HomeMy WebLinkAboutCDC/1999-06
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RESOLUTION NO. CDC/1999-6
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN OWNER PARTICIPATION
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND
OSBORNE DEVELOPMENT CORPORATION
7 WHEREAS, the Community Development Commission of the City
8 of San Bernardino (the "Commission") on behalf of the Redevelopment
9 Agency of the City of San Bernardino (the "Agency"), is a
10 redevelopment agency, a public body of the State of California,
11 organized and existing pursuant to the Community Redevelopment Law
12 (Part 1 of Division 24) commencing with Section 33000 of the Health
13 and Safety Code of the State of California; and
14
15 WHEREAS, Osborne Development Corporation is a California
16 corporation (the "Participant") which proposes to build and sell
17 high quality single family detached residential units on certain
18 property located adjacent to the State College Redevelopment
19 Project Area (the "Site") in the City of San Bernardino (the
20 "City"); and
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22 WHEREAS, the Agency and Participant desire to enter into
23 the Owner Participation Agreement attached hereto as Exhibit "A"
24 and incorporated herein by this reference (the "Agreement"),
25 pursuant to which the Agency would assist the Participant with the
26 development and marketability of the Site; and
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CDC/1999-6
1 WHEREAS, as consideration for the Agency's assistance,
2 the Participant shall supplement the Agency's existing mortgage
3 assistance program (the "MApU) to provide for the sale and
4 occupancy of at least twenty-five percent (25%) of the units
5 situated upon the Site by low- and moderate income households at
6 affordable housing cost (the "projectU); and
7
8 WHEREAS, the Agreement provides that the Agency shall
9 assist purchasers of the low and moderate units comprising the
10 Project, as more fully described therein, in a total amount not to
11 exceed Seventy-Five Thousand Dollars ($75,000); and
12
13 WHEREAS, the development of the Site in conjunction with
14 the Agency's assistance to Participant is in that vital and best
15 interests of the City and the health, safety and welfare of its
16 residents.
17
18 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION,
19 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
20 SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
21 FOLLOWS:
22
23 Section 1. The Commission hereby finds and determines
24 that the assistance to Participant as described in the Agreement is
25 within the redevelopment goals and objectives of the Agency, will
26 help eliminate blighting conditions within the City by increasing
27 the assessed valuation of real property and creating significant
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CDC/1999-6
1 employment opportunities and shall provide much needed low and
2 moderate income housing.
3
4 Section 2. The Commission hereby authorizes the
5 Executive Director of the Agency to execute the Agreement and such
6 other documents as may be necessary to implement the Agreement and
7 to make any necessary nonsubstantive changes to the Agreement as
8 may be approved by Agency Special Counsel.
9 III
10 III
11 III
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20 III
21 III
22 III
23 III
24 III
25 III
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CDC/1999-6
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAIN OWNER PARTICIPATION AGREEMENT BY
2 AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND OSBORNE DEVELOPMENT CORPORATION
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Section 3.
This Resolution shall take effect upon the
date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
regular
San Bernardino at a
meeting
February
15th
thereof, held on the
day of
, 1999,
by the following vote, to wit:
Commission: AYES NAYS ABSTAIN ABSENT
12 ESTRADA x
LIEN x
13 McGINNIS x
SCHNETZ x
14 DEVLIN x
ANDERSON x
15 MILLER x
16
17
18
day of
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24 By:
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The foregoing resolution
FphrllRry , 1999.
hereby approved this Lliiu
I"l~-
\ !/
"-->ULLLLV
Judit)1'Valles, Chairperson
Comm~'ity Development
Commlssion of the
City of San Bernardino
content:
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CDCj1999-6
.
.
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
REDEVELOPMENT AGENCY OF THE
201 North "E" Street, Suite
San Bernardino, California
Attn: Development Director
CITY OF SAN BERNARDINO
301
92401
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION AGREEMENT
(MORTGAGE ASSISTANCE PROGRAM/RANCHO ESTATES)
By and Among
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
and
OSBORNE DEVELOPMENT CORPORATION,
a California corporation
....
I.
II.
CDCj1999-6
A.
B.
C.
A.
[ 100]
[200]
B.
C.
D.
III. [300]
A.
[101]
[102]
[103]
1.
2.
3.
4.
[201]
[202]
1.
2.
3.
[203]
[204 ]
[301]
1.
2.
3.
4.
TABLE OF CONTENTS
SUBJECT OF AGREEMENT
[104]
[105]
[ 106]
[107]
Purpose of Agreement
The Site
Parties to the Agreement
The Agency .
The Participant
Prohibition
Agreement
Against
Assignment
Benefit to Project Areas
AGENCY ASSISTANCE/PARTICIPANT ASSISTANCE
The proj ect . .
Agency Assistance/Participant Assistance
Option (a)
Option (b)
Option (c)
Term of the Agency Assistance
Affordable Housing Cost
IMPROVEMENT OF THE SITES . .
[302]
[303]
[304]
[305]
Improvement by Participant
Cost of Construction
Bodily Injury
Insurance
and
Property
Page
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2
2
of
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5
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6
9
10
10
12
13
13
13
14
Damage
14
City and Other Governmental Agency Permits
. . . . 16
Rights of Access
17
B.
IV.
A.
B.
C.
V.
A.
VI.
[400]
[500]
B.
C.
D.
[600]
A.
B.
C.
D.
CDC/1999-6
5.
6.
[308]
[306]
[307]
Local. State and Federal Laws
17
Antidiscrimination During Construction18
Release of Agreement
USES OF SITE; AFFORDABILITY COVENANTS
[ 401]
Uses - Covenants Running With the Land
1.
In deeds .
2.
In leases
3.
In contracts
[402]
[403 ]
Maintenance of the Site
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22
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Effect of Violation of
Provisions of this Agreement
of Construction
the Terms and
After Completion
GENERAL PROVISIONS
[501]
[502]
[503]
[504]
[601]
[602]
1.
2 .
3.
[606]
[607]
Notices. Demands
the Parties .
and Communications
Conflicts of Interest: Nonliability
Enforced Delay:
Performance
Extension
of
Inspection of Books and Records
DEFAULTS AND REMEDIES
[603]
[604]
[605]
Defaults - - General
Legal Actions
Institution of Legal Actions
Applicable Law
Acceptance of Service of Process
Rights and Remedies are Cumulative
Inaction Not a Waiver of Default
Between
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Times
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of
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CDC/1999-6
E. [608] Remedies 31
1. [ 609] Damages 31
VII. [ 700] SPECIAL PROVISIONS 32
A. [701 ] Submission of Documents to Agency for Approval
. . . . . . 32
B. [702] Successors in Interest 32
IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY 34
A. [901] Time for Acceptance . . . . . . 34
CDCj1999-6
ATTACHMENT NO. 1 -
ATTACHMENT NO. 2 -
ATTACHMENT NO. 3 -
PROMISSORY NOTE SECURED BY DEED OF TRUST
DEED OF TRUST
HEALTH AND SAFETY CODE SECTION 50052.5
CDC/1999-6
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT IS ENTERED INTO this day of
February, 1999, by and among the REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO (the "Agency") and OSBORNE DEVELOPMENT
CORPORATION, a California corporation ("Participant"). Agency and
Participant hereby agree as follows:
1.
[ 100J
SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement
The purpose of this Agreement is to effectuate various
redevelopment plans for the City of San Bernardino (the "City") by
assisting low- and moderate-income homebuyers in acquiring
affordable housing and by providing for Agency Assistance, as
hereinafter defined to Participant to cause the residential
development of a single family housing tract (the "Site"), as
hereinafter defined, within the City. In addition, the Agency
assistance will also benefit Participant by improving the
marketability of homes. The development of the Site pursuant to
this Agreement is in the vital and best interests of the City and
the health, safety and welfare of its residents, and in accord with
the public purposes and provisions of applicable state and local
laws. The Agency has determined that the development and uses
contemplated by this Agreement will benefit the low- and moderate-
income housing needs of the City as well as the various
CDC/1999-6
.
redevelopment project areas of the City, and has authorized the use
of funds for such purposes.
B.
[102]
The Site
The Site, which is designated as Tract No. 14448, shall
consist of approximately NINETY-EIGHT (98) lots with a single
family detached residential home to be built on each lot. The
provisions of this Agreement are applicable to the entire Site.
The Agency Assistance, as hereinafter defined, has been allocated
for use in connection with the Site.
C. [103] Parties to the Agreement
1. [104] The Agency
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 of the
State of California (Health and Safety Code Section 33020, et ~.)
The principal office of the Agency is located at 201 North "EN
Street, Suite 301, San Bernardino, California 92401.
2.
[105]
The Participant
The Participant is Osborne Development Corporation, a
California corporation. The principal office and mailing address
of the Participant for purposes of this Agreement is: 30001
Comercio, Rancho Santa Margarita, California 92688.
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CDC/1999-6
3.
[ 106]
Against
Assignment
of
Prohibition
Agreement
The qualifications and identity of the Participant are of
particular concern to the Agency.
It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Participant. No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
The Participant shall not assign all or any part of this
Agreement or any rights hereunder without the prior written
approval of the Development Director of the Agency, which approval
the Development Director of the Agency will not unreasonably
withhold.
In the event of such transfer or assignment: (1) the
assignee shall expressly assume the obligations of the Participant
pursuant to this Agreement in a writing satisfactory to the Agency;
(2) the original Participant shall remain fully responsible for the
performance and liable for the obligations of the Participant
pursuant to this Agreement; and (3) any guarantees provided to
assure the performance of the Participant's obligations under this
Agreement shall remain in full force and effect unless otherwise
agreed to in writing by the Agency.
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In the absence of specific written agreement by the
Agency, no such transfer, assignment or approval by the Agency
shall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
All of the terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
The restrictions of this Section 106 shall terminate and
be of no further force and effect upon completion of all
obligations under this Agreement. Nothing in this Section 106
shall act to restrict the sale of the entire Site or a portion
thereof to homebuilders or completed residential units developed on
a Site to qualified purchasers if said sales are otherwise in
compliance with the terms of this Agreement.
4.
[107J
Benefit to Project Areas
The Agency has determined that the development of the
Site in accordance with this Agreement will eliminate blight and
provide needed low- and moderate-income housing to the various
proj ect areas of the Agency as well as to areas in proximity
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CDCj19S9-6
thereto, which housing is needed due to the insufficiency of such
housing within the City generally.
II .
[200]
AGENCY ASSISTANCE/PARTICIPANT ASSISTANCE
A. [201] The Project
The Participant proposes to build and sell high quality
single family detached residential units on the Site. The Agency,
through the provision of the Agency Assistance, as hereinafter
defined, and the Participant, through the provision of the
Participant Assistance, as hereinafter defined, will supplement the
Agency's existing mortgage assistance program within the City (the
"MAP") in order to provide for the sale and occupancy of at least
twenty five percent (25%) of the units by low- and moderate-income
households at affordable housing cost (the "proj ect") Any
residential units which are sold to homebuyers who receive
financial assistance in accordance with this Agreement, shall,
subject to the conditions of this Agreement which apply to
individual residential lots, be reserved for low- and moderate-
income households and shall hereinafter be referred to as the "Low
and Moderate Units".
B.
[202 ]
Agency Assistance/Participant Assistance
In order to assist in the development of the Site and
marketability of the Site, the Agency agrees to provide certain
Agency assistance to qualified purchasers of Low and Moderate Units
comprising the Project in a total amount of not to exceed Seventy
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CDC/1999-6
Five Thousand Dollars ($75,000) (the "Agency Assistance") to be
used to provide homebuyer mortgage write down/downpayment and/or
closing cost assistance. The Agency Assistance shall be funded by
a loan to the Agency from the Participant in an amount of Seventy
Five Thousand Dollars ($75,000), which shall be funded in
installments.
Loan proceeds shall be deposited in the account
established by the Agency in connection with the MAP (the "MAP
Account") . The loan to the Agency shall be repaid to the
Participant out of the Agency's low and moderate-income housing
fund established pursuant to Health and Safety Code Section 33334.3
in three (3) equal installments over a three (3) year period from
the date of a recorded grant deed and promissory note on each
individual property.
The loan to the Agency shall accrue simple
interest at the rate of three percent (3%) per annum on the
outstanding balance until paid; provided, however, that no interest
shall accrue during the first year after funding the loan. The
Agency Assistance shall only be offered to certain eligible
purchasers who are of low- and moderate-income as defined in Health
and Safety Code Section 50093 and who seek to purchase homes
located on the Site.
In addition to the Agency Assistance, the Participant
agrees to deposit into the MAP Account Participant funds in an
amount of Seventy Five Thousand Dollars ($75,000) ("Participant
Assistance") to be used for the same purpose as the Agency
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CDCj1999-6
Assistance so that the total MAP Account monies available for
assistance of persons buying homes wi thin the Site will be One
Hundred Fifty Thousand Dollars ($150,000). The parties agree that
the first Seventy Five Thousand Dollars ($75,000) of MAP funds
expended on the Project will be deemed to have been the Participant
Assistance and the second Seventy Five Thousand Dollars ($75,000)
of MAP funds expended on the Project will be deemed to have been
the Agency Assistance. Neither Agency nor City shall be in any way
obligated to ever repay all or any portion of the Participant
Assistance, even though loans made to homebuyers partially
utilizing Participant Assistance will be repaid solely to Agency.
To the extent Participant deems desirable, Participant may, at its
sole discretion, increase the amount of the Participant Assistance;
provided, however, that Participant's contribution of additional
Participant Assistance shall in no way obligate Agency to provide
any additional Agency Assistance. The obligation of the
Participant to deposit moneys into the MAP Account shall be
contingent upon the Agency's prior deposit of the Agency's
Assistance into the MAP Account; provided, however, that there
shall be no disbursement of any funds representing the Agency
Assistance to any potential home buyer until matching Participant
Assistance has been deposited into the MAP Account.
I f the
Participant Assistance has not been deposited on or prior to Juy 1,
1999, the obligations of the parties hereunder shall be forgiven
and this Agreement shall be deemed terminated. The Agency
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CDCj1999-6
Assistance and the Participant Assistance, when placed together in
the MAP Account, shall be designated as NORTH PARK II MAP Funds
("NORTH PARK II MAP Funds") .
Any time that Participant seeks to sell a Low and
Moderate Unit within the Site at affordable housing cost to low-
and moderate-income households, the Participant shall request in
writing that the Agency use NORTH PARK II MAP Funds to provide
certain downpayment/mortgage assistance in accordance with one (1)
or any combination of three (3) options as more fully described
hereinafter, provided that the total mortgage assistance per unit
does not exceed five percent (5%) of the purchase price of the
home.
1. Option (a). The Participant or home builder may
request that mortgage assistance be provided to fund all or a
portion of the downpayment requirements in connection with the
establishment of an escrow for the sale of the applicable Low and
Moderate Unit, in an amount not to exceed five percent (5%) of the
purchase price per unit; or
2. Option (b). The Participant may request that
mortgage assistance be provided for the payment of fees and closing
costs in connection with the establishment of an escrow for the
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L;DC/1999-6
sale of the applicable Low and Moderate Unit in an amount not to
exceed five percent (5%) of the purchase price per unit; or
3. Option (c). The Participant may request that the
downpayment mortgage assistance be provided through the up front
buy down of a purchase mortgage interest rate in an amount equal to
five percent (5%) of the purchase price per unit.
In order to qualify for the use of NORTH PARK II MAP
Funds, and
notwithstanding the use of NORTH PARK II MAP Funds,
each home buyer must provide at least one percent (1%) of the
purchase price out of his/her or their personal funds as part of
the down payment to be applied against the purchase price.
In consideration for the Agency's contribution of the
Agency Assistance, the Participant shall, as a prerequisite to the
close of escrow for any Low and Moderate Unit, cause each homebuyer
who receives a portion of the NORTH PARK II MAP Funds to execute a
Promissory Note, in favor of the Agency, in the principal amount of
the NORTH PARK II MAP Funds loaned to the homebuyer, which
Promissory Note shall be in substantially the form of Attachment
No. 1 hereto and incorporated herein by this reference and shall be
secured by a second Deed of Trust in favor of the Agency
substantially in the form of Attachment No.
2 hereto and
incorporated herein by this reference. Each Promissory Note shall
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CDCj1999-6
(25) years. The Promissory Notes shall provide that they will bear
interest at three percent (3%) simple interest during the first
five (5) years and, beginning with the sixth year, five percent
(5%) simple interest during the last twenty (20) years. No
payments of principal or interest will be due under the Promissory
Notes until the earlier of (i) transfer or sale of the property
which is the subject of the Promissory Note or (ii) the end of the
twenty-five year term of the Promissory Note. The Promissory Notes
shall also provide that they are not assignable without the prior
written consent of the Agency.
The Promissory Notes shall be
immediately due and payable in full upon any sale, reconveyance,
disposition, lease or other transfer of a Low and Moderate Unit to
a household, person or entity that does not pre-qualify directly
with the Agency as a low- or moderate-income household.
All payments received on each Promissory Note will be
deposi ted by the Agency into the MAP Account, and Participant
expressly waives and releases the Agency from and against any and
all claims in or to said payments.
All assistance provided by the Agency under this
Agreement will be in compliance with the Agency's Mortgage
Assistance Program Guidelines as attached hereto as Attachment No.
4 as may be amended from time-to-time; provided, however, that any
such amendment does not place any greater burden or obligation on
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CDC/1999-6
such amendment does not place any greater burden or obligation on
Participant or homebuyer of a Low and Moderate Unit other than as
set forth herein.
The aggregate amount of the NORTH PARK II MAP Funds for
the 1998-99 fiscal year shall not exceed One Hundred Fifty Thousand
Dollars ($150,000), unless the Participant voluntarily contributes
more than Seventy Five Thousand Dollars ($75,000) in Participant
Assistance. All interest earned on the MAP Account shall be
deposited into the MAP Account.
C. [203] Term of the Agency Assistance
The Agency and the Participant agree that the provision
of the Agency Assistance shall only apply until One Hundred Fifty
Thousand Dollars ($150,000) of the NORTH PARK II MAP Funds are
expended on home purchases within the Site, or two years from the
execution of this Agreement, whichever is earlier.
D.
[204 ]
Affordable Housing Cost
For the purposes of complying with this Agreement, all
Low and Moderate Units, upon completion of the construction work,
shall be sold to low and moderate income households at affordable
housing costs as such term is defined in Health and Safety Code
Section 50052.5, a copy of which is attached hereto as Attachment
No. 3 and incorporated herein by this reference.
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CDCj1999-6
III. [300J
IMPROVEMENT OF THE SITES
A. [301J Improvement by Participant
Participant and Agency agree that the central purpose of
this Agreement is to cause the construction on the Site of single
family detached residences and to assist homebuyers in the purchase
thereof in a manner consistent with the redevelopment goals of the
Agency. All of the Low and Moderate Units will be of high quality
and will be developed in accordance with guidelines of the City of
San Bernardino, Department of Community Development.
1.
[302J
Cost of Construction
The costs of undertaking the Project, including the costs
of construction of the improvements, marketing and sales shall be
borne solely by Participant and/or its successors and assigns. The
Agency shall have no obligations, other than as expressly set forth
herein, with respect to the funding of the Project.
2.
[303 ]
Bodily
Injury
and
Property
Damage
Insurance
Participant shall defend, assume all responsibility for
and hold the Agency, the City and their respective officers, agents
and employees, harmless from all claims or suits for, and damages
to, property and injuries to persons, including accidental death
(including attorneys' fees and costs), which may be caused by any
of Participant's acti vi ties under this Agreement, whether such
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C1X/l<J99-6
activities or performance thereof be by the Participant or anyone
directly or indirectly employed or contracted with by Participant
and whether such damage shall accrue or be discovered before or
after termination of this Agreement. Participant shall take out
and maintain a comprehensive liability and property damage policy
in the amount of One Million Dollars ($1,000,000) combined single
limi t policy, including contractual public liability, as shall
protect Participant, City and Agency from claims for such damages
from the commencement of the Project until two (2) years after the
sale of all Low and Moderate Units.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a
form of the insurance carrier setting forth the general provisions
of the insurance coverage.
This countersigned certificate shall
name the City and Agency and their respective officers, agents, and
employees as additional insureds under the policy. The certificate
by the insurance carrier shall contain a statement of obligation on
the part of the carrier to notify City 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 Participant shall be primary insurance and not
contributing with any insurance maintained by Agency or City, and
the policy shall contain such an endorsement. The insurance policy
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CDC/1999-6
or the certificate of insurance shall contain a waiver of
subrogation for the benefit of the City and Agency.
Participant shall furnish or cause to be furnished to
Agency evidence satisfactory to Agency that any contractor with
whom it has contracted for the performance of work on any Site or
otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law.
3. [304] City and Other Governmental Agencv Permits
Before providing the Agency Assistance or any portion
thereof and/or commencement of construction or development of any
buildings, structures or other works of improvement upon the Site,
any and all permits for all necessary off-site improvements which
may be required by the City or any other governmental agency having
jurisdiction over such construction, development or work shall have
been obtained.
Nothing contained in this Agreement shall be deemed to be
an approval by the City of any application or permit required to be
obtained by Participants or any other person or entity from the
City.
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CDC/1999-6
4.
[305]
Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of Agency and the City shall have the
right of access to the Site, without charges or fees, at normal
construction hours during the period of work for the purposes of
this Agreement, including, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules. Such representatives of
Agency or of the City shall be those who are so identified in
writing by the Development Director of Agency. The Agency shall
hold the Participant harmless from any bodily injury or related
damages arising out of the activities of Agency and the City as
referred to in this Section 305 and resulting from the gross
negligence or willful misconduct of the City or Agency. This
Section 305 shall not be deemed to diminish or limit any rights
which the City or Agency may have by operation of law irrespective
of the Agreement.
5.
[306]
Local. State and Federal Laws
The construction of the Project and all related
activities on the Site shall be carried out in conformity with all
applicable laws, including all applicable federal and state labor
standards; provided, however, Participant and its contractors,
successors, assigns, transferees, and lessees are not waiving their
rights to contest any such laws, rules or standards.
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6.
[307]
Antidiscrimination During Construction
Participant, for itself and its successors and assigns,
agree that in the construction of the improvements provided for in
this Agreement, Participant shall not discriminate against any
employee or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
B. [308] Release of Agreement
Upon (i) the repayment in full of any Promissory Note
applicable to a Low and Moderate Unit, the restrictions of this
Agreement may be released if, simultaneously with such release,
there are recorded against the applicable property, covenants,
conditions and restrictions in favor of the Agency which ensure
that the discrimination provisions as provided in Section 401
hereof and the maintenance provisions as provided in Section 402
hereof remain in effect for the periods set forth in this
Agreement.
IV.
[400]
USES OF SITE; AFFORDABILITY COVENANTS
A.
[401] Uses - Covenants Running With the Land
Participant covenants and agrees for itself,
its
successors, their assigns, and every successor in interest to a Low
and Moderate Unit or any part thereof, that for a period of ten
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CDCj1999-6
(10) years commencing on the date of the issuance by the City of
the Certificate of Occupancy on each of the Low and Moderate Units
and except as otherwise provided herein, each Low and Moderate Unit
will be devoted to and available for sale solely to persons or
families with an income which are 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 Low and Moderate Unit to be at an affordable housing
cost
(as such term is defined in Health and Safety Code
Section 50052.5, a copy of which is attached hereto as Attachment
No.5) .
The foregoing covenants 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 Low and Moderate Units.
The Agency shall, after the date of this Agreement,
consider and adopt guidelines and restrictions substantially in the
form of Attachment No. 3 for compliance with the provisions
contained in the California Community Redevelopment Law and in
particular, those Sections thereof that permit the use of the
Agency's Low- and Moderate-Income Housing Fund.
The Participant
acknowledges that the source of funds to be utilized to fulfill the
Agency's financial commitments under this Agreement shall be tax
increment revenues on deposit in the Agency's Low- and Moderate-
17
, c
CDCj1999-6
Income Housing Fund.
The Community Redevelopment Law, and in
particular, Health and Safety Code Section 33334.3, requires the
Agency to impose certain limitations on the income of prospective
purchasers of the Low and Moderate Units, based upon affordability
as may be determined by the Agency. Said limitations are set forth
on Attachment No.4, attached hereto and incorporated herein by
this reference. The Participant agrees to include wi thin the
content of the grant deed and any other appropriate disclosure
documents as may be reasonably necessary to implement this
Agreement, such provisions as are necessary in furtherance of the
guidelines and restrictions to be adopted by the Agency pursuant to
this section as a means of complying with the intent of said Health
and Safety Code Section 33334.3.
Participant 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,
transfer, use, occupancy, tenure or enj oyment of the Site, nor
shall Participants themselves or any person claiming under or
through them 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,
18
CDC/1999_6
sublessees or vendees of the Site.
run with the land.
The foregoing covenants shall
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
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
enj oyment 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 herein conveyed.
covenants shall run with the land."
The foregoing
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, that
19
CDC/1999-f
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 sale, lease,
sublease, transfer, 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 practices 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."
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 enj oyment 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 with
reference to the selection, location, number use or occupancy of
tenants,
lessees,
subtenants,
sublessees or vendees of the
premises."
20
CDC/l999_\O
B.
[402]
Maintenance of the Site
Participant, its successors and assigns, shall, as their
sole responsibility and at their sole expense until sale of each of
the residential units, maintain the Site or portions thereof which
remain unsold and all other improvements on the Site and shall keep
the Site free from any accumulation of debris or waste materials.
Participant, its successors and assigns, further agree to
maintain the Site in a neat and attractive manner until
construction of the improvements described in this Agreement is
complete so as not to, in
appropriate officer of the
detrimental to the health,
the reasonable determination of
City, be a public nuisance, or
safety and welfare of the public,
an
be
or
impair value of property within one thousand (1,000) feet of the
Site, and agree that in the event Participant, its successors and
assigns fail to do so, Agency may enter upon the Site for the
purposes of performing necessary and desirable maintenance, that
Participant will be responsible for the cost of any such
maintenance undertaken by Agency, which shall be paid within thirty
(30) days after receipt by Participant of written demand therefor.
21
CDC/1999-6
C.
[403]
Effect
of
Violation
of
the
Terms
and
Provisions of this Agreement After Completion
of Construction
The covenants established in this Agreement shall,
wi thout regard to technical classification and designation, be
binding for the benefit and in favor of Agency, its successors and
assigns, as to those covenants which are for its benefit. The
covenants contained in this Agreement shall remain in effect until
June 30, 2010 unless an earlier date is specified. The covenants
against racial discrimination shall remain in perpetuity.
Agency is deemed the beneficiary of the terms and
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 and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided.
Agency
shall have the right, if this Agreement or covenants are breached,
to exercise all rights and remedies, and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce
the curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
22
CDCj1999-6
V.
[500]
GENERAL PROVISIONS
A.
Notices. Demands and Communications Between
the Parties
Written notices, demands and communications between
[501 ]
Agency and Participant shall be sufficiently given if delivered by
hand (and a receipt therefor is obtained or is refused to be given)
or dispatched by registered or certified mail, postage prepaid,
return receipt requested, to the principal offices of Agency and
Participant as set forth in Section 105. Such written notices,
demands and communications may be sent in the same manner to such
other addresses as such party may from time to time designate by
mail as provided in this Section 501.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. [502] Conflicts of Interest: Nonliability
No member, official or employee of Agency or the City
shall have any personal interest, direct or indirect, in this
Agreement. No member, official or employee shall participate in
any decision relating to this Agreement which affects his personal
interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested. No
23
'-lJC/1999-6
,
.
member, official or employee of Agency or the City shall be
personally liable to Participant, or any successor in interest, in
the event of any default or breach by Agency or Participant, or for
any amount which may become due to Participant or its successors or
on any obligations under the terms of this Agreement.
Participant represents and warrants that it has not paid
or given, and shall not payor give, any third party any money or
other consideration for obtaining this Agreement.
C.
[503]
Enforced
Delay;
Extension
of
Times
of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrections; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of the
City or any other public or governmental agency or entity (other
than the acts or failures to act of Agency which shall not excuse
performance by Agency); or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform.
Notwithstanding anything to the contrary in this
24
. c
CDCjl999-t)
Agreement, an extension of time for any such cause 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) days of the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by the mutual
agreement of Agency and Participant.
D.
[504]
Inspection of Books and Records
Agency has the right at all reasonable times to inspect
the books and records of Participant pertaining to the Site as
pertinent to the purposes of this Agreement. Participant has the
right at all reasonable times to inspect the public records of
Agency pertaining to the Site as pertinent to the purposes of the
Agreement.
VI.
[600]
DEFAULTS AND REMEDIES
A.
[601]
Defaults - - General
Subject to the extensions of time set forth in
Section 503, failure or delay by any party to perform any term or
provision of this Agreement constitutes a default under this
Agreement.
The party who
so fails or delays must immediately
or remedy such failure or delay, and
commence to cure, correct,
shall complete such cure, correction or remedy with diligence.
25
CDC/1999-6
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
inj ured party. The inj ured party may not institute proceedings
against the party in default until thirty (30) days after giving
such notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of
default.
B. [602] Legal Actions
1. [603] Institution of Legal Actions
In addition to any other rights or remedies hereunder,
Agency or Participant 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 purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2. [604] Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
26
CDC/1999-6
3.
[605]
Acceptance of Service of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether made within
or without the State of California.
C. [606] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any 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 any other party.
D.
[607]
Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its right and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive
any 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.
27
CDC/19S9-6
E. [608] Remedies
1. [609] Damaaes
Prior to completion of the Project, if either Participant
or Agency defaults with regard to any of the provisions of this
Agreement, the non-defaulting party shall serve written notice of
such default upon the defaulting party.
If the default is not
cured or if a cure has not been commenced and is being diligently
pursued to completion by the defaulting party within thirty (30)
days after service of the notice of default, the defaulting party
shall be liable to the other for any damages caused by such
default, and for attorneys' fees associated with enforcement of
this Agreement and the non-defaulting party shall have the right to
seek specific performance and such other remedies as are available
in law or equity.
The costs, salary and expenses of the City
Attorney and members of his office in enforcing this Agreement on
behalf of the Agency shall be considered as "attorneys' fees" for
the purposes of this paragraph.
VII. [700]
SPECIAL PROVISIONS
A.
[701 ]
Submission of Documents to Agency for Aporoval
Whenever this Agreement requires Participant to submit
any document to Agency for approval, which shall be deemed approved
if not acted on by Agency within the specified time, said document
shall be accompanied by a letter stating that it is being submitted
and will be deemed approved unless rejected by Agency within the
28
CDCj1999-6
stated time.
If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
B.
[702]
Successors in Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
assigns of Participant.
VIII. [800]
ENTIRE AGREEMENT, WAIVERS
This
Agreement
of which
is
executed
in
four
(4) duplicate
originals,
each
is
deemed to
be
an
original.
This
Agreement includes 6 Attachments, which together with this
Agreement constitute the entire understanding and agreement of the
parties.
No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements among the parties or their
29
CDCj1999-6
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and
Participants, and all amendments hereto must be in writing by the
appropriate authorities of Agency and Participants, except that the
Executive Director of Agency may agree to non-substantive changes
hereto with concurrence by Agency Counsel.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
IX.
[900J
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [901] Time for Acceptance
This Agreement, when executed by Participant and
delivered to Agency, must be authorized, executed and delivered by
Agency on or before thirty (30) days after signing and delivery of
this Agreement by Participant or this Agreement shall be void,
except to the extent that Participant shall consent in writing to
a further extension of time for the authorization, execution and
delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency as evidenced
by the date first above shown.
30
CDCj1999-6
IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
FORM AND
"Participant"
OSBORNE DE.~V PMENT CORPORATION,
a Ca1if~~a corporation
,/
/'>'.'
By: /-
I~
Its: rt(f
I
--l.
By:
Its:
P: \APPS\WPDATA\SBEO\OOOl \OPA\OOl. WPD
31
CDC1l999-6
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On d lor [q~ before me, r; ;qUson (here
t jname and! tl l~ of the offlcer), person lly appeared
o' E. aVorY)~rsonally known to me (or proved to
the basis of satisfactory evidence) to be the person(s) whose
name s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the per on(s), or the entity upon behalf of which
the person(s) acted, xecuted the instrument.
~
(Seal)
J--------
.-. - -- -- .-. .-. -
o ." ....... LORI FERGUSON]
. ,. Comm. .~:~ ~(""("\29 ~
: NOTARY ,~ v - ^
PUB~k, CAlIFORNIAUI
ORANGE COUNTY 0
Comm. Exp. June 13. 200f ..
32
CDC/1999-6
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On before me, (here
insert name and title of the officer), personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
33
crC/1999-6
ATTACHMENT NO. 1
PROMISSORY NOTE
$-
San Bernardino, California
February 2 1999
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
Redevelopment Agency of the City of San Bernardino ("Holder") at 201 North "E" Street, Third
Floor, San Bernardino, California 92401, or at such other address as Holder may direct from time to
time in writing, . Dollars ~ 1 (the
"Note Amount"). All sums hereunder shall be payable in lawful money of the United States of
America.
I. Loan Agreement
This Promissory Note is made and delivered pursuant to and in implementation of the Loan
Agreement entered by and between the Holder and the Maker dated _ . - - (the
"Agreement"), a copy of which is on file as a public record with the Holder and is incorporated herein
by reference. The Maker acknowledges that but for the execution of this Promissory Note, the Holder
would not enter into the Agreement or make the loan contemplated therein. Unless definitions of
terms have been expressly set out at length herein, each term shall have the same definition as set
forth in the Agreement.
2. Interest Rate
Except as provided in Section 5 herein, no interest shall accrue on the Note Amount.
3. Maturity Date/Acceleration
The whole of the Note Amount and all other payments due hereunder and under the Loan
Agreement shall become due and be immediately payable to the Holder by the Maker upon the
occurrence of any one of the following events:
(a) Maker sells the Property;
(b) Maker transfers any interest in the Property;
( c) Maker refinances any lien or encumbrance to which the Agency Deed of
Trust is subordinate for a loan amount in excess of the then current loan balance secured
by such lien or encumbrance; or
(d) Maker fails to occupy the Property or is in default of any obligation under
the Loan Agreement between the Holder and Maker dated
CDC/1999...6
4. Interest Amount
In the event that (1) the Note Amount becomes due and payable pursuant to Section 3 above,
and (ii) the Maker meets the requirements of Section 4.A. or 4.B. below, then, in addition to the
principal amount of the Note under the Agency Loan becoming due and payable, the Maker shall pay
to Holder concurrent with such sale, transfer, refinancing, or default an amount equal to the Interest
Amount, as hereinafter defined. The "Interest Amount" shall mean an amount equal to fifteen percent
(15%) of the Note Amount per annum, compounded annually, and calculated from the date the loan
was made; however, in no event shall Maker pay more than the Maximum Interest Amount, as
hereinafter defined. Thus, if under the terms of Section 4.A. the proposed Buyer of the Property from
the Maker is not a person of low to moderate income and/or the proposed Sales Price (as the term
is hereinafter defined) is not available at an affordable housing cost to such Buyer, or, if the Maker
defaults under the terms of Section 4.B., the principal amount of the Note under the Agency Loan
and the Interest Amount are due and payable.
The Maximum Interest Amount shall be determined by multiplying a percentage factor (the
"Applicable Factor") by the difference between the Sales Price and the Purchase Price (as defined
below) The Applicable Factor shall be calculated by dividing the amount of the Note Amount by the
Purchase Price. (For example, if the Note Amount equals $20,000 and the Purchase Price equals
$200,000, the Applicable Factor equals 10%. The Maximum Interest Amount would then equal 10%
x (Sales Price minus $200,000).
The "Purchase Price" is the original Purchase Price paid by the Maker to the Seller for Seller's
interest in the Property, exclusive of escrow fees, title insurance costs, broker's commissions, loan
fees or any other closing or transaction costs.
The "Sales Price" is the price to be paid by the Buyer of the Property to Maker for Maker's
interest in the Property, exclusive of escrow fees, title insurance costs, broker's commissions, loan
fees or any other closing or transaction costs.
At the election of the Holder, the Holder may appoint a certified, independent appraiser to
conduct an appraisal of the Property, at Maker's expense to assist the Holder in determining if the
Sales Price is at or near the fair market value of the Property at such time. If the Sales Price is
determined by the appraisal to be three percent (3%) or more below the fair market value of the
Property as estimated in said appraisal, then the "Sales Price" for purposes of determining the
Maximum Interest Amount shall be the fair market value of the Property established in said appraisal.
The value of all capital improvements to the Property made while Maker owned the Property
may be deducted from the Sales Price when calculating the Maximum Interest Amount, if Maker
complies with the following:
CDCj1999-6
5. Maximum Interest
No provision of this Promissory Note or any instrument securing payment hereof or otheIWise
relating to the debt evidenced hereby shall require the payment or permit the collection
of interest in excess of the maximum permitted by applicable law. If any excess of interest in such
respect is herein or in such other instrument provided for, or shall be adjudicated to be so provided
for herein or in any such instrument, the provisions of this paragraph shall govern, and neither Maker
or any endorsers of this Promissory Note nor their respective heirs, personal representatives,
successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess
of the amount permitted by applicable law.
6. Security for Note.
This Promissory Note shall be secured by a second deed of trust encumbering the Property
(the "Agency Deed of Trust"), executed by Maker as Trustor in favor of Holder as Beneficiary.
7. Prepayment or Note Amount.
Maker may prepay to Holder the full Note Amount, with no penalty thereon, at any time prior
to the due date of the Note Amount.
8. Holder May Assi~n
Holder may, at its option, assign its right to receive payment under this Promissory Note
without necessity of obtaining the consent of the Maker.
9. Maker Assignment Prohibited
In no event shall Maker assign or transfer any portion of this Promissory Note and/or the
Agency Loan without the prior express written consent of the Holder, which consent may be given
or withheld in the Holder's sole discretion. This Section shall not affect or diminish the Holder's right
to assign all or any portion of its rights to the loan proceeds hereunder.
10. Attorney's Fees and Costs.
In the event that any action is instituted to enforce payment under this Promissory Note, the
parties agree the prevailing party shall be entitled to all court costs and all attorney's fees incurred
in enforcing this Note.
11. Non-Waiver.
Failure or delay in giving any notice required hereunder shall not constitute a waiver of any
default or late payment, nor shall it change the time for any default or payment.
CDC/1999-6
,.
12, Successors Bound
This Promissory Note shall be binding upon the parties hereto and their respective heirs,
successors and assigns,
"Maker"
B~
Printed Name
By:
Printed Name:
By:
Printed Name:
CDCj1999-6
No capital improvements valued at more than two thousand five hundred dollars ($2,500)
shall be deducted from the Sales Price unless within sixty (60) days following completion
of such capital improvements to the Property, Maker shall send the following to the
Holder; (I) an itemized list of the improvements, (ii) proof of completion of the
improvements (as evidenced e.g., by final building permits), and (iii) evidence of the cost
of the improvements.
The costs incurred by the Maker for capital improvements which cost less than two
thousand five hundred dollars ($2,500) shall be deducted from the Sales Price upon
Maker's submission of evidence of such costs to the Holder, in a form reasonably
satisfactory to the Holder, upon the due date of the Note Amount.
A. Interest Amount Payable upon Sale or Transfer to Non-Low to Moderate
I ncome Buyer It is the intent of the Holder that if and when the Property is sold by the Maker, said
sale will be to a Buyer of low to moderate income, as defined in Health and Safety Code Section
50093, and the Sales Price is at an "affordable housing cost," as defined under Health and Safety
Code Section 50052.5, to the Buyer. Therefore, the Interest Amount shall be payable to the Holder
upon sale or transfer of the Property pursuant to the requirements of Section 3 of this Note to a
Buyer who is not a person or family of low to moderate income, as detlned under Health and Safety
Code Section 50052.5. If the Holder is unable to veritY the Buyer's income shall be deemed to exceed
such median income limit and the Interest Amount shall be due and payable concurrent with the
repayment of the Note Amount. However, if the Buyer is a person or family of low to moderate
income and purchasing the Property at an affordable housing cost, as defined herein, then no Interest
Amount is due to Holder upon such sale to the Buyer, and only the principal amount of the Note is
due and payable.
B. Interest Amount Pavable Upon Refinancing Failure to Occupy or Default.
The Interest Amount shall be due and payable as provided in the Agreement upon the earlier of (I)
a sale or transfer of the Property as provided in Section A hereof, (ii) the refinancing of the First Lien
for a loan amount in excess of the then current loan balance secured by the First Lien, or (iii) such
time if or when Maker is no longer an occupant of the Property or is in default of any other obligation
under the Agreement. At the request of Participant, the Agency may, in its sole discretion, in writing
waive the aforementioned requirements and defer repayment and/or extend the term of the Agency
Loan. The "Sale Price" for purposes of determining the Maximum Interest Amount shall be
determined by an appraisal of the Property. The Holder shall appoint a certified, independent
appraiser to conduct an appraisal of the Property, at Maker's expense. Maker agrees that in such
event the Maximum Interest Amount shall be the Applicable Factor multiplied by the difference
between the Purchase Price and "Sale Price" as established by the appraised value of the Property at
the time of such refinancing, failure to occupy or default in this Promissory Note.
CDC/1999-6
ATTACHMENT NO.2
DEED OF TRUST
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
)
)
REDEVELOPMENT AGENCY OF THE )
CITY OF SAN BERNARDINO )
ATTN: HOUSING DIVISION )
201 NORTH "E" STREET )
SAN BERNARDINO, CA 92401-1507 )
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on JY
AS HIS SOLE AND SEPARATE PROPERTY, hereinafter called "Trustor", whose address is 1014
San Bernardino California 92405, to Gateway Title Company, a California Corporation,
hereinafter referred to as "Trustee", whose business address is 935 South Mt. Vernon Avenue, # II 0,
Colton, California 92324, in favor of the Redevelopment Agency of the City of San Bernardino,
hereinafter referred to as "Beneficiary", whose business address is 20 I North "E" Street, Third Floor,
San Bernardino, California 9240 I.
Trustor irrevocably grants, transfers, and assigns, to Trustee in trust, with power of
sale, all that property, including all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of San Bernardino, State of
California, described as follows:
That certain property located in the City of San Bernardino, County of San
Bernardino, State of California, more particularly described as:
See Legal Description attached hereto and made a part hereof as Exhibit "A"
together with the rents, issues and profits thereof, subject however to the right reserved by Trustor
to collect and apply such rents, issues and profits, prior to any default hereunder; for the purpose of
securing performance in a timely manner of all of Trustor' s obligations under that - ~rtain Promissory
Note dated as of even date herewith (the "Promissory Note") and that certain Loan Agreement (the
"Agreement") dated . in the amount of i- and performance of each
agreement to Trustor incorporated herein by reference or contained herein.
CDCj1999-6
A. To protect the security of this Deed ofTmst, Tmstor agrees:
1. To maintain the property in good condition and repair; not to remove or
demolish any building or improvement thereon; to complete promptly in workmanlike manner any
improvement hereafter constmcted thereon and to restore promptly in workmanlike manner any
improvement thereon that is damaged or destroyed, and to pay when due all costs incurred therefor
or in connection therewith; to comply with all laws, ordinances, regulations, covenants, conditions
and restrictions affecting the property; not to commit or permit any waste thereof or any act upon the
property in violation of law or of covenants, conditions or restrictions affecting the property.
2. To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Tmstee; and also, if at any time Beneficiary
or Tmstee is a party to or appears in any such action or proceeding, or in any action or proceeding
to enforce any obligation hereby secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited to, cost of evidence of title and
attorney's fees in a reasonable sum.
3. To pay (a) at least ten (10) days before delinquency, all taxes and assessments
atTecting the property, all assessment upon 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. IfTmstor fails to make any payment or to do any act as herein provided, then
Beneficiary or Tmstee (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 Tmstee 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 Tmstee; ( c) pay, purchase, contest, or compromise any encumbrance, charge or
lien that, in the judgement of either, appears to be superior hereto; and in exercising any such power,
Beneficiary or Tmstee may incur necessary expenses, including reasonable attorney's fees.
5. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Tmstee, with interest from date of expenditure at the annual rate of five percentage
points over Bank of America's published prime rate.
B. It is mutually agreed that:
Any award of damages made in connection with the condemnation for public use of
or injury to the property or any part thereof is hereby assigned and shall be paid to Beneficiary, who
may apply or release such moneys received therefor upon any indebtedness secured hereby in such
order as Beneficiary determines, or at the option of Beneficiary the entire amount so received or any
part thereof may be released to Tmstor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
. ~
CDC/1999-6
1. The acceptance by Beneficiary of any payment less that the amount then due
shall be deemed an acceptance on account only and shall not constitute a waiver of the obligation of
Trustor to pay the entire sum then due or of Beneficiary's right either to require prompt payment of
all sums then due or to declare default. The acceptance of payment of any sum secured hereby after
its due date \Nill not waive the right of Beneficiary either to require prompt payment when due of all
other sums so secured or to declare default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
2. At any time upon the occurrence of a default, without liability therefor and
with or without notice, upon written request of Beneficiary and presentation of this deed for
endorsement, and without etl:'ecting the personal liability of any person, Trustee may reconvey any
part of the property, consent to the making of any map or plat thereof, join in granting any easement
or join in any extension agreement or any agreement subordinating the lien or charge thereof
3. Upon written request of Beneficiary, surrender of this deed to Trustee for
cancellation and retention, and payment of its fees, Trustee shall reconvey, without warranty the
property then held hereunder. The recitals in such reconveyance shall be conclusive proof of the
truthfulness thereof The grantee may be designated in such reconveyance as "the person or persons
legally entitled thereto."
4. Trustor may give such notice to Beneficiary at any time before there is a
trustee's sale of the property. At any time Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for execution of releases pursuant to the
terms of this paragraph after notice of default and election to sell has been recorded shall not, unless
the requirements of Section 2924c of the Civil Code are fully met by or on behalf of Trustor, waive
the right of Beneficiary to continue its plans to have the property sold, nor shall they have any effect
on the exercise by Beneficiary of the acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for which the release amount was paid,
and insofar as Beneficiary is concerned, to constitute a credit against the secured debt.
5. If Trustor or any subsequent owner of the property covered hereby shall
occupy the property, or any part thereof, after any default, Trustor or such owner shall pay to
Beneficiary in advance on the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or such owner may be removed from
the premises by summary dispossession proceedings or by any other appropriate action or proceeding.
6. If default is made in performance of any agreement hereby secured, then Beneficiary,
with or without notice to Trustor, may institute suit for the foreclosure of this deed, or by delivering
to Trustee a written declaration of default and demand for sale, as well as a written notice of default
and of election to cause the property to be sold, which notice Trustee shall cause to be filed for
record. If such declaration is delivered to Trustee, Beneficiary shall deposit with Trustee this deed,
and all documents evidencing expenditures secured hereby.
+ "
CDC/1999-6
7. After the time then required by law has elapsed after recordation of such notice of
default, and notice of sale having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place fixed in the notice of sale, either as
a whole or in separate parcels and in such order as Trustee determines, at public auction, to the
highest bidder, for cash in lawful money of the United States, payable at the time of sale, Trustee may
postpone from time to time sale of all or any portion of the property by public announcement at the
time and place of sale originally fixed or at the last preceding postponed time. Trustee shall deliver
to the purchaser its deed conveying the property sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other person may purchase at the sale.
8. After deducting all costs, fees and expenses of Trustee and of this trust, including cost
of evidence of title and reasonable attorney's fees in connection with sale, Trustee shall apply the
proceeds of sale to payment of (a) all sums expended under the terms hereof and not theretofore
repaid, with accrued interest at five percentage points over Bank of America's published prime rate
per annum, and (b) all other sums then secured hereby in such order as Beneficiary, in the exercise
of its sole discretion, directs. The remainder, if any, shall be paid to the person or persons legally
entitled thereto.
9. Before Trustee's sale, Beneficiary may rescind such notices of default and of election
to cause the property to be sold by delivering to Trustee a written notice of rescission, which notice,
when recorded, shall cancel any prior declaration of default, demand for sale and acceleration of
maturity. The exercise of such a right of rescission shall not constitute a waiver of any default then
existing or subsequently occurring, or impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of detault and of election to cause the property
to be sold, or otherwise affect any provision of the secured note or of this deed or any of rights,
obligations or remedies of Beneficiary or Trustee hereunder.
10. Beneficiary may, from time to time as provided by statute, or by a writing signed and
acknowledged by him and recorded in the office of the county recorder of the county in which the
land or such party thereof as is then affected by this deed of trust is situated, appoint another trustee
instead and of Trustee herein named; and thereupon, the Trustee herein named shall be discharged,
and the trustee so appointed shall be substituted as Trustee hereunder with the same etTect as if
originally named Trustee herein.
11. 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.
12. All leases of any structures on the Site which utilize the Project as defined in the
Agreement, 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.
crC/19S9-6
13. Ifa default is made in the perfomlance of any agreement hereby secured. Trustor when
requested to do so, shall give such further written assignments of rent, 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.
14. 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 by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take possession of the property at any
time and manage and control it in Beneficiary's discretion, and (b) with or without taking possession,
may sue for or otherwise collect the rents, issues and profits thereof, whether past due or coming due
thereafter, and apply the same, less costs and expenses of operation and collection, including
reasonable attorney's fees, upon any obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any default hereunder or invalidate any act
done pursuant to such notice. Beneficiary shall not be required to act diligently in the care or
management of the property or in collecting any rents, royalties or other profits that it is hereby
authorized to collect, and shall be accountable only for the sums actually received.
15. Without affecting the liability of Trustor or of any other party now or hereafter bound
by the terms hereof, from time to time and with or without notice, Beneficiary may release any person
now or hereafter liable for performance of such obligation, and may extend the time for payment or
performance, accept additional security, and alter, substitute or release any security.
16. In any judicial action brought to foreclose this deed or to enforce any right of
Beneficiary or of Trustee hereunder, Trustor shall pay to Beneficiary and to Trustee attorney's fees
in a reasonable sum, to be fixed by the court.
17. No remedy hereby given to Beneficiary or Trustee is exclusive of any other remedy
hereunder or under any present or future law.
18. The pleading of any statute of limitations as a defense to any and all obligations
secured by this deed is hereby waived, to the full extent permissible by law.
19. Trustor shall, upon request made by Beneficiary, furnish the Beneficiary with annual
statements covering the operations of the property.
20. Beneficiary may collect a "late charge" not to exceed an amount equal to five percent
(5%) on the amount past due and remaining unpaid on any installment that is not paid within ten (10)
days from the due date thereof, to cover the extra expense involved in handling delinquent payments.
21. This deed applies to, inures to the benefit of and binds all parties hereto, their heirs,
. c
CDC/1999-f:
legatees, devisers, administrators, executors, successors, successors in interest, and assigns. The term
"Beneficiary" means the owner and holder, including pledgers, of the Agreement 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.
22. 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 indicated in the first paragraph of this Deed of Trust.
Executed at San Bernardino, California, on the date first above written.
"L-
Title: t1rustor
Title: Trustor
Title: Trustor
, c
CDC/1999-6
EXHIBIT "A"
LEGAL DESCRIPTION
CDC/1999-6
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On _ before me,
personally appeared _____ _ , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ,
~
---
(Seal)
, ,
---~
< c
CDC/1999-6
ATTACHMENT NO. 3
HEALTH AND SAFETY CODE SECTION 50052.5
ATT. 3 - Page 1
CDC/1999-6
..
ATTACHMEm NO. 3
HEALTH ~ SAFETY CODE SECTION 50052.5
Health' Safety Code
Chapter Z. DEFIKITIONS
Stet10n
- ~OO62..S. Definition..
_ '0052.5. Affordable hovline cost
(a) ro~ ~ OYner-oeeupied houll~ vblch recei.e. alalltahe. prior to
January 1" 1991& and a condition of that a.si.tancc i. compliance wlth this .
.ectloni .',fforolble houlinc COlt" A.. vith respect ~o lover income.
hou.eho d. . . . ahall not exceed 25 percent of arosl lnCOme.
(b) For any ovner-oecupied hovaiD4 Vhleh receive. assiatance on or aCter
January 1" 1991( and a condition of that assistance il compliance vith thl.
sectioQ, 'afCoroable houl1l\1 COlt" Ihaa not exceed the Eollovi~:
(1) FOr ve~ lov lncome housebold. the prodvct of 30 percent tImes 50
percent ot the area medlan income adjusted for family .ize.approprlate for the
\anit. .
(Z) For lover ineome I:.ovseholds \/ho.e croll lQco... exceed tbe muimUlll
lQcome for Tet1 lov income houleholds and 40 not exceed 70 percent at the area
median Income adju.ted for faml1y .1ze, the pto4uct of 30 percent tiaes 70
percent of the area median income adjusted for familY .tze approprla~. for the
\anlt, I~ additlon, for anr lover lncqme ~ousehold thlt haa a era.. inCome
that equal. Gr exceed a 70 percent of the area me~ian lncame adjusted for
f&mlly .ize it ahall be optional for any Itate or local lundin, aceney to
requlro that affordable houI1nc cost not exceed 30 percent of t~e eras. ineame
of the houaehold., '
(3) r~r moderate lneome houleholds, aCCordable hOUlinf cost Ihlll not be
le.. than 28 percent of t~e cross income of the heuaeho d, hor exceed the
product of 35 percent time. 110 percent of area median income adju.te4 far
fa=lly lize appropriate for tho unIt. In additien, Car any moderate lncome
household that ha. a'crol' ineame that exceed. 110 percent of the area median
income adjusted for faml1y lize, it shall be optional far any Itate or local
(undIne aCeney to require that affardable houslna east not exceed 35 percent
or the aroa. income ef the household.
(c) The department ahall, b~ reculatlcn, adopt criteria detlnine, and
providlnc for determination of cra.. lnco._, adju.tMent. for f6mily .i~e
apprepclate to the unit. and houslng eaat for purposes of determinInc
'ffordable houlinc cost. . . under this aectlon. theae reculatlon. may
prOvide alternative criterlal vhere neea~sa~ to ba consIstent vlth pertlnent
federal statutel and reculat ons &overnin& Cederally ~Isl&ted housint. the
.tency may, by reeu1ation, adopt a1ternatlve criteria, and pur.uant to
subdivilion (l) of Section 504611 alternatlve percentaces of ihccme may be
adopted for acener-alli.ted hous na 6evelopment.
With resepct to ~e6erate and lover i~come househeld. vho are teQantl oC
rental hOUI!nc developmentl an4 ~emb'ra or thareholder. of coeperative houlin&
developmente, or limited equity cooperatives ~afford&ble hous1nc cost~ has the
Same meanlne a. afCardable rent, .. defined 1n'Sectlan S0053.
Re&ulatian. of the department shall alia ,lnclude a method lor deter=inlns
the maxImum construction coct, mortcase loan, or .ales, prlce tnat vill make
houllnc available to ah Incame crdup at &frord~ble ~oulin& ~o.t.
.For purposes oC thi. .ectlon, -area medl~ lneome- Ihall mean area median
income a. published by the department pursuant to Sectien 50093.
For purpose. oC this sectIon, ,"coderate lncollle household" shall have the
S&IIII OIeanlna a. "perGons and Culliu of moderate 1l\Collle" 41 4eClned ln
Section '0093.
Fcr purpose. of this .ecticn, .nd provlded there arc no pertinent federal
atatues applicable to a project of SlrOCrllll "a4jusced Cor CUllly .ite
appropriate to the un1tft shall mean Cor .. ~ousehold ef one person In the casa
of a studlo unlt, tvo persans 1n the ~ase ef a one-bedroom unlt, three persana
In the case oC . tVe-bedrooM unlt, four person. In the of a three-bedroom
unlt, and five Slerson. In the else of a lour-bedrOom unit.
(Amended by Stats. 1990, c. 1523 (S.8. 1852), 1.)
ATT. 3 - Page 2
CDC/1999-6
ATTACHMENT No.4
LOW AND MODERATE INCOME LIMITS
INCOME UMfTS JANUARY 1998
NUMBER OF PERSONS IN FAMILY
STANDARD 1 2 3 4 5 6 7 8
c:ctfflY ...........,...-
~ B~INO Very low in:~me 16300 18600 20900 23250 25100 26950 28850 30700
Area median: Lower income 26050 29750 33500 37200 40150 43150 46150 49100
$46,500 Median income 32550 37200 41850 46~00 50200 53950 57650 61400
Moderate income 39050 44650 50200 55800 60250 64750 69200 73650
Note: subject to annual adjustment