20) calendar days
following the date of receipt of such written notice to
commence and thereafter diligently and continuously proceed
with the cure of the default of the Developer hereunder, and
(c) the Developer shall submit evidence of the satisfactory
completion of such cure to the Agency within thirty (30)
calendar days following the receipt of such written notice in
a form and substance deemed satisfactory to the Agency, in its
reasonable discretion.
ARTICLE II
DISPOSITION OF PROPERTY
Section 2.01. Disoosition and Purchase of Prooertv. In
order to facilitate the development of the Project, the Developer
shall purchase, and the Agency shall sell, the Property under the
terms of this Agreement, and the attachments hereto.
Section 2.02. Develooer's Purchase Price. As the
purchase price for the Property, the Developer shall pay to the
Agency on or before the Close of Escrow, as hereinafter defined,
and by means of the escrow hereunder a sum equal to One Hundred
Forty TWo Thousand Dollars ($142,000) (the "Purchase Price"). The
Purchase Price may be reduced as hereinafter provided by an amount
equal to the costs of undertaking the undergrounding of certain
utilities presently located on three (3) telephone poles within the
right-of-way adjacent to the Property along "E" Street. It is
presently anticipated that in connection with the development of
the Project, the Developer's obligation to cause the undergrounding
of said utilities may be waived by the City. However, to the
extent such obligation is not waived, the Agency, in its sole
discretion, will reduce the Purchase Price by the amount it deems
reasonable to compensate for the Developer's costs of undertaking
the undergrounding of the utilities.
Section 2.03. Damaqes and Remedies for Aqencv's Failure
to Convev Prooertv. In the event that the Agency through its own
action or inaction solely within its control and discretion, and
not as a result of actions or demands of other persons or entities,
fails to convey the Property to the Developer pursuant to the terms
of this Agreement, then that certain Deposit set forth in
Section 2.04 hereof shall be returned in full to the Developer.
Section 2.04. Good Faith Deoosit.
a. As part of the Purchase Price and not in addition
thereto, the Developer shall provide to the escrow a good
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faith deposit (the "Deposit") in the form of cash or an
unconditional and irrevocable (standby or direct pay) letter
of credit in the principal amount of Ten Thousand Dollars
($10,000) (the "Letter of Credit"). The Deposit shall, at the
direction of the Developer, be applied to the Purchase Price
or be returned to the Developer upon payment otherwise by the
Developer of the Purchase Price. In the event that the escrow
for the sale of the Property is canceled or terminated by the
Agency in accordance with section 5.06(b) (1) to (b) (4) hereof,
or if the escrow is canceled because of a failure on the part
of the Developer to obtain adequate financing commitments for
the Project, then the Agency shall have the right to retain a
portion of the Deposit equal to the costs and expenses
incurred by the Agency in causing the establishment of the
escrow as contemplated herein, plus legal costs, which legal
costs shall not exceed the sum of Five Thousand Dollars
($5,000) as liquidated damages and/or compensation for its
expenses, time and effort in attempting to implement this
Agreement. If the Deposit is in the form of a letter of
credit, the Letter of Credit by the express terms thereof
shall provide that all or a portion, as applicable, of the
principal amount of the Letter of Credit in an amount equal to
the Agency's costs as hereinabove described shall be
immediately due and payable to the Agency upon demand by the
Agency, and the Agency shall be entitled to receive and retain
said sum.
The parties acknowledge agreement to the foregoing
provision and reasonableness thereof under the circumstances
by execution 0 his Agreement.
Developer
Agency
b. In the event that this Agreement is te inated by
the Developer pursuant to Section 5.06(a) of this Agreement,
the Deposit shall be returned in full to the Developer.
c. The Deposit shall be remitted by the Developer
concurrently with the opening of escrow and the Deposit shall
be either: (a) applied to the Purchase Price at the close of
escrow, solely upon the written notice and instruction of the
Developer to the Escrow Agent and to the Agency, or
(b) returned to the Developer through the escrow concurrently
with the close of escrow, if the Developer otherwise pays the
full Purchase Price through the escrow.
d. If the Deposit is in the form of a Letter of Credit,
the Letter of Credit shall remain in effect for a minimum
period of twelve (12) months from the date the Letter of
Credit is submitted by the Developer, and for any subsequent
extensions of time which are: (a) necessary and caused by
extensions of time for the close of escrow as authorized by
this Agreement, or (b) otherwise mutually agreed upon by the
Agency and the Developer.
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section 2.05. Escrow.
a. The Agency and the Developer agree to establish an
escrow for the sale of the Property at First American Title.
Company (the "Title Company"), 323 Court Street,
San Bernardino, California (Telephone No.: (909) 889-0311,
Attention: Mr. Mike Bradbury (the "Escrow Agent"). The escrow
shall be opened within five (5) days after the Agency has
provided written notice to the Developer that the Agency has
formally approved this Agreement.
b. The Agency and the. Developer shall provide and
execute such additional escrow instructions consistent with
this Agreement as shall be necessary. The Escrow Agent hereby
is empowered to act under this Agreement, and, upon indicating
its acceptance of this Section in writing, delivered to the
Agency and the Developer, within five (5) calendar days after
the establishment of the escrow, shall carry out its duties as
the Escrow Agent hereunder.
c. The Agency and the Developer shall deliver to the
Escrow Agent all documents necessary for the conveyance of
title to the Property, to the extent provided in this
Agreement, in conformity with, within the times, and in the
manner provided in this Agreement.
d. The Developer shall pay all fees related to the
transfer of the Property from the Agency to the Developer,
promptly after the Escrow Agent has notified the Developer of
the amount of such fees, charges and costs, but not earlier
than three (3) days before the date for the conveyance of the
Property.
e. The Agency shall timely and properly execute,
acknowledge and deliver to the Escrow Agent a grant deed
conveying to the Developer title to the Property in accordance
with the requirements of this Agreement.
f. The Escrow Agent shall cause a Preliminary Title
Report to be prepared and issued by the Title Company and
shall promptly provide the Agency and the Developer with
copies thereof. The Agency and the Developer must approve the
Preliminary Title Report in writing as a condition precedent
to close of escrow.
g. All funds received in escrow shall be deposited by
the Escrow Agent in an insured account with any state or
national bank doing business in the State of California, and
such funds may be combined with other escrow funds of the
Escrow Agent. Such funds shall draw the highest reasonable
rate of interest and such interest shall accrue to the party
to this Agreement who shall have made the deposit thereof with
the Escrow Agent.
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h. All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the respective
parties at the addresses set forth in Section L 04 of this
Agreement for notices, demands and communications between the
Agency and the Developer.
Section 2.06. Convevance of Title and Deliverv of
Possession.
a. Subject to the conditions set forth in Section 2.09
hereof and to any mutually agreed upon written extension of
time or extensions otherwise authorized by this Agreement,
conveyance to the Developer of title to the Property in
accordance with the provisions of this Section and
Section 2.08 of this Agreement shall be completed on or prior
to within one hundred twenty (120) days of the opening of
escrow ("Close of Escrow"). The Agency and the Developer
agree to perform all acts necessary for conveyance of title to
the Property, in the form and to the extent required herein,
in sufficient time for title to be conveyed in accordance with
this provision.
b. Possession of the Property shall be delivered to the
Developer concurrently with the conveyance of title, or as
otherwise provided in this Section. The Developer shall
accept title and possession to the Property on the date
established therefor in this Section.
Section 2.07. Form of Deed. The Agency shall convey to
the Developer title to the Property in the condition provided in
Section 2.08 of this Agreement by a grant deed substantially in the
form attached hereto as Exhibit "C".
Section 2.08. Condition of Title. The Title to the
Property conveyed by the Agency to the Developer shall be a
marketable title free and clear of encumbrances and exceptions,
except for: (a) the agreements, covenants and conditions of this
Agreement and the Grant Deed, (b) such pre-existing easements or
rights-of-way as may be disclosed by the Preliminary Title Report
and approved by the Agency and the Developer and (c) real property
taxes for the fiscal year in which escrow closes which constitute
a lien not yet payable.
Section 2.09. Condi tions for Close of Escrow. The
Agency's obligation to convey the Property to the Developer and the
Close of Escrow shall be expressly conditioned upon satisfaction or
waiver by the Agency of each of the following:
a. The Developer shall have deposited into the escrow
the Purchase Price and all other sums required to be deposited
by it into the escrow pursuant to this Agreement;
b. The Developer shall have provided to the Agency
satisfactory evidence of the legal formation and existence of
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the Developer and the good standing of the Developer with the
State of California to transact business within the State, to
hold title to the Property and to develop the Project, as
provided in Section 3.01(a) hereof; and
c. The Developer shall have received approval from the
Agency of financing commitments as set forth in Section 2.16
hereof; and
d. The Developer shall have received all entitlements
for the development of the Project as provided in Article III
of the Agreement and the Scope of Development; and
e. The Developer shall, at it own expense, have
prepared and filed any parcel map or subdivision map which may
be required by the City for development of the Projects.
section 2.10. Time and Place for Deliverv of Documents
to Escrow. Subject to any mutually agreed upon written
extensions of time or any extensions otherwise authorized by this
Agreement, the parties shall deposit with the Escrow Agent promptly
at such time as such documents have been fully prepared and
executed, but in no event later than ten (10) calendar days before
the date established for the conveyance of the Property, any and
all documents which are required in order for escrow to close in
accordance with this Agreement. The grant deed conveying the
Property from the Agency to the Developer hereunder shall be
prepared by the Agency, at the Agency's expense. The legal
descriptions regarding the Property will be supplied by the Agency.
All other documents required to be recorded in order to permit the
Close of Escrow shall be prepared by the Developer at its cost and
expense.
Section 2.11. pavment of the Consideration and
Recordation of the Grant DeedCsl and other Documents. Payment of
the Purchase Price shall be made by the Developer to the Escrow
Agent within three (3) business days following the date that the
Escrow Agent submits notice to the Developer in writing that the
grant deed conveying the Property to the Developer has been
delivered to the Escrow Agent, that title is in the condition to be
conveyed in conformity with the provisions of this Agreement and
that escrow otherwise is in a condition to close. When the parties
have deposited into escrow all documents and funds as required by
this Agreement and all conditions for the Close of Escrow have been
satisfied, the Escrow Agent shall promptly file for recordation
among the land records in the Office of the County Recorder where
the Property is located: (i) the grant deed to the Property, and
(ii) this Agreement. The Escrow Agent shall thereafter promptly
provide a copy of said recorded documents to both parties, shall
promptly deliver the Purchase Price to the Agency and shall
promptly deliver to the Developer a title insurance policy insuring
title in conformity with this Agreement.
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Section 2.12. Title Insurance. Concurrently with
recordation of the grant deed to the Property, the Title Company
shall provide and deliver to the Developer a policy of title
insurance issued by the Title Company insuring that the title to
the Property is as required pursuant to the terms of this
Agreement. The title insurance policy shall be in the amount of
Two Hundred Three Thousand and Two Hundred Eighty Dollars
$203,280).
Section 2.13. Taxes and Assessments. Ad valorem taxes
and assessments, if any, on the Property and taxes upon this
Agreement or any rights hereunder levied, assessed or imposed as to
any period prior to conveyance of title through the escrow, shall
be borne by the Agency.
Section 2.14. Zonina of the ProDertv and Environmental
ADDrovals. The Agency represents and warrants that the City's
general plan and zoning ordinance permit the contemplated
development, construction and uses of the Property in accordance
with this Agreement, subject to the Developer obtaining any and all
necessary conditional use permits required pursuant to the zoning
ordinance, and further subject to the Developer obtaining any and
all modifications or variances including, but not limited to, those
modifications or variances necessary for height, parking, signs and
any and all other matters. The Developer shall apply for all
necessary permits applicable to the Project. All applicable
environmental requirements pursuant to CEQA pertinent to the
development of the Project shall have been completed, to the extent
feasible, on or before Close of Escrow but in any event prior to
commencement of construction of the Project.
Section 2.15. Condition of the ProDertv.
a. The Property shall be conveyed in an "as is"
condition with no warranty or liability, except as otherwise
provided herein, express or implied on the part of the Agency
as to the condition of the soil, its geology or the presence
of known or unknown faults or defects.
b. It shall be the responsibility solely of the
Developer, at the Developer's expense, to investigate and
determine the soil and seismic conditions of the Property and
its suitability for the development to be constructed thereon.
It shall be the responsibility solely of the Developer, at the
Developer'S expense, to perform all work necessary to prepare
the Property for development. The Developer shall not
disapprove any soils report or soils condition which would
permit the construction with normal foundation conditions of
the contemplated improvements.
- 8 -
Section 2.16. Submission of Evidence of Financina
Commitments.
a. As a condition to the Close of Escrow, the Developer
shall submit to the Agency evidence reasonably satisfactory to
the Agency that the Developer: (a) has obtained sufficient
equity capital and firm and binding commitments for land
purchase financing; (b) either has obtained or can obtain, as
evidenced by a letter of intent or similar instrument,
sufficient equity capital and firm and binding commitments for
construction financing; and (c) either has obtained or can
obtain, as evidenced by a letter of intent or similar
instrument, sufficient equity capital and firm and binding
commitments for permanent financing; all as may be necessary
for the purchase of the Property and construction of the
Project on the Property in accordance with this Agreement. In
lieu of the foregoing, the Developer may submit evidence to
the Agency that it has sufficient funds of its own for the
purposes set forth in this Section.
b. Any and all financing for the development of the
Property shall be obtained from reputable, recognized and
well-established financial institutions or lending sources
including, but not limited to, banks, savings and loan
institutions, insurance companies, real estate investment
trusts, pension programs and the like. Whenever the source of
financing for all or any part of the development is from other
than the Developer, the Developer shall promptly submit the
following to the Agency:
1. Copies of all construction and/or land purchase
financing commitments received by the Developer;
and
2. Proof of acceptance of each such loan commitment by
the Developer and proof of payment of all up-front
loan commitment fees, if any.
c. The Executive Director of the Agency shall approve
or disapprove such documents and/or financing commitments or
sources within fifteen (15) calendar days of receipt by the
Agency of the documents and information required hereunder;
provided, however, that the failure of the Executive Director
to disapprove any of the foregoing matters in writing within
said fifteen (15) calendar day period shall be deemed to
constitute approval thereof. Any disapproval by the Executive
Director or the Agency in writing of any of the foregoing
matters in this Section shall automatically extend the dates
for performance of actions set forth in the Schedule of
Performance, as hereinafter defined, for that certain
reasonable period of time necessary for the Developer to
obtain the approval of the Executive Director or of the Agency
under this Section, not to exceed ninety (90) calendar days.
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d. Prior to submitting documents and evidence to the
Agency as required by this Section, the Developer shall obtain
approval by its lender for the Project of the form and manner
of conveyance of the Property by the Agency to the Developer,
as set forth in Sections 2.06, 2.07 and 2.08 hereof. In the
event that said lender for the Project selected by the
Developer disapproves of the form and manner of conveyance of
the Property, as set forth in Sections 2.06, 2.07 and 2.08
hereof, the Developer shall in good faith use its best efforts
to obtain the necessary financing for the Project from such
other lender or lenders who approve said form and manner of
conveyance.
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ARTICLE III
DEVELOPMENT OF THE SITE
Section 3.01. DeveloDment bv DeveloDer.
a. ScoDe of DeveloDment. It is the intent of the
parties that the Property be developed with the construction
thereon of ten (10) single family detached residential
dwelling units to be occupied by low and moderate income
households in accordance with and within the limitations
established in the Scope of Development set forth in
Exhibit "B" attached hereto and incorporated herein by
reference. In addition, the Developer will be required to
develop all necessary off site improvements, including, but
not limited to, sewer lines and laterals, water lines, right-
Of-way improvements on Arcacia Street and right-of-way
improvements on North "E" Street, all as more fully described
in the Scope of Development.
b. The City's zoning ordinance including, but not
limited to, parking and height requirements, and the City's
building requirements are applicable to the use and
development of the Property pursuant to this Agreement. The
Developer acknowledges that any change in the plans for
development or the use of the Property as set forth in the
Scope of Development shall be subject to the City's zoning
ordinance and building requirements. No action by the Agency
or the city with reference to this Agreement or related
documents shall be deemed to constitute a waiver of any City
parking, height or other requirements which are applicable to
the Project or to the Developer, any successor in interest or
tenant of the Developer or any tenant or successor in interest
pertaining to the Property, except by modification or variance
approved by the City consistent with this Agreement. The
Agency shall cooperate with and shall assist the Developer in
order to obtain modifications or variances from City zoning
regulations necessary to develop the Project consistent with
this Agreement and, in particular, with the Scope of
Development, within forty-five (45) calendar days following
written application therefor by the Developer. Any failure by
the City either to approve or disapprove any of such
modifications or variances within said forty-five (45)
calendar day period shall constitute an enforced delay
hereunder, and the Schedule of Performance, as defined
hereinafter, shall be extended by that period of time beyond
said forty-five (45) calendar day period in which the City
approves or disapproves such modifications or variances.
c. The Scope of Development set forth in Exhibit "B" is
hereby approved by the Agency upon its execution of this
Agreement. The Project shall be developed and completed in
conformance with the approved Scope of Development and any and
all other plans, specifications and similar development
- 11 -
documents required by this Agreement, except for such changes
as may be mutually agreed upon in writing by and between the
Developer and the Agency. The Agency agrees to approve
preliminary and final construction plans and preliminary and
final landscaping plans, if reasonably consistent with the
approved Scope of Development.
d. The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the City Councilor
the Planning Commission of the City with respect to any
approvals of the Project required by such other bodies. If
any revisions of the Scope of Development as approved by the
Agency shall be required by another government official,
agency, department or bureau having jurisdiction over the
development of the Property, the Developer and the Agency
shall cooperate in efforts to obtain waivers of such
revisions, or to obtain approvals of any such revisions which
have been made by the Developer and have thereafter been
approved by the Agency. The Agency shall not unreasonably
withhold approval of such revisions.
e. Notwithstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply
fully with any and all reasonable conditions of approval
applicable to all permits and other governmental actions
affecting the Project and consistent with this Agreement.
f. The Developer shall cause landscaping plans for the
Project to be prepared by a licensed landscape architect. The
Developer shall prepare and submit to the City for its
approval, preliminary and final landscaping plans for the
Property which are consistent with City Code requirements.
These plans shall be prepared, submitted and approved within
the times respectively established therefor in the Schedule of
Performance as shown on Exhibit "0" attached hereto and
incorporated herein by reference and shall be consistent with
the Scope of Development.
g. The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Property consistent with the Scope of
Development to the City. The development plans, construction
drawings and related documents shall be in the form of final
drawings, plans and specifications. Final drawings, plans and
specifications are hereby defined as those which contain
sufficient detail necessary to obtain a building permit from
the City.
h. During the preparation of all drawings and plans for
the Project, the Developer shall provide to the Agency regular
progress reports to advise the Agency of the status of the
preparation by the Developer, and the submission to and review
by the city of construction plans and related documents. The
Developer shall communicate and consult with the Agency as
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frequently as is necessary to ensure that any such plans and
related documents submitted by the Developer to the city are
being processed in a timely fashion.
i. The Agency shall have the right of reasonable
architectural review and approval of building exteriors and
design of the Project. The Agency shall also have the right
to review all plans, drawings and related documents pertinent
to the development of the Property in order to ensure that
they are consistent with this Agreement and with the Scope of
Development set forth in Exhibit "B". The architecture and
design of the Project shall be consistent with those certain
renderings as previously submitted to the Agency which are
attached hereto as Exhibit B-1 and incorporated herein by this
reference.
j. The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and
related documents pertinent to the development of the
Property, as required by the city. The Agency shall cooperate
with and shall assist the Developer in order for the Developer
to obtain the approval of any and all development plans,
construction drawings and related documents submitted by the
Developer to the City consistent with this Agreement within
thirty (30) calendar days following the City's receipt of said
plans. Any failure by the city to approve any of such plans
or to issue necessary permits for the development of the
Property within said thirty (30) calendar day period shall
constitute an enforced delay hereunder, and the Schedule of
Performance shall be extended by that period of time beyond
said thirty (30) calendar day period in which the City
approves said plans; provided, however, that in the event that
the City disapproves of any of such plans, the Developer shall
within thirty (30) calendar days after receipt of such
disapproval revise and resubmit such plans in accordance with
the City's requirements and in such form and substance so as
to obtain the city's approval thereof.
k. The Agency shall in good faith use its best efforts
to cause the City to approve in a timely fashion any and all
plans, drawings and documents submitted by the Developer
hereunder and to cause the City not to impose new conditions
inconsistent with: (a) prior plans, drawings and documents
approved by the City or (b) the Scope of Development.
1. The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is
made in this Agreement within the times established in the
Schedule of Performance as long as such plans, drawings and
related documents are generally consistent with the Scope of
Development and any other plans which have been approved by
the Agency. Upon any disapproval of plans, drawings or
related documents, the Agency shall state in writing the
reasons for such disapproval. The Developer, upon receipt of
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notice of any disapproval, shall promptly revise such
disapproved portions of the plans, drawings or related
documents in a .manner that addresses the reasons for
disapproval and reasonably meets the requirements of the
Agency in order to obtain the Agency's approval thereof. The
Developer shall resubmit such revised plans, drawings and
related documents to the Agency as soon as possible after its
receipt of the notice of disapproval and, in any event, no
later than thirty (30) calendar days thereafter. The Agency
shall approve or disapprove such revised plans, drawings and
related documents in the same manner and within the same times
as provided in this Section for approval or disapproval of
plans, drawings and related documents initially submitted to
the Agency.
m. If the Developer desires to make any change in the
final construction drawings, plans and specifications and
related documents after their approval by the Agency and/or
the City, the Developer shall submit the proposed change in
writing to the Agency and/or the City for approval. The
Agency shall notify the Developer of approval or disapproval
thereof in writing within thirty (30) calendar days after
submission to the Agency. This thirty (30) calendar day
period may be extended by mutual consent of the Developer and
the Agency. Any such change shall, in any event, be deemed to
be approved by the Agency unless rejected, in whole or in
part, by written notice thereof submitted by the Agency to the
Developer, setting forth in detail the reasons therefor, and
such rejection shall be made within said thirty (30) calendar
day period unless extended as permitted herein. The Agency
shall use its best efforts to cause the city to review and
approve or disapprove any such change as provided in
section 3.01(b) hereof.
n. The Developer, upon receipt of a notice of
disapproval by the Agency and/or the city, may revise such
portions of the proposed change in construction drawings,
plans and specifications and related documents as are rejected
and shall thereafter resubmit such revisions to the Agency
and/or the City for approval in the manner provided in
Section 3.01(b) hereof.
o. The Developer shall have the right during the course
of construction to make changes in construction concerning the
interior of structures and "minor field changes" without
seeking the approval of the Agency; provided, however, that
such changes do not affect the type of use to be conducted
within all or any portion of a structure. Said "minor field
changes" shall be defined as those changes from the approved
final construction drawings, plans and specifications which
have no substantial effect on the improvements and are made in
order to expedite the work of construction in response to
field conditions. Nothing contained in this Section shall be
deemed to constitute a waiver of or change in the City's
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Building
changes"
required
Code requirements governing such "minor field
or in any and all approvals by the City otherwise
for such "minor field changes."
p. The costs of developing the Property and of
constructing all improvements thereon and adjacent thereto as
set forth in the Scope of Development shall be borne by the
Developer. It is understood and agreed by the parties that
the Developer shall pay for the costs of any and all off-site
improvements described in the Scope of Development as the
obligations and responsibility of the Developer to complete
hereunder.
q. The Developer shall at its expense cause to be
pre~ared, and shall pay any and all fees pertaining to the
rev~ew and approval thereof by the City, all required
construction, planning and other documents reasonably required
by governmental bodies pertinent to the development of the
Property hereunder including, but not limited to,
specifications, drawings, plans, maps, permit applications,
land use applications, zoning applications and design review
documents.
r. Notwithstanding the provisions of section 2.02
hereof regarding a reduction of the Purchase Price, the
Developer shall pay for any and all costs, including but not
limited to the costs of design, construction, relocation and
securing of permits for utility improvements and connections,
including sewers and sewer lines, power lines and poles, water
lines, gas lines, cable lines and related vaults, storm drains
and vaults, traffic access ways, lighting poles and standards,
handicapped access ramps, construction of tree wells, planting
of trees and all items which may be required in connection
with any Conditions of Approval associated with the processing
of any subdivision maps pertaining to the Property. The
Developer shall obtain any and all necessary approvals prior
to the commencement of applicable portions of said
construction, and the Developer shall take reasonable
precautions to ensure the safety and stability of surrounding
properties during said construction.
s. The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified
in the Schedule of Performance shown in Exhibit "0" attached
hereto, or within such reasonable extensions of such times as
may be granted by the Agency or as otherwise provided for in
this Agreement. The Schedule of Performance shall be subject
to revision from time to time as mutually agreed upon in
writing by and between the Developer and the Agency. Any and
all deadlines for performance by the parties shall be extended
for any times attributable to delays which are not the fault
of the performing party and are caused by the other party,
other than periods for review and approval or reasonable
- 15 -
disapprovals of plans, drawings and related documents,
specifications or applications for permits as provided in this
Agreement.
t. Prior to and during the period of construction of
the Project, the Developer shall submit to the Agency written
progress reports when and as reasonably requested by the
Agency but in no event more frequently than every two (2)
weeks. The reports shall be in such form and detail as may
reasonably be required by the Agency, and shall include a
reasonable number of construction photographs taken since the
last such report submitted by the Developer.
u. Prior to the commencement of construction on the
Property, the Developer shall furnish, or shall cause to be
furnished, to the Agency duplicate originals or appropriate
certificates of public indemnity and liability insurance in
the amount of One Million Dollars ($1,000,000.00) combined
single limit, naming the Agency and the city as additional
insureds. Said insurance shall cover comprehensive general
liability including, but not limited to, contractual
liability; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable;
broad form property damage, and personal injury including
libel, slander and false arrest. In addition, the Developer
shall provide to the Agency adequate proof of comprehensive
automobile liability insurance covering owned, non-owned and
hired vehicles, combined single limit in the amount of One
Million Dollars ($1,000,000.00) each occurrence; and proof of
workers I compensation insurance. Any and all insurance
policies required hereunder shall be obtained from insurance
companies admitted in the State of California and rated at
least B+: XII in Best's Insurance Guide. All said insurance
policies shall provide that they may not be canceled unless
the Agency and the City receive written notice of cancellation
at least thirty (30) calendar days prior to the effective date
of cancellation. Any and all insurance obtained by the
Developer hereunder shall be primary to any and all insurance
which the Agency and/or City may otherwise carry, including
self insurance, which for all purposes of this Agreement shall
be separate and apart from the requirements of this Agreement.
Any insurance policies governing the Property as obtained by
the Agency shall not be transferred from the Agency to the
Developer. Appropriate insurance means those insurance
policies approved by the Agency Counsel consistent with the
foregoing. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency has issued the
Certificate of Completion for the Property.
v. The Developer for itself and its successors and
assigns agrees that in the construction of the improvements on
the Property provided for in this Agreement, the Developer
will not discriminate against any employee or applicant for
- 16 -
employment because of sex, marital status, race, color,
religion, creed, national origin, or ancestry.
w. The Developer shall carry out its construction of
the improvements on and off the Property in conformity with
all applicable laws, including all applicable federal and
state labor standards and requirements including any
prevailing wage or public bidding requirements.
x. Prior to the Close of Escrow, the Developer shall,
at its own expense, secure or shall cause to be secured, any
and all permits which may be required for such construction,
development or work by the City or any other governmental
agency having jurisdiction thereof. The Agency shall
cooperate in good faith with the Developer in the Developer's
efforts to obtain from the City or any other appropriate
governmental agency any and all such permits and, upon
completion of applicable portions of the Project, certificates
of occupancy.
y. Officers, employees, agents or representatives of
the Agency and the City shall have the right of reasonable
access to the Property, without the payment of charges or
fees, during normal construction hours during the period of
construction of the Project for the purposes of this Agreement
including, but not limited to, the inspection of the work
being performed in constructing the Project. Such officers,
employees, agents or representatives of the Agency and/or the
City shall be those persons who are so identified by the
Executive Director. Any and all officers, employees, agents
or representatives of the Agency and the City who enter the
Property pursuant hereto shall identify themselves at the job
site office upon their entrance on to the Property and shall
at all times be accompanied by a representative of the
Developer while on the Property; provided, however, that the
Developer shall make a representative of the Developer
available for this purpose at all times during normal
construction hours upon reasonable notice from the Agency.
The Agency shall indemnify and hold the Developer harmless
from injury, property damage or liability arising out of the
exercise by the Agency and/or the City of this right of
access, other than injury, property damage or liability
relating to the negligence of the Developer or its officers,
agents or employees.
z. The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the
terms and conditions of this Agreement pertaining to
construction of the Project.
Section 3.02. Responsibili tv of the Aqencv. The Agency,
without any expense of the Developer therefor and without the
creation of the assessments or claims against the Property as a
- 17 -
result thereof, shall perform the work specified for the Agency to
perform, if any, and shall assume the other obligations imposed on
the Agency, if any, as set forth in the Scope of Development.
Section 3.03. Taxes. Assessments. Encumbrances and
Liens. The Developer shall pay prior to the delinquency all real
property taxes and assessments assessed and levied on or against
the Property subsequent to the close of the escrow and the
conveyance to the Developer of title to the Property hereunder.
The Developer shall not place and shall not allow to be placed on
the Property any mortgage, trust deed, deed of trust, encumbrance
or lien not otherwise authorized by this Agreement. The Developer
shall remove, or shall have removed, any levy or attachment made on
the Property, or shall assure the satisfaction thereof, within a
reasonable time but in any event prior to a sale of the Property,
or any portion thereof, thereunder. Nothing herein contained shall
be deemed to prohibit the Developer from contesting the validity or
amounts of any tax assessment, encumbrance or lien, nor to limit
the remedies available to the Developer in respect thereto. The
covenants of the Developer set forth in this Section relating to
the placement of any unauthorized mortgage, trust deed, deed of
trust, encumbrance or lien, shall remain in effect only until all
Certificates of Completion have been recorded with respect to the
Property.
Section 3.04. Prohibition Aaainst Transfer.
a. Prior to the recordation of all Certificates of
Completion with respect to the Property as set forth in
Section 3.07 of this Agreement, the Developer shall not,
without prior written approval of the Agency, or except as
permitted by this Agreement, (i) assign or attempt to assign
this Agreement or any right herein or (ii) make any total or
partial sale, transfer, conveyance, lease, leaseback, or
assignment of the whole or any part of the Property or the
improvements thereon. This prohibition shall not apply to any
of the following: (i) the reasonable grant of limited
easements or permits to facilitate the development of the
Property; (ii) leases, other than ground leases, to
prospective tenants whose use of the Property is in conformity
with the Community Redevelopment Law and all applicable zoning
laws or ordinances.
b. It is understood and agreed by the Developer that
nei ther the Developer, nor its assigns or successors in
interest to the Property or this Agreement, shall use or
otherwise sell, transfer, convey, assign, lease, leaseback or
hypothecate the Property or any portion thereof to any entity
or party, or for any use of the Property, that is partially or
wholly exempt from the payment of real property taxes
pertinent to the Property, or any portion thereof, or which
would cause the exemption of the payment of all or any portion
of such real property taxes.
- 18 -
c. In the absence of specific written agreement or
approval by the Agency, no unauthorized sale, transfer,
conveyance, lease, leaseback or assignment of the Property
shall be deemed to relieve the Developer or any other party
from any obligations under this Agreement.
Section 3.05. Securitv Financina: Riaht of Holders.
a. Notwithstanding any prov~s~on set forth in
section 3.04 hereof to the contrary, mortgages, deeds of
trust, or any other form of lien required for any reasonable
method of financing are permitted before the recordation of
any certificate of Completion for the Property (referred to in
Section 3.07 of this Agreement), but only for the purpose of
securing loans of funds to be used for financing the
acquisition of the Property, and any other expenditures
necessary and appropriate to develop the Property under this
Agreement. The Developer shall notify the Agency in writing
in advance of any mortgage, deed of trust, or other form of
lien for financing if the Developer proposes to enter into the
same before the recordation of a Certificate of Completion.
The Developer shall not enter into any such conveyance for
financing without prior written approval of the Agency, which
approval the Agency agrees to grant if any such conveyance is
given to a responsible financial or lending institution
including, without limitation, banks, savings and loan
institutions, insurance companies, real estate investment
trusts, pension programs and the like, or other acceptable
persons or entities. Such lender shall be deemed approved
unless rejected in writing by the Agency within seven (7)
calendar days following its receipt of notice from the
Developer, subject to written extension or shortening of time
signed by both parties. Any lender approved by the Agency
pursuant to this Section shall not be bound by any amendment,
implementation agreement or modification to this Agreement
occurring after recordation of said lender's lien.
b. In any event, the Developer shall promptly notify
the Agency of any mortgage, deed of trust or other
refinancing, encumbrance or lien that has been created or
attached thereto prior to completion of the construction of
the improvements on the Property whether by voluntary act of
the Developer or otherwise; provided, however, that no notice
of filing of preliminary notices or mechanic's liens need be
given by the Developer to the Agency prior to suit being filed
to foreclose such mechanic's lien.
c. The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate acquisition,
construction and land development. The Agency agrees to make
such amendments regarding the rights of any lender as the
approved lender shall reasonably require.
- 19 -
d. The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall in no
manner be obligated by the provisions of this Agreement to
construct or complete the improvements or to guarantee such
construction or completion; nor shall any covenant or any
other provision in the grant deed for the Property be
construed so to obligate such holder. Nothing in this
Agreement shall be deemed to permit or authorize any such
holder to devote the Property to any uses, or to construct any
improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
e. Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default
by the Developer in. the completion of construction of the
improvements, or any breach or default of any other
obligations which might entitle the Agency to terminate this
Agreement or exercise its right to re-enter under Section 5.07
hereof, the Agency shall at the same time deliver to each
holder of record of any mortgage, deed of trust or other
security interest authorized by this Agreement a copy of such
notice or demand. Each such holder shall (insofar as the
rights of the Agency are concerned) have the right, at its
option, to commence the cure or remedy of any such default and
to diligently and continuously proceed with such cure or
remedy, within ninety (90) calendar days after the receipt of
the notice; and to add the cost thereof to the security
interest debt and the lien of its security interest. If such
default shall be a default which can only be remedied or cured
by such holder upon obtaining possession, such holder shall
seek to obtain possession with diligence and continuity
through a receiver or otherwise, and shall remedy or cure such
default within sixty (60) calendar days after obtaining
possession; provided that in the case of a default which
cannot with diligence be remedied or cured, or the remedy or
cure of which cannot be commenced, within such sixty (60)
calendar day period, such holder shall have such additional
time as is reasonably necessary to remedy or cure such default
of the Developer. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or
continue the construction or completion of the improvements
(beyond the extent necessary to conserve or protect the
improvements or construction already made) without first
having expressly assumed the Developer'S obligations by
written agreement satisfactory to the Agency. The holder in
that event must agree to complete, in the manner provided in
this Agreement, the improvements to which the lien or title of
such holder relates and must submit evidence satisfactory to
the Agency that it has the qualifications and financial
responsibility necessary to perform such obligations. Any
such holder completing such improvements in accordance
herewith shall be entitled, upon written request made to the
Agency, to be issued a Certificate of Completion by the
Agency.
- 20 -
f. In any case where, one hundred eighty (180) calendar
days after default by the Developer in the completion of
construction of improvements under this Agreement, the holder
of any mortgage, deed of trust or other security interest
creating a lien or encumbrance upon the Property or any
portion thereof has not exercised the option to construct the
applicable portions of the Project, or has exercised the
option but has not proceeded diligently and continuously with
construction, the Agency may purchase the mortgage, deed of
trust or other security interest by payment to the holder of
the amount of the unpaid debt, including principal, accrued
and unpaid interest, late charges, costs, expenses and other
amounts payable to the holder by the Developer under the loan
documents between holder and the Developer. If the ownership
of the Property has vested in the holder, the Agency, if it so
desires, shall be entitled to a conveyance from the holder to
the Agency upon payment to the holder of an amount equal to
the sum of the following:
1. The unpaid mortgage, deed of trust or other
security interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by
the Developer under the loan documents between the
holder and the Developer, at the time title became
vested in the holder (less all appropriate credits,
including those resulting from collection and
application of rentals and other income received
during foreclosure proceedings.)
2. All expenses, if any, incurred by the holder with
respect to foreclosure.
3. The net expenses, if any (exclusi ve of general
overhead), incurred by the holder as a direct
result of the subsequent ownership or management of
the Property, such as insurance premiums and real
estate taxes.
4. The cost of any improvements made by such holder.
S. An amount equivalent to the interest that would
have accrued on the aggregate on such amounts had
all such amounts become part of the mortgage or
deed of trust debt and such debt had continued in
existence to the date of payment by the Agency.
6. After expiration of the aforesaid one hundred
eighty (180) calendar day period, the holder of any
mortgage, deed of trust or other security affected
by the option created by this Section, may demand,
in writing, that the Agency act pursuant to the
option granted hereby. If the Agency fails to
exercise the right herein granted within ninety
- 21 -
(90) calendar days from the date of such written
demand, the Agency shall be conclusively deemed to
have waived such right of purchase of the
applicable portion of the Property or the mortgage,
deed of trust or other security interest.
g. In the event of a default or breach by the Developer
of a mortgage, deed of trust or other security interest with
respect to the Property (or any portion thereof) prior to the
issuance of a Certificate of Completion for the applicable
portion or portions of the Property, and the holder has not
exercised its option to complete the development, the Agency
may cure the default prior to completion of any foreclosure.
In such event, the Agency shall be entitled to reimbursement
from the Developer of all costs and expenses incurred by the
Agency in curing the default. The Agency shall also be deemed
to have a lien upon the property (or any portion thereof) to
the extent of such costs and disbursements. Any such lien
shall be subordinate and subject to mortgages, deeds of trust
or other security instruments executed for the sole purpose of
obtaining funds to purchase and develop the Property as
authorized herein.
Section 3.06. Riqht of the Aqencv to Satisfv Other Liens
on the ProDertv after Convevance of Title. After the conveyance of
title to the Property by the Agency to the Developer and prior to
the recordation of all Certificates of Completion (referred to in
Section 3.07 of this Agreement), and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Property, the Agency shall after sixty
(60) calendar days prior written notice to the Developer have the
right to satisfy any such liens or encumbrances; provided, however,
that nothing in this Agreement shall require the Developer to pay
or make provisions for the payment of any tax, assessment, lien or
charge so long as the Developer in good faith shall contest the
validity or amount thereof, and so long as such delay in payment
shall not subject the Property, or any portion thereof, to
forfeiture or sale.
section 3.07. Certificate of ComDletion.
a. Following the written request therefor by the
Developer and the completion of construction and development
of the improvements, excluding any normal and customary tenant
improvements and minor building "punch-list" items, to be
completed by the Developer upon the Property or any portion
thereof, the Agency shall furnish the Developer with a
Certificate of Completion for the Property or any portions
thereof as the Agency may, in its sole discretion, deem
appropriate, substantially in the form in Exhibit "E" attached
hereto. Notwithstanding any provision set forth herein to the
contrary, the completion of construction and development of
improvements on the Property shall be deemed to include the
completion of construction and development of any and all
- 22 -
buildings on said Property and any and all parking,
landscaping and related improvements necessary to support or
which meet the requirements applicable to the building and its
use and occupancy on said Property.
b. The Agency shall not unreasonably withhold the
issuance of such Certificate of Completion. The Certificate
of Completion shall be, and shall so state, that it is a
conclusive determination of satisfactory completion of all of
the obligations of this Agreement with respect to the
development of the Property or the applicable portion thereof.
After the recordation of the Certificate of Completion, any
party then owning or thereafter purchasing, leasing or
otherwise acquiring any interest in the Property to which it
pertains shall not (because of such ownership, purchase, lease
or acquisition) incur any obligation or liability under this
Agreement, except that such party shall be bound by any
covenants contained in the grant deed, lease or other
instrument of transfer which grant deed, lease or other
instrument of transfer shall include the provisions of Section
4.01 through 4.05, inclusive, of this Agreement. Neither the
Agency nor any other person, after the recordation of the
Certificate of Completion, shall have any rights remedies or
controls that it would otherwise have or be entitled to
exercise under this Agreement with respect to the Property, as
a result of a default in or breach of any provision of this
Agreement, and the respective rights and obligations of the
parties shall be limited to those set forth in the grant deed.
c. Any Certificate of Completion shall be in such form
as to permit it to be recorded in the Recorder's Office of the
County where the Property is located.
d. If the Agency refuses or fails to furnish a
Certificate of Completion for the Property or portion thereof
after written request from the Developer, the Agency shall,
within fifteen (15) calendar days of the written request or
within three (3) calendar days after the next regular meeting
of the Agency, whichever date occurs later, provide to the
Developer a written statement setting forth the reasons with
respect to the Agency's refusal or failure to furnish a
Certificate of Completion. The statement shall also contain
the Agency's opinion of the action the Developer must take to
obtain a Certificate of Completion. If the reason for such
refusal is confined to the immediate unavailability of
specific items or materials for construction or landscaping at
a price reasonably acceptable to the Developer or other minor
building "punch-list" items, the Agency may issue its
certif icate of Completion upon the posting of a bond or
irrevocable letter of credit, reasonably approved as to form
and substance by the Agency Counsel and obtained by the
Developer in an amount representing a fair value of the work
not yet completed as reasonably determined by the Agency. If
the Agency shall have failed to provide such written statement
- 23 -
within the foregoing period, the Developer shall be deemed
conclusively and without further action of the Agency to have
satisfied the requirements of this Agreement with respect to
the applicable portion of the Property as if a Certificate of
Completion had been issued therefor.
e. Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation
of the Developer to any holder of a mortgage, or any insurer
of a mortgage securing money loaned to finance the
improvements described herein, or any part thereof. Such
Certificate of Completion shall not be deemed to constitute a
notice of completion as referred to in Section 3093 of the
California Civil Code, nor shall it act to terminate the
continuing covenants or conditions subsequent contained in the
Grant Deed attached hereto as Exhibit "C".
- 24 -
ARTICLE IV
USE OF THE SITE
section 4.01. Uses. Developer covenants and agrees for
itself, its successors, its assigns, and every successor in
interest to the Property or any part thereof, that for a period of
ten (10) years commencing on the date of the issuance by city of
the Certificate of Occupancy on each of the ten (10) residences to
be constructed by Developer, each such single family residence to
be constructed on the Property will be devoted to and available for
sale solely to persons or families with an income which is low and
moderate to very low, as those terms are defined in Health and
Safety Code Sections 50093 (low and moderate income) and 50105
(very low income), with sales costs of each residential unit to be
at an affordable housing cost (as such term is defined in Health
and Safety Code Section 50052.5).
The Developer shall cause to be included, in any deeds or
other documents which transfer title to all or any portion of the
Property, covenants consistent with this Section which limits use
and occupancy of the residences to low and moderate income persons
or families in accordance with the provisions of the Community
Redevelopment Law.
The foregoing covenant shall run with the land for ten
(10) years commencing on the date that the city issues the
Certificate of Occupancy on each of the ten (10) residences.
The Developer further covenants and warrants that
Developer shall develop improvements on the Property in accordance
with the Scope of Development. Developer covenants to develop the
Property in conformity with all applicable laws. The covenants of
this paragraph shall also run with the land.
It is understood and agreed by the Developer that neither
the Developer, nor its assigns or successors in interest to the
Property or this Agreement, shall use or otherwise sell, transfer,
convey, assign, lease, leaseback or hypothecate the Property or any
portion thereof to any entity or party, or for any use of the
property, that is partially or wholly exempt from the payment of
real property taxes pertinent to the Property, or any portion
thereof, or which would cause the exemption of the payment of all
or any portion of such real property taxes.
section 4.02. Maintenance of the Prooertv. The
Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Property, or any
part thereof, that the Developer, such successors and such assigns
shall maintain in good condition the improvements on the Property,
shall keep the Property free from any accumulation of debris or
waste material, subject to normal construction job-site conditions,
and shall maintain in a neat, orderly, healthy and good condition
the landscaping required to be planted in accordance with the Scope
- 25 -
of Development. In the event the Developer, or its successors or
assigns, fails to perform the maintenance as required herein, the
Agency and/or the City shall have the right, but not the
obligation, to enter the Property and undertake, such maintenance
activities. In such event, the Developer shall reimburse the
Agency and/or City for all reasonable sums incurred by it for such
maintenance activities.
Section 4.03. Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors, its
assigns and every successor in interest to the Property or any part
thereof, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, cOlor, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property; nor shall the Developer,
itself or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessee or vendees
of the Property.
Section 4.04. Form of Nondiscrimination and
Nonseareaation Clauses. The Deve~oper covenants and agrees for
itself, its successors, its ass~gns, and every successor in
interest to the Property, or any part thereof, that the Developer,
such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Property (or any part thereof) on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the
land."
b. In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming
under or through them, and this lease is made and accepted
upon and subject to the following conditions: That there
shall be no discrimination against or segregation of any
- 26 -
person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry,
in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the premises herein leased nor shall
the lessee itself, or any person claiming under or through it,
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy, of tenants lessees,
sublessee, subtenants, or vendees in the premises herein
leased."
c. In contracts: "There shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred." The foregoing
provision shall be binding upon and shall obligate the
contracting party or parties and any subcontracting party or
parties, or other transferees under the instrument.
Section 4.05. Effect and Duration of Covenants. The
covenants established against discrimination shall remain in effect
in perpetuity. The covenants respecting uses and occupancy of the
Property shall remain in effect for a period of ten (10) years from
the date of filing of a Certificate of Occupancy on each
residential unit comprising the Project, shall run with the land
and shall constitute equitable servitudes thereon, and shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of the Agency, its successors
and assigns and the City.
The Agency is deemed the beneficiary of the terms an
provisions of this Agreement and of the covenants running with the
land for and in its own rights and for the purposes of protecting
the interests of the community. The Agency shall have the right,
if such covenants are breached, to exercise all rights and remedies
and to maintain any actions or suits at law or in equity or such
other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiary of such covenants may be
entitled, including, without limitation, to specific performance,
damages and injunctive relief. The Agency shall have the right to
assign all of its rights and benefits hereunder to the city.
- 27 -
ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
section 5.01. Defaults - General.
a. Subject to the extensions of time set forth in
Section 6.05 hereof, failure or delay by either party to
perform any term or provision of this Agreement shall
constitute a default under this Agreement; provided, however,
that if a party otherwise in default commences to cure,
correct or remedy such default within thirty (30) calendar
days after receipt of written notice specifying such default
and shall diligently and continuously prosecute such cure,
correction or remedy to completion (and where any time limits
for the completion of such cure, correction or remedy are
specifically set forth in this Agreement, then within said
time limits), such party shall not be deemed to be in default
hereunder.
b. The injured party shall give written notice of
default to the party in default, specifying the default
complained of by the nondefaulting party. Delay in giving
such notice shall not constitute a waiver of any default nor
shall it change the time of default.
c. Any failure or delays by either party in asserting
any of its rights and remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies. Delays by either party in asserting any of its
rights and remedies shall not deprive either party of its
right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any
such rights or remedies.
section 5.02. Leqal Actions.
a. In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy
any default, to recover damages for any default, or to obtain
any other remedy consistent with the purposes of this
Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Bernardino, State of
California, in any other appropriate court in that County, or
in the Federal District Court in the Central District of
California.
b. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
c. In the event that any legal action is commenced by
the Developer against the Agency, service of process on the
Agency shall be made by personal service upon the Executive
- 28 -
Director or Chairman or the Agency, or in such other manner as
may be provided by law.
d. In the event that any legal action is commenced by
the Agency against the Developer, service of process on the
Developer shall be made by personal service on the
(or such other Agent for service of process and
at such address as may be specified in written notice to the
Agency), or in such other manner as may be provided by law,
and shall be valid whether made within or without the state of
California.
Section 5.03. Riahts and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared
to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by
it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
section 5.04. Damaaes. If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such default upon the defaulting
party. If the defaulting party does not diligently commence to
cure such default within thirty (30) calendar days after service of
the notice of default and promptly complete the cure of such
default within a reasonable time, not to exceed ninety (90)
calendar days (or such shorter period as may otherwise be specified
in this Agreement for any specific default), after the service of
written notice of such default, the defaulting party shall be
liable to the other party for damages caused by such default.
Section 5.05. SDecific Performance. If either party
defaults under any of the provisions of this Agreement, the
nondefaulting party shall serve written notice of such default upon
such defaulting party. If the defaulting party does not commence
to cure the default and diligently and continuously proceed with
such cure within thirty (30) calendar days after service of the
notice of default, and such default is not cured within a
reasonable time thereafter (and where any time limits for the
completion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), the
nondefaulting party, at its option, may institute an action for
specific performance of the terms of this Agreement, except as
otherwise provided in Section 5.04 hereof.
Section 5.06. Riahts and Remedies of Termination.
a. Termination bv the DeveloDer.
The Developer may terminate this Agreement if the Agency
does not tender conveyance of title to and possession of the
Property to the Developer in the manner and condition and by
the date provided in this Agreement (or any and all extensions
- 29 -
thereof
failure
written
Agency.
default
as authorized by this Agreement), and if any such
is not cured within thirty (30) calendar days after
demand therefor submitted by the Developer to the
Such written demand shall specify the Agency's
and the action required to cure same.
b.
Termination bv the Aaencv.
1.
Notwithstanding any provision set forth in this
Agreement to the contrary, upon written notice of
default which shall specify the Developer's default
and the action required to cure same and upon
thirty (30) calendar days notice to the Developer
of the Agency's intent to terminate this Agreement
pursuant to this Section, the Agency at its option
may terminate this Agreement if following
satisfaction of all conditions precedent for
conveyance of the Property by the Agency to the
Developer and at the time the Developer is required
to deposit into escrow the Purchase Price, the
Developer has not in fact made such deposit.
2.
Subject to written notice of default which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terminate
this Agreement if the Developer in breach of this
Agreement assigns or attempts to assign this
Agreement, or any right therein, or attempts to
make any total or partial sale, lease or leaseback,
transfer or conveyance of the whole or any part of
the Property or the improvements to be developed
thereon in violation of the terms of this
Agreement, and the Developer does not correct such
violation within thirty (30) calendar days from the
date of receipt of such notice.
3.
Subject to written notice of default, which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
section, the Agency at its option may terminate
this Agreement if the Developer: (a) does not
within the time limits set forth in this Agreement
or as specifically provided in the Schedule of
Performance, subject to extensions authorized by
this Agreement due to force majeure or otherwise,
submit development plans, construction drawings and
related documents acceptable to the Planning
Department and Building Division of the city for
plan check purposes and in order to obtain building
- 30 -
permits for the Project, together with applicable
fees therefor, all prepared to the m1n1mum
acceptable standards as required by the Planning
Department and Building Division of the City for
commencement of formal review of such documents and
as required by this Agreement, or (b) does not
carry out its other responsibilities under this
Agreement or in accordance with any modification or
variance, precise plan, design review and other
environmental or governmental approvals and such
default is not cured or the Developer does not
commence and diligently and continuously proceed
with such cure within thirty (30) calendar days
after the date of receipt of written demand
therefor from the Agency.
4. Subject to written notice of default which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terminate
this Agreement if upon satisfaction of all
conditions precedent and concurrent therefor under
this Agreement, the Developer does not take title
to the Property under tender of conveyance by the
Agency, and such breach is not cured within thirty
(30) calendar days after the date of receipt by the
Developer of written demand therefor from the
Agency.
Revest.
Section 5.07. Riaht to Reenter. ReDossess. Terminate and
a. The Agency shall, upon thirty (30) calendar days
notice to the Developer which notice shall specify this
Section, have the right, at its option, to re-enter and take
possession of all or any portion of the Property, together
with all improvements thereon, and to terminate and revest in
the Agency the estate conveyed to the Developer hereunder, if
after conveyance of title, the Developer (or its successors in
interest) shall:
1. Fail to commence construction of all or any portion
of the improvements as required by this Agreement
for a period of ninety (90) calendar days after
written notice to proceed from the Agency; provided
that the Developer shall not have obtained an
extension or postponement to which the Developer
may be entitled pursuant to Section 6.05 hereof; or
2. Abandon or substantially suspend construction of
all or any portion of the improvements for a period
of ninety (90) calendar days after written notice
- 31 -
of such abandonment or suspension from the Agency;
provided that the Developer shall not have obtained
an extension or postponement to which the Developer
may be entitled to pursuant to section 6.05 hereof;
or
3. Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any
involuntary transfer, of the Property or any part
thereof, in violation of this Agreement, and such
violation shall not have been cured within thirty
(30) calendar days after the date of receipt of
written notice thereof from the Agency to the
Developer.
b. The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency
proposes to take action pursuant to this Section and shall
specify which of the Developer's obligations set forth in
Subsections (1) through (3) herein have been breached. The
Agency shall proceed with its remedy set forth herein only in
the event that the Developer continues in default of said
obligation(s) for a period of thirty (30) calendar days
following such notice or, upon commencing to cure such
default, fails to diligently and continuously prosecute said
cure to satisfactory conclusion.
c. The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to,
shall be limited by and shall not defeat, render invalid or
limi t:
1. Any mortgage, deed of trust or other security
interest permitted by this Agreement;
2.
Any rights or interests provided in this
for the protection of the holders
mortgages, deeds of trust or other
interests;
Agreement
of such
security
3. Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents applicable to the Property.
d. The grant deed or ground lease to any portion of the
Property conveyed or leased by the Developer to another party
shall contain appropriate references and provisions to give
effect to the Agency's right, as set forth in this Section
under specified circumstances prior to the recordation of the
Certificate of Completion, to reenter and take possession of
such parcel, or any part thereof, wi th all improvements
thereon, and to terminate and revest in the Agency the estate
conveyed to the Developer.
- 32 -
e. Upon the revesting in the Agency of title to the
Property, or any part thereof, as provided in this Section,
the Agency shall, pursuant to its responsibilities under State
law, use its best efforts to resell the Property, or any part
thereof, at fair market value as soon and in such manner as
the Agency shall find feasible and consistent with the
objectives of such law, to a qualified and responsible party
or parties (as determined by the Agency) who will assume the
obligations of making or completing the improvements, or such
other improvements in their stead as shall be satisfactory to
the Agency and in accordance with the uses specified for the
Property, or any part thereof. Upon such resale of the
Property, or any part thereof, the proceeds thereof shall be
applied:
1. First, to make any payment made or necessary to be
made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due
to obligations incurred with respect to the making
or completion of the agreed improvements or any
part thereof on the Property, or part thereof; next
to reimburse the Agency on its own behalf or on
behalf of the City for all actual costs and
expenses incurred by the Agency and the ci ty ,
including but not limited to customary and
reasonable fees or salaries to third party
personnel engaged in such action (but excluding the
Agency's or the City's general overhead expense),
in connection with the recapture, management and
resale of the Property or part thereof; all taxes,
assessments and water and sewer charges paid by the
City and/or the Agency with respect to the Property
or part thereof; any amounts otherwise owing to the
Agency by the Developer and its successor
transferee; and
2. Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to the
sum of: (1) the Purchase Price paid by the
Developer for the Property (or allocable to the
applicable part thereof); and (2) the costs
incurred for the development of the Property, or
applicable part thereof, or for the construction of
the improvements thereon including, but not limited
to, costs of carry, taxes and items set forth in
the Developer's cost statement which shall be
submitted to and approved by the Agency.
3. Any balance rema~n~ng after the foregoing
application of proceeds shall be retained by the
Agency.
- 33 -
ARTICLE VI
GENERAL PROVISIONS
Section 6.01.
Between the Parties.
Notices. Demands and Communications
a. Any and all notices, demands or communications
submi tted by any party to another party pursuant to or as
required by this Agreement shall be proper if in writing and
dispatched by messenger for immediate personal deli very, or by
registered or certified United States mail, postage prepaid,
return receipt requested, to the principal office of the
Agency and the Developer, as applicable, as designated in
Section 1. 04 (a) and Section 1. 04 (b) hereof. Such written
notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time
to time designate as provided in this Section. Any such
notice, demand or communication shall be deemed to be received
by the addressee, regardless of whether or when any return
receipt is received by the sender or the date set forth on
such return receipt, on the day that it is dispatched by
messenger for immediate personal deli very, or two (2) calendar
days after it is placed in the United States mail as
heretofore provided.
b. In addition to the submission of notices, demands or
communications to the parties as set forth above, copies of
all notices to any party shall also be sent to:
(if the Developer)
Pacific Star Development Inc.
13310 Armagosa Road
Victorville, CA 92392
Attn: Stan Mullins
(if the Agency)
Economic Development Agency
of the city of San Bernardino
Development Department
Housing Division
201 North "E" Street
Third Floor
San Bernardino, CA 92401-1507
(with copy to)
Sabo & Green,
A Professional Corporation
6320 Canoga Avenue, Suite 400
Woodland Hills, CA 91367
Section 6.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement. The parties represent and warrant that they do not have
knowledge of any such conflict of interest.
- 34 -
section 6.03. Warrantv Aaainst PaYment of Consideration
for Aareement. The Developer warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the'
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
section 6.04. Nonliabilitv of Aaencv Officials and
Emplovees. No member, official or employee of the Agency shall be
personally liable to the Developer" or any successor in interest,
in the event of any default or breach by the Agency or for any
amount which may become due to the Developer or to its successor,
or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or
employee.
Section 6.05. Enforced Delav: Extension of Time of
Performance. In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default where delays or defaults are due to war; insurrection;
strikes; lockouts; riots; floods; earthquakes; fires; casualties;
acts of God; acts of public enemy; epidemics; quarantine
restrictions; freight embargoes or lack of transportation; weather-
caused delays; inability to secure necessary labor, materials or
tools; delays of any contractors, subcontractor or supplier; acts
of the other party other than as permitted or required by the terms
of this Agreement; acts or failure to act of any public or
governmental agency or entity other than as permitted or required
by the terms of this Agreement (except that action or failure to
act by the City or the Agency shall not extend the time for the
Agency to act unless such action or failure to act is the result of
a lawsuit or injunction including by way of illustration, but not
limited to, lawsuits pertaining to the adoption of the Agreement,
the EIR and any other environmental documentation and procedures,
eminent domain, and the like) or any other causes beyond the
control or without the fault of the party claiming an extension of
time to perform. Any extension of time for any such cause
hereunder shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if
notice by the party claiming such extension is sent to the other
party within thirty (30) calendar days of the commencement of the
cause. Times of performance under this Agreement may also be
extended by mutual agreement in writing by and between the Agency
and the Developer.
Section 6.06. Inspection of Books and Records. The
Agency shall have the right at all reasonable times at the Agency's
cost and expense to inspect the books and records of the Developer
pertaining to the Property and/or the development thereof as
necessary for the Agency, in its reasonable discretion, to enforce
its rights under this Agreement. Matters discovered by the Agency
shall not be disclosed to third parties unless required by law or
- 35 -
.
unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder.
The Developer shall also have the right at all reasonable times to
inspect the books and records of the Agency pertaining to the
Property and/or the development thereof as pertinent to the
purposes of this Agreement.
Section 6.07. Approvals.
a. Approvals required of the Agency or the Developer,
or any officers, agents or employees of either the Agency or
the Developer, shall not be unreasonably withheld and approval
or disapproval shall be given within the time set forth in the
Schedule of Performance or, if no time is given, within a
reasonable time.
b. The Executive Director of the Agency is authorized
to sign on his own authority amendments to this Agreement
which are of routine or technical nature, including minor
adjustments to the Schedule of Performance.
Section 6.08. Real Estate Commissions. The Agency has
previously agreed to pay a real estate commission to Phil Harrison
of Schneider Real Estate, 268 West Hospitality Lane, suite 201, San
Bernardino, California 92408 which commission shall be in the
amount of eight percent of the Developer I s Purchase Price as
actually paid by Developer and as may have been adjusted pursuant
to Section 2.02 hereof. The Agency shall not be liable for any
other real estate commissions, brokerage fees or finder fees which
may arise from or related to this Agreement.
Section 6.09. Indemnification. The Developer agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any
act or omission of the Developer in performing its obligations
hereunder. The Agency agrees to indemnify and hold the Developer
and its officers, employees and agents, harmless from and against
all damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
section 6.10. Release of Developer from Liabili tv.
Notwithstanding any provision herein to the contrary, the Developer
shall be relieved of any and all liability for the obligations of
the Developer hereunder with regard to the Property when a
Certificate of Completion has been issued by the Agency hereunder,
other than any covenants and obligations provided by the grant deed
by which the Property is conveyed to the Developer hereunder.
Section 6.11. Attornevs' Fees. If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, seeks the resolution of
disputes pursuant to section 6.12 hereof, or is made a party to any
- 36 -
action or proceeding brought by the Escrow Agent, then as between
the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or
resolution of disputes pursuant to Section 6.12 hereof, and not as
damages, its reasonable attorneys' fees as fixed by the Court or
other forum for resolution of disputes as set forth in Section 6.12
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees.
section 6.12. DisDute Resolution. If any dispute shall
arise concerning the provisions of this Agreement including, but
not limi ted to, those provisions set forth in the Scope of
Development attached hereto, such dispute shall be submitted to
reference pursuant to Code of civil Procedure Sections 638 to
645.1, inclusive, or, alternatively, to arbitration, on written
notice of demand for arbitration ("Notice of Demand") of either
party hereto given to the other. The arbitration shall be
conducted pursuant to the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure (statutory section references in
this Section shall be deemed to be references to the Code of civil
Procedure), as amended, amplified and modified by the following
provisions: The arbitration shall be by a single neutral
arbitrator. If the parties hereto have not agreed on the selection
of the arbitrator within five (5) calendar days after giving of
Notice of Demand, then either party hereto may petition the court
to select the arbitrator pursuant to Section 1281.6. Each party
hereto shall submit its nominees, if any, to the court within five
(5) calendar days after said petition is served and filed. The
arbitrator shall make his award within forty-five (45) calendar
days after his appointment. Certain periods of time set forth in
said Title 9 shall be shortened as follows: Section 1284, 1288.4,
1290.2 and 1290.6--halved; Section 1288--four (4) years to sixty
(60) calendar days, and one hundred (100) days to thirty (30)
calendar days; and Section 1288.2--one hundred (100) days to thirty
(30) calendar days. Venue of the arbitration hearing and any court
proceedings referenced below shall be in the county where the
Property is located. The parties hereto as parties to any such
arbitration shall have the right to petition the court to confirm,
correct or vacate the arbitrator's award pursuant to Section 1285
and to appeal the decisions of the Superior Court in any such
proceeding as provided in Section 1294 and 1294.2; provided,
however, that any such appeal shall not stay or have the effect of
staying the decision of the Superior Court. The costs of the
arbitration and reimbursement to the other party for any and all
legal fees related thereto pursuant to this Agreement, shall be
borne by the losing party or in such proportions as the arbitrator
shall decide. Nothing contained in this Agreement shall preclude
either party hereto from seeking judicial relief which may not be
obtainable or enforceable in, or which is in aid of, the
arbitration proceedings referenced in this Section; provided that
such jUdicial relief shall be sought in good faith and not as a
subterfuge to avoid the arbitration procedures.
- 37 -
Section 6.13. Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
- 38 -
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
section 7.01. Entire Aqreement.
a. This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original.
This Agreement includes 41 pages and 5 attachments,
which constitute the entire understanding and Agreement of the
parties.
b. This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the Property and
the development thereof.
c. None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be
merged with the grant deed conveying title to the Property,
and this Agreement shall continue in full force and effect
before and after such conveyance until issuance of the
Certificate of Completion for the Property.
d. All waivers of the provisions of this Agreement and
all amendments hereto must be in writing and signed by the
appropriate authorities of the Agency and the Developer.
- 39 -
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
a. Following its execution by the Developer and prompt
delivery thereafter to the Agency, this Agreement must be
approved, executed and delivered by the Agency to the
Developer within forty-five (45) calendar days after the date
of signature by the Developer. In the event that the Agency
has not approved, executed and delivered the Agreement to the
Developer within the foregoing period, then this Agreement
shall be deemed to be of no further force or effect unless the
time for such approval, execution and delivery is extended by
written notice from the Developer to the Agency. The date of
this Agreement shall be the date when the Agreement shall have
been approved by the Agency.
b. The Developer and the Agency agree to permit
recordation of this Agreement or any portion thereof against
the Property in the Office of the County Recorder for the
County where the Property is located.
- 40 -
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDI
By:
Secretary ,
Date:
(SEAL)
APPROVED AS TO FORM:
SABO & GREEN,
A Professional Corporation
Agency Counsel
APPROVED AS TO FORM
AND LEGAL CONTENT:
PACIFIC STAR DEVELOPMENT. INC.
The Developer
By,~1f~
Date: DECEHBEII. 16, 1992
Its:
James F. Penman
City Attorney
~~
<./ .
(All S~gnatures Must Be Notarized)
SBEO/OOOI/DOC/627
12115/92 2:00
- 41 -
STATE OF CALIFORNIA )
) ss
COUNTY OF.S4;B6IlJA/),,)c)
On 'j)E'~eMIl""L I~ , 1992, before me, the undersigned, a
Notary Public in and for said State, personally appeared
S-r.4,ju;;i N. Ii\ULL,tJs , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the General Partner that
Il,executed 0 the wi thin instrument on behalf of
tVi~IF(1!. cfi'A-iL !;'tJELof',u..Srf. -:p.x>.
WITNESS my hand and official seal.
@"'_"OFFICIALSEAL
JANIS p, BAXTER
: .. NOTARY PUBUC . CAUF
SAN BERNARDINO COUNTY
. . My Commissiofl &pires Aug. 8. 1995
Signature:~~........ P fD~
. At'D ~~"u~'-.- ,L~"-"'" fu~. ~,l 'i '\\-
STATE OF CALIFORNIA )
. L., f2. i,)
COUNTY O~)
ss
On Q'('{mlxiZ;J!)., , 1992, before me, the undersigned, a
NotaJ"Y , )'ubli,cj / in and for)) said~ S'tr,tl~, personally appeared
j/ r . &'h" !:iJ2/flam and 1':f/lJ'(.;h <-J. If{fi;lL{zPfJ personally known to
me (or proved to me on the bas~s of sat~sfactory evidence) to be
the Chairman and Secretary, respectively, of the Redevelopment
Agency of the City of,)., h;(Md.;"that executed the within instrument on
behalf of said Agency and acknowledged to me that said instrument
was authorized to be executed pursuant to a duly adopted resolution
of said Agency.
WITNESS my hand and official seal.
Sign.tu>;<,c~~/
L,/
r~--u~-~~.:qt
i@ IA=~~ I
it Notay NIle - CaIfomIa
~ SAN IIEANARDINO COUN1V i
' . ~~~'~~o:r~l~~
EXHIBIT "A"
LEGAL DESCRIPTION
APN - 149-116-35. 48
THE NORTH 1/2 OF LOT 2 AND ALL OF LOTS 3 to 9, INCLUSIVE, BLOCK 1,
TRACT NO. 1733, IN TH COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
AS PER PLAT RECORDED IN BOOK 26 OF MAPS, PAGES 7 TO 12, INCLUSIVE,
RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE WEST 25 FEET OF LOTS 7 THROUGH 9, INCLUSIVE.
EXHIBIT "B"
SCOPE OF DEVELOPMENT
The Property shall be developed as ten (10) single family detached
residential units. The Property may be developed in accordance
with this Agreement, but subject to the requirements of the Zoning
ordinance of the City and any variances or modifications therefrom
as approved by the City.
The Developer shall cause the design and construction of the
Property in accordance with the Schedule of Performance
(Exhibit "D") and this Agreement as follows:
In addition to the construction of the residential units, the
Developer will be responsible for the construction of all necessary
off-site improvements, including, but not limited to, the
construction of approximately three hundred (300) feet of sewer
lines and laterals and water lines, all street paving on Arcacia
street including curbs, sidewalks and gutters and all sidewalk
improvements and right-of-way improvements on North "E" street.
Developer shall also complete all necessary landscaping for the
Property. Developer shall also be responsible for all items which
may be improved as Conditions of Approval in connection with any
subdivision maps pertaining to the Property.
The development shall be first class, constructed of quality
materials, to City Code, and shall be unified in architectural
theme and treatment throughout the Property and adjacent off-site
areas, insofar as reasonable and practicable.
All improvements to be constructed by the Developer shall be
constructed or installed in accordance with the technical
specifications, standards and practices of the City and all
governing agencies and in accordance with plans and specifications
approved by the City.
The Developer shall cause the proper documents to be filed and fees
paid to all governmental or regulatory agencies, including
utilities, for applications for all required permits and approvals.
The Developer shall at its cost and expense be responsible for the
design and construction of off-site improvements and all items set
forth on any Conditions of Approval which may be required pursuant
to any subdivision map applicable to the Property, in accordance
with any and all standards and requirements of the City, utilities,
or other governmental authorities.
The Developer shall at its cost and expense undertake and complete
any and all soils, utility and drainage studies, plans and reports
pertinent to the development of the Property and shall provide a
copy of said studies and reports to the Agency. Said studies and
reports shall be completed prior to the final processing of any
subdivision maps necessary for the Property and the issuance of any
building permits for the Property.
EXHIBIT "B-1"
RENDERINGS
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EXHIBIT "c"
GRANT DEED
Recording Requested by:
After Recordation, Mail to:
Redevelopment Agency of the City of
Mail Tax statements to:
GRANT DEED
For valuable consideration, the receipt of which is hereby
acknowledged,
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a
public body, corporate and politic, of the state of California (the
"Grantor"), pursuant to and in accordance with the Community
Redevelopment Law of the State of California, hereby grants to
Pacific star Development, Inc., a California corporation
(the "Grantee"), the real property (the "Property") legally
described in the document attached hereto, labeled Exhibit A, and
incorporated herein by this reference.
1. The Property is conveyed subject to the Disposition
and Development Agreement entered into between the Grantor and the
Grantee, dated , 1992 (herein referred to as the
"Agreement") . The provisions of the Agreement are incorporated
herein by this reference and shall be deemed to be a part hereof as
if set forth at length herein.
2. The Grantee covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming
under or through them, that the Property, and any portion thereof,
shall be devoted to and available for sale only to persons or
families with an income which are low and moderate to very low, as
those terms are described in Health and Safety Code Sections 50093
and 55105, with sales costs to be at an affordable housing cost (as
such term is defined in Health and Safety Code section 50052.5).
3. The Grantee covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, age, marital status, national
origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, or through it,
Exh. "c" - 1
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the Property.
All deeds, leases or contracts made relative to the Property,
discrimination clauses:
(al In deeds: "The grantee herein covenants by and for
himself, his heirs, executors, administrators and assigns, and
all persons claiming under or through them, that there shall
be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee,
himself, or any person claiming under or through him,
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed.
The foregoing covenants shall run with the land."
(bl In leases: "The lessee herein covenants by and for
himself, his heirs, executors, administrators and assigns, and
all persons claiming under or through him, and this lease is
made and accepted upon and subject to the following
conditions:
That there shall be no discrimination against or segregation
of any person or group of persons on account of race, color,
creed, religion, sex, age, marital status, national origin or
ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the land herein leased, nor
shall the lessee himself, or any person claiming under or
through him, establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy, of tenants,
lessees, subtenants, sublessees or vendees in the land herein
leased."
(cl In contracts: "There shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, age, marital
status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee himself, or any person Claiming
under or through him, establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the land."
Exh. "c" - 2
.
3. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant
Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage, deed of trust or other financing or
security instrument permitted by the Agreement; provided, however,
that any successor of Grantee to the Property shall be bound by
such remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
4. The terms and conditions set forth in Article IV of
the Agreement and the covenants otherwise contained in this Grant
Deed shall remain in effect for a period of five (5) years from the
date hereof, except that the covenants against discrimination set
forth in Article IV of the Agreement shall remain in effect in
perpetuity and the covenants set forth in Sections and of the
Agreement shall remain in effect until they are satisfied in full.
5. The covenants contained in this Grant Deed shall be
binding for the benefit of the Grantor and its successors and
assigns, and such covenants shall run in favor of the Grantor for
the entire period during which such covenants shall be in full
force and effect, without regard to whether the Grantor is or
remains an owner of any land or interest herein to which such
covenants relate. The grantor, in the event of any breach of any
such covenants, shall have the right to exercise all of the rights
and remedies, and to maintain any actions at law or suits in equity
or other proper proceedings to enforce the curing of such breach as
provided in the Agreement or by law. The covenants contained in
this Grant Deed shall be for the benefit of and shall be
enforceable only by the Grantor and its successor.
Exh. "e" - 3
IN WITNESS WHEREOF, the Grantor and Grantee have caused
this instrument to be executed on their behalf by their respective
officers thereunto duly authorized, this ____ day of , .
19
Grantor:
REDEVELOPMENT AGENCY OF THE CITY OF
By:
Chairperson
By:
Secretary
APPROVED AS TO FORM:
By:
Counsel for Grantor
The provisions of this Grant Deed are hereby approved and
accepted.
Grantee:
PACIFIC STAR DEVELOPMENT. INC.
By:
Title:
By:
Title:
APPROVED AS TO FORM:
By:
Counsel for Grantee
Exh. "C" - 4
.
EXHIBIT "0"
.
SCHEDULE OF PERFORMANCE
(Days shall be calendar days, and all dates herein are
subject to change due to force majeure in accordance with
Section 6.05 of the Agreement)
(1) Agency approval of DDA
(2) Developer processes SUbdivision
Maps for the Property
(3) Developer submits to Agency and
city, site plan, concept elevations,
construction and related documents
(4) City and Agency review and
approve or disapprove site plan,
concept elevations and construction
and related documents
(5) Developer
Plans to the
Department
~-ro
(6) Developer jull. all permits
/>.11.1n .
submits Landscape
appropriate City
(7) Agency prepares and deposits in
escrow grant deed
(8) Escrow closes
(9) Completion of construction
DECEMBER 21, 1992
Within 30 days
approval of DDA
Within 60 days of Step 2
above -
of
Within 30 days of Step 3
above
Within 30 days prior to
the close of escrow
Within 30 days prior to
the close of escrow
Within 10 days prior to
close of escrow
Within 120 days
opening of escrow
of
Prior to DECEMBER 31,1993
. .
#
,
EXHIBIT "E"
When Recorded, Mail to:
CERTIFICATE OF COMPLETION
We, , Chairman and
, Secretary of the Redevelopment Agency of the City of
(the "Agency") hereby certify as follows:
By its Resolution No. , adopted and approved
, 199_, the Agency has resolved as follows:
Section 1. The improvements required to be constructed
in accordance with that certain Disposition and Development
Agreement (the "Agreement") dated , by and between
the Agency and , a California ,
(the "Developer") on that certain real property (the "Property")
more fully described in Exhibit "A" attached hereto and
incorporated herein by this reference, have been completed in
accordance with the provisions of said Agreement.
Section 2. This Certificate of Completion shall
consti tute a conclusi ve determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Property,
excluding any normal and customary tenant improvements and minor
building "punch-list" items, and including any and all buildings
and any and all parking, landscaping and related improvements
necessary to support or which meet the requirements applicable to
the building and its use and occupancy on the Property, whether or
not said improvements are on the Property or on other property
subject to the Agreement, all as described in the Agreement, and to
otherwise comply with the Developer's obligations under the
Agreement with respect to the Property and the dates for the
beginning and completion of construction of improvements thereon
under the Agreement; provided, however, that the Agency may enforce
any covenant surviving this Certificate of Completion in accordance
with the terms and conditions of the Agreement and the grant deed
pursuant to which the Property was conveyed under the Agreement.
Said Agreement is an official record of the Agency and a copy of
said Agreement may be inspected in the office of the Secretary of
the Redevelopment Agency of the City of located at
California, during regular
business hours.
Exh. "E" - 1
. .
..
.
.
section 3. The Property to which this Certificate of
Completion pertains is more fully described in Exhibit "A" attached
hereto.
DATED AND ISSUED this
day of
, 199_.
Executive Director of the Redevelopment Agency
of the City of
Exh. "E" - 2