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1 RESOLUTION NO. CDC/2000-37
2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING THE
LOAN AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
3 OF SAN BERNARDINO AND AFE-PIONEER ASSOCIATES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP ("BORROWER"), IN THE AMOUNT OF $250,000, FROM
4 THE LOW-AND MODERATE-INCOME HOUSING FUND, FOR THE ACQUISITION OF
THE PIONEER PARK PLAZA AFFORDABLE ELDERLY RENTAL HOUSING PROJECT
5 LOCATED AT 560 NORTH "F" STREET (CENTRAL CITY NORTH PROJECT AREA)
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Evans Development Inc.,
a California
WHEREAS,
A.
F.
corporation as the general partner of AFE-Pioneer Associates, L.P.,
a California limited partnership (collectively, with any related
entity, the "Borrower") has requested that the Redevelopment Agency
of the City of San Bernardino (the "Agency") provide a loan of
Agency low-and moderate-income housing funds in an amount not to
exceed $250,000 (the "Loan") for the purpose of providing financing
for the acquisition of a 161-unit multi-unit senior rental housing
complex located at 560 North "F" Street, San Bernardino, California
and generally known as Pioneer Park Plaza Affordable Elderly Rental
Housing Project (the "Project") in order to assure that the Project
18 remains available for
19
citizen households at
20
period; and
21
use and occupancy by lower-income senior
affordable rents for the longest feasible
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WHEREAS, the Project is consistent with the goals of the
Central City North Redevelopment Project Area, the City Housing
Element and Consolidated Plan; and
WHEREAS, the Project will result in the preservation of 161
26 affordable senior citizen multifamily rental housing units,
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exclusively reserved for senior citizen households (e.g.: 62 years
of age or older), which in the case of at least sixteen (16) of
such units shall be reserved for occupancy by senior citizen
households with annual income which does not exceed fifty percent
(50%) of San Bernardino County median household income, adjusted
for family size, and which is the case of at least one hundred and
8 forty five (145) of such units shall be reserved for use and
9
occupancy by senior citizen households with annual income which
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does not exceed sixty percent (60%) of San Bernardino County median
household income, adjusted for family size; and
WHEREAS, the approval of the Loan and the acquisition of the
further assist
the Agency to
Project by the Borrower
shall
accomplish the implementation of its affordable housing development
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and preservation goals pursuant to Redevelopment Law.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
Section 1.
The above recitals are true and correct.
Section 2.
The Community Development Commission of the
21 City of San Bernardino (the "Commission") as the governing board of
22 the Agency, hereby finds and determines pursuant to Health and
23 Safety Code Section 33334.14(a) (1) and (4), that by virtue of the
24 federal mortgage insurance underwriting standards applicable to the
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under
a
contract
entitled "Regulatory Agreement
for
Borrower
(proj ect No.
143-11047-PM-PUR/CON)"
Multifamily Housing Project
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(the "FHA Agreement") by and between the Borrower and the Secretary
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of the United States Department of Housing and Urban Development
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(the "Secretary"), it is necessary for the Agency to acknowledge
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and agree that the Agency's Loan to the Borrower shall be subject
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to and subordinate to a mortgage loan in an amount not to exceed
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$4,400,000 in support of the Project which shall be insured by the
8 Secretary under the terms of the FHA Agreement.
The Commission
9 further finds and determines that in the absence of the
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acknowledgment of the Agency to subordinate its security interest
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in the Loan to the senior lender and its successors and assigns,
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including the Secretary, under the FHA Agreement, that the source
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of funds available to the Borrower in support of the Project under
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the terms of the FHA Agreement and the proposed multifamily
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mortgage revenue bond financing to be provided in support of the
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Project by the California Statewide Communities Development
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Authority (the "Authority") would not otherwise be available.
The
Commission hereby agrees that the Agency's security interest in the
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Loan shall be subordinate to the lien of the senior lender in the
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Project under the terms of the FHA Agreement.
Section 3.
The Commission hereby finds and determines that
23 the Loan shall be used and applied by the Borrower for the
24 acquisition of an existing one hundred and sixty one (161) unit
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accordingly
the
residential
facility,
and
that
multifamily
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categorical exception of Title 14 of California Code of Regulations
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Section 15310 (CEQA Guidelines for the California Environmental
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Quality Act of 1970, as amended) is applicable to the approval by
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the Agency of the Loan in support of the Project.
The Commission
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further finds and determines that any rehabilitation work which the
Borrower shall undertake on the Project following its acquisition
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pursuant to the FHA Agreement, the affordable senior citizen rental
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housing regulatory agreement by and between the Borrower and the
9 Agency,
is categorically exempt from further
or otherwise,
10 environmental review under CEQA pursuant to Title 14 California
11
Code of Regulations Section 15326.
The work of rehabilitation of
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the existing multifamily dwelling units in the Project requires the
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issuance of ministerial building permits only, by the City of San
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Bernardino, and the construction of new dwelling units is not
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contemplated as part of the Project.
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Section 4. The Commission hereby approves the Loan to the
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Borrower and the form of the Loan Agreement by and between the
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19 Borrower and the Agency in the form attached hereto as Exhibit "Au.
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The Chairperson of the Commission and the Executive Director of the
21 Agency are hereby authorized and directed to execute the Loan
22 Agreement (and the Agency regulatory agreement attached as Exhibit
23 "0" to the Loan Agreement) on behalf of the Agency, together with
24 technical and conforming changes to the Loan Agreement as may be
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approved by the Executive Director in consultation with legal
counsel for the Agency,
in order to accommodate the terms and
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condi tions of the FHA Agreement and the proposed issuance of
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multifamily mortgage revenue bonds for the Project by the
Authority.
The
Executive
Director
of
the
Agency
is
further
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authorized in consultation with legal counsel to the Agency to make
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minor
corrections,
additions,
and
clarifications
to
various
7 exhibits, and instruments attached to the Loan Agreement, provided
8 said changes are not substantive in nature, and do not increase the
9 principal amount of the Loan or materially change any of its terms
10 as hereby approved. The Executive Director is further authorized
11 and directed,
on behalf of the Agency,
to provide
such
12
certification and supplemental instruments to the Borrower and/or
13
the Escrow Holder" as provided under the Loan Agreement, in order
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to fund the Loan for the account of the Borrower.
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Section 5.
The approval of the Loan Agreement by the
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Commission as contemplated in Section 4 of this Resolution shall
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have no further force or effect in the event that the Loan
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Agreement may not be fully executed by the Borrower for any reason
20 within sixty (60 )
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days following the adoption of this Resolution.
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING THE
LOAN AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND AFE-PIONEER ASSOCIATES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP ("BORROWER"), IN THE AMOUNT OF $250,000, FROM
THE LOW-AND MODERATE-INCOME HOUSING FUND, FOR THE ACQUISITION OF
4 THE PIONEER PARK PLAZA AFFORDABLE ELDERLY RENTAL HOUSING PROJECT
LOCATED AT 560 NORTH "F" STREET (CENTRAL CITY NORTH PROJECT AREA)
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Section 6.
This Resolution shall take effect immediately
upon its passage.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
Joint Regular
meeting thereof, held on
San Bernardino at a
11 the 16th
12
13 Commission
ESTRADA
14 LIEN
MCGINNIS
15 SCHNETZ
SUAREZ
16 ANDERSON
McCAMMACK
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, 2000, by the following vote, to wit:
day of October
AYES NAYS ABSTAIN ABSENT
X
X
X
X
X
X
X
hereby approved this I~~
n alles, Chairperson
nity Development Commission
e City of San Bernardino
1 STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO ss
2 CITY OF SAN BERNARDINO
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I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foregoing and attached copy of Community
Development Commission of the City of San Bernardino Resolution
No. is a full, true and correct copy of that now on file
in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission
of the City of San Bernardino this day of , 2000.
Secretary of the
Community Development Commission
of the City of San Bernardino
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LEWIS, D' AMATO, BRISBOIS & BISGAARD LLP
LOS ANGELES OFFICE
SUITE 1200
221 NORTH FIGUEROA STREET
LOS ANGELES. CALIFORNIA 90012
TELEPHONE (213) 250-1 BOO
LAWYERS
TRI-CITY CORPORATE CENTRE
SUITE 600
SAN DIEGO OFFICE
SU ITE BOa
550 WEST "C" STREET
SAN DIEGO. CALIFORNIA 92101
TELEPHONE (6191 233-1006
650 EAST HOSPITALITY LANE
COSTA MESA OFFICE
su ITE 1400
650 TOWN CENTER DRIVE
CENTER TOWER BUILDING
COSTA MESA, CALIFORNIA 92626
TELEPHONE (714) 545-9200
SAN BERNARDINO,CAlIFORNIA 92408
TELEPHONE (909) 387-1130
WWW.LDBB.COM
DAVID F. GONDEK
DIRECT DIAL: (909) 381-7173
E-MAIL: GONDEK@LDBB.COM
TRANSMITTAL
TO:
Maggie Pacheco
Redevelopment Agency of the City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, CA 92401
FROM:
David F, Gondek
DATE:
December 5,2001
RE:
Pioneer Park Plaza Project
SAN FRANCISCO OFFICE
SUITE 1400
ONE SANSOME STREET
SAN FRANCISCO. CALIFORNIA 94104
TELEPHONE (415) 362-2580
SACRAMENTO OFFICE
SUITE 200
2500 VENTURE OAKS WAY
SACRAMENTO. CALIFORNIA 95833
TELEPHONE (916) 564-5400
FACSIMILES:
LOS ANGELES: (213) 250-7900
SAN DIEGO: (619) 233-8627
COSTA MESA: (714) 850-1030
SAN FRANCISCO: (415) 434-0882
SAN BERNARDINO: (909) 387-1138
SACRAMENTO: (916) 564-5444
OUR FILE NO.
25424-3
Enclosed please find: Original executed Loan Agreement.
D For your information
D For your review and comment
181 For your file
D Please sign and return
D Please call me to discuss
TRANSMIT.FRM
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BElmAlU)I:NO
LOAN AGREEMENT
(PIONEER PARK PLAZA AFFORDABLE
ELDERLY CITIZEN RENTAL HOUSING PROJECT)
THIS LOAN AGREEMENT ("Agreement") is dated as of October 16,
2000 and is entered into by and between the Redevelopment Agency of
the City of San Bernardino, a public body, corporate and politic
(the "Agency") and AFE-Pioneer Associates, L. P., a California
limited partnership (collectively with any related entity, the
"Borrower") in connection with the proposed acquisition and
rehabilitation by the Borrower of the Pioneer Park Plaza Elderly
Housing Complex, a 161-unit apartment project reserved for
occupancy by elderly persons (the "Project") located at 560 North
"F" Street, San Bernardino, California (the "Property"). The
Proj ect includes a two (2) bedroom dwelling unit which shall be
reserved for use by the Borrower's on-site manager for the Project.
A legal description of the Property is attached as Exhibit "A"
hereto.
WHEREAS, the Agency is organized and existing under Chapter 2
of the Community Redevelopment Law of the State of California
(Health and Safety Code Section 33020, et ~.); and
WHEREAS, the Borrower has entered into that certai~ Agreement
of Purchase and Sale of Real Property and Escrow Instructions dated
December 21, 1999 (the "Purchase Agreement"), with Pioneer Park
Plaza, a California limited partnership (the "Seller"), for the
purpose of acquiring the Project; and
WHEREAS, the
pursuant to the
December 29, 1976
Project was constructed in 1979 by the Seller
provisions of a Disposition Agreement dated
by and between the Seller and the Agency; and
WHEREAS, completion of construction of the Project was
assisted by a Department of Housing and Urban Development ("HUD")
Section 8 Housing Assistance Grant which required the Seller to
insure that the units in the Project remained affordable to elderly
individuals for the duration of the regulatory agreement by and
between the Seller and HUD (i.e., twenty (20) years); and
WHEREAS, the Borrower intends to continue operating the
proj ect as affordable rental housing for elderly persons and
accordingly the Borrower has applied for and obLained a commitment
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for mortgage loan insurance from the Secretary of the United States
Department of Housing and Urban Development (the "Secretary"), and
the Borrower has (or shall by a date no later than the close of
Escrow referenced in Section 5, below) enter into a Regulatory
Agreement for Multifamily Housing Project (Project No. 143-11047-
PM-PUR/CON) (the "FHA Agreement") by and between the Borrower and
the Secretary with respect to the Project. The mortgage loan to be
insured by the Secretary shall be made by Berkshire Mortgage
Finance Bethesda Limited Partnership, a Massachusetts limited
partnership (the "Senior Lender"); and
WHEREAS, the term "FHA Documents" as used herein means and
refers to the instruments identified in Section 13(a) of the FHA
Agreement, including without limitation, the mortgage note to be
delivered by the Borrower to the Senior Lender together with the
deed of trust executed by the Borrower in favor of the Senior
Lender and the related FHA insured mor~gage loan security documents
at the close of the Escrow referenced in Section 5, below.
WHEREAS, for the purposes of this Agreement the terms
"elderly", "elderly person", "senior citizen", "senior citizen
household" and the like, mean and refer to the following:
(i) during the term of the FHA Agreement, the term "elderly"
shall have the same meaning as set forth in Section 5 of
the FHA Agreement; and
(ii) from and after the expiration or termination date of the
FHA Agreement the term "el.derly" shall have the same
meaning as "senior citizen household" as set forth in
California Civil Code Section 51.3 as may be amended from
time-to-time.
WHEREAS, in connection with the continued operation of the
Project under the FHA Agreement and the FHA Documents, the Borrower
will make improvements to the Project at: an estimated cost of
approximately One Million Dollars ($1,000,000.00); and
WHEREAS, the Borrower has requested the California Statewide
Communities Development Authority (;:he "Authority") to issue
multi-unit housing revenue bonds in an aggregate principal amount
not to exceed Five Million Dollars ($5,000,000.00) (the "Bonds")
for the purpose of providing financing for the acquisition and
rehabilitation of the Project; and
WHEREAS,
loan in the
($250,000.00)
the Borrower
amount of
to assist
has
Two
the
request:ed that the Agency provide a
Hundred Fifty Thousand Dollars
Borrower in consummating the
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transaction contemplated by the Purchase Agreement and the FHA
Agreement; and
WHEREAS, the Agency desires that the Project continue to be
available as affordable housing for elderly individuals in
accordance with the FHA Agreement and applicable provisions of the
California Redevelopment Law (Health and Safety Code Section 33000,
et ~.); and
WHEREAS, the continued operation of the Project as affordable
housing for elderly individuals meets the obj ecti ves and goals
contained within the Central City North Redevelopment Project Area
Plan of the Agency; and
WHEREAS, the improvements to be made to the Project by the
Borrower under the FHA Agreement and the related mortgage loan
documents by and between the Senior Lender and the Borrower
(collectively the "FHA Documents") will alleviate any potential
blighting conditions due to the age of the Project and assure the
continued affordability of rental dwelling units therein for use
and occupancy by elderly persons; and
WHEREAS, the Agency desires to lend to the Borrower from Low
and Moderate Income Housing Fund monies available to the Agency,
the principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) in connection with the Owner's acquisition of the
Property, subject to and subordinate to the security interest of
the Senior Lender in the Property under the FHA Documents.
NOW, THEREFORE, in consideration of the premises and for such
other good and valuable consideration receipt of which is hereby
acknowledged the parties hereto agree as follows:
1. The Loan. Subject to the terms and conditions of this
Agreement, the Agency shall make a loan to the Borrower in the
principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) (the "Loan"). The Loan shall bear interest at the
rate of three percent (3%) per annum, commencing on the date when
the proceeds of the Loan are disbursed by the Escrow Holder
identified in Section 5, below (the "Escrow"), for the account and
credit of the Borrower; provided however, that the conditions for
such disbursement of the Loan have been satisfied by a date no
later than June 30, 2001. Interest sha2.l be calculated on an
actual days basis of a year equal to 360 days. The Loan shall be
for a term of thirty-five (35) years from the date of such
disbursement. The Loan shall be evidenced by a promissory note
substantially in the form attached hereto as Exhibit "B" (the
"Note") executed by the Borrower in favor of the Agency and shall
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be secured by a second deed of trust on the Property substantially
in the form attached hereto as Exhibit ~C". Both the Note and the
Deed of Trust shall contain the provisions relating to permitted
subordinate debt in compliance with Section 6 (b) ~f the FHA
Agreement and the FHA Documents. A copy of the FHA Agreement is on
file with the Agency. The Loan shall be funded at the time set
forth in Section 5 of this Agreement.
2. Use of Funds. The Borrower shall use and apply the
proceeds of the Loan solely for the purpose of acquiring the
Project pursuant to the Purchase Agreement.
3. Repavment of the Loan.
(a) The Borrower shall, prior to the maturity date of the
Note, repay the Loan plus interest in installments as set forth in
the Note.
(b) The Borrower shall, throughout the term of the Loan,
annually pay installments of principal and interest to the Agency,
commencing on the first anniversary following the close of the
Escrow and on each such anniversary date thereafter to and
including its maturity date (each, a "payment date") the amount of
Eleven Thousand Five Hundred Forty Six Dollars ($1l,546.00) (each,
a "scheduled debt service payment") .
(c) The installments of principal and interest due under the
Note shall be payable by the Borrower prior to its maturity solely
from the special source of funds defined in the Note and the FHA
Agreement as "Surplus Cash".
4. Securi tv for the Loan. The Loan is secured by that
certain Deed of Trust, Security Agreement, Assignment of Rents and
Fixture Filing of even date with the Note (the "Deed of Trust"),
pursuant to which the Borrower grants to the Agency a second lien
on the Property, subordinate to the lien created in favor of the
Senior Lender under the FHA Documents, and its assigns, for the
purpose of providing financing for the acquisition and
rehabilitation of the Project.
5. Disbursement of Loan. The Agency shall deposit the Loan
into that certain escrow account (the "Escrow") opened pursuant to
the Purchase Agreement with First American Title & Guaranty
Company, 1850 Mt. Diablo Boulevard, Suite 300, Walnut Creek,
California (the "Escrow Holder") within five (5) days following
written request of the Borrower confirming that the conditions set
forth in Section 5 have been satisfied (or shall be satisfied upon
receipt by the Escrow Holder of the proceeds of the Loan and other
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funds, including without limitation Borrower equity contributions
and the proceeds of the Bonds). The Agency shall direct the Escrow
Holder to pay the proceeds of the Loan to the Seller for the
account of the Borrower as partial payment of the purchase price of
the Property when the following conditions have been satisfied:
(a) The Borrower shall have executed the Note, the Deed of
Trust and a regulatory agreement substantially in the form attached
hereto as Exhibit "0" (the "Regulatory Agreement"), pursuant to
which the Borrower agrees, for the term of the Loan, that units in
the Project shall remain affordable to elderly persons.
(b) The Agency shall remit the proceeds of the Loan in
immediately available funds to the Escrow Holder for disbursement
for the account of the Borrower wi thin five (5) days following
receipt from the Borrower of a written certification that:
(i) the Borrower is not in default under the Agreement;
(ii) that the Borrower reasonably believes that all conditions
for the completion of the transfer of the Property under
the Purchase Agreement shall be accomplished within five
(5) days following the date of such certificate;
(iii) that the Borrower reasonably believes that all conditions
for the completion of the issuance of the mortgage
insurance of the Secretary under the FHA Agreement the
full execution by the appropriate parties of the FHA
Documents and the delivery of the Bonds in support of the
Project shall be accomplished within five (5) days
following the date of such certification; and
(iv) that the principal, officer or member of the Borrower who
executes such certification on behalf of the Borrower has
been duly authorized by the Borrower to deliver such
certification to the Agency.
(c) The Escrow Holder shall have confirmed that promptly
following its receipt of the funds for the Loan from the Agency,
that the other conditions for satisfaction by the applicable
parties under the terms of the Purchase Agreement and the FHA
Agreement shall concurrently be completed, and the Escrow Holder
shall have provided the Agency with customary evidence of an ALTA
lender's policy of title insurance in favor of the Agency (to be
issued at time of close of the Escrow) insuring the security
interest of the Agency in the Deed of Trust in the Property at the
close of Escrow for the amount of the Loan, subject only to the
following matters:
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(i) the lien of property taxes not yet payable;
(ii) the exceptions created by the FHA Agreement;
(iii) the first mortgage lien in favor of Berkshire Mortgage
Finance Bethesda Limited Partnership, a Massachusetts
limited partnership, as the Senior Lender under the FHA
Documents or its assignee;
(iv) the Regulatory Agreement; and
(v) other non-monetary lien exceptions approved in writing by
the Agency.
(d) Upon the close of the Escrow, the Escrow Holder shall
record the Deed of Trust and the Regulatory Agreement and the
Subordination Agreement in the form attached hereto as Exhibit "GU
in the Office of the Recorder of San Bernardino County and disburse
the proceeds of the Loan to the Borrower. All costs of the Escrow
Holder relating to its services in connection with the Loan
(including the issuance of a lender's policy of title insurance in
favor of the Agency) shall be borne by the Borrower. Within five
(5) days following the close of the Escrow, the Escrow Holder shall
deliver to the Agency a copy of the Seller's closing statement and
a copy of the Borrower's closing statement (as the buyer) under the
Purchase Agreement. Within thirty (30) days following the close of
the Escrow the Borrower shall cause to be delivered to the Agency
a complete and fully executed copy of: (i) the set of final closing
or insured mortgage loan transcript documents, including a fully
executed copy of the FHA Agreement and the FHA Documents; and (ii)
the set of final closing or bond transaction documents required
under the Bonds. In the event that the Escrow Holder is unable to
complete the Escrow transaction, and disburse the proceeds of the
Loan for the account of the Borrower for any reason within ten (10)
days of its receipt of the Loan funds from the Agency, the Escrow
Holder shall return such funds to the Agency without further
instruction from either the Borrower or the Agency.
(e) As used herein, the term "close of Escrowu means and
refers to the time when the Escrow Holder determines that all of
the conditions of this Agreement and the Purchase Agreement and the
FHA Agreement have been complied with by the applicable party. The
Escrow Holder may rely upon a written instruction of the Agency
Executive Director addressed to the Escrow Holder as conclusive
evidenced that the conditions for the close of Escrow have been
satisfied.
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6. Representations and Warranties; Certain Covenants.
(a) This Agreement has been, and the Note will be, duly
executed and delivered by the Borrower, and this Agreement does,
and the Note will, constitute valid and binding obligations of the
Borrower.
(b) As of the date hereof, the Borrower is not in default
under any other indebtedness of the Borrower, and the execution,
delivery or performance by the Borrower of this Agreement and the
Note, Deed of Trust and Regulatory Agreement shall not contravene
any provision of law, statute, rule or regulation of any
governmental instrumentality and shall not conflict or be
inconsistent with or result in any breach of any terms, covenants
or provisions of, or constitute a default under, or result in the
creation or imposition of a lien pursuant to the terms of, any loan
agreement, credit agreement or any other agreement, contract or
instrument to which the Borrower is a party or by which the
Borrower is bound or to which the Borrower is subject.
(c) The Borrower hereby covenants that the Borrower will not
sell, lease, transfer or convey the Project to an entity unrelated
to the Borrower, so long as the Note is outstanding, without the
prior written consent of the Agency, which consent may be given or
withheld by the Agency in its sole discretion; provided however,
that the Note shall be assumable by a transferee in the Project if
such a transferee is permitted to assume the obligations of the
Borrower under the FHA Documents. The Borrower further covenants
that the Borrower shall not incur, create or suffer the imposition
of any indebtedness, other than as permitted under the FHA
Documents, secured in any way by the Project, so long as the Note
is outstanding.
(d) The Borrower hereby declares that based upon due and
delinquent inquiry, the Borrower reasonably estimates as of the
date hereof, that from and after the close of the Escrow, an amount
of "Surplus Cash", as this term is defined in the Note, shall be
available to make each "scheduled debt service payment" as this
term is also defined in the Note, when due under the Note.
7. Affordabilitv Restrictions.
(a) The Borrower covenants that the covenants relating to
occupancy of each of the 161 multifamily dwelling units (not
including the two (2) bedroom on-site manager unit) by elderly
persons and the rental rate affordabili ty restrictions of this
Section 7 will remain in full force and effect for a term of fifty
SBEO/0001/DOC/4106-5
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7
five (55) years following the close of the Escrow and shall survive
the repayment of the Note.
(b) For the purposes of this Section 7:
(i) Ten percent (10%) of the units in the Project (exclusive
of the two (2) bedroom on-site manager unit) for a
subtotal of at least sixteen (16) units, shall at all
times be occupied or reserved for occupancy by elderly
persons who have a household income which is not more
than fifty percent (50%) of median income as determined
by HUD for the San Bernardino Riverside PMSA area
("Median Income"); and
(ii) Ninety percent (90%) of the units in the Project
(exclusive of the two (2) bedroom on-site manager unit),
for a subtotal of at least one hundred forty four (144)
uni ts, shall at all times be occupied or reserved for
occupancy by elderly persons who have a household income
which is not more than sixty percent (60%) of Median
Income.
Each elderly person, or elderly person household which
qualifies for occupancy in the Project under either subparagraph
(i) or (ii), above, is referred to as a "Qualifying Tenant". The
elderly person verification and household income determination for
each such Qualifying Tenant shall be made by the Borrower: (1) at
the time of initial occupancy of a unit by a Qualifying Tenant
following the close of the Escrow; (2) upon the renewal of each
Qualifying Tenant's lease; and (3) in the case of units occupied at
the time of the close of the Escrow as part of the "buyer's" and
seller's" rent-roll verification condition under the Purchase
Agreement.
(c) For the purposes of this Section 7:
(i) the Borrower agrees that the total charges for rent,
utili ties and related services for each unit of the
Project occupied by a Qualifying Tenant under Section
6 (b) (i) shall not exceed thic:y percent (30%) of fifty
percent (50%) of Median Income; and
(ii) the Borrower agrees that the total charges for rent,
utilities and related services for each unit of the
proj ect occupied by a Qualified Tenant under Section
6 (b) (ii) shall not exceed thirty percent (30%) of sixty
percent (60%) of Median Income.
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Borrower may adjust rents payable by a Qualifying Tenant based
upon changes in Median Income only, and any such adjustment shall
occur no more frequently than once in any twelve-month period for
each Qualifying Tenant.
(d) As a condition to occupancy in the Project from and after
the close of the Escrow in the case of each renewal of an existing
rental agreement, each prospective Qualifying Tenant shall be
required to sign and deliver to the Borrower a ~Qualifying Tenant
Income Certification", substantially in the form attached hereto as
Exhibit ~E", in which said individual certifies that he/she has an
income that is no more than fifty percent (50%) of Median Income or
sixty percent (60%) of Median Income, as applicable for the unit.
In addition, such person shall be required to provide whatever
other information, documents or certifications are deemed necessary
by the Agency to substantiate the Qualifying Tenant Income
C'ertification.
(e) The form of lease to be utilized by the Borrower in
renting any unit in the Project shall provide for termination of
the lease and consent by such person to immediate eviction for
failure to qualify as a Qualifying Tenant as a result of any
material misrepresentation made by such person with respect to
Qualifying Tenant Income Certification.
(f) Each Qualifying Tenant Income Certification shall be
maintained on file at the Project with respect to each tenant who
resides in a unit of the Project or resided therein during the
immediately preceding calendar year, and the Borrower shall
promptly file copies thereof with the Agency upon request by the
Agency.
(g) The Borrower shall not, in the operation and use of the
Project, discriminate against any person or group of persons
because of race, color, creed, national origin, ancestry, age, sex,
sexual orientation or disability.
(h) The Borrower shall not discriminate against tenants using
Section 8 Certificates or vouchers or equivalent rent subsidies.
8. Rehabilitation of Prol ect. Subj ect to its compliance
with the applicable provisions of the FHA Agreement and the FHA
Documents, the Borrower covenants and agrees that it shall
rehabilitate the Project in accordance with the Budget
Development/Scope of Work attached to this Agreement as Exhibit ~F"
(the ~Rehabilitation Work"). The Borrower further covenants and
agrees that the Rehabilitation Work shall be completed within
SBEO/0001/00C/4106-S
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9
twelve (12) months following the close of the Escrow or such later
date as permitted under the FHA Documents.
9. Maintenance and Manaaement of Proiect.
(a) The Borrower shall be responsible for all maintenance,
repair and management functions performed in connection with the
Project, including without limitation maintaining the Property
clear of rubbish or debris, selection of tenants, recertification
of income, evictions, collection of rents, routine and
extraordinary repairs and replacement of capital items. The
Borrower shall maintain the units in the Project and the common
areas in a safe and sanitary manner in accordance wi th local
health, building and housing codes.
(b) The Borrower may contract with a management agent for the
performance of the services or duties set forth in (a) above.
However, such an arrangement shall not relieve the Borrower of
responsibility for performance of those services and duties.
(c) The Borrower agrees to make all reasonable efforts to (i)
keep the units in the proj ect in good repair and available for
occupancy and (ii) keep the Project fully rented and occupied.
10. Events of Default.
(a) Bv Aaencv. The following shall constitute a default by
the Agency: failure to fund the Loan as provided in Section 1 of
this Agreement.
(b) Bv Borrower. Each of the following shall constitute a
default by the Borrower:
(i)
failure by the Borrower to comply with the
Section 8 hereof, including failure to
Rehabilitation Work by the date indicated.
provisions of
complete the
(ii) failure by the Borrower to perform or a delay in
performance or a failure to comply with any term or
provision of the FHA Agreement and such failure or delay
or non-compliance is not corrected within the period of
time set forth in the FHA Agreement.
(iii) failure by the Borrower to perform or a delay in
performing or a failure to comply with any term or
provision of this Agreement and such failure or delay or
noncompliance is not corrected within thirty (30) days of
notice thereof by the Agency.
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10
(iv) failure by the Borrower to perform or a delay in
performing or a failure to comply with any term or
provision of the Deed of Trust and such failure or delay
or noncompliance is not corrected within thirty (30) days
of notice thereof by the Agency.
11.
Aaencv Remedies Subiect to FHA Aareement.
(a)
released
Note and
relief.
Upon a default by the Agency, (i) the Borrower shall be
from any further obligation under this Agreement or the
(ii) the Borrower may seek appropriate legal or equitable
(b) Upon a default by the Borrower, the Agency may, at its
option and subject to the terms and conditions of the FHA
Documents, (i) declare all sums due under the Note immediately due
and payable; (ii) institute suit for the foreclosure of the Deed of
Trust or deliver to the trustee under the Deed of Trust a written
declaration of default by Borrower and of election to cause the
Property to be sold, all as provided in the Deed of Trust; (iii)
insti tute any proceeding at law or in equity to enforce the
obligations and covenants of the Borrower under this Agreement, the
Note and the Deed of Trust.
(c) In any action brought under this Agreement, the
prevailing party shall be entitled to reimbursement from the other
party of its costs and expenses (including reasonable attorney's
fees) in bringing such action. Additionally, the Agency shall be
e~~itled to any costs, including reasonable attorney's fees,
incurred in collecting amounts due the Agency under the Note.
(d) Notwithstanding any other provision of this Agreement, or
any related instrument executed by the Borrower and delivered to
the Agency upon close of the Escrow as provided in Section 5
hereof, the Loan and this Agreement shall automatically terminate
if the Secretary or the Senior Lender, or the assignees of either
of them, acquires title to the Property by foreclosure, deed in
lieu of foreclosure or comparable means under the FHA Documents.
12. Assianment. The Agency shall be entitled to assign its
rights and obligations under this Agreement upon consent by the
Borrower to such assignment, which consent shall not unreasonably
be withheld. The Borrower shall not be entitled to, and shall not,
assign its rights and obligations under this Agreement.
13. Termination of Aareement. This Agreement shall terminate
upon the payment in full by the Borrower of all amounts due under
the Note. This Agreement shall also terminate if the Secretary or
SBEO/0001/00C/4106-5
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11
the Senior Lender or the assignee of either of them, acquires title
in the Project through foreclosure, deed in lieu of foreclosure or
comparable means under the FHA Documents.
14. Notices. Notices shall be presented in person or by
certified or registered United States mail, return receipt
requested, postage prepaid, or by overnight deli very made by a
nationally recognized delivery service to the address noted below.
Notice presented by United States mail shall be deemed effective
the second business day after deposit with the United States Postal
Service. This Section shall not prevent giving notice by personal
service or telephonically verified fax transmission, which shall be
deemed effective upon actual receipt of such personal service or
telephonic verification. Either party may change their address for
receipt of written notice by so notifying the other party in
writing.
TO THE AGENCY:
TO THE BORROWER:
with a copy to:
Redevelopment Agency of the
City of San Bernardino
201 North nEn Street, Suite 301
San Bernardino, California 92401
Attn: Maggie Pacheco
Telephone: (909) 663-1044
Facsimile: (909) 888-9413
A. F. Evans Company Inc.
100 Bush Street, Suite 925
San Francisco, California 94104
Attn: Jack Robertson
Telephone: (415) 393-5250
Facsimile: (415) 393-5251
Levy, Levy & Levy
900 Larkspur Landing Circle,
275
Larkspur, California 94939
Attn: Mark Levy, Esq.
Telephone: (415) 461-4900
Facsimile: (415) 461-4994
Suite
15. Governinq Law. This Agreement shall be governed by the
laws of the State of California.
16. Entire Aqreement. This Agreement constitutes the entire
agreement between the parties and may not be amended without the
prior written consent of the parties hereto and the Secretary and
the Senior Lender. This Agreement supersedes all prior
negotiation, discussions and previous agreements between the
SBE0/0001/DOC/4106-5
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12
parties concerning the subject matter herein. The parties intend
this Agreement to be the final expression of their agreement with
respect to the terms herein and a complete and exclusive statement
of such terms. No modification, amendment or waiver of any term
herein shall be binding unless executed in writing by the parties
hereto.
17. Amendment. This Agreement may be amended as deemed
necessary by written instruments duly approved by the Secretary and
the Senior Lender and the parties to this Agreement and executed by
the parties hereto. Any such amendments or modifications shall be
valid, binding and legally enforceable only if in written form and
executed by the parties hereto and only after the approval thereof
by official action of the Agency; provided however, that the
Executive Director of the Agency in consultation with legal counsel
for the Agency, is authorized to make non-substantive revisions and
changes to the text of any instrument attached hereto as an
exhibit, prior to the close of the Escrow, in order to accommodate
the final form of the FHA Documents or the requirements of the
Secretary under the FHA Agreement, and the delivery of the Bonds in
support of the Project.
18. Severability. Each and every section of this Agreement
shall be construed as a separate and independent covenant and
agreement. If any term or provision of this Agreement or the
application thereof shall be declared invalid or unenforceable, the
remainder of this Agreement, or the application of such term or
provision to circumstances other than those to which it is invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid a~d enforceable to the
extent permitted by law.
SBE0/0001/DOC/4106-5
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13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above. This Agreement may
be executed in counterparts and when fully executed each
counterpart shall be deemed to be part of one (1) original
Agreement.
AGENCY
Redevelopment Agency of the
City of San Bernardino
By:
Title:
(SEAL)
S
Approved as to Form:
By: l. U. 11- l4 ..)c)o-.l
Agency Special Counsel
BORROWER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
Bypa~~
Name:
Title:
SBEO/0001/DOC/4106-5
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14
EXHIBIT "A"
LEGAL DESCRIPTION
SBEO/0001/DOC/4106-5
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15
L I::. G AL
OE:sc. R \? T 10 1-.1
(JF
"PI~\,\ e f:. R-. ~p...\l-'L ~L...~Z.A 11\ f-F-o,"-OjODLI-:.
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-SA~ ~ ~ iL~\G- i2--u \ ,'-, c)
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C L. c::: C-- CL C a{J '-< p.. cc e: ~T v.:J&- ,::- T\::,) Kc c ~1.l.CE L
'AT l\\}v\\~ at=' i2-~CC:9--00-rI\.JI" 0\? \O?PLIC&L.I'3....
\ \.~Sl (Lt.,l L,lA '€ L'-\I s~
s. TI-m LAND REFERRED TO IN THIS ~O FO~ POU<"'Y IS DESCRIBED AS
FOLT.OW5:
e
PARCEL NO.1: (APN: L14-061-27)
lOTS 3 AND 4, BLOCK 38, CITY OF SAN BERNARDINO, IN TI-IF. cm OF SA~ BERNARDINO,
COUNl'Y OF ShN BERNARDINO, Sf ATE OF CAUI'OR.'41A, PS PER PLAT RF.CORDED TN BOOK
7 OF MAPS, P AGE(S) 1, RECORDS OF SAID COUNTY.
PAReR NO. ,. (APN: 134-061-26)
Lars 7 Al'\ID 8, BLOer< 38. an Of SAN Bl::RNAJ.\DL.\;O, IN '!HE aT'{ OF SAN I3ER.'JARDINO,
COUNTY Of SAJ.'\l BERNARDINO, SIATE OF CALIFOR.'ITA.1\5 PER !'LJ\T RECORDED IN !JOOK
7 OF MAPS, P AGE(S) 1, RECORDS OF SAID CO{]l\lTI.
\\- t4- )...oQu C ~~ ~e. : "'(Q.-u t:o~V\-f:j Roqc <( \,Q...;c'Sf \--.lte \) l ~
~CQ..~\:i~I\RE- p<:, fl~ F\-In- v\A.a~\6.~E-
Lc\~OE'S
~Fc L 'R D ~ ~'S '~..A '&::>\m. \...\\O'tc- Lp~' O~hL
SBEO/0001/DOC/4106-5
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EXHIBIT "B"
$250,000.00 PROMISSORY NOTE
16
PROMISSORY NOTE PAYABLE TO A PUBLIC AGENCY
SECURED BY A SUBORDINATE DEED OF TROST
(Pioneer Park Plaza Affordable Elderly Rental Bousinq:
FHA Project No. 143-11047-PM-POR/CON)
Original Principal
Amount of
Promissory Note:
$250,000.00
Holder of
Promissory
Note:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, CA 92401
Attn: Development Director
Date:
November 15, 2000
Rate of Interest:
3% per annum (fixed)
Maturity
Date:
November 15, 2035
FOR VALUE RECEIVED, AFE-Pioneer Associates, L.P., a California
limited partnership (the "Maker") promises to pay to Redevelopment
Agency of the City of San Bernardino (the "Agency") or its
successor or assign, the sum of Two Hundred Fifty Thousand Dollars
($250,000.00), together with interest thereon as set forth herein.
1. This Promissory Note (the "Note") is made and delivered
by the Maker pursuant to and in implementation of the Loan
Agreement by and between the Agency and the Maker, dated as of
October 16, 2000 (the "Loan Agreement"). A copy of the Loan
Agreement is on file with the Agency and is incorporated herein by
reference. This Promissory Note evidences the indebtedness of the
Maker to the Agency under the terms and conditions of the Loan
Agreement. Unless definitions of terms have been expressly set out
at length herein, each term shall have the same definition as set
forth in the Loan Agreement.
2. Payments of principal and interest in the amount of
Eleven Thousand Five Hundred Forty Six Dollars ($11,546.00) (each,
a " scheduled debt service payment") shall be due annually on
November 15 of each year until the maturity date set forth above,
commencing November 15, 2001 and through and including November 15,
2035 (each, a "payment date"). Prior to the maturity date of this
Promissory Note, and for so long as the United States Secretary of
Housing and Urban Development (the "Secretary") has a security
interest in the Project under that certain instrument entitled
"Regula tory Agreement for Multifamily Housing proj ects (proj ect No.
SBEO/001/DOC/4109-5
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1
(i) an amount equal to the aggregate of all special
funds required to be maintained for the Proj ect
under the FHA Agreement and the FHA Documents; and
(ii) all tenant security deposits for the Project then
held by the Maker.
3. This Promissory Note shall bear interest on its
outstanding principal balance from its date, at the rate of three
percent (3%) per annum.
4. This Promissory Note is secured by a deed of trust, of
even date herewith (the "Deed of Trust"). The Deed of Trust is
subordinate to the security interest of the Secretary in the
Property subject to the FHA Agreement and the FHA Documents. The
obligation of the Maker to pay the Agency the amounts when due
under this Promissory Note is assignable by the Maker to its
transferee in the Property upon thirty (30) days prior written
notice to the Agency in which the Maker and the assignee each
certify to the Agency that as part of such sale, lease, or transfer
of the Property, the assignee of the Maker shall also assume the
obligations of the Maker under the note insured or held by the
Secretary in accordance with the FHA Documents and the FHA
Agreement.
The Deed of Trust contains the following provisions:
"THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS
DEFINED BELOW.
A "special event of acceleration" shall occur when there is a
conveyance without the consent in writing of the Lender, of
any right, title or interest in the Property to any person
whether such sale, refinancing or transfer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Senior Lender, or its
assigns, including the Secretary, in the Property is released
and reconveyed to the Trustor by the Senior Lender, or its
assigns, including the Secretary. Any such conveyance which
SBEO/001/DOC/4109-S
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3
is permitted under the FHA Documents of the Senior Lender or
the FHA Agreement shall not be deemed to be a special event of
acceleration.
Initials of TrustorH
5. A failure to pay any sum provided for in this Promissory
Note when due, or a material breach of the Loan Agreement or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all ~ums due hereunder immediately due and
payable and to pursue all remedies available under this Promissory
Note and the Deed of Trust.
Except as set forth in the next sentence of this paragraph,
upon the failure to pay any sum provided for in this Promissory
Note when due, or a material breach of the Loan Agreement or the
Deed of Trust, no partner of the Maker (or in the case of an
assignee of the Maker - no affiliate, member, partner, shareholder
or subsidiary of such assignee) shall have personal liability for
payment of the principal or interest then due under this Promissory
Note. The sole recourse of the Agency to recover any such sum
shall be to the Property subject to the Deed of Trust, except in
the event of: (A) fraud by the Maker (or its assignee), (B) any
material misrepresentation made by the Maker of the Agency under
the Loan Agreement, (C) misappropriation by the Maker (or its
assignee) of any rents, security deposits, tax collection amounts,
security deposits, or insurance or condemnation awards, (0)
commission of bad faith waste by the Maker (or its assignee) or (E)
the presence of "Hazardous SubstancesH on the Property, as this
term is defined in the Deed of Trust.
All payments due under this Promissory Note shall be made in
lawful money of the United States at the principal office of the
Agency, 201 North "EH Street, Suite 301, San Bernardino, California
92401, or at such other place as may from time to time be
designated by the Agency in writing.
In no event shall the interest 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
Promissory Note, the Maker agrees to pay all costs of such
collection including reasonable attorney's fees and court costs.
DEMAND, protest and notice of demand and protest are hereby
waived and the Maker hereby waives, to the extent authorized by
law, any and all homestead and other exemption rights which
SBEO/001/DOC/4109-S
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4
otherwise would apply to the debt evidenced by this Promissory
Note.
IN WITNESS WHEREOF, this Promissory Note has been duly
executed by the Maker, as of its date.
MAKER
An-Pioneer
California
Associates, L.P.,
limited partnership
a
By: A. F. Evans Company,
California corporation,
Partner
Inc., a
its general
By:
Name:
Title:
SBEO/001/DOC/4109-S
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5
EXHIBIT "c"
AGENCY (SUBORDINATE) DEED OF TRUST,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING
SBEO/0001/00C/4106-5
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17
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
)
)
REDEVELOPMENT AGENCY OF THE )
CITY OF SAN BERNARDINO )
201 North "E" Street )
Suite 301 )
San Bernardino, California 92401 )
Attention: Director of Housing and)
Community Development )
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING
(Pioneer Park Plaza Affordable Elderly Citizen
Rental Housing Project)
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING (the "Deed of Trust") is dated as of October 16,
2000, among AFE-Pioneer Associates, L. P., a California limited
partnership (the "Trustor"), whose address is 100 Bush Street,
Suite 925, San Francisco, California 94104 and the Redevelopment
Agency of the City of San Bernardino (referred to herein as the
"Lender" or "Beneficiary"), whose address is 201 North "E" Street,
Suite 301, San Bernardino, California 92401; and
, a corporation (the "Trustee"),
whose address is
California
THE RIGHTS AND REMEDIES OF BENEFICIARY SET FORTH HEREIN WITH
RESPECT TO THE PROPERTY DESCRIBED BELOW, SHALL BE SUBJECT AND
SUBORDINATE TO THE RIGHT OF THE SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (the "Secretary") AND
ITS ASSIGNS UNDER THE FHA AGREEMENT BY AND BETWEEN THE SECRETARY
AND THE TRUSTOR AND SHALL BE FURTHER SUBORDINATE TO THE RIGHTS OF
BERKSHIRE MORTGAGE FINANCE BETHESDA LIMITED PARTNERSHIP, A
MASSACHUSETTS LIMITED PARTNERSHIP, 4550 MONTGOMERY AVENUE, #1150,
BETHESDA, MARYLAND 20814 (the "Senior Lender") UNDER THE FHA
DOCUMENTS.
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary,
all of Trustor's right, title, and interest in and to the
SBEO/0001/00C/4110-4
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1
following described real property, located at 560 North ftF"
Street, San Bernardino, California and more particularly
described below, together with all existing or subsequently
erected or affixed buildings, improvements and fixtures, all
easements, rights of way, and appurtenances and all other
rights, royalties, and profits relating to the real property,
including and without limitation all minerals, oil, gas,
geothermal and similar matters.
SEE EXHIBIT ftA" LEGAL DESCRIPTION OF THE REAL PROPERTY
ATTACHED HERETO
Trustor presently assigns to the Lender all of Trustor's
right, title and interest in and to all present and future
leases of the Property and all Rents from such real property.
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. All references to
dollar amounts shall mean amounts in lawful money of the
United States of America:
Beneficiary. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino.
Deed of Trust. The words "Deed of Trust" ,mean this Deed of
Trust, Security Agreement, Assignment of Rents and Fixture
Filing among Trustor, Lender, and Trustee.
FHA Agreement. The words "FHA Agreement" mean and refer to
the instrument entitled "Regulatory Agreement for Multifamily
Housing Projects (Project No. 143-11047-PM-PUR/CON)" by and
between the Trustor and the Secretary. A copy of the FHA
Agreement is on file with the Beneficiary as a public record.
FHA Documents. The words "FHA Documents" mean and refer to
the mortgage loan documentation evidencing the mortgage loan
of the Senior Lender to the Trustor, in an original principal
amount of $4,377,500.00. A copy of the FHA Documents are on
file with the Beneficiary as a public record.
Improvements. The word "Improvements" means and includes
without limitation all existing improvements on the Property.
Indebtedness. The word "Indebtedness" means all principal and
interest payable under the Note and any amounts expended or
advanced by Lender to discharge obligations of the Trustor or
expenses incurred by Trustee or Lender to enforce obligations
SBEO/0001/DOC/4110-4
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2
of Trustor under the Note and this Deed of Trust, together
with interest on such amounts. This Deed of Trust secures, in
addition to the amounts specified in the Note any future
advances, together with all interest thereon, which future
advances the Lender may in its sole and absolute discretion
make so long as Trustor complies with all the terms and
conditions of the Note or the Loan Agreement.
Lender. The word "Lender" means Redevelopment Agency of the
City of San Bernardino.
Loan Agreement. The words "Loan Agreement" refer to that
certain Loan Agreement dated as of October 16, 2000, by and
between the Trustor and the Lender. A copy of the Loan
Agreement is on file with the Lender. Under the Loan
Agreement, the Trustor covenants that through the fifty-fifth
(55th) anniversary of the date of recordation of the
affordable senior citizen rental housing project Regulatory
Agreement by and between the Trustor and the Beneficiary, one-
hundred-percent (100%) of the units in the Project shall at
all time be occupied or held vacant available for rental by
individuals who are at least sixty two (62) years old and who:
(i) with respect to ten percent (10%) of the units in the
Project have an income adjusted for family size that is no
more than fifty percent (50%) of median income as determined
by HUD for the San Bernardino-Riverside PM SA area ("Median
Income") and that the total charges for rent, utilities and
related services for each such unit in the Project shall not
exceed thirty percent (30%) of fifty percent (50%) of Median
Income; or (ii) with respect to ninety percent (90%) of the
units in the Project have an income adjusted for family size
that is no more than sixty percent (60%) of Median Income and
that the total charges for rent utilities and related services
for each such unit in the proj ect shall not exceed thirty
percent (30%) of sixty percent (60%) of Median Income all as
more fully set forth in the Regulatory Agreement of even date
herewith, by and between the Trustor and the Lender. A copy
of the Regulatory Agreement is on file as a public record of
the Beneficiary.
Note. The word "Note" means the Promissory Note Secured by
Deed of Trust of even date herewith, in the principal amount
of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) from
Trustor to the Lender, together with all renewals, extensions,
modifications, refinancing, and substitutions for the Note.
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Personal Property. The words "Personal Property" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the real property described in Exhibit
"A" together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such
property, and together with all proceeds (including without
limitation all insurance proceeds and refunds of premiums)
from any sale or other disposition of such real property or
the Personal Property.
Project. The word "Project" means Pioneer Park Plaza Senior
Housing Complex, a 161-unit apartment project.
Property. The word "Property" means collectively the real
property more particularly described in Exhibit "AU, and the
Personal Property, and the rights described above in the
"Conveyance and Grant" section of the Deed of Trust.
Rents. The word "Rents" means all present and future rents,
revenues, income, issues, royalties, profits, and other
benefits derived from the Property.
Trustee. The word "Trustee" means
substitute or successor trustees.
, and any
Trustor. The word "Trustor" means AFE-Pioneer Associates,
L.P., a California limited partnership.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE
SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN
TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE
OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER THE PROMISSORY
NOTE, THIS DEED OF TRUST AND THE LOAN AGREEMENT. THE NOTE AND
THIS DEED OF TRUST ARE GIVEN AND ACCEPTED ON THE FOLLOWING
TERMS:
3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Note, this Deed of Trust, and the Loan Agreement.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property shall be
governed by the following provisions:
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4
Possession and Use. Until the occurrence of an Event of
Default as set forth below, Trustor may remain in possession
and control of the Property.
Duty to Maintain. Trustor shall maintain the Property. The
Trustor may construct any improvement or structure on the
Property at any time, without further notice to the Lender;
provided, however that the Trustor shall have first obtained
all necessary permits and approvals of such construction or
improvement from local regulatory agencies with jurisdiction.
Hazardous Substances. The terms "hazardous wastes,"
"hazardous substance," "disposal," "release," and "threatened
release," as used in this Deed of Trust, shall have the same
meanings as set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended,
42 U.S.C. Section 9601, et ~. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("SARA"), the Hazardous Materials Transportation Act. 49
U.S.C. Section 1801, et ~., the Resource Conservation and
Recovery Act, 49 U.S.C. Section 6901, et ~., Chapters 6.5
through 7.7 of Division 20 of the California Health and Safety
Code, Section 25100, et ~., or other applicable state or
Federal laws, rules, or regulations adopted pursuant to any of
the foregoing. Trustor represents and warrants to Lender that
the Trustor shall not use, generate, manufacture, store,
treat, dispose of, or release any hazardous waste or substance
on, under, or about the Property. Trustor authorizes Lender
and its agents to enter upon the Property to make such
inspections and tests and Lender may deed appropriate to
determine compliance with this section of the Deed of Trust.
Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Trustor
or to any other person.
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all reasonable
times to attend to Lender's interests and to inspect the
Property for purposes of Trustor's compliance with the terms
and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations,
now or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Property. Trustor
may contest in good faith any such law, ordinance, or
SBEO/0001/00C/4110-4
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5
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and. so long as, in
Lender's sole opinion, Lender's interests in the Property are
not jeopardized. Lender may require Trustor to post adequate
security or a surety bond, reasonably satisfactory to Lender,
to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Property. Trustor shall do all other acts, in
addition to those acts set forth above in this section, which
from the character and use of the Property are reasonably
necessary to protect and preserve the Property.
3.3 DUE ON SALE OR TRANSFER OF THE PROPERTY.
THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS
DEFINED BELOW.
A "special event of acceleration" shall occur when there is a
conveyance without the consent in writing of the Lender, of
any right, title or interest in the Property to any person
whether such sale, refinancing or transfer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Senior Lender or its
assigns, including the Secretary, in the Property is released
and reconveyed to the Trustor by the Secretary. Any such
conveyance which is permitted under the FHA Documents of the
Senior Lender or the FHA Agreement shall not be deemed to be
a special event of acceleration.
Initials of Trustor"
3.4
TAXES AND LIENS.
taxes and liens
Trust:
The following provisions relating to the
on the Property are part of this Deed of
Payment of Taxes and Property-Related Charges. Trustor shall
pay when due (and in all events at least ten (10) days prior
to delinquency) all taxes, special taxes, assessments, charges
SBEO/0001/DOC/4110-4
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6
(including water and sewer), fines and impositions levied
against or on account of the Property, and shall pay when due
all claims for work done on or for services rendered or
material furnished to the Property. Trustor shall maintain
the Property free of all liens having priority over or equal
to the interest of Lender under this Deed of Trust, except for
the lien of property taxes and assessments not due, and the
lien in favor of the Senior Lender under the FHA Documents for
the purpose of providing financing for the acquisition of the
Property and rehabilitation of the Project.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in
the Property is not jeopardized. If a lien arises or is filed
as a result of nonpayment, Trustor shall within fifteen (15)
days after the lien arises or, if a lien is filed, wi thin
fifteen (15) days after Trustor has notices of the .filing,
secure the discharge of the lien, or if requested by Lender,
deposit with Lender cash or other security satisfactory to
Lender in an mount sufficient to discharge the lien plus any
costs and attorneys' fees or other charges that could accrue
as a result of a foreclosure or sale under the lien. In any
contest, Trustor shall defend itself and Lender and shall
satisfy any adverse judgment before enforcement against the
Property. Trustor shall name Lender as an additional obligee
under any surety bond furnished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
3.5 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or
proceeding is commenced that would materially affect Lender's
interests in the Property, Lender on Trustor's behalf may, but
shall not be required to, take any action that Lender deems
appropriate. Any amount that Lender expends in so doing will
bear interest at a rate of interest per annum of eight percent
(8%) from the date incurred or paid by Lender to the date of
repayment by Trustor. All such expenses, with interest
thereon will, at Lender's option: (a) be payable on demand,
or (b) be treated as a balloon payment which will be due and
payable at the Note's maturity. This Deed of Trust also will
secure payment of these amounts. The rights provided for in
SBEO/0001/DOC/4110-4
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7
this paragraph shall be in addition to any other rights or any
remedies to which Lender may be entitled on account of the
default. Any such action by Lender shall not be construed as
curing the default so as to bar Lender from any remedy that it
otherwise would have had.
3.6 WARRANTY; DEFENSE OF TITLE. The following provisions relating
to ownership of the Property are a part of this Deed of Trust:
Title. Trustor warrants that Trustor has the full right,
power, and authority to execute and deliver this Deed of Trust
to Lender. Upon request by Lender, Trustor shall execute such
documents in addition to this Deed of Trust and take whatever
other action is requested by Lender to perfect and continue
Lender's lien and security interest on the Property.
Defense of Title. Trustor warrants and will forever defend
its title to the Property against the claims of all persons
subject to the matters disclosed in the policy of title
insurance of even date herewith, issued in favor of the
Trustor pursuant to the Loan Agreement. In the event any
action or proceeding is commenced that questions Trustor's
title or the interest of Trustee or Lender under this Deed of
Trust, Trustor shall defend the action at Trustor's expense.
Trustor may be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and
to be represented in the proceeding by counsel of Lender's own
choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to
time to permit such participation.
Compliance with Laws. Trustor warrants that the Property and
Trustor's use of the Property complies with all existing
applicable laws, ordinances, and regulations of governmental
authorities.
3.7 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Application of Net Proceeds. If all or any part of the
Property is condemned by eminent domain proceedings or by an
proceeding or purchase in lieu of condemnation, Lender may at
its election require that all or any portion of the net
proceeds of the award be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds of
the award shall mean the award after payment of all reasonable
SBEO/0001/00C/4110-4
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8
costs, expenses, and attorneys' fees, Trustee or Lender in
connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed,
Trustor shall promptly notify Lender in writing, and Trustor
shall promptly take such steps as may be necessary to defend
the action and obtain the award. Trustor may be the nominal
party in such proceeding, but Lender shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to Lender such instruments as
may be requested by it from time to time to permit such
participation.
3 . 8 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed
of Trust:
Current Taxes, Fees and Charges. Trustor shall reimburse
Lender for all taxes, as described below, together with all
expenses incurred in recording, perfecting or continuing this
Deed of Trust, including without limitation all taxes, fees,
documentary stamps, and other charges for recording or
registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed of
Trust or upon all or any part of the Indebtedness secured by
this Deed of Trust; (b) a specific tax on Trustor which
Trustor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Deed of Trust; (c)
a tax on this type of Deed of Trust chargeable against the
Lender or the holder of the Note; and (d) a specific tax on
all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or
other security satisfactory to Lender.
SBEO/0001/DOC/4110-4
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9
-'$.
3.9 SUBORDINATI:ON OF LENDER DEED OF TRUST TO THE $4,377,500.00
SEctJlUTY INTEREST OF THE SENI:OR LENDER UNDER THE FHA DOCUMENTS
[EDI:TOR'S NOTE: TO CONFOEtM FntAL TEXT TO FHA AGREEMENT
AND FHA DOCUMENTS]
3.10 FURTHER ASSURANCES; ATTOEWEY-m-FACT. The following
provisions relating to further assurances and attorney-in-fact
are a part of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled, or rerecorded, as the case may be,
at such times and in such offices and places as Lender may
deem appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations
of Trustor under the Note, this Deed of Trust, and (b) the
liens and security interests created by this Deed of Trust as
first and prior liens on the Property, whether now owned or
hereafter acquired by Trustor. Unless prohibited by law or
agreed to the contrary by Lender in writing, Trustor shall
reimburse Lender for all costs and expenses incurred in
connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
and in the name of Trustor and at Trustor's expense. For such
purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender's sole
opinion, to accomplish the matters referred to in the
preceding paragraph.
3.11 RIGHT TO COLLECT RENTS. 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 prof~ts, 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.
SBEO/0001/DOC/4110-4
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10
Tenancy at Sufferance. If Trustor remains in possession of
the Property after the Property is sold as provided above or
Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a
tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (a) pay a
reasonable rental for the use of the Property, or (b) vacate
the Property immediately upon the demand of Lender.
Other Remedies. Trustee or Lender shall have any other right
or remedy provided in this Deed of Trust, the Note, or the
Loan Agreement or by law.
Notice of Sale. Lender shall give Trustor reasonable notice
of the time and place of any public sale of the Personal
Property or of the time after which any private sale or other
intended disposition of the Personal Property is to be made.
Reasonable notice shall mean notice given at lease five (5)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Property.
Sale of the Property. To the extent permitted by applicable
law, Trustor hereby waives any and all rights to have the
Property marshaled. In exercising its rights and remedies,
the Trustee or Lender shall be free to sell all or any part of
the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any public
sale on all or any portion of the Property.
Waiver: Election of Remedies. A waiver by any party of a
breach of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's rights
otherwise to demand strict compliance with that provision or
any other provision. Election by Lender to pursue any remedy
provided in this Deed of Trust or the Note or provided by law
shall not exclude pursuit of any other remedy, and an election
to make expenditures or to take action to perform an
obligation of Trustor under this Deed of Trust after failure
of Trustor to perform shall not affect Lender's right to
declare a default and to exercise any of its remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adj udge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all
SBEO/0001/DOC/4110-4
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14
.~
recordable form
official action
Secretary.
and only after
of the Lender,
the approval thereof by
the Senior Lender and the
Acceptance by Trustee. Trustee accepts this Trust when this
Deed of Trust, duly executed and acknowledged, is made a
public record as provided by law.
Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California.
This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of California.
Caption Beadings. Caption headings in this Deed of Trust are
for convenience purposes only and are not to be used to
interpret or define the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or
estate in the Property at any time held by or for the benefit
of Lender in any capacity, without the written consent of
Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable
as to any person or circumstance, such finding shall not
render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending
provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be
stricken and all other provisions of this Deed of Trust in all
other respects shall remain valid and enforceable.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust unless such waiver
is in writing and signed by Lender. No delay or omission on
the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by any
party of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's right
otherwise to demand strict compliance with that provision or
any other provision. No prior waiver by Lender, nor any
course of dealing between Lender and Trustor, shall constitute
SBEO/0001/DOC/4110-4
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17
a waiver of any of Lender's rights or any of Trustor's
obligations as to any future transactions. Whenever consent
by Lender is required in this Deed of Trust, the granting of
such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent
is required.
THE TROSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF
THIS DEED OF TROST, AND THE TROSTOR AGREES TO ITS TERMS, AND
THE TERMS OF THE PROMISSORY NOTE SECURED BY THIS DEED OF
TROST.
TRUSTOR
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
SBEO/0001/DOC/4110-4
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18
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e
s. nm LAND REFERRED TO IN THIS ~O FOlt~ POUC.'Y IS DESCRIBED AS
FOLT.OWS:
PARCEL NO.1: (APN: 134-061-27)
Lars 3 ,\ND 4, BLOCK 38, CITY OF SAN BERNARDINO, IN TI-IF. CITY OF SAN BERNARDINO,
COUNl"! OF Si\N BERNARDINO, STATE OF CA.ur{)Rr'n.~ AS PER PLAT RECORDED IN BOOK
7 Of }'1APS, P AGE(S) 1, RECORDS OF SATD COUNTI.
PARCR NO. 2: (APN: 134-061-26)
tors i AND 8, BLOCK 38, an Of SAN B.ERNARDL.\;O, IN mE an OF SAN BE&'\IARDINO,
COUNTY Of SAJ.'J BERNARDINO, STAn: 0[0 CALIfOR.\JIA.!IS PER PLAT RECORDED IN UCOK
7 OF MAPS, P AGE(S) 1. RECORDS OF SAID CO~Tf.
\\- ~4- )..oOu [~~ \Lee.. : "'(\l-U ~oHV\fI ROLle '-!. t'~CS( \-.JlC \) l ~.
~e. Q.."-~ il...Srt \ Re... p-::, f l ~ F t\ n- 'MD~u:;.1C:U.. E-
Lc\'-.O.OtP~
r@'FoL 'RDA- ~'S 's:;{..A'Do~ \...\IO't'c- Lp~\~iL
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street,
Suite 301
San Bernardino, CA 92401
Attn: Director of Housing and
Community Development
(Space Above Line Reserved For Use By Recorder)
(Exempt from Recording Fees Per Govt. Code Sec. 6103)
REDEVEl40PMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS
Pioneer Park Plaza Affordable Elderlv Citizen Housina Pro;ect
(FHA Agreement No. l43-11047-PM-PUR/CON)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS (the "Regulatory Agreement") is
made and entered into as of October l~, 2000 by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency") and AFE-Pioneer Associates,
L.P., a California limited partnership (the "Borrower") and relates
to the facts set forth in the following Recitals.
-- RECITALS
A. The Borrower proposes to acquire Pioneer Park Plaza
Affordable Elderly Rental Housing Project, a 161-unit apartment
project (the "Project") located at 560 North "F" Street, San
Bernardino, California (the "Property"), from Pioneer Park Plaza,
a California limited partnership, pursuant to that certain
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999, and the related assignment
and assumption agreement subsequently executed by the Borrower (the
"Purchase Agreement"). A legal description of the Property is
attached hereto as Exhibit "A" and incorporated herein by this
reference.
SBEO/0001/DOC/4111-S
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1
B. The Agency and the Borrower have entered into that
certain Loan Agreement dated as of October 16, 2000 (the ~Loan
Agreement") pursuant to which the Agency will loan to the Borrower
Two Hundred Fifty Thousand Dollars ($250,000.00) to assist the
Borrower in consummating the transactions contemplated by the
Purchase Agreement, subject to certain conditions, including the
terms and conditions of this Regulatory Agreement.
C. The terms of the Loan Agreement require that certain
covenants and affordability restrictions remain in full force and
effect for a term of fifty five (55) years following the date of
recordation of this Regulatory Agreement (the ~Term") in order to
ensure that:
(i) ten percent (10%) of the units in the Project (exclusive
of the two(2) bedroom on-site manager's unit), for a
subtotal of at least sixteen (16) units, shall at all
times be occupied or reserved for occupancy by elderly
persons who have a household income which is not more
than fifty percent (50%) of median income, adjusted for
family size, as determined by HUD for the San Bernardino-
Riverside PMSA area ("Median Income"); and
(ii) ninety percent (90%) of the units in the Project
(exclusive of the two (2) bedroom on-site manager's
unit), for a subtotal of at least one hundred forty four
(144) units, shall at all times be occupied or reserved
for occupancy by elderly persons who have a qualified
household income which is not more than sixty percent
(60%) of Median Income adjusted for family size; and
(iii) each elderly person, or elderly person household which
qualifies for occupancy in the proj ect under either
subparagraph (i) or (ii) above, (each a "Qualifying
Tenant") shall pay no more as rent than an "Affordable
Rent" as defined below.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
UNDERTAKINGS SET FORTH HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE BORROWER AND THE AGENCY DO HEREBY COVENANT AND
AGREE FOR THEMSELVES, THEIR SUCCESSORS AND ASSIGNS AS FOLLOWS:
Section 1. Definitions of Certain Terms. As used in this
Regulatory Agreement, the following words and terms shall have the
meaning as provided in the Recitals or in this Section 1 unless the
SBEO/0001/DOC/4111-S
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;)
A
::j
I
i
.,
specific context of usage of a particular word or term may
otherwise require:
Affordable Rent.
The words "Affordable Rent" mean:
(i) for Qualifying Tenants whose income is not more than
fifty percent (50%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of fifty
percent (50%) of Median Income, adjusted for family size;
or
(ii) for Qualifying Tenants whose income is not more than
sixty percent (60%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of sixty
percent (60%) of Median Income, adjusted for family size.
Borrower. The word "Borrower" means AFE-Pioneer Associates,
L.P., a California limited partnership, and its successors and
assigns.
FHA Agreement. The words "FHA Agreement" mean and refer to
that certain agreement entitled "Regulatory Agreement for
Multifamily Housing Projects (Project No. 143-11047-PM-
PUR/CON)" by and between the Borrower and the Secretary of the
United States Department of Housing and Urban Development (the
"Secretary") which the Borrower and the Secretary have
executed contemporaneously with this Regulatory Agreement.
FHA Documents. The words "FHA Documents" mean and refer to
the mortgage loan documents identified in Section 13(a) of the
FHA Agreement, including without limitation the mortgage note
to be delivered by the Borrower to Berkshire Mortgage Finance
Limited Partnership, a Massachusetts limited partnership
subject to the provisions of the FHA Agreement.
Median Income. The words "Median Income" mean median income as
determined by the Department of Housing and Urban Development
for the San Bernardino-Riverside PMSA area.
Project. The word "Project" means and refers to that certain
161-unit multifamily rental dwelling unit apartment project
located at 560 North "F" Street, San Bernardino, California,
and commonly known as Pioneer Park Plaza Senior Housing
Complex. In addition to the 160 multifamily rental dwelling
units which the Borrower shall rent or reserve for occupancy
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by Qualifying Tenants the Project also includes one
with two (2) bedrooms for use by the Borrower's
manager for the Project.
(1) unit
on-site
Purchase Aqreement. The words "Purchase Agreement" mean the
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999, and the related
assignment and assumption agreement subsequently executed by
the Borrower, by and between A.F. Evans Development, Inc., (an
affiliate entity to the Borrower) and Pioneer Park Plaza, a
California limited partnership, the present owner of the
Project.
Qualifying Tenant. The words "Qualifying Tenant" mean the
tenant of any unit within the Project who shall be at least
sixty two (62) years old and who shall have an income that
does not exceed the Qualifying Tenant Income as provided in
the FHA Agreement. From and after the time when the FHA
Agreement is no longer in effect and until the end of the Term
of this Regulatory Agreement, the words "Qualifying Tenant"
mean the senior citizen household of any unit wi thin the
Project in which the senior citizen household shall be
composed of at least one (1) member who is sixty two (62)
years of age and whose other members, if any, satisfy the
provisions of California Civil Code Section 51.3, as may be
amended from time to time, and whose combined household income
does not exceed Qualifying Tenant Income. Notwithstanding any
other provision of this Regulatory Agreement to the contrary,
all adult individuals with "disabilities" as this term is
defined in Civil Code Section 54(b), who are in lawful
possession of a unit in the Project as of the date of
recordation of this Regulatory Agreement, shall be deemed to
be a Qualifying Tenant.
Qua1ifying Tenant Income.
Income" mean:
The words "Qualifying Tenant
(i) in the case of Qualifying Tenants who shall occupy at
least sixteen (16) units in the Proj ect, a household
income which is not more than fifty percent (50%) of
Median Income, adjusted for family size; and
(ii) in the case of Qualifying Tenants who shall occupy at
least one hundred forty four (144) units in the Project,
a household income which is not more than sixty percent
(60%) of Median Income, adjusted for family size.
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Requlatory Aqreement. The words "Regulatory Agreement" mean
this Redevelopment Agency of the City of San Bernardino
Regulatory Agreement and Covenants by and between the Borrower
and the Agency pertaining to the Project.
Term. The word "Term" means the period of time beginning
on the date of the date of recordation of this Regulatory
Agreement and ending on the fifty-fifth (55th) anniversary
thereafter.
The titles and headings of the sections of this Regulatory
Agreement have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way
modify or restrict the meaning any of the terms or provisions
hereof.
Section 2. Acknowledamen t of the
Acknowledament of Subordination of the Aqencv.
Borrower and
(a) The Borrower hereby acknowledges that this Regulatory
Agreement imposes certain restrictions on the use and occupancy of
the proj ect during the Term of this Regulatory Agreement. The
Borrower acknowledges and understands that the restrictions shall
be applicable to the Project for the Term hereof, commencing on the
date of recordation of this Regulatory Agreement.
Dated:
Initials of
Borrower
(b) Concurrently upon the execution and recordation of this
Regulatory Agreement the Borrower shall obtain certain purchase
money mortgage financing for the acquisition of the Property from
Berkshire Mortgage Finance Bethesda Limited Partnership, a
Massachusetts limited partnership (the "Senior Lender") subject to
the provisions of the FHA Agreement and the FHA Documents. The
Borrower has provided the Agency with a true and correct copy of
the FHA Agreement and the FHA Documents.
As a condition to providing its mortgage loan to the Borrower
under the FHA Documents and the related provisions of the FHA
Agreement, the Senior Lender and the Secretary of the United States
Department of Housing and Urban Development require the Agency to
agree that the provisions of this Regulatory Agreement shall be
junior and subordinate to the security interest of the Senior
Lender in the Property.
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The Agency hereby acknowledges and agrees that the provisions
of this Regulatory Agreement are subordinate and junior to the
security interest of the Senior Lender in the Property. No breach
or default by the Borrower of any provision of this Regulatory
Agreement, nor the exercise by the Agency of any remedy it may have
against the Borrower in the event of such a breach or default shall
affect the security interest of the Senior Lender in the Property.
The Agency further acknowledges and agrees that if at any time
during the period when the Senior Lender has a security interest in
the Property, and either the Senior Lender or the Secretary of the
United States Department of Housing and Urban Development or their
designees under the terms of the FHA Documents and the FHA
Agreement, as applicable, may acquire title in the Property by
foreclosure, a deed in lieu of foreclosure or comparable conversion
of the FHA Documents, then in such event this Regulatory Agreement
shall automatically terminate and be of no further force of effect.
Section 3. Covenant of Borrower to Rent to Qualifvinq
Tenants; Covenant of Borrower to Charqe Affordable Rent; Covenants
Reqardinq Maintenance of Records.
(a) During the Term, the Borrower covenants that one hundred
percent (100%) of the units in the Project (exclusive of the two
(2) bedroom on-site manager's unit), for a total of 160 units,
shall at all times be occupied or held vacant available for rental
by Qualifying Tenants as follows:
(i) not less than sixteen (16) units shall be occupied or
reserved for occupancy by Qualifying Tenants whose income
shall not exceed fifty percent (50%) of Median Income,
adjusted for family size; and
(ii) not less than one hundred and forty four (144) units
shall be occupied or reserved for occupancy by Qualifying
Tenants whose income does not exceed sixty percent (60%)
of Median Income, adjusted for family size.
Determination of Qualifying Tenant Income shall be made by the
Borrower at the time of initial occupancy of a unit; upon each
renewal of a Qualifying Tenant's lease, recertification of
Qualifying Tenant Income shall be made. The Borrower shall obtain
and complete prior to initial occupancy and thereafter maintain on
file income certifications from each Qualifying Tenant renting any
of the units in the Property. The Borrower shall make a good faith
effort to verify that the income provided by an applicant (or
occupying Qualifying Tenant household) in an income certification
SBEO/0001/DOC/4111-5
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is accurate by taking one or more of the following steps as a part
of the verification process: (1) obtain an income tax return for
the most recent tax year; (2) conduct a credit agency or similar
search; (3) obtain an income verification form from the applicant's
current employer; (4) obtain an income verification form from the
United States Social Security Administration and/or the California
Department of Social Services if the applicant receives assistance
from either of such agencies; or (5) if the applicant is unemployed
and has no such tax return, obtain another form of independent
verification. On the anniversary of the occupancy of such unit the
Borrower shall recertify the household income of the Qualifying
Tenant household occupying the each unit. Copies of tenant income
certification shall be available to the Agency upon request. For
purposes of this Section 3(a), the Borrower may conclusively rely
upon the evidence of the age of the occupant (s) of the unit as
presented in a valid California Driver's License, other form of
identification issued by the State or federal government which
includes a date of birth.
(b) During the Term, the Borrower covenants that it shall not
charge in excess of Affordable Rent for any unit in the Project.
The Borrower shall increase rents based on changes in Median Income
only and no more than once in any twelve-month period.
(c) During the Term, records shall be established and
maintained by the Borrower relating to the use and occupancy of the
Project for affordable elderly person rental housing use purposes,
as authorized herein. The Borrower shall be responsible for
establishing and maintaining such records commencing on the date of
recordation of this Regulatory Agreement, and the Borrower shall
provide the Agency with copies of such records within thirty (30)
days of written request by the Agency.
(d) During the Term, the Borrower and all Qualifying Tenants
shall permit the Agency to conduct inspections of the Project from
time-to-time for purposes of verifying compliance with this
Regulatory Agreement upon thirty (30) days prior written notice to
the Borrower.
(e) Commencing on the June 30 next following the date of
recordation of this Regulatory Agreement and on each June 30
thereafter during the Term, the Borrower shall submit a report to
the Agency, in a form approved by the Agency. The annual report
shall include for each unit in the Project, the rent and the income
and family size of the Qualifying Tenant household occupying the
unit. The report shall also state the date the tenancy commenced
for each unit and such other information as the Agency may be
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required by law to obtain; provided, however, that the Agency shall
take reasonable steps to 'maintain the confidential nature of the
information contained therein relating to any unit. The Borrower
shall provide any additional information reasonably requested by
the Agency, including without limitation such Project-related
income and expense accounting information. The Agency shall have
the right to examine and make copies of all books, records or other
documents of Borrower which pertain to any unit; provided, however,
that the Agency shall take reasonable steps to maintain the
confidential nature of the information contained therein. The
Borrower shall maintain complete, accurate and current records
pertaining to the units and the Project, and shall permit any duly
authorized representative of the Agency (during business hours and
upon not less than seventy-two (72) hours notice) to inspect
records, including records pertaining to income and household size
of Qualifying Tenants; provided however, that the Agency shall take
reasonable steps to maintain the confidential nature of the
information contained therein relating to any household.
Section 4.
Ren tal of Uni ts
successors and
connection with
Tenants during
requirements:
Covenant of the Borrower With Res~ect to the
in the Pro;ect. The Borrower for itself, its
assigns hereby covenants and agrees that, in
the rental of units in the Project to Qualifying
the Term, it shall comply with the following
(a) The lease between the Borrower and the Qualifying Tenant
shall be for not less than one year, unless by mutual agreement
between the Borrower and the Qualifying Tenant but in such a case
for not less than six (6) months as required by applicable
provisions of the Internal Revenue Code.
(b) The lease shall not contain any of the following
provisions:
(i) Agreement by the Qualifying Tenant to be sued, to admit
guilt or to a judgment in favor of the Borrower in a
lawsuit brought in connection with the lease;
(ii) Agreement by the Qualifying Tenant that the Borrower may
take, hold or sell personal property of household members
wi thout notice to the Qualifying Tenant and a court
decision on the rights of the parties, other than an
agreement by the tenant concerning disposition of
personal property remaining the housing unit after the
Qualifying Tenant has moved out of the unit;
SBEO/0001/DOC/4111-5
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(iii) Agreement by the Qualifying Tenant not to hold the
Borrower or its agents legally responsible for any action
or failure to act, whether intentional or negligent;
(iv) Agreement by the Qualifying Tenant that the Borrower may
institute a lawsuit without notice to the tenant;
(v) Agreement by the Qualifying Tenant that the Borrower may
evict the Qualifying Tenant without instituting a civil
court proceeding in which the Qualifying Tenant has the
opportunity to present a defense, or before a court
decision on the rights of the parties;
(vi) Agreement by the Qualifying Tenant to waive any right to
a trial by jury;
(vii) Agreement by the Qualifying Tenant to waive the
Qualifying Tenant's right to appeal, or to otherwise
challenge in court a court decision in connection with
the lease;
(viii) Agreement by the Qualifying Tenant to pay attorney's fees
or other legal costs even if the Qualifying Tenant wins
in a court proceeding by the Borrower against the
Qualifying Tenant; provided, however, the Qualifying
Tenant may be obligated to pay costs if the tenant loses.
(c) The Borrower shall not terminate the tenancy or refuse to
renew the lease of a Qualifying Tenant except for serious or
repeated violation of the terms and conditions of the lease; for
violation of applicable Federal, State, or local law; or for other
good cause. The Borrower shall, in connection with a termination
of a tenancy or a refusal to renew the lease, serve written notice
upon the Qualifying Tenant specifying the grounds for the action at
least thirty (30) days before the termination of the tenancy.
(d) The Borrower shall adopt written tenant selection
policies and criteria that:
(i) Are consistent with the purpose of providing housing for
individuals who are at least sixty two (62) years old and
have an income that is no more than the Qualifying Tenant
Income;
(ii) Are reasonably related to program eligibility and the
applicants' ability to perform the obligations of the
lease;
SBEO/0001/DOC/4111-S
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(iii) Give reasonable consideration to the housing needs of
indi viduals who occupy substandard housing (including
individuals that are homeless or living in a shelter for
homeless individuals); individuals that are paying more
than fifty (50) percent of their annual income for rent;
or individuals that are involuntarily displaced;
(i v) Provide for the selection of tenants from
waiting list in the chronological order
application, insofar as is practicable; and
a written
of their
(v) Give prompt written notification to any rejected
applicant of the grounds for any rejection.
(e) Except as may otherwise be required by the rental
requirements of the FHA Agreement, all of the units in the Project
shall be available for occupancy on a continuous basis to
Qualifying Tenants. The Borrower shall not give preference to any
particular class or group of persons in renting the units. There
shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex,
sexual orientation, age, marital status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of any unit. Neither the Borrower nor any
person claiming under or through the Borrower, shall establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use,
or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of any Unit or in connection with the employment of persons
for the operation and management of any unit. All deeds, leases or
contracts made or entered into by owner as to the units or the
Property or portion thereof, shall contain covenants prohibiting
discrimination as prescribed by this Regulatory Agreement. The
Borrower shall include a statement in all advertisements, notices
and signs for the availability of units for rent to the effect that
owner is an Equal Housing Opportunity Provider.
Section 5.
the Pro;ect.
Rehabilitation of the Pro;ect and Manaaement of
(a) The Borrower hereby reaffirms its covenant and agreement
as set forth in the Loan Agreement to complete the rehabilitation
of the Project in accordance with the Budget Development/Scope of
Work attached as Exhibit ~F" to the Loan Agreement (the
~Rehabilitation Work") within the period of time set forth under
the FHA Agreement.
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11>
(b) The Borrower shall be responsible for management of the
Project, including, without limitation, the selection of Qualifying
Tenants, certification and recertification of household size, and
income and the age of the head of household of all units,
evictions, collection of rents and deposits, maintenance,
landscaping, routine and extraordinary repairs, replacement of
capital items, and security. The Agency shall have no
responsibility for the management or operation of the Property or
the Proj ect. The proj ect shall at all times be managed by an
experienced management agent (the "Management Agent") reasonably
acceptable to the Agency, with demonstrated ability to operate
senior citizen residential rental facilities similar to the Project
in a manner that will provide decent, safe, and sanitary housing.
For the purposes hereof, if the Borrower directly performs the
functions of the Management Agent by its employees or by means of
a service contract with an entity which is a managing member of the
Borrower, such a Management Agent shall be deemed approved by the
Agency. If the Management Agent is an entity or person other than
the Borrower, its employees or an entity owned or controlled by the
Borrower, the Borrower shall submit for the Agency's approval the
identity of any proposed Management Agent, together with additional
information relevant to the background, experience and financial
condition of any proposed Management Agent as reasonably requested
by the Agency. If the proposed Management Agent meets the standard
for a qualified Management Agent set forth above, the Agency shall
approve the proposed Management Agent by notifying the Borrower in
writing. Unless the proposed Management Agent is disapproved by
the Agency within thirty (30) days, which disapproval shall state
with reasonable specificity the basis for disapproval, it shall be
deemed approved. The Borrower is hereby approved by the Agency as
the Management Agent for the Project. Any Management Agent
approved by HUD during the term of the FHA Agreement shall be
deemed approved by the Agency.
(c) The Borrower shall cause to have in full force and effect
during the Term hereof insurance coverage as follows:
(i) If any building or improvements on the Property shall be
damaged or destroyed by an insurable cause, the Borrower
shall, at its own cost and expense, diligently repair or
restore the Project consistent with the original plans
and specifications for the Project. Such work or repair
shall be commenced within One Hundred Twenty (120) days
after the damage or loss occurs and shall be completed
wi thin one year thereafter. All insurance proceeds
collected for such damage or destruction shall be applied
to the cost of such repairs or restoration and, if such
SBEO/0001/DOC/4111-S
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insurance proceeds shall be insufficient for such
purpose, the Borrower shall make up the deficience;
(ii) a policy of comprehensive general liability insurance
written on a per occurrence basis in an amount not less
than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.00) per currency, ONE
MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(iii) a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for the Borrower against any loss, claim or
damage arising from any injuries or occupational diseases
occurring to any worker employed by or any persons
retained by the Borrower in the course of carrying out
the activities in this Regulatory Agreement.
(iv) a policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less
than either (i) bodily inj ury liability limits of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) per person
and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per
occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the
aggregate or (ii) combined single limit liability of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy
shall include coverage for owned, non-owned, leased and
hired vehicles.
All of the above policies of insurance shall be primary
insurance and shall name the City of San Bernardino and the Agency,
and their officers, employees, and agents as additional insureds.
The insurer shall waive all rights of subrogation and contribution
it may have against the City of San Bernardino and/or the Agency
and their officers, employees and agents and their respective
insurers. All of said policies of insurance shall provide that said
insurance may not be amended or canceled without providing thirty
(30) days prior written notice by registered mail to Agency. In the
event any of said policies of insurance are canceled, the Borrower
shall, prior to the cancellation date, submit new evidence of
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insurance in conformance with this Section to the Executive
Director. No operation of the proj ect shall commence until the
Borrower has provided Agency with certificates of insurance or
appropriate insurance binders evidencing the above insurance
coverages, and said certificates of insurance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be
satisfactory only if issued by companies qualified to do business
in California, rated at least "A(vii)" or better in the most recent
edition of Bests Insurance Rating Guide or an equivalent rating in
The Key Rating Guide or in the Federal Register unless such
requirements are modified or waived by the Executive Director of
the Agency due to unique circumstances.
Compliance by the Borrower with the insurance requirements of
the FHA Agreement shall be deemed to meet the foregoing
requirements during the period that the FHA Agreement is in effect
so long as the Agency, City and their officers, employees, and
agents as additional insureds on all said policies as evidenced by
certificates of insurance issued to the City and the Agency.
The Borrower agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which the
Borrower may be held responsible for the payment of damages to any
persons or property resulting from the Borrower's activities or the
acti vi ties of any person or persons for which the Borrower is
otherwise responsible.
Section 6. Maintenance of the Pro;ect. The Borrower, for
itself, its successors and assigns, hereby covenants and agrees
that:
(a) The exterior areas of the Project which are subject to
public view (e.g.: all improvements, paving, walkways, landscaping,
and ornamentation) shall be maintained in good repair and a neat,
clean and orderly condition, ordinary wear and tear excepted. In
the event that at any time during the Term, there is an occurrence
of an adverse condition on any area of the Project which is subject
to public view in contravention of the general maintenance standard
described above, (a "Maintenance Deficiency") then the Agency shall
notify the Borrower in writing of the Maintenance Deficiency and
give the Borrower thirty (30) days from the date of such notice to
cure the Maintenance Deficiency as identified in the notice. The
words "Maintenance Deficiency" include without limitation the
following inadequate or non-confirming property maintenance
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condi tions and/or breaches
restrictions:
of
residential property use
failure to properly maintain the windows, structural elements,
and painted exterior surface areas of the dwelling units in a
clean and presentable manner;
failure to keep the common areas of the property free of
accumulated debris, appliances, inoperable motor vehicles or
motor vehicle parts, or free of storage of lumber, building
materials or equipment not regularly in use on the property;
failure to regularly mow lawn areas or permit grasses planted
in lawn areas to exceed six inches (6") in
to otherwise maintain the landscaping
condition free of wed and debris;
height, or failure
in a reasonable
parking of any commercial motor vehicle in excess of 7,000
pounds gross'weight anywhere on the property, or the parking
of motor vehicles, boats, camper shells, trailers,
recreational vehicles and the like in any side yard or on any
other parts of the property which are not covered by a paved
and impermeable surface;
the use of garage areas on the property for purposes other
than the parking of motor vehicles and the storage of personal
possessions and mechanical equipment of persons residing in
the Project.
In the event the Borrower fails to cure or commence to cure
the Maintenance Deficiency within the time allowed, the Agency may
thereafter conduct a public hearing following transmittal of
written notice thereof to the Borrower ten (10) days prior to the
scheduled date of such public hearing in order to verify whether a
Maintenance Deficiency exists and whether the Borrower has failed
to comply with the provision of this Section 6(a). If, upon the
conclusion of a public hearing, the Agency makes a finding that a
Maintenance Deficiency exists and that there appears to be non-
compliance with the general maintenance standard, as described
above, thereafter the Agency shall have the right to enter the
proj ect (exterior areas only) and perform all acts necessary to
cure the Maintenance Deficiency, or to take other action at law or
equity the Agency may then have to accomplish the abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the
abatement of a Maintenance Deficiency as authorized by this Section
6 (a) shall become a lien on the Property. If the amount of the
lien is not paid within thirty (30) days after written demand for
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14
payment by the Agency to the Borrower, the "Agency shall have the
right to enforce the lien in the manner as provided in Section
6 (c) .
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Property shall be removed by
the Borrower from any exterior surface of a structure or
improvement on the Property by either painting over the evidence of
such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed
with solvents, detergents or water as appropriate. In the event
that graffiti is placed on the Property (exterior areas only) and
such graffiti is visible from an adjacent or contiguous public
right-of-way and thereafter such graffiti is not removed within 72
hours following the time of its application; then in such event and
without notice to the Borrower, the Agency shall have the right to
enter the Property and remove the graffiti. Notwithstanding any
provision of Section 6(a) to the contrary, any sum expended by the
Agency for the removal of graffiti from the Property as authorized
by this Section 6(b) shall become a lien on the Project. If the
amount of the lien is not paid within thirty (30) days after
written demand for payment by the Agency to the Borrower, the
Agency shall have the right to enforce its lien in the manner as
provided in Section 6 (c) .
(c) Subject to the lien of the Senior Lender under the FHA
Documents, the parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 6
expressly include the power to establish and enforce a lien or
other encumbrance against the Property in the manner provided under
Civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the Project to the maintenance
standard required under Section 6 (a) or Section 6 (b), including
attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such
action. In any legal proceeding for enforcing such a lien against
the Property, the prevailing path shall be entitled to recover its
attorneys' fees and costs of suit. The provisions of this Section
6 shall be a covenant running with the land for the Term and shall
be enforceable by the Agency in its discretion, cumulative with any
other rights or powers granted by the Agency under applicable law.
Nothing in the foregoing provisions of this Section 6 shall be
deemed to preclude the Borrower from making any alterations,
addi tions, or other changes to any structure or improvement or
landscaping on the Property, provided that such changes comply with
SBEO/0001/DOC/4111-5
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the zoning and development regulations of the City
applicable law.
and other
Section 7. Covenants to Run With the Land. The Borrower
and the Agency hereby declare their specific intent that the
covenants, reservations and restrictions set forth herein are part
of a plan for the promotion and preservation of affordable housing
within the territorial jurisdiction of the Agency and that each
shall be deemed covenants running with the land and shall pass to
and be binding upon the Property and each successor-in-interest of
the Borrower in the Property for the Term. The Borrower hereby
expressly assumes the duty and obligation to perform each of the
covenants and to honor each of the reservations and restrictions
set forth in this Regulatory Agreement. Eac~~~d every contract,
deed or other instrument hereafter execu~ring or conveying
the Property or any interest therein 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 instrument.
Section 8. Burden and Benefit. 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 Property is affected
by the affordable dwelling use and occupancy covenants hereunder.
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 Project by the intended beneficiaries of such covenants,
reserva tions and restrictions, and by furthering the affordable
housing goals and objectives of the Agency and in order to make the
Property available for acquisition by the Borrower.
Section 9.
Term.
(a) The provisions of this Regulatory Agreement shall apply
to the Property for a term of fifty five (55) years following the
date of recordation of this Regulatory Agreement.
(b) Any provision or section of this Regulatory Agreement may
be terminated upon written agreement by the Agency and the Borrower
if the Agency in its reasonable discretion determines that such a
termination will not adversely affect the affordable housing goals
of the Agency.
SBEO/0001/DOC/4111-5
11/13/00 200 jmm
16
Section 10.
Breach and Defau1t and Enforcement.
(a) Failure or delay by the Borrower to honor or perform any
material term or provision of this Regulatory Agreement shall
constitute a breach under this Agreement; p~vided however, that if
the Borrower commences to cure, correct or remedy the alleged
breach within thirty (30) calendar days after the date of written
notice specifying such breach and shall diligently complete such
cure, correction or remedy, the Borrower shall not be deemed to be
in default hereunder.
The Agency shall give the Borrower written notice of breach
specifying the alleged breach which if uncured by the Borrower
within thirty (30) calendar days, shall be deemed to be an event of
default. Delay in giving such notice shall not constitute a waiver
of any breach or event of default nor shall it change the time of
breach or event of default; provided, however, the Agency shall not
exercise any remedy for an event of default hereunder without first
delivering the written notice of breach as specified in this
Section 10.
Except with respect to rights and remedies expressly declared
to be exclusive in this Regulatory Agreement, the rights and
remedies of the Agency are cumulative with any other right or power
of the Agency or the City or other applicable law, and the exercise
of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other
right or remedy for the same breach or event of default.
",,'.
, --
In the event that a breach of the Borrower may remain incurred
for more than thirty (30) calendar days following written notice,
as provided above, an event of default shall be deemed to have
occurred. In addition to the remedial provisions of Section 5 as
related to a Maintenance Deficiency at the Project, upon the
occurrence of any event of default the Agency shall be entitled to
seek any appropriate remedy or damages by initiating legal
proceedings as follows:
(i) by mandamus or other suit, action or proceeding at law or
in equity, to 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
(ii) by other action at law or in equity as necessary or
convenient to enforce the obligations, covenants and
agreements of the Borrower to the Agency.
SBEO/0001/DOC/4111-S
11/13/00 200 jmm
17
(b) Except as set forth in the next sentence, no third party
shall have any right or power to enforce any provision of this
Regulatory Agreement on behalf of the Agency or to compel the
Agency to enforce any provision of this Regulatory Agreement
against the Borrower or the Project.
Section 11. Governina Law. This Regulatory Agreement shall
be governed by the laws of the State of California.
Section 12. Amendment. This Regulatory Agreement may be
amended after the Delivery Date only by a written instrument
executed by the Borrower and by the Agency.
Section 13. Attornev's Fees. In the event that the Agency
brings an action to enforce any condition or covenant,
representation or warranty in this Regulatory Agreement or
otherwise arising out of this Regulatory Agreement, the prevailing
party in such action shall be entitled to recover from the other
party reasonable attorneys' fees to be fixed by the court in which
a judgment is entered, as well as the costs of such suit. For the
purposes of this Section 13, the words "reasonable attorneys' fees"
in the case of the Agency include the salaries, costs and overhead
of the lawyers employed in the Office of the City Attorney of the
City of San Bernardino.
Section 14. Severability. If any provision of this
Regulatory Agreement shall be declared invalid, inoperative or
unenforceable by a final judgment or decree of a court of competent
jurisdiction such invalidity or unenforceability of such provision
shall not affect the remaining parts of this Regulatory Agreement
which are hereby declared by the parties to be severable from any
other part which is found by a court to be invalid or
unenforceable.
Section 15. Time is of the Essence. For each provision of
~ this Regulatory Agreement which states a specific amount of time
within which the requirements thereof are to be satisfied, time
shall be deemed to be of the essence.
Section 16. Notice. Any notice required to be given under
this Regulatory Agreement shall be given by the Agency or by the
Borrower, as applicable, by personal delivery or by First Class
Uni ted States mail at the addresses specified below or at such
other address as may be specified in writing by the parties hereto:
SBEO/0001/DOC/4111-S
11/13/00 200 jrnrn
18
If to the Agency:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn: Director of Housing and
Community Development
Phone: (909) 663-1044
If to the
Borrower:
A. F. Evans Company, Inc.
100 Bush Street, Suite 925
San Francisco, California 94104
Attn: Jack Robertson
Phone: (415) 393-5250
If to the
Senior Lender:
Berkshire Mortgage Fin~nce Bethesda
Limited Partnership
4550 Montgomery Avenue
Sui te 1150
Bethesda, Maryland 20814
Attn: Catherine Pharis
Phone: (301) 347-4840
Notice shall be deemed given five (5) calendar days after the
date of mailing to the party, or, if personally delivered, when
received by the Director of Housing and Community Development of
the Agency, the Borrower or the Senior Lender, as applicable.
Section 17.
Documents.
Priority of FHA Aqreement and the FHA
(a) During the period of time when the FHA Agreement and/or
the FHA Documents are in effect with respect to the proj ect,
compliance by the Borrower with the requirements of the FHA
Agreement and the applicable FHA Documents shall be deemed
compliance by the Borrower with requirements of this Regulatory
Agreement.
(b) To the extent that there is any conflict, inconsistency
or ambiguity between or among this Regulatory Agreement and any
applicable provision of the FHA Agreement or FHA Documents or the
HUD statutory, regulatory or administrative requirements or any of
the other documents which have been or are required by HUD or GNMA
to be executed by the Borrower, the HUD mortgage insurance, Section
8 and HUD and GNMA statutory, regulatory and administrative
requirements and the terms of the FHA Agreement and FHA Documents
will be deemed to be controlling and any such ambiguity or
inconsistency will be resolved in favor of, and pursuant to the HUD
SBEO/0001/DOC/4111-S
11/13/00 200 jmm
19
mortgage insurance, Section 8, and HUD and GNMA statutory,
regulatory and administrative requirements and the terms of the FHA
Agreement and the FHA Documents. In addition, it is understobd and
agreed that any default under this Regulatory Agreement shall not
constitute a default under the FHA Agreement and FHA Documents
(c) This Regulatory Agreement shall not be construed to
restrict or adversely affect the duties and obligations of the
Borrower and/or the Senior Lender under the contract of Mortgage
Insurance issued by HUD with respect to the FHA Documents.
(d) This Regulatory Agreement may be amended as deemed
necessary by written instrument duly approved by the Secretary and
the Senior Lender and the parties to this Agreement and executed by
the parties hereto. Any such amendment or modification shall be
valid, binding and legally enforceable only if in written form and
executed by the parties hereto and only after the approval thereof
by official action of the Agency, the Senior Lender and the
Secretary.
SBEO/0001/DOC/4111-S
11/13/00 200 jrnm
20
,/
IN WITNESS WHEREOF, the Borrower and the Agency have caused
this Regulatory Agreement to be signed, acknowledged and attested
on their behalf by duly authorized representatives in counterpart
original copies which shall upon execution by all of the parties be
deemed to be ona original document.
BORROWER
......~-
. .-~~;&-
:.-_,;'1~~~
AFE-Pioneer Associates, L. P., a
California limited partnership
By: A. F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
Date:
AGENCY
.....'i
Redevelopment Agency of the City
of San Bernardino
By:
Executive Director
Dated:
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
Agency Special Counsel
SBEO/0001/DOC/4111-S
11/13/00 200 jmm
21
SBEO/0001/00C/4111-5
11/13/00 200 jrnm
EXHIBIT "A"
Legal Description of the Property
22
--
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-
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CLC::c-.. CL Ca-r'i' p...CCe:PlVJ&-.I~ T;:::, 9....Ecl;)~L-
'A T l~~\ ,<=. 0 ~ il...~C~OOTI \Jt~ <3 \? 10 PPL\C.a3. Lois..
\ \~Sl {l....tA l,.tA € l,\\ ~~
s. nm lAND REFERRED TO .IN TInS ~o FORM~ POUC..'Y IS DESCRIBED AS
FOLT.OWS:
e
PARCEL NO.1: (APN: 134-061-27)
LOTS 3 AND 4. BLOCK 38. CITY OF SAN BERNARDINO, IN IEF. CITY OF SAN BERNARDINO,
COUNl'Y OF SAN 13ERNARDINO, 5rATE OF CALIrDR."n.-\, AS PER PLAT RECORDED TN BOOK
7 OF tv1APS, P AGE(S) 1, RECORDS OF SAID COUNTY.
PARCEL NO. 2: (APN: 1~61.26)
LOiS 7 AND 8. BLOCK 38, an Of SAN BERNARDL.'\iO, IN mE aTY OF SAN BERNARDINO,
COUNTY Of SA.L~ BERNARDINO, 5rATE Of' CALIfORNIA.1\S PER PLAT RECORDED IN [JOOK
70F M.A.PS. PAGE(S) 1, RECORDS OF SAID COUNTY.
\\- ~4- ).<)<..)8 r ~"X-\ \Lee. : "'Cif-u t:O\l-~IA-A ReLlC -< ~~E-'Sf \-..]"lc i) l ~
~c ~x...t iL~.1-1 \ Rc- P-::' ~l ~ Ft-\n- 'N-cQ.:\6.IC:U..E-
LE: \.~oE (L \
~'FcL R'DiO,- ~s ~~'&:>~)..\IOTc- Le~'pCiL
EXHIBIT "E"
QUALIFYING 'rENAN'r INCOME CERTIFICATION
SBEO/0001/DOC/4106-5
11/9/00 1145 jmm.
19
~.
-~
EXHIBIT "E"
QUALIFYING TENANT INCOME CERTIFICATION
Pioneer Park Plaza Affordable Elderly Rental Housing Project
(FHA Agreement No. 143-11047-PM-PUR/CON)
TO: Redevelopment Agency of the City of San Bernardino
The undersigned hereby warrants and represents to the
Redevelopment Agency of the City of San Bernardino (the "Agency")
that as of the date of this Certification each of the following is
true with respect to me and my occupancy of rental dwelling unit
no. at the Pioneer Park Plaza Affordable Elderly Rental
Housing Project:
(1) I am an "elderly person" -- I am at least 62 years of age
as of the date of this Certificate and I have provided
true and correct written evidence of this fact to the
landlord, AFE-Pioneer Park Associates ("Landlord");
(2) As part of my preparation of this Certification, I have
provided true and correct written evidence of the annual
income of all persons who will reside in my unit to the
Landlord and based upon such information, the Landlord
has confirmed to me that my household income does not
exceed % of "Median Income" and;
(3) I hereby authorize the Landlord to provide copies of the
information described in (1) and (2) above, to the Agency
and I further agree to provide such supplemental
information relating to items (1) and (2) above, as the
Agency may reasonably request upon thirty (30) days
written notice from the Agency;
(4) My 0 occupancy/ 0 renewal of my existing lease [check
one box, as applicable] of the rental unit shall begin on
[date] ;
(5)
The
$
rent
which
per
I shall pay for
month and this
the rental
rental sum
uni t is
includes
Date:
By:
Name:
Address (Unit No.
SBEO/0001/DOC/4195
10/11/00 1015 jrnw
1
SBEO/0001/DOC/4106-5
11/9/00 1145 jrnm
EXBIBI'r "F"
BODGE'r DEVELOPMEN'r/SCOPE OF WORK
20
Budget Development / Scope of Work
Pioneer Park Plaza Apartments
San Bernardino, California
EXHIBIT F
C.S.I. 2000 Sitework
Parking Lot
Mensuration Unit Cost Valuation 1
Concrete valley gutter repair. (Conveyance of surface water) 751.f. $17.00 $1.275.001
Asphaltic pavement overfayment with petromatting to 1.5" above F.P. Not applicable $1.00 $0.001
Asphaltic pavement patching. Recompact base material and replace. 400 s.f. $150 $600.001
Asphaltic speed bumps at principal drive lanes through property. Add 80 1.1. $11.63 $930.401
Asphaltic slurry seal of entire parking lot. ApprOlmately 53.000 sq. ft. $0.07 $3,710.061
Extruded curbing repair at selected locations through site. Approimately 30 1.1. $200.00 minimum $200.00 I
Parking stall stnplng 160 total stalls + 5 $5.82 $960.301
Concrete bollard placement, to prevent vehicle drive penetration. Not applicable $109.80 $0.001
Conveyance pipe retrofitting to 8" @ southern lot for drainage. Approximately 90 1.1. to outfall $5,500.00 $5,500.00 I
Concrete bumper stops. Not applicable $16.00 $0.001
ITotal for Parking Lot.
$13,175.70 I
Irrigation I Landscaping / Tree Trimming
Mensuration / Assumption Unit Cost Valuation
Irrigation system I controller assessment. 1 Lump sum $300.00 $300.00 I
Main line reoairs. backf10w preventer repairs and controller .
repairs pursuant to assessment report. Unknown $0.00 $0.00 .
1" pop -up spray head replacement (Single Riser) Unknown $4.62 I
1" pop -up lawn sprinkler head replacement (Single Riser) Unknown $4.62 I
Rotary pop-up spray head integration Unknown $18.55
Lateral line break repair (3/4"dlameter P.V.C.) Unknown $42.50
Vacuum breakers for hose bibs (required) 15 total $8.25 $123.75
Valve box retrofitting; 10" round with lid Unknown $21.80 I
Area drain filter fabric placement and flushing Not Applicable $25.00
Westem Bluegrass sod integration at bare areas Not Applicable $0.20
3/8"- Decomposed granite ground cover Not Applicable $48.30
Decomposed granite edging board Not Applicable $0.88
10' x 10' Elevated (12") planting beds at marketing areas. Plant with color. 1 Lump sum $2,750.00 $2,750.00
Level one tree trimming for site Not Applicable $0.00
Total for Irrigation / Landscaping / Tree Trimming.
$3,173.75
C.S,!. 3000 Concrete
Mensuaration / Assumption Unit Cost Valuation "
Sidewalk grinding to eliminate trip hazards 80 U. $6.20 $496.00 I
Remove and replace failed cast in place sidewalks. (3.5" w /2500 p.s.l.) Not Applicable $5.00 $0.00 I
Pressure washing of exit enclosure f1atwork and pre-cast treads Not Applicable 0.26 $0.00 l
ITotal for Concrete
$496.00 I
C.S.I, 4000 Masonry
Mensuaration / Assumption Unit Cost Valuation ,
Raise slump block perimeter walls to 6'0" to prevent I
unwelcome climb over penetration. 700 U. (two wythes) $13,750.00 $13,750.00 i
I
ITotal for Masonry
$13,750.00 I
C.S.I. 5000 Metals / Ornamental Iron
Mensuration / Assumption Unit Cost Valuation I
Replace pre-cast treads on steel stair stringers Not Applicable I
Spot welding of stair cleats, handrails, guardrails and base plates. Not Applicable I
Spot welding of omamental iron perimeter fence. 1 Lump sum $500.00 $500.00 I
Add ornamental iron fence @ back of sidewalk, Building "B." (G Street) 200 I.f. with pedestrian gate. $27.50 p.l.f. $5,500.00 I
Carport trim repair Not Applicable I
Total for Metals / Ornamental Iron
$6,000.00
10/3/00
Page 1 of 3
C.S.I. 9000 Exterior Finishes
Mensuration / Assumption Unit Cost Valuation 1
Stucco patching lexcludes seismic worl<.) 500 SQ. ft $8.13 $4.06500 '
Stucco crack fill repall 1 Lump sum $2.000.00 $2.000.00 '
Full exterior bUilding repainting; stucco and where applicable. wood. Assumptive basIs $475.00 $76.000.00 I
Carport palnling Assumptive basIs $38.64 $6,182.40 ,
Wrought Iron pen meter fence and pool fence repaint Not applicable $0.94 $000,
ITotal for Exterior Finishes
$88.247.40 I
C.S.I. 10000 Specialties
Mensuration / Assumption Unit Cost Valuation l
Marketing nags and banners. with poles. 1 Lump sum. $1,950.00 $1,950.00 ,
Monumenl Sign at principal property entrance. 1 Lump sum. $6,500.00 $6,500.00 '
BUilding and umt number Identification plaques. 1 Lump sum. $4.500.00 $4,500.00 '
ITotal for Specialties
$12,950.00 !
C.S.I. 12000 Furnishings
Mensuration I Assumption I Unit Cost I Per Unit Total Valuation I
PVC. Vertical Blinds 480 localions ictal AVG. $65.00 $31,200.00
PVC. HOrizontal Blinds Not Applicable $000
PVC. HOrizontal Blinds Not Applicable $0.00
Ceiling fan I With solid blocking. (For Increased C.F.M. of air.) Not Applicable AVG. $95.00 $0.00
Ceiling light fixtures; ALL BEDROOMS 160 lotal umts. $35.00 $5,600.00
Ceiling light fixture, 4'0" fluorescent wrap. 160 lotal umls $50.00 $8,000.00 '
Bathroom exhaust fan. 80 C.F.M. Assume 30% relrofitting. $110.00 $5,280.00 .
Tub surround retrofilting. Assume 10% relrofltting $405.00 $6,48000 :
Mixing valve I tnm for shower and tub. Assume 10% retrofitting $152.96 $2,447.36 .
Bathroom vamtv cabinet with cultured marble top. Assume 15% retrofitting $279.00 $6,696.00 '
Dressing area vantly cabinet With cultured marble top. Not Applicable $279.00 $0.001
Complete klthcerl cabinet door and drawer face retrofitting Assume 5'10 retrofitting $900.00 $7,200.00 I
Bathroom vamty wall mount mirror. Assume 10'10 retrofitting $58.00 $928.00 ,
Dressing area vanity wall mount mirror. Not Applicable $58.00 $0.001
Bar lamp wall mount fixtures. (36") 160 total units. $32.00 $5,120.00 I
Tub chiP repall Assume 15'10 of total units $35.00 $840.00 I
30" ducted stove hood retrofitting. 160 total units. $62,00 $9,920.00 i
Countertop resurfacing, kitchen. Assume 15'10 of total units $145.00 $3,480.00 :
Countertop replacement. kitchen. Assume 10% of total units $325.00 $5,200.00
Countertop resurfacing, bathroom. Assume 15% of Iota I umls $68.00 $1,632.00 ;
Countertop replacement, bathroom. Assume 10'10 of total units $79.00 $1,264.001
Countertop resurfacing, dressing area. Nol Applicable $68.00 $0001
Countertop replacement, dressing area. Not Applicable $79.00 $O.OOi
4" deck mounted lavatory faucet. Assume 15'10 of total units $47.00 $1,128.00~
8" deck mounted kitchen mixer faucel. Assume 15% of total units $65.00 $1,560.00 I
Lavatory and DreSSing Area sinks, with new drain, waste and supply lines. Assume 15'10 of total units $82.00 $1,968.001
Kitchen sink, with new drain, waste and supply lines. Assume 15'10 of total umts $132.00 $3,168.00 .
Integration of "water saver" devices for faucets, showerheads and toilels. Not Verified. $9,000.00 $9,00000 I
30' Hollow core slab doors. with passage locksel. (nush panel) Assume 15'10 of total units $63,00 $1,512.00 i
24" Hollow core slab doors, with passage locksel. Nol Applicable $61.00 $OOOi
36" Solid core primary entrance door slab, with dead bolt. p.1. and closure. Assume 5'10 of total units. $336.00 $2,688.00 i
Wardrobe door retrofitting. Assume 15% of total Units $113.00 $2,71200 .
i
Carpeting for umts: I
1 Bedroom / 1 Bath (160) 471 sq.ft, (53 s.y. x 160) @ $11.25 $95,400 00
2 Bedroom / 1 Bath (01 SOOO
Vinyl for units: I
1 Bedroom I 1 Bath (160) 70 SQ. ft. (8 Sf x 160) @ $12.00 $15,360.00
2 Bedroom / 1 Bath (0) i
Substrate repair Allowance $8,80000
i
Appliances for units: 1
14,4 cJ. G.E. Model TBX145 refrigerator. Assume 70 % of total units $385.37 $43,16144 i
G.E. Model gas range. Assume 70 % of total units $315.00 $35,28000 i
10/3/00
Page 2 of 3
Whiripool Model DU800DWGX dishwasher Not applicable. $201.49 + installation. $0.00.
i
12 square foot vinyl landing at pnmary entrance door Not applicable $12.00 $0.00 '
I
Drywall patching, through to texture. ( Holes) Allowance $50.00 per Unll. $8,000.00 I
l
Interior Painting: !
1 Bedroom / 1 Bath Assume 80 % of total units $335.00 $42,880.00 .
2 Bedroom / 1 Bath $385.00 $0.00 .
Note: Miscellaneous electrical and plumbing trim, and various maintenance
related items are excluded from this cost sheet.
IRecommended Items I
$373,904,80 I
C,S,!. 13000 Special Construction
Mensuration Unit Cost Valuation 1
Renovation of Community Room and Office $35,000.00 :
Interior corridor carpeting. (25.760 sq. fl.) $11.25 $32,19750 '
Ancillary area carpeting. (6.440 sq. ft.) $11.50 $8,234.00
Interior corndor painting / chair rail. (1260 If.) Assumptive basis of 20,160 C.S.F $1.50 530.240.00
Marketing awning for primary entrance door on "F" Street. 1 Lump sum $2,000.00
ITotal for Special Construction
$107,671.50 I
C.S.t. 15000 Plumbing and Mechanical
Mensuration Unit Cost Valuation 1
Replacement of through the wall air conditioning Units. Assume 40 % of total $705.00 $45,120.00 !
Assessment of air conditioning unit operation. 160 locations plus 3 additional $30.00 $4,890.001
Baller pipe infrastructure upgrading and repair 4 total. $3.750.00 $15,000.00 1
Note: CHECK WITH A.Q.M.D. FOR OTHER REQUIREMENTS UNKNOWN UNKNOWN UNKNOWN i
Replacement of gas pack wall heaters Assume 15% of total $365.00 $8,760.00 I
Assessment of gas pack wall heaters 160 locations total $30.00 $4,800.00 !
Treatment of domestic water system. 1 Lump sum. $2.250.00 $2,250.001
Plumbing repair allowance for 7 identified problem units. 1 Lump sum. $3,150.00 $3,150.00 I
Elevator A.DA upgrading and repairs. 4 total locations. $19,000.00 $76,000.00 I
Isolation valve for domestic water service / each building. 2 total locations $5,000.00 $5,000.00 :
Total for Plumbing and Mechanical
$164,970.00
C.S.!. 16000 Electrical Lighting Package I Electrical
Mensuration Unit Cost Valuation I
Exterior light retrofitting. Patio porch lighting 160 total locations $21.00 $3,360.00 !
BUilding light upgrading. ( To higher luminosity H.P.S.) 18 total locations $175.00 $3,15000 I
G.F .c.I.'s integrated into kitchen receptacles. 160 totallocalions $18.75 $3.000.00 :
Battery backup eXit lighting in corridors. (mix of h.wl b.b."frogeye's) 50 total locations $107.00 $5.350.00 '
Battery backup eXit lighting in corndors. (fluorescents) 50 total locations $87.00 $4,350.00 I
Total for Electrical Lighting Package
$19,210.00
C.S.I.16100 C.A.T.V.
Mensuration IUnit Cost IValuation 1
Extension of C.A. T.V. cabling to master bedroom from living room. Not applicable I $225.00 I $0.00
ITotal for C.A.T.V.
$0.00 I
Total for Budget $803,549.15
Project P I 0 @ 12% $96,425.90
Total $899,975.05
10/3/00
Page 3 of 3
EXHIBIT "G"
SUBORDINATION AGBEEMEN'r FOR AGENCY DEED OF TRUST
-
SBEO/0001/DOC/4106-5
11/9/00 1145 jrnm
21
,:..
RECORDING REQUESTED BY:
Redevelopment Agency of the
City of San Bernardino
WHEN RECORDED MAIL TO:
(Space above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
Pioneer Park Plaza Affordable
Elderly Rental Housing Project
-
(FHA Agreement Project No. 143-11047-PM-PUR/CON)
LOAN SUBORDINATION AGREEMENT
THIS LOAN SUBORDINATION AGREEMENT made this day of
, 2000, by and between the Redevelopment Agency of the City
of San Bernardino, (hereinafter sometimes referred to as
"Beneficiary") and AFE-Pioneer Associates, L.P., a California
limited partnership, (hereinafter referred to as "Trustor," or
"Borrower") .
-- WITNESSETH
WHEREAS, the Beneficiary and the Borrower have entered into
that certain agreement entitled "Loan Agreement (Pioneer Park Plaza
Affordable Elderly Rental Housing Project)" dated as of October 16,
2000 (the "Agency Loan Agreement") whereby the Beneficiary has
provided the Borrower with a loan of funds (the "Agency Loan") in
the original principal amount of Two Hundred and Fifty Thousand
Dollars ($250,000.00) as authorized under Health and Safety Code
Section 33334.2 for the purpose of assisting the Beneficiary to
acquire the lands and improvements located at San
Bernardino, California (the "Property") for the operation thereon
of an affordable rental housing facility reserved for occupancy and
use by elderly persons, all as more fully set forth in the Agency
Loan Agreement.
WHEREAS, a legal description of the Property is attached
hereto as Exhibit "A".
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WHEREAS, the Agency Loan is evidenced by a promissory note of
even date herewith in favor of the Beneficiary and payable by the
Borrower (the "Agency Note"), and the Agency Note is secured by a
deed of trust of even date herewith affecting the Property (the
"Agency Deed of Trust") as executed by the Borrower and delivered
to the Beneficiary, and certain elderly persons affordable rental
housing covenants of the Borrower in favor of the Beneficiary which
arise under the Agency Loan Agreement are evidenced by the Agency
Regulatory Agreement, of even date herewith, by and between the
Beneficiary and the Borrower;
WHEREAS, Berkshire Mortgage Finance Bethesda Limited
Partnership, a Massachusetts limited partnership (the "Superior
Lender") has agreed to make a loan to the Borrower in an original
principal amount not to exceed $4,400,000.00 (the "Superior Loan")
which loan is for the purpose of acquiring and rehabilitating the
Property, and said Superior Loan will be insured by the U. S.
Department of Housing and Urban Development ("HUD") acting by and
through the Federal Housing Administration ("FHA") under the terms
and conditions of that certain instrument entitled "Regulatory
Agreement for Multifamily Housing Projects" dated as of
2000, by and between the Beneficiary and HUD (the "FHA Agreement") ;
WHEREAS, the said Superior Loan is evidenced by a certain Deed
of Trust Note dated November __, 2000, and is secured by a Deed of
Trust, dated November" 2000, from Borrower in favor of the
Superior Lender; and
WHEREAS, the Borrower and Beneficiary are desirous of having
the Agency Regulatory Agreement, the Agency Deed of Trust, the
Agency Note and other relevant Agency Loan documents as set forth
under the FHA Agreement, securing and benefiting the Beneficiary
subordinated to the said Superior Loan, its Deed of Trust,
Financing Agreement, the FHA Agreement and any other relevant loan
document required by the Superior Lender or HUD.
NOW, THEREFORE, in consideration of the premises and as an
inducement to the Superior Lender to make the Superior Loan to the
Borrower, the Borrower and the Beneficiary jointly and severally
hereby acknowledge and agree that the lien of the Agency Deed of
Trust in the Property, and the covenants in favor of Agency in the
Property as arise under the Regulatory Agreement and other related
documents affecting the Property by and between the Borrower and
the Beneficiary, are subordinate and subject to the lien, operation
and effect of the Superior Lender in the Property, including
without limitation the Deed of Trust executed by the Beneficiary in
favor of the Superior Lender on even date herewith.
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2
>-
....
It is hereby understood and agreed between the Beneficiary and
the Borrower that:
1. The above recitals are incorporated herein and made a
part of this Subordination Agreement.
2. The Superior Lender would not provide the Superior Loan
to the Borrower unless this Subordination Agreement of
the Beneficiary and the Borrower is duly executed by
authorized principals or representatives of each of the
parties hereto and filed for record against the Property.
3. Any change in the amount of the Superior Loan must have
prior written approval of the Beneficiary.
4. The Superior Lender, and any successor or assign, shall
give the Beneficiary written notice of any default or
event of default contemporaneously with the giving of
notice to the Borrower. It is hereby understood and
agreed that the Beneficiary, may, in its sole discretion
(but without obligation to do so) elect to cure any
default of the Borrower.
5. Beneficiary shall provide the Superior Lender or its
successor or assign written notice of any default or
event of default contemporaneously with the giving of any
default notice to the Borrower.
6. This Subordination Agreement is executed in two (2)
counterparts, each counterpart being an original.
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3
IN WITNESS WHEREOF, the parties hereto have executed this
Subordination Agreement as of the date first set forth above.
BENEFICIARY
Redevelopment Agency of the City of
San Bernardino
By:
Judi th Valles, Chairperson of the
Community Development Commission
of the City of San Bernardino, its
governing board
By:
Agency Secretary
BORROWER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
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4
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PARCEL NO.1: (APN: B4-061-27)
LOTS 3 i\ND 4, BLOCK 38, CITY OF SAN BERNARDINO, IN TI-IF. CITY OF SAN BERNARDINO,
COUNl'Y OF SAN BERNARDINO, STATE OF CALIfORNIA, AS PER PLAT RECORDED IN BOOK
7 OF 1-1AP.3, P AGE(S) 1, RECORDS OF SAID COUNTY.
PARCFJ, NO. 2: (APN: 134-061-26)
LOIS i AND 8, BLOCK 38, an Of SAN 13ERNAlillL"lO, IN THE OTY OF SAN BERNARDINO,
COUNTY Of SA.!\l' BERNARDINO, STATE OF CALIFORNIA. AS PER [,LAT RECOHDED IN [JOOK
7 OF MAPS, P AGE(S) 1, RECORDS OF SAID COUNTY.
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