HomeMy WebLinkAbout1990-142
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RESOLUTION NO. 90-142
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A JOINT DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CITY OF
SAN BERNARDINO, CALIFORNIA AND DUKES - DUKES AND ASSOCIATES,
INC., A CALIFORNIA CORPORATION REGARDING ORANGEWOOD ESTATES.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor is hereby authorized and directed to
execute on behalf of said City a Joint Development Agreement by
and between the Redevelopment Agency of the City of San
Bernardino, the City of San Bernardino, California and Dukes-
Dukes and Associates, Inc., a California Corporation regarding
Orangewood Estates, a copy of said agreement is attached hereto,
marked Exhibit nAn, and incorporated herein by reference as fully
as though set forth at length.
SECTION 2.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the
agreement fail to execute it within sixty (60) days of the
passage of this resolution.
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DAB/ses/Dukes-l.res 1
April 13, 1990
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RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A JOINT DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CITY OF
SAN BERNARDINO, CALIFORNIA AND DUKES - DUKES AND ASSOCIATES,
INC., A CALIFORNIA CORPORATION REGARDING ORANGEWOOD ESTATES.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at an adiourned regulaIllleeting thereof, held on the 19th
day of
Aoril
, 1990, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ESTRADA
x
REILLY
x
FLORES
x
MAUDSLEY
x
MINOR
x
POPE-LUDLAM
x
MILLER
x
-4##-0'4/~fi-'
C"lk'Y""'C.lerk
The foregoing resolution is
.,<'",&1. day
,
of
April
, 1990.
olcomb, Mayor
f San Bernardino
Approved as to
form and legal content:
JAMES F. PENMAN,
City Attorney
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DAB/ses/Dukes-l.res 2
April 13, 1990
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Recording Requested By:
REDEVELOPMENT AGENCY
When Recorded Mail to:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
300 North "D" Street, Fourth Floor
San Bernardino, California 92418-0001
JOINT DEVELOPMENT AGREEMENT
By and Between
THE REDEVELOPMENT AGENCY OF THE CITY
of SAN BERNARDINO, the CITY OF SAN BERNARDINO,
CALIFORNIA,
and
DUKES - DUKES AND ASSOCIATES, INC.
A California Corporation
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JOINT DEVELOPMENT AGREEMENT
THIS AGREEMENT, made this ,;(otL day of
tZ~
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, 1990,
by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, (the "Agency"), THE CITY OF SAN BERNARDINO, a charter
City duly organized and existing pursuant to the Constitution of
the State of California (hereinafter referred to as "City"), and
DUKES - DUKES AND ASSOCIATES, INC., a California Corporation
(hereinafter referred to as "Dukes").
SECTION 1.
Recitals.
1.1 The Agency, through the City's Community Development
Department (hereinafter "CDD"), administers various housing
programs, including programs, projects and activities funded by
the Agency's Low to Moderate Income Housing Fund (hereinafter the
IIFundll).
Using money obtained from the Fund, the CDD provides
attractive financing, with varying terms and conditions, to
persons seeking to develop or rehabilitate housing within the
City.
1.2 DUKES is the owner of certain real property located
entirely within the City, the legal description of which is
attached to this Agreement as Exhibit "A" (the "Dukes Property").
1.3 City is the owner of certain real property located
entirely within the City, the legal description of which is
attached to this Agreement as Exhibit "B" (The "City Property")
which consists of approximately twenty-one (21) acres.
1.4 In 1981, the City of San Bernardino issued a three
million dollar ($3,000,000.00) public improvement bond for the
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purpose of providing funds for infrastructure and site
improvements for Assessment District Number 5861.
1.5 A developer acquired certain property including the
City property and proceeded to build one hundred, twenty-three
(123) homes in a subdivision called "Orangewood Estates." These
homes were sold during the period from 1983 through 1986. The
development was not completed and on January 24, 1989, the City
took title to the City property through a Chapter 8 tax sale.
SECTION 2. Actions, Covenants, and Performance by Dukes
2.1 City hereby agrees to convey the City property to
Dukes for the purchase price of One Million Nine Hundred Thousand
Dollars ($1,900,000.00) payable in Twenty Five Thousand Dollar
increments upon the sale of each of the completed homes on the
City property on phases I and III. Such purchase price will be
evidenced by a promissory note substantially in the form of
Exhibit C, and secured by a Deed of Trust substantially in the
form of Exhibit D covering the units in the City property, which
will be released as to each lot upon close of escrow for the sale
of the completed home constructed on that lot.
2.2 In Phase I the 27 units will be built in two groups.
Group A will be composed of 13 units (shown on Exhibit E)
including 3 models. Group B (shown on Exhibit F) will be
composed of 14 units. Construction of Group B shall commence on
or before 6 units have been sold in Group A, but not later than
October 1, 1990.
2.3 In Phase II the 38 units on the Dukes property will be
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built in three groups. Group A will be composed of 13 units
(shown on Exhibit G), Group B will be composed of 13 units
(shown on Exhibit H) and Group C will be composed of 12 units
(shown on Exhibit I) . Construction of Group A will commence on
or before 9 units have been sold in Group B of Phase I but not
later than January 15, 1991. Construction of Group B shall
commence on or before 9 units have been sold in Group A, but not
later than March 15, 1991. Construction of Group C shall
commence on or before 8 units have been sold in Group B, but not
later than June 15, 1991.
2.4 In Phase III the 49 units will be built in four
groups. Group A will be composed of 12 units (shown on Exhibit
J), Group B will be composed of 12 units (shown on Exhibit K),
Group C will be composed of 12 units (shown on Exhibit L), and
Group 0 will be composed of 13 units (shown on Exhibit M).
Construction of Group A will commence on or before 8 units in
Group C of Phase II have been sold but not later than September
15, 1991. Construction of Group B shall commence on or before 8
units have been sold in Group A, but not later than January 15,
1992. Construction of Group C shall commence on or before 8
units have been sold in Group B, but not later than March 15,
1992. Construction of Group 0 shall commence on or before 8
units have been sold in Group C but not later than August 15,
1992.
2.5 The development schedule described in Sections 2.2,
2.3 and 2.4 herein may be accelerated in response to market
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demand but may not be later than the specified time deadlines
without the written approval of the Director of CDD and the
Executive Director of the Agency.
2.6 In the development of the units Dukes shall comply
with the development standards of the Verdemont Area Plan
approved by the Mayor and Common Council in November, 1986 or
such other standards applicable to the property, whichever is
greater. A copy of a summary of the Verdemont Area development
standards is attached hereto as Exhibit N.
2.7 On the Effective Date, Dukes will sign, execute and
deliver to the City for recordation, covenants running with the
land pursuant to California Civil Code Section 1468 covering at
least the following item:
2.7.1 A covenant to adhere to Redevelopment Agency
Twenty Percent (20%) Set-Aside Affordability Covenants and
Restrictions for a period of not less than Ten (10) years from
the first day of which at least fifty percent (50%) of all the
Units in the project are first sold; and ending on the date which
is Ten (10) years thereafter. A copy of such covenant is
attached hereto as Exhibit 0 and incorporated by reference as
though fully set forth at length.
SECTION 3. Actions by the Agency
3.1 On the Effective Date, the Redevelopment Agency will
loan to Dukes the sum of $1,156,115.00, as a temporary
construction loan for construction of the homes in Group A of
Phase I. Dukes will pay CDD 1.5% of such loan prior to receipt
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of the loan funds for a loan fee and for disbursement
administration. Said loan shall be subject to a floating
interest rate of 1.5 points over prime as determined by Bank of
America. Said loan will be evidenced by a promissory note
substantially in the form of Exhibit C, and secured by a Deed of
Trust substantially in the form of Exhibit D, which shall be
partially released as each home is sold upon the payment of the
proportional amount due for that unit including the unit's share
of the cost of the models as described in paragraph 3.1.2. Said
Deed of Trust shall be junior to that Deed of Trust described in
paragraph 2.1.
3.1.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.1.2 The portion of the loan attributable to the
3 models or $275,000 will be repaid at the sale of the other 111
homes in proportionate amount of the remaining principal and
interest. It is anticipated that the models will be the last 3
homes sold.
3.2 Upon commencement of construction of the units in
Group B the Agency will loan to Dukes a second temporary
construction loan in the amount of $1,216,950 to build the 14
homes in Group B. Dukes will pay CDD 1.5 % of such loan prior
to receipt of the loan funds for a loan fee and for disbursement
administration. Said loan shall be subject to a floating
interest rate of 1.5 points over prime as determined by Bank of
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America. Said loan will be evidenced by a promissory note
substantially in the form of Exhibit C, and secured by a Deed of
Trust substantially in the form of Exhibit D, which shall be
released as each home is sold upon the payment of the
proportional amount of the remaining principal and interest due
for that unit, including the unit's share of the cost of the
models. Said Deed of Trust will be junior to that Deed of Trust
described in paragraph 2.2.
3.2.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.3 Upon commencement of construction of the units in
Group A of Phase II the Agency will loan to Dukes a third
temporary construction loan in the approximate amount of
$1,142,053 to build the 13 homes in Group A. Dukes will pay CDD
1.5% of such loan prior to receipt of the loan for a loan fee
and for disbursement administration. Said loan shall be subject
to a floating interest rate of 1.5 points over prime as
determined by Bank of America. Said loan will be evidenced by a
promissory note substantially in the form of Exhibit C, and
secured by a Deed of Trust substantially in the form of Exhibit
D, which shall be partially released as each home is sold upon
the payment of the proportional amount due of the remaining
principal and interest for that unit, including the unit's share
of the cost of the models.
3.3.1 In lieu of a completion bond the CDD shall
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retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.4 Upon commencement of construction of the units in
Group B of Phase II the Agency will loan to Dukes a fourth
temporary construction loan in the approximate amount of
$1,142,053 to build the 13 homes in Group B. Dukes will pay CDD
1.5% of such loan prior to receipt of the loan for a loan fee and
for disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount due of the remaining principal and
interest for that unit, including the unit's share of the cost of
the models.
3.4.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.5 Upon commencement of construction of the units in
Group C of Phase II the Agency will loan to Dukes a fifth
temporary construction loan in the approximate amount of
$1,055,230 to build the 12 homes in Group C. Dukes will pay CDD
1.5% of such loan prior to receipt of the loan for a loan fee and
for disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
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Bank of America.
Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount due of the remaining principal and
interest for that unit, including the unit's share of the cost of
the models.
3.5.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.6 Upon commencement of construction of the units in
Group A of Phase III the Agency will loan to Dukes a sixth
temporary construction loan in the approximate amount of
$1,055,230 to build the 12 homes in Group A. Dukes will pay CDD
1.5% of such loan prior to the receipt of the loan for a loan
fee and for disbursement administration. Said loan shall be
subject to a floating interest rate of 1.5 points over prime as
determined by Bank of America. Said loan will be evidenced by a
promissory note substantially in the form of Exhibit C, and
secured by a Deed of Trust substantially in the form of Exhibit
D, which shall be partially released as each home is sold upon
the payment of the proportional amount of the remaining principal
and interest due for that unit, including the unit's share of the
cost of the models. Said Deed of Trust will be junior to that
Deed of Trust described in paragraph 2.2.
3.6.1 In lieu of a completion bond the CDD shall
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retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.7 Upon commencement of construction of the units in
Group B of Phase III the Agency will loan to Dukes a seventh
temporary construction loan in the amount of $1,055,230 to build
the 12 homes in Group B. Dukes will pay CDD 1.5% of such loan
prior to the receipt of the loan for a loan fee and for
disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount of the remaining principal and
interest due for that unit, including the unit's share of the
cost of the models. Said Deed of Trust will be junior to that
Deed of Trust described in paragraph 2.2.
3.7.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.8. Upon commencement of construction of the units in
Group C of Phase III the Agency will loan to Dukes an eighth
temporary construction loan in the amount of $1,055,230 to build
the 12 homes in Group C. Dukes will pay CDD 1.5% of such loan
prior to the receipt of the loan for a loan fee and for
disbursement administration. Said loan shall be subject to a
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floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit e, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount of the remaining principal and
interest due for that unit, including the unit's share of the
cost of the models. Said Deed of Trust will be junior to that
Deed of Trust described in paragraph 2.2.
3.8.1 In lieu of a completion bond the eDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.9 Upon commencement of construction of the units in
Group D of Phase III the Agency will loan to Dukes a ninth
temporary construction loan in the amount of $1,142,053 to build
the 13 homes in Group D. Dukes will pay eDD 1.5% of such loan
prior to the receipt of the loan for a loan fee and for
disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit e, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount of the remaining principal and
interest due for that unit, including the unit's share of the
cost of the models. Said Deed of Trust will be junior to that
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Deed of Trust described in paragraph 2.2.
3.9.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
SECTION 4. The Parties Intent
4.1 It is the intent of the parties that the units to be
developed and sold pursuant to this Agreement will be owner-
occupied and not used as rentals. On the Effective Date, Dukes
will sign, execute and deliver to the City for recordation a
covenant running with the land pursuant to California Civil Code
Section 1468 providing that for the period described in paragraph
2.6.1 such properties must be owner occupied and may not be
rented. The parties agree that the amount of damages for a
breach of such provision is very difficult to ascertain and
therefore agree that as liquidated damages City has a right to
all of the rentals paid in violation of this provision. The
Agency and/or the City have the right but not the obligation to
enforce this restriction. For the purposes of this paragraph
both a lease or rental with an option to buy and a sales
contract are to be considered as rentals.
SECTION 5.
Anti-Discrimination.
5.1 Dukes covenants by and for itself and any successors
in interest 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, age, handicap,
national origin or ancestry in the sale, lease, sublease,
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transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall Dukes 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, sublessees or vendees of the Property. The foregoing
covenants shall run with the land.
5.2 Participant shall refrain from restricting the rental,
sale or lease of the Property on the basis of race, color, creed,
religion, sex, marital status, handicap, national origin or
ancestry of any person. All such deeds, leases or contracts
shall contain or be subject to substantially the following non-
discrimination or non-segregation clauses:
5.2.1 In deeds: "The grantee herein covenants by
and for himself or herself, his or her 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, marital status, age, handicap,
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 herself or any person
claiming under or through him or her, 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
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herein conveyed.
land. "
The foregoing covenants shall run with the
5.2.2 In leases: "The lessee herein covenants by
and for himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and
subject to the following conditions:
"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, handicap, age
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself,
or any person claiming under or through him or her, 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 in the premises herein leased."
5.2.3
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, age, handicap, ancestry or national origin, in the sale,
lease, sublease, transfer, use occupancy, tenure or enjoyment of
the premises, nor shall the transferee himself or herself or any
person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation
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with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sub lessees or vendees
of the premises."
SECTION 6.
Anti-Kickback Provisions; Equal Employment
Opportunity.
All contracts for construction or repair using Funds
provided under this Agreement shall include a provision for
compliance to the Copeland "Anti-Kickback Act" (18 U.S.C. 874) as
supplemented in Department of Labor Regulations (29 CFR, part 3).
This Act provides that each contractor or subcontractor shall be
prohibited from inducing, by any means, any person employed in
the construction, completion or repair of public work, to give up
any part of the compensation to which he/she is otherwise
entitled.
Dukes shall report all suspected violations to the
City.
All contracts in excess of $10,000.00 entered into by
Dukes using Funds provided under this Agreement shall contain a
provision complying with Equal Employment Opportunity provisions
established by Executive Order Number 11246, as amended.
SECTION 7.
Hold Harmless.
7.1 Dukes agrees to indemnify, save and hold harmless the
City, Agency and their employees and agents from all liabilities
and charges, expenses (including counsel fees), suits or losses,
however occurring, or damages, arising or growing out of the use
of, or receipt of, funds paid under this Agreement and all
operations under this Agreement.
Payments under this Agreement
are made with the understanding that the City and Agency are not
involved in the performance of services or other activities of
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2 Dukes. Dukes and its employees and agents are independent
3 contractors and not employees or agents of the City or Agency.
4 7.2 Dukes shall defend, assume all responsibility for and
5 hold the Agency, the City and their respective officers, agents
6 and employees, harmless from, all claims or suits for, and
7 damages to, property and injuries to persons, including
8 accidental death (including attorneys fees and costs), which may
9 be caused by any of Dukes' activities under this Agreement,
10 whether such activities or performance thereof be by Dukes or
11 anyone directly or indirectly employed or contracted with by
12 Dukes and whether such damage shall accrue or be discovered
13 before or after termination of this Agreement. Dukes shall take
14 out and maintain a comprehensive liability and property damage
15 policy in the amount of One-Million Dollars ($1,000,000) combined
16 single limit policy, including contractual and public liability,
17 as shall protect Dukes, City and Agency from claims for such
18 damages until two (2) years after the issuance of a Certificate
19 of Completion for all of Dukes' improvements.
20 7.3 Dukes shall furnish a certificate of insurance
21 countersigned by an authorized agent of the insurance carrier on
22 a form of the insurance carrier setting forth the general
23 provisions of the insurance coverage. This countersigned
24 certificate shall name the City and Agency and their respective
25 officers, agents, and employees as additional insureds under the
26 policy. The certificate by the insurance carrier shall contain a
27 statement of obligation on the part of the carrier to notify City
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and the Agency of any material change, cancellation or
termination of the coverage at least thirty (30) days in advance
of the effective date of any such material change, cancellation
or termination. Coverage provided hereunder by Dukes shall be
primary insurance and not contributing with any insurance
maintained by City or Agency, and the policy shall contain such
an endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of the City and Agency.
7.4 Dukes shall also furnish or cause to be furnished to
Agency and City evidence satisfactory to Agency and City that any
contractor with whom it has contracted for the performance of
work on the Property or otherwise pursuant to this Agreement
carries Workers' Compensation insurance as required by law.
SECTION 8.
Amendment.
This Agreement may be amended or modified only by written
agreement by all Parties, and failure on the part of any Party to
enforce any provision of this Agreement shall not be construed as
a waiver of the right to compel enforcement of any provision or
provisions.
SECTION 9. Assignment.
This Agreement shall not be assigned by Dukes without the
prior written consent of the City and Agency, which consent will
not be unreasonably withheld.
SECTION 10. Notices.
All notices herein required shall be in writing and
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delivered in person or sent certified mail, postage prepaid,
addressed as follows:
As to City/Agency
As to Dukes
Director
Community Development Department
City Hall, Fifth Floor
300 North "D" street
San Bernardino, CA 92418-0001
John Dukes
Dukes - Dukes and Associates
Inc.
1875 West Highland Avenue
San Bernardino, CA 92405
Notice is effective seventy-two (72) hours after delivery
by United States mail.
SECTION 11.
Cooperation.
Each of the Parties agrees to cooperate with each and every
other Party in doing all acts contemplated or required under this
Agreement including, without limitations, the processing of all
applications.
SECTION 12.
Entire Agreement.
This Agreement and any document or instrument attached
hereto or referred to herein integrates all terms and conditions
mentioned herein or incidental hereto, and supercedes all
negotiations and prior writing with respect to the subject matter
hereof.
In the event of conflict between the terms, conditions
or provisions of this Agreement, and any such document or
instrument, the terms and conditions of this Agreement shall
prevail. Should suit be brought to enforce or interpret any part
of this Agreement, the prevailing party shall be entitled to
recover as element of costs of suit and not as damages,
reasonable attorneys' fees to be filed by the court. The
prevailing party shall be the party entitled to recover his/her
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costs of suit, regardless of whether such suit proceeds to final
judgment. A party not entitled to recover his/her costs shall
not be entitled to recover attorneys' fees.
SECTION 13. Exhibits.
By this reference, each of the Exhibits described below are
incorporated into and made a part of this Agreement as though
fully set forth at length, and each of the Parties agrees to
perform under and take the action required by any Exhibit.
The Exhibits are:
SECTION 14. Third Party Beneficiaries.
No third party shall be deemed to have any rights hereunder
against any of the parties hereto as a result of this Agreement.
The filing of third party lawsuits against any Party relating to
the Property of this Agreement or to other development issues,
will not be a reason to delay or stop the development, processing
of any applications, construction, the issuance of building
permits, or issuance of certificates of occupancy unless the
third party obtains a court order preventing the activity. No
Party hereto will stipulate to the issuance of any such court
order.
SECTION 15. Effective Date.
The Effective Date of this Agreement is April 20, 1990.
/
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on the Goy and year first hereinabove written.
ATTEST:
CITY
~f~~h$
ci y Clerk .
ATTEST:
RSDEVELO MENT AGENCY/COMMUNITY
DEVELOPMENT COMMISSI
4:~'~L
Rob rt oJ. TempI ,
Secretary
BY:
DUKES - DUKES AND ASSOCIATES, INC.
Approved as to form
and legal content:
Bylrf-~
~
,
JAMES F. PENMAN,
City Attorney
BY:~
./
Approved as to form
and legal content:
~
Age Counsel
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
On this 9' day of ;W?L y , in the year
19'90 , before me, the undersigned, a Not'ary Public in and for
the State of California, personally appeared W.R. Holcomb
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Mayor of the City of San Bernardino and
acknowledged to me said City executed it.
;tI~;1/ .
Signature of NO~Ub1iC
(SEAL)
e' CHICIAl SEAl
a , ' fESTM NAZARIO
.' NOTARY PlaIC- CAllf<JlHtA
SAN WlNAADIHO COMlY
I1Y CllmlSSIlJI ElCIl. stPT. 1. 1'112
DAB/ses/Dukes.agr
<
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
On this '7 day of 11 a.-y- , in the year
/990, before me, the undersigned, a Notary Public in and for
the State of California, personally appeared W.R. HOlcomb
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Chairman of the Community Development
Commission of the City of San Bernardino and acknowledged to me
said Commission executed it.
. (7FICIAL !lAL
.. NESTOR NAZAIlIO
. NOT AllY I'IaIC- CAlIFOAIIA
SAN IlEl1NAI()I1!O CCUITY
I1V CO'I1lSSION UP. SE'T. I. 1"2
;1/.ad;;; AI .
Signature of Not~bliC
(SEAL)
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On H....y I , / '1 90 before me, the
undersigned a Notary ublic'in and for s 'd,State'/personallY
appeared ttu~ x..v,<... ,
satisfact evi ence to be the person.5 who executed the
within i trument as the President and the .)~
of the corporation that executed the within-instfument, and
acknowledged to me that such corporation executed the same.
1
2 STATE OF CALIFORNIA )
)ss.
3 COUNTY OF SAN BERNARDINO )
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. IFfICIAl SEAL
... ""STOll NAZAllII
. NOTA.VPlIllIC-CAllflJllIA
SNlllElVWlIllHe CCUITY
I1Y Clrt'fl1iSl.. [Xl'. SEPT, I, 1"2
11 (SEAL)
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DAB/ses/Dukes.agr
WITNESS my hand and official seal.
j/Jd;c ;1/ ~~
, 0
23
..
LEGAL DESCRIPTION
LOTS 25 AND 26, MOUNT VERNON ORANGE GROVE AND FRUIT COMPANY'S
LANDS, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNAR-
DINO, AS PER PLAT RECORDED IN BOOK 12 OF MAPS, PAGE 16,
RECORDS OF SAID COUNTY, AND PORTION OF 16TH STREET TO BE
VACATED.
EXCEPTING THEREFROM, THE WEST 30 FEET OF LOT 25, AS CONVEYED
TO THE COUNTY OF SAN BERNARDINO, A BODY CORPORATE AND POLITIC
OF THE STATE OF CALIFORNIA, BY DEED RECORDED ON MARCH 30,
1956, IN BOOK 3898, PAGE 566 OF OFFICIAL RECORDS.
EXHIBIT "A"
..
LEGAL DESCRIPTION
LOTS 12 THROUGH 39, TRACT NUMBER 11259, AS PLAT RECORDED PER
MAP BOOK 156, PAGES 50 THROUGH 52, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA.
LOTS 3 THROUGH 17 AND LOTS 22 THROUGH 46, TRACT NUMBER 11261,
AS PLAT RECORDED PER MAP BOOK 156, PAGES 57 THROUGH 59,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA.
LOTS 1, 2, 18 AND 19, TRACT NUMBER 11261, AS PLAT RECORDED
PER MAP BOOK 156, PAGES 57 THROUGH 59, COUNTY OF SAN BERNAR-
DINO, STATE OF CALIFORNIA.
LOTS 20, 21, 47, 48 AND 49, TRACT NUMBER 11261, AS PLAT
RECORDED PER MAP BOOK 156, PAGES 57 THROUGH 59, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA.
EXHIBIT "B"
lab/3872
"
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EXHIBIT NO. C
3
PROMISSORY NOTE SECURED BY DEED OF TRUST
4
$
Place:
Redevelopment Agency
300 North "D" Street
San Bernardino, CA 92418
5
6 Date:
7 FOR VALUE RECEIVED, the undersigned jointly and severally
8 promises to pay to the Redevelopment Agency of the City of San
9 Bernardino (the "Agency") or its successors, the sum of
($
), and to pay interest on
11 the unpaid principal amount of this Note from the date hereof, at
12 the floating rate of 1.5 points over prime as determined by the
13
Bank of America, per annum, until paid.
Principal and interest
14 payments shall be made as each home is sold, in proportionate
16
15 amounts of the remaining principal and interest with all
principal and interest due and payable
in lawful
17 money of the United States at the principal office of the Agency,
18 300 North "D" Street, Third Floor, City Hall, San Bernardino, CA
19 92418, or at such other place as may from time to time be
20
21 immediately due and payable in the amount of unpaid principal,
designated by the Agency in writing.
This Note shall become
22 with interest, upon transfer of title of the property described
23 in the Deed of Trust securing this Note to any person, firm or
24 corporation other than the undersigned and except as provided in
25 said Deed of Trust, whether such transfer of title be voluntary,
26 involuntary, or by operation of law.
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2 The undersigned reserves the right to prepay at any time
3 all or any part of the principal amount of this Note without the
4 payment of penalties or premiums. All payments on this Note
5 shall be applied first to the interest due on the Note and then
6 to the principal due on the Note, and the remaining balance shall
7 be applied to late charges, if any. Except as provided below,
8 all quarterly payments on this Note shall be credited as of the
9 due date thereof without adjustment of interest because paid
10 either before or after such due date.
11 IN THE EVENT the undersigned shall fail to pay any payment
12 when due, and if such failure be subsisting Thirty (30) days
13 thereafter, the unpaid principal amount of this Note, together
14 with accrued interest and late charges, shall become due and
15 payable, at the option of the City, without notice to the
16 undersigned. Failure of the Agency to exercise such option shall
17 not constitute a waiver of such default. No default shall exist
18 by reason of nonpayment of any required payment so long as the
19 amount of optional prepayments already made pursuant hereto
20 equals or exceeds the amount of the required payments. If the
21 payments on this Note are not paid within Ten (10) days of the
22 due date, the undersigned shall pay to the Agency a late charge
23 of 4% per calendar month, or fraction thereof, on the amount past
24 due and remaining unpaid. If this Note be reduced to judgment,
25 such judgment shall bear the statutory interest rate on
26 judgments.
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In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the state of California.
If suit is instituted by the Agency to recover on this
Note, the undersigned agrees to pay all costs of such collection
including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date, duly
filed for record in the office of the County Recorder of the
County of San Bernardino, State of California.
DEMAND, protest and notice of demand and protest are hereby
waived and the undersigned hereby waives, to the extent
authorized by law, any and all homestead and other exemption
rights which otherwise would apply to the debt evidenced by this
Note.
IN WITNESS WHEREOF, THIS NOTE has been duly executed by the
undersigned, as of its date.
(witness)
Page 3 of 3
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1
2 EXHIBIT NO. D
3 Deed of trust with assignment of rent
4 Deed of trust made on , 1990, by Dukes - Dukes
5 and Associates, Inc., a California Corporation, hereinafter
6 called trustor, whose address is 1875 West Highland Avenue, San
7 Bernardino, CA 92405 to First American Title Insurance Company, a
8 California Corporation, hereinafter referred to as trustee, whose
9 business address is in favor of the
10 Redevelopment Agency of the City of San Bernardino, hereinafter
11 referred to as beneficiary, whose business address is 300 North
12 "D" Street, City Hall, San Bernardino, CA 92418.
13 Trustor irrevocably grants, transfers, and assigns to
14 trustee in trust, with power of sale, all that property,
15 including all easements and rights of way used in connection
16 therewith or as a means of access thereto, in the City of San
17 Bernardino, County of San Bernardino, State of California,
18 described as follows:
19 Together with the rents, issues, and profits thereof,
20 subject however to the right reserved by trustor in Paragraph B-
21 16 hereof to collect and apply such rents, issues, and profits,
22 prior to any default hereunder;
23 For the purpose of securing payment of the indebtedness
24 evidenced by a promissory note executed by trustor, dated
25 , 1990, in the principal sum of
26 payable to beneficiary or order, and
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2 each extension thereof; and performance of each agreement of
3 trustor incorporated herein by reference or contained herein.
4 A. To protect the security of this deed of trust, trustor
5 agrees:
6 1. To maintain the property in good condition and repair;
7 not to remove or demolish any building or improvement thereon; to
8 complete promptly in workmanlike manner any improvement hereafter
9 constructed thereon and to restore promptly in workmanlike manner
10 any improvement thereon that is damaged or destroyed, and to pay
11 when due all costs incurred therefor or in connection therewith;
12 to comply with all laws, ordinances, regulations, covenants,
13 conditions, and restrictions affecting the property; not to
14 commit or permit any waste thereof or any act upon the property
15 in violation of law or of covenants, conditions, or restrictions
16 affecting the property.
17 2. To appear in and defend any action or proceeding
18 purporting to affect the security hereof or the rights or powers
19 of beneficiary or trustee; and also, if at any time beneficiary
20 or trustee is a party to or appears in any such action or
21 proceeding, or in any action or proceeding to enforce any
22 obligation hereby secured, to pay all cost and expenses paid or
23 incurred by them or either of them in connection therewith,
24 including, but not limited to, cost of evidence of title and
25 attorneys' fees in a reasonable sum.
26 3. To pay (al at least 10 days before delinquency, all
27 taxes and assessments affecting the property, all assessment upon
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water company stock, and all rents, assessments, and charges for
water appurtenant to or used in connection with the property; (b)
when due, all encumbrances, charges, and liens, with interest, on
the property or any part thereof, which appear to be prior or
superior hereto; and (c) all costs, fees, and expenses of this
trust.
4. If trustor fails to make any payment or to do any act
as herein provided, then beneficiary or trustee (but without
obligation so to do, and with or without notice to or demand upon
trustor, and without releasing trustor from any obligation
hereof) may (a) make or do the same in such manner and to such
extent as either deems necessary to protect the security hereof,
beneficiary or trustee being authorized to enter upon the
property for such purpose; (b) appear in or commence any action
or proceeding purporting to affect the security hereof or the
rights or powers of beneficiary or trustee; (c) pay, purchase,
contest, or compromise any encumbrance, charge, or lien that, in
the judgment of either, appears to be superior hereto; and in
exercising any such power, beneficiary or trustee may incur
necessary expenses, including reasonable attorneys' fees.
5. To pay immediately and without demand all sums
expended hereunder by beneficiary or trustee, with interest from
date of expenditure at 1.5 points over prime as determined by the
Bank of America per annum.
B. It is mutually agreed that:
1. Any award of damages made in connection with the
Page 3 of 14
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2 condemnation for public use of or injury to the property or any
3 part thereof is hereby assigned and shall be paid to beneficiary,
4 who may apply or release such moneys received therefor upon any
5 indebtedness secured hereby in such order as beneficiary
6 determines, or at the option of beneficiary the entire amount so
7 received or any part thereof may be released to trustor. Such
8 application or release shall not cure or waive any default or
9 notice of default hereunder or invalidate any act done pursuant
10 to such notice.
11 2. The acceptance by beneficiary of any payment less than
12 the amount then due shall be deemed an acceptance on account only
13 and shall not constitute a waiver of the obligation of trustor to
14 pay the entire sum then due or of beneficiary's right either to
15 require prompt payment of all sums then due or to declare
16 defaul t. The acceptance of payment of any sum secured hereby
17 after its due date will not waive the right of beneficiary either
18 to require prompt payment when due of all other sums so secured
19 or to declare default for failure so to pay. No waiver of any
20 default shall be a waiver of any preceding or succeeding default
21 of any kind.
22 3. At any time or from time to time, without liability
23 therefor and with or without notice, upon written request of
24 beneficiary and presentation of this deed and the secured note
25 for endorsement, and without effecting the personal liability of
26 any person for payment of the indebtedness secured hereby or the
27 effect of this deed upon the remainder of the property, trustee
28 Page 4 of 14
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2 may reconvey any part of the property, consent to the making of
3 any map or plat thereof, join in granting any easement, or join
4 in any extension agreement or any agreement subordinating the
5 lien or charge thereof.
6 4. Upon written request of beneficiary stating that all
7 sums secured hereby have been paid, surrender of this deed and
8 the note to trustee for cancellation and retention, and payment
9 of its fees, trustee shall reconvey, without warranty, the
10 property then held hereunder. The recitals in such reconveyance
11 shall be conclusive proof of the truthfulness thereof. The
12 grantee may be designated in such reconveyances as "the person or
13 persons legally entitled thereto."
14 5. Additional portions of the property subj ect to the
15 lien of this deed of trust, selected by trustor, shall be
16 released from the lien hereof from time to time on payment
17 against the outstanding principal balance of the proportional
18 amount of the remaining principal and interest due for the parcel
19 to be released, including the parcel's proportionate share for
20 the cost of construction of the model homes.
21 Regardless of whether trustor prepays any part of the
22 principal of the secured debt, partial release shall be granted
23 upon the payment of the proportional amount of the remaining
24 principal and interest due for the parcel to be released,
25 including the parcel's proportionate share for the cost of
26 construction of the model homes. If trustor sells a lot or
27 lots, or a portion or portions of the property encumbered hereby,
28 Page 5 of 14
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2 and gives written notice of such fact to beneficiary, beneficiary
3 will be deemed to have agreed that it will execute a partial
4 release of such property from the lien hereof whenever the
5 release amount computed as specified above is paid to
6 beneficiary. Trustor may give such notice to beneficiary at any
7 time before there is a trustee's sale of the property. At any
8 time trustor is in default in payments to be made to beneficiary
9 hereunder, any amounts paid to and received by beneficiary for
10 execution of releases pursuant to the terms of this paragraph
11 after notice of default and election to sell has been recorded
12 shall not, unless the requirements of Section 2924c of the Civil
13 Code are fully met by or on behalf of trustor, waive the right of
14 beneficiary to continue its plans to have the property sold, nor
15 shall they have any effect on the exercise by beneficiary of the
16 acceleration privilege contained herein, except to entitle the
17 person effecting such payment to the release of the property for
18 which the release amount was paid, and, insofar as beneficiary is
19 concerned, to constitute a credit against the secured debt.
20 Beneficiary acknowledges that the ability of trustor
21 to procure releases promptly is of the utmost importance.
22 Therefore, beneficiary will at all times maintain at its
23 principal place of business a person who is authorized to execute
24 such releases on behalf of beneficiary, and such releases will be
25 executed and delivered, when sought in compliance with the
26 provisions contained herein, not later than ten days after
27 written demand for such release has been made on beneficiary.
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2 6. I f trustor or any subsequent owner of the property
3 covered hereby shall occupy the property, or any part thereof,
4 after any default in payment of any amount secured by this deed
5 of trust, trustor or such owner shall pay to beneficiary in
6 advance on the first day of each month a reasonable rental for
7 the premises so occupied. On failure to pay such reasonable
8 rental, trustor or such owner may be removed from the premises by
9 summary dispossession proceedings or by any other appropriate
10 action or proceeding.
11 7. If default is made in payment of any indebtedness or
12 in performance of any agreement hereby secured, then beneficiary,
13 with or without notice to trustor, may declare all sums secured
14 hereby immediately due and payable by instituting suit for the
15 recovery thereof or for the foreclosure of this deed, or by
16 delivering to trustee a written declaration of default and demand
17 for sale, as well as a written notice of default and of election
18 to cause the property to be sold, which notice trustee shall
19 cause to be filed for record. If such declaration is delivered
20 to trustee, beneficiary also shall deposit with trustee this
21 deed, the secured note, and all documents evidencing
22 expenditures secured hereby.
23 8. Should trustor, without the consent in writing of
24 beneficiary, voluntarily sell, transfer, or convey his interest
25 in the property or any part thereof, or if by operation of law,
26 it be sold, transferred, or conveyed, then beneficiary may, at
27 its option, declare all sums secured hereby immediately due and
28 Page 7 of 14
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2 payable. Consent to one such transaction shall not be deemed to
3 be a waiver of the right to require such consent to future or
4 successive transactions.
5 9. After the time then required by law has elapsed after
6 recordation of such notice of default, and notice of sale having
7 been given as then required by law, trustee, with or without
8 demand on trustor, shall sell the property at the time and place
9 fixed in the notice of sale, either as a whole or in separate
10 parcels and in such order as trustee determines, at public
11 auction, to the highest bidder, for cash in lawful money of the
12 United states, payable at time of sale. Trustee may postpone
13 from time to time sale of all or any portion of the property by
14 public announcement at the time and place of sale originally
15 fixed or at the last preceding postponed time. Trustee shall
16 deliver to the purchaser its deed conveying the property sold,
17 but without any covenant or warranty, express or implied. The
18 recitals in such deed of any matters or facts shall be conclusive
19 proof of the truthfulness thereof. Trustor, trustee,
20 beneficiary, or any other person may purchase at the sale.
21 10. After deducting all costs, fees, and expenses of
22 trustee and of this trust, including cost of evidence of title
23 and reasonable attorney fees in connection with sale, trustee
24 shall apply the proceeds of sale to payment of (a) all sums
25 expended under the terms hereof and not theretofore repaid, with
26 accrued interest at the floating rate of 1.5 points over prime as
27 determined by the Bank of America per annum, and (b) all other
28 Page 8 of 14
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2 sums then secured hereby in such order as beneficiary, in the
3 exercise of its sole discretion, directs. The remainder, if
4 any, shall be paid to the person or persons legally entitled
5 thereto.
6 11. Before trustee's sale, beneficiary may rescind such
7 notices of default and of election to cause the property to be
8 sold by delivering to trustee a written notice of rescission,
9 which notice, when recorded, shall cancel any prior declaration
10 of default, demand for sale, and acceleration of maturity. The
11 exercise of such a right of rescission shall not constitute a
12 waiver of any default then existing or subsequently occurring,
13 or impair the right of beneficiary to deliver to trustee other
14 declarations of default and demands for sale or notices of
15 default and of election to cause the property to be sold, or
16 otherwise affect any provision of the secured note or of this
17 deed or any of the rights, obligations, or remedies of
18 beneficiary or trustee hereunder.
19 12. Beneficiary may from time to time, as provided by
20 statute, or by a writing signed and acknowledged by him and
21 recorded in the office of the county recorder of the county in
22 which the land or such part thereof as is then affected by this
23 deed of trust is situated, appoint another trustee in place and
24 stead of trustee herein named; and thereupon, the trustee herein
25 named shall be discharged, and the trustee so appointed shall be
26 substituted as trustee hereunder with the same effect as if
27 originally named trustee herein.
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13. If two or more persons are designated as trustee
herein, any or all powers granted herein to trustee may be
exercised by any of such persons if the other person or persons
is unable, for any reason, to act. Any recital of such inability
in any instrument executed by any of such persons shall be
conclusive against trustor, his heirs and assigns.
14. All leases now or hereafter affecting the property are
hereby assigned and transferred to beneficiary by trustor.
Trustor hereby covenants that none of such leases will be
modified or terminated without the written consent of
beneficiary.
15. When requested so to do, trustor shall give such
further written assignments of rents, royalties, issues, and
profits; of all security for the performance of leases; and of
all money payable under any option to purchase, and shall give
executed originals of all leases, now or hereafter on or
affecting the property.
16. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues, and
profits, as but not before they become due. Upon any such
default, trustor's right to collect such moneys shall cease, not
only as to amounts accruing thereafter, but also as to amounts
then accrued and unpaid. In the event of default, beneficiary,
with or without notice and without regard to the adequacy of
security for the indebtedness hereby secured, either in person or
Page 10 of 14
1
2 by agent, or by a receiver to be appointed by the court, (a) may
3 enter upon and take possession of the property at any time and
4 manage and control it in beneficiary's discretion and, (b) with
5 or without taking possession, may sue for or otherwise collect
6 the rents, issues, and profits thereof, whether past due or
7 coming due thereafter, and apply the same, less costs and
8 expenses of operation and collection, including reasonable
9 attorney's fees, upon any obligation secured hereby and in such
10 order as beneficiary determines. None of the aforesaid acts
11 shall cure or waive any default hereunder or invalidate any act
12 done pursuant to such notice. Beneficiary shall not be required
13 to act diligently in the care or management of the property or in
14 collecting any rents, royalties, or other profits that it is
15 hereby authorized to collect, and shall be accountable only for
16 sums actually received.
17 17. Wi thout affecting the liability of trustor or of any
18 other party now or hereafter bound by the terms hereof for any
19 obligation secured hereby, beneficiary, from time to time and
20 with or without notice, may release any person now or hereafter
21 liable for performance of such obligation, and may extend the
22 time for payment or performance, accept additional security, and
23 alter, substitute, or release any security.
24 18. In any action brought to foreclose this deed or to
25 enforce any right of beneficiary or of trustee hereunder, trustor
26 shall pay to beneficiary and to trustee attorneys' fees in a
27 reasonable sum, to be fixed by the court.
28 Page 11 of 14
: '
1
2 19. No remedy hereby given to beneficiary or trustee is
3 exclusive of any other remedy hereunder or under any present or
4 future law.
5 20. The pleading of any statute of limitations as a
6 defense to any and all obligations secured by this deed is hereby
7 waived, to the full extent permissible by law.
8 21. In the event of default in the payment of any
9 indebtedness secured hereby, and if such indebtedness is secured
10 at any time by any other instrument, beneficiary shall not be
11 obligated to resort to any security in any particular order; and
12 the exercise by beneficiary of any right or remedy with respect
13 to any security shall not be a waiver of or limitation on the
14 right of beneficiary to exercise, at any time or from time to
15 time thereafter, any right or remedy with respect to this deed.
16 22. Trustor shall, upon request made by beneficiary,
17 furnish the beneficiary with annual statements covering the
18 operations of the property.
19 23. Beneficiary may collect a "late charge" not to exceed
20 an amount equal to four per cent (4%) per calender month, or
21 fraction thereof, on the amount past due and remaining unpaid on
22 any instalment that is not paid within ten (10) days from the due
23 date thereof, to cover the extra expense involved in handling
24 delinquent payments.
25 24. This deed applies to, inures to the benefit of, and
26 binds, all parties hereto, their heirs, legatees, devisees,
27 administrators, executors, successors, successors in interest,
28 Page 12 of 14
. ,
.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and assigns. The term "beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as beneficiary herein. In this deed, whenever the context
so requires, the masculine gender includes the feminine and
neuter, and the singular number includes the plural, and all
obligations of each trustor hereunder are joint and several.
25. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law.
Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which trustor, beneficiary, or trustee is a party
unless brought by trustee.
Trustor requests that a copy of notice of default and
of any notice of sale hereunder shall be mailed to him at the
address set out opposite his name, immediately below.
MAILING ADDRESS FOR NOTICES
John Dukes
Dukes - Dukes and Associates, Inc.
1875 West Highland Avenue
San Bernardino, CA 92405
Executed at San Bernardino,
written.
California on the date first above
.
[Signature]
Trustor
Page 13 of 14
10
11
12
1
2
)
)ss.
)
STATE OF CALIFORNIA
3
COUNTY OF SAN BERNARDINO
4
On II ~ /) / 990 before me, the
undersigned a Notary ublic in a_n~ fpr sqid S1;ate personally
appeared (H<lll"l'/l1.(,....,., MUA-'-' t- ,
persona known to me or proved to me on the basis of
satisfac ory evidence to be the personJ who executed
the within instrument as the President and the s~~
of the corporation that executed the within instrume , and
acknowledged to me that such corporation executed the same.
5
6
7
8
9
WITNESS my hand and official seal.
T L. .
.. . tfflClAl SEAl.
. . NESTOIl NAZAIlIO
NOTA~Y PUlUC- CAllflRlA
SAN _RDlHOClUlTY
I1Y cttI1ISSl1N EXP. SEPT. I. 1192
;I/~ )/ -
r
13 (SEAL)
14
15
16
17
18
19
20
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22
23
24
25
26
27
28
Page 14 of 14
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EXHIBIT M
Phase III. Group D (map)
"
CITY OF SAN BERNARDINO
COMMUNITY DEVELOPMENT DEPARTMENT
summary of the Verdemont Area Plan
Development Standards
1. All residential structures (houses, garages, barns) shall
have clay tile or concrete tile roofs.
2. Minimum front setback requirements:
Lot Size
Minimum
Setback
7,200 sq. ft.
25 feet
3. Landscaping shall be provided at the intersections of all
arterial and collector streets and a maintenance district
established prior to the release of improvement bonds.
4. Landscaping shall be provided for all open space fronting
parkways, arterials and collector thoroughfares prior to
the release of improvements bonds.
5. Every residential zoned property shall include front yard
landscaping and front yard street trees as a requirement
of bond release.
6. All developments opening onto an arterial or collector
street shall provide an entry treatment.
7. All developments having perimeter fencing shall use slump
stone, split face block, river rock or concrete block
with stucco color coating only. Wood and/or chain link
fencing shall not be allowed on the perimeter of or
corner lots within any developments.
8. CC&R's: All developments shall include restrictions
covering screening of satellite dishes, equestrian/hiking
trails, screening of storage, recreation vehicle storage,
repair of motor vehicles and other matters approved by
Council.
lab/3100
3/1989
Exhibit "N"
, "
EXHIBIT NO. 0
RECORDING REQUESTED BY:
Redevelopment Agency
of the City of San Bernardino
WHEN RECORDED RETURN TO:
Redevelopment Agency
of the City of San Bernardino
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
AFFORDABILITY COVENANTS AND RESTRICTIONS
Relating to
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
HOUSING CONSTRUCTION LOAN PROGRAM
THESE )\FFORDABILITY COVENANTS AND RESTRICTIONS made
this day of ~020 , 1990 between the Redevelopment
Agency of the ity of San Bernardino a body, corporate and
politic, being a redevelopment agency duly organized and existing
under the Constitution and laws of the State of California (the
"Agency"), and
Dukes - Dukes and Associates, Inc. (herein the "Borrower")
whose address is
1875 West Highland Avenue, San Bernardino, CA 92405
PREAMBLE
WHEREAS, the Borrower proposes to construct one-
hundred, fourteen (114) single family residences in San
Bernardino, California, described as:
(the "Residences") located within the City of San Bernardino (the
"City") and the redevelopment project area of the Agency known as
Page 1 of 15
DAB/ses/Dukes-O.agr
the Northwest Redevelopment Project:
(the "Project Area") to be
occupied by individuals of low- and moderate-income within the
meaning of Health and Safety Code Section 33000, et seq., of the
State of California (the "Act"); and
WHEREAS, pursuant to the Act, the Agency proposes to make a
Housing Construction Loan to the Borrower (the "Housing
Rehabilitation Loan") as follows
PRINCIPAL AMOUNT:
Phase IA: $1,156,115
Phase IB: $1,216,950
Phase IIA:$1,142,053
Phase IIB:$1,142,053
Phase IIC:$1,055,230
Phase IlIA: $1,055,230
Phase IIIB: $1,055,230
Phase IIIC: $1,055,230
Phase IIID: $1,142,053
DOLLARS; and
WHEREAS, the Act prescribes that the financing, use and
operation of the Residences be restricted in certain respects and
in order to ensure that the Residences will be financed, used and
operated in accordance with the Act, regulations and rulings, the
Agency and the Borrower have determined to enter into these
Affordability Covenants and Restrictions.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and other good and valuable
Consideration, the receipt and sufficiency of which is hereby
acknowledged, the Agency and the Borrower do hereby contract and
agree as follows:
AGREEMENT
Section 1.
Definitions and Interpretation.
Unless otherwise expressly provided herein or unless the
context clearly requires otherwise, the following terms shall
Page 2 of 15
DAB/ses/Dukes-O.agr
. .
have the respective meanings set forth below for all purposes of
these Affordability Covenants and Restrictions:
"Act" shall mean Health and Safety Act Section 33000, et
~ of the State of California.
"Adjusted Family Income" shall mean the anticipated total
annual income of individuals or families residing or treated as
residing in one residential unit, as calculated in accordance
with Treasury Regulation 1.167(k)-3(b)(3) under the Code as shall
be adjusted for family size.
"Affordability Covenants and Restrictions" shall mean these
Affordability Covenants and Restrictions by and between the
Agency and the Borrower pertaining to the Residences.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any regulations, rulings or procedures with respect
thereto.
"Delivery Date" shall mean the date of delivery of the Note.
"Housing Construction Loan" shall mean the Housing
Construction Loan in the amount as listed herein, secured by a
deed of trust, to be made by the Agency.
"Housing Construction Loan Documents" means the documents
pertaining to a particular Housing Construction Loan including
the Joint Development Agreement between the parties dated ~
c:<O, /'1fO.
"Low- or Moderate-Income Resident" shall mean the individual
or family occupying or treated as occupying the Residence whose
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, ,
aggregate Adjusted Family Income does not exceed one hundred
twenty percent (120%) of the Median Gross Income for the Area.
If all the occupants are students (as defined in Section
151(e)(4) of the Code), no one of whom is entitled to file a
joint return under Section 6013 of the Code, such occupants shall
not qualify as Low- or Moderate-Income Resident. The
determination of an occupant's status as a Low- or Moderate-
Income Resident shall be made at the commencement of such
occupant's occupancy of a unit in the Residences.
A person other than the Borrower who is liable on a Note
secured by a Mortgage need not meet such requirements provided
that such person executes and provides the Program Administrator
with his or her declaration under penalty of perjury or affidavit
that (i) he or she is executing the Note solely for purposes of
providing additional security, (ii) he or she has no other
financial or ownership interest in the property subject to the
Housing Construction Loan, and (iii) he or she has no intention
to, and will not, occupy the premises subject to the Mortgage at
any time.
"Median Gross Income for the Area" shall mean the median
household income as determined by the Program Administrator.
"Mortgage" shall mean the deed of trust, mortgage or other
similar instrument creating a lien on real property and the
improvements thereon securing a Housing Construction Loan.
"Note" means the joint development agreement, promissory
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DAB/SeS/Dukes-O.agr
note, or other document or documents executed by a Borrower to
evidence such Borrower's obligation to repay a Housing
Construction Loan.
"Program Administrator" means the Community Development
Department of the City of San Bernardino or any other qualified
entity that may assume all or any portion of the duties and
responsibilities of the Program Administrator.
"Qualified Residence Period" means a period beginning on the
Delivery Date, and ending on the date which is ten years after
the Delivery Date.
Section 2. Low- or Moderate-Income Residents.
To the end of satisfying the requirements of the Act for the
full Qualified Residence Period, the Borrower hereby represents,
warrants, covenants and agrees as follows:
(a) Throughout the Qualified Residence Period, the
Residences shall be occupied by Qualified Residents, who shall
meet the qualifications as a Low- or Moderate-Income Resident at
the time the Housing Construction Loan is made, and the
provisions of this paragraph shall terminate upon the expiration
of the Qualified Residence Period;
(b) The Qualified Resident intends to occupy the
Residence as his or her principal place of residence for a period
of at least two (2) years; and who has no present intention to,
and has not entered into any arrangement to, rent, sell, assign
or transfer the Residence. The following shall not be considered
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DAB/ses/Dukes-O.agr
to be a principal place of residence and shall not be financed
with a Housing Construction Loan: a residence used as investment
property; or a residence used as a recreational home. In
addition, the Residences and land appurtenant thereto must not be
in excess of that which reasonably maintains the basic liability
of the Residences and must not provide a source of income to the
Qualified Resident;
(cl The Borrower acknowledges that Program
Administrator shall exercise due diligence to establish such
procedures as are necessary to reasonably assure the compliance
of each Housing Construction Loan, Residence and Borrower with
the requirements of these Affordability Covenants and
Restrictions, and the Act. Such procedures shall include,
without limitation, reviewing and examining the Mortgage Loan
application of each potential Borrower, and performing the other
verification procedures set forth herein, to determine whether
such person, the Residence being purchased by such person and
financed, and the Housing Construction Loan meet the
requirements of these Affordability Covenants and Restrictions,
and the Act. In addition, Borrower acknowledges that the Program
Administrator shall establish such other procedures and conduct
such other investigations as are necessary to reasonably assure
said Program Administrator of the accuracy and veracity of the
information contained in the Mortgage Loan application of such
potential Borrower, and to otherwise assure the Program
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DAB/ses/Dukes-O.agr
Administrator that said requirements are met; and
(d) The Borrower acknowledges that the Agency has
appointed the Program Administrator, and the Program
Administrator has agreed to act, as the Agency's agent in
accordance with the provisions of the Act for the purposes of
reviewing and examining all affidavits, certificates, tax returns
and other information submitted pursuant to and in accordance
with these Affordability Covenants and Restrictions in order to
determine compliance of the Housing Construction Loan, the
Borrower and the Residences with all requirements of the Act as
agent of the Agency, the Program Administrator shall take all
steps necessary or appropriate to assure that the Mortgage Loans,
the Residences financed thereby, and the Borrowers, meet all the
requirements of the Act before the Mortgages are executed or
assumed, and to correct as provided herein any failure to meet
such requirements as soon as possible after discovery of such
failure.
Section 3.
Sale or Transfer of Residence.
(a) During the Qualified Residence Period the Borrower
hereby covenants and agrees not to sell, transfer or otherwise
dispose of the Residence or any interest therein (other than the
making of leases to members of the general public) without
obtaining the prior written consent of the Agency, which shall be
conditioned solely upon either:
(i) receipt of evidence satisfactory to the Agency that the
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Borrower's purchaser or transferee has assumed in writing
and in full the Borrower's duties and obligations under
these Affordability Covenants and Restrictions and the
Housing Construction Loan Documents, or
(ii) receipt by the Agency, as provided in these
Affordability Covenants and Restrictions, on or before the
date of sale or transfer of the Residences, a sum which
equals fifty percent (50%) of the sales profits attributable
to the Housing Construction Loan (the "Sales Profits") which
are received by Borrower.
(b) Sales Profits shall be calculated by the Agency and
shall mean:
(i) Borrower's gross receipts from the sale of the
Residences less the sum of the following:
(aa) The appraised value of the Residence at the time
the Note is executed by the Borrower (the "Fair
Market Value");
(bb) All sale costs, transfer fees, brokerage fees,
finder's fees and commissions, escrow fees,
release fees, title insurance policy premiums and
other similar, ordinary and customary sales
expenses which are paid or otherwise incurred by
Borrower which relate to the Residence; and
(cc) All capital contributions of Borrower which are
in furtherance of the ownership, development and
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DABjsesjDukes-O.agr
sale of the Residence;
(ii) multiplied by a number the numerator of which is the
principal amount of the Housing Construction Loan and
the denominator of which is the Fair Market Value.
(c) Borrower shall make full disclosure to the Agency of
all material facts with respect to the sale of the Residences.
The reasonableness of all deductions which are chargeable against
gross receipts in determining Sales Profits shall be determined
by the Agency. Any sale, transfer or other disposition of the
Residences in violation of this Section shall be ineffective to
relieve the Borrower of its obligations under these Affordability
Covenants and Restrictions. Not less than twenty (20) days prior
to consummating any sale, transfer or disposition of any interest
in the Residences, the Borrower shall deliver to the Agency a
notice in writing.
Section 1. Covenants to Run With the Land.
For the Qualified Residence Period, the Borrower hereby
subjects the Residence to the covenants, reservations and
restrictions set forth in these Affordability Covenants and
Restrictions. The Agency and the Borrower hereby declare their
specific intent that the covenants, reservations and restrictions
set forth herein shall be deemed covenants running with the land
and shall pass to and be binding upon the Borrower's successors
in title to the Residences; provided, however, that on the
termination of these Affordability Covenants and Restrictions
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DAB/ses/Dukes-O.agr
said covenants, reservations and restrictions shall expire.
Each and every contract, deed or other instrument hereafter
executed covering or conveying the Residences or any portion
thereof shall conclusively be held to have been executed,
delivered and accepted subject to such covenants, reservations
and restrictions, regardless of whether such covenants,
reservations and restrictions are set forth in such contract,
deed or other instruments.
Section 5. Burden and Benefit.
For the Qualified Residence Period, the Agency and the
Borrower hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the
land in that the Borrower's legal interest in the Residences is
rendered less valuable thereby. The Agency and the Borrower
hereby further declare their understanding and intent that the
benefit of such covenants touch and concern the land by enhancing
and increasing the enjoyment and use of the Residences by the
intended beneficiaries of such covenants, reservations and
restrictions, and by furthering the public purpose for which the
Housing Construction Loan was made by the Agency.
Section 6. Term.
These Affordability Covenants and Restrictions shall become
effective upon their execution and delivery. Except as provided
in the immediately following paragraph and as otherwise provided
in Section 7 hereof, these Affordability Covenants and
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DAB/ses/Dukes-O.agr
Restrictions shall remain in full force and effect for so long as
the Housing Construction Loan is outstanding but in any case no
longer than the Qualified Residence Period.
Notwithstanding any other provisions of these Affordability
Covenants and Restrictions, this entire agreement, or any of the
provisions or Sections hereof, may be terminated upon agreement
by the Agency and the Borrower if there shall have been received
an opinion of special counsel to the Agency that such termination
will not adversely affect the Agency.
Section 7. Events of Default; Enforcement.
If the Borrower defaults in the performance or observance of
any covenant, agreement or obligation of the Borrower set forth
in these Affordability Covenants and Restrictions, and if such
default remains uncured for a period of forty-five (45) days
after notice thereof shall have been given by the Agency to the
Borrower (or for a period of sixty (50) days after such notice if
such default is curable but requires acts to be done or remedied
within such 45-day period, and if the Borrower commences to
remedy the default within such 45-day period and thereafter
diligently and continuously prosecutes the same to completion
within such 50-day period), or such longer period as may be
approved by special counsel to the Agency, then the Agency may
declare that an Event of Default has occurred hereunder and may
take anyone or more of the following steps, at its option:
(a) By mandamus or other suit, action or proceeding at
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~--
law or in equity, require the Borrower to perform its obligations
and covenants hereunder, or enjoin any acts or things which may
be unlawful or in violation of the rights of the Agency or the
Trustee hereunder;
(b) Take whatever other action at law or in equity may
appear necessary or desirable to enforce the obligations,
covenants and agreements of the Borrower hereunder; and
(c) Declare a default under the Mortgage, accelerate
the Housing Construction Loan, and proceed with foreclosure and
the exercise of all other rights and remedies under the Mortgage
if such indebtedness is not paid.
Notwithstanding any provision to the contrary contained
herein, the Agency shall have the right to enforce these
Affordability Covenants and Restrictions and require curing of
defaults in such shorter periods than specified above as it may
reasonably deem necessary to insure compliance with the Act.
No delay in enforcing the provisions hereof as to any breach
or violation shall impair, damage or waive the right of any party
entitled to enforce the same or to obtain relief against or
recover for the continuation or repetition of such breach or
violation or any similar breach or violation thereof at any later
time or times.
Section 8. Payment of Agency's Fees.
In the event that a party to these Affordability Covenants
and Restrictions brings an action against any other party to
Page 12 of 15
DAB/ses/Dukes-O.agr
. ,
these Affordability Covenants and Restrictions, or otherwise
arising out of these Affordability Covenants and Restrictions,
the prevailing party in such action shall be entitled to recover
from the other reasonable attorneys' fees to be fixed by the
court which shall render a judgment, as well as the costs of
suit.
IN WITNESS WHEREOF, the Agency and the Borrower have caused
these Affordability Covenants and Restrictions to be signed,
acknowledged and attested on their behalf by duly authorized
representatives, all as of the date first written hereinabove.
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By: ~~h
Execu ive irector
BORROWER
By : \}", ~ _ ...J
rkes-D.uKes
By: lIua~ /~ Jtw>1c
Dukes-Dukes and Associates
IO~
and Associates
Page 13 of 15
DAB/ses/Dukes-O.agr
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
BEFORE ME, the undersigned not
said State, on this day personally appeared
, Executive Director 0
Agency of the City of San Bernardino, a body corporate and
politic, being a redevelopment agency, duly organized and
existing under the Constitution and laws of the State of
California, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me
that he or she executed the same for the purposes and
consideration therein expressed, in the capacities therejn
stated, and as the act and deed of said Agency. ~
on this f-
or
day of
EN UNDER M~_HAND
, 197Q...
. OFFICIAL SEAL
. MARGIE VANCE
... NOTARY PUBlIC. CALIFORNIA
. SAN BERNARDINO COUNTY
., < My Comm. bpire$ Oct. 2, '990
Page 14 of 15
DAB/ses/Dukes-O.agr
~
r
I
I
,
,
. ,.. J
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
On /, / '1 '70 before me, the
undersigned, in and r spid State, personally
. A....-
appeared ()Ar;..A- ,
personal nown to me or proved to me the basis of
satisfactory evidence to be the person~ who executed
the wi thin instrument as the President and the ..s'~ c". <=- -f.c.,.. _/
of the corporation that executed the within instrument{ and
aCkno.06 te.~such corporation executed the same.
" ~ f ;C1Al SEM
. . I€ST<Jl NAZARIO
NOTARYPLllI.1C-CAllflRllA WITNESS my hand and official seal.
s"" __INO CaJfTY
I1Y CIl9I1;SIQN eXl', SOPT '. 1 m
A/~;1/ .
~
(SEAL)
Page 15 of 15
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