HomeMy WebLinkAboutR23-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Maggie Pacheco SUBJECT: ANR INDUSTRIES, INC.,
Deputy Director MEADOWBROOK PARK SINGLE
, FAMILY INFILL HOUSING
I., , DEVELOPMENT (IVDA
DATE: January 29, 2003 .J.. REDEVELOPMENT PROJECT AREA)
.___________________________________________________________________________________________________________________n____________________.______________________u___________--------.---------------------+--
Svnopsis of Previous Commission/Council/Committee Action(s):
On October 24, 2002, Redevelopment Committee Members Anderson, Suarez and Estrada voted unanimously to
recommend to the Community Development Commission approval of an Agreement by and between ANR Industries,
Inc. and the Agency for the development of 23 new infill housing units located in the area bounded by 20' Street and
Rialto Avenue, and Sierra Way and Allen Street, within the boundaries of the IVDA Redevelopment Project Area, and
adjacent to Downtown San Bernardino.
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Recommended Motion(s):
(Communitv Develonment Commission)
MOTION A: A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ('AGENCY") TO EXECUTE
THE MEADOWBROOK SINGLE FAMILY RESIDENTIAL GRANT DEVELOPMENT
AGREEMENT BY AND BETWEEN THE AGENCY AND ANR INDUSTRIES, INe.
MOTION B: A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO REQUESTING THAT THE INLAND VALLEY DEVELOPMENT AGENCY
(IVDA) ENACT A PROGRAM AUTHORIZING A ONE HUNDRED PERCENT (100%)
INCLUSIONARY/REPLACEMENT HOUSING CREDIT TO THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO ('AGENCY") FOR ANY AGENCY-ASSISTED HOUSING
PROJECTS UNDERTAKEN BY THE AGENCY WITHIN THE IVDA PROJECT AREA
BOUNDARIES.
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Contact Person(s):
Project Arca(s)
Maggie Pacheco
Phone:
(909) 663- I 044
IVDA Project Area
Ward(s):
Supporting Data Attached: iii Staff Report iii Resolution(s) iii Agreement(s)/Contract(s) iii Map(s) 0 Letters/Other
FUNDING REQUIREMENTS Amount: $ 500,000
Source:
Low/Mod Funds
SIGNATURE:
Budget Authority:
2002/2003 EDA Budget
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Commission/Council Notes:
,2LSC."1.l C.OC-/<-- (;::':S - 5
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P:\Clerical Scryicc~ Dcpl\Margarcl parkcMgcnda\CDC 2003\03-02-03 ANR Meadowbrook Park Infill Housing .doc
COMMISSION MEETING AGENDA
Meeting Date: 02/03/2003
Agenda Item Number: RJ..3
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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ANR Industries, Inc., Meadowbrook Park Sinl!le Familv Intill Housinl! Development
(lVDA Redevelopment Proiect Area)
BACKGROUND:
For the past several months, Agency Staff and ANR Industries, Inc. (ANR) have been working
together on a development proposal to redevelop the severely distressed residential neighborhood
blocks bounded by 2nd Street and Rialto Avenue, Sierra Way and Allen Street, immediately east and
outside of the Agency's Meadowbrook Redevelopment Project Area and located within the NDA
Project Area boundaries (Project Site). The Project Site is compromised of older residential homes,
many of which have not been maintained, are boarded up and abandoned structures, underutilized
vacant parcels collecting debris and trash, and is a magnet for breeding undesirable social and
physical conditions. However, the Project Site has ample development opportunity because it is
located adjacent to several City assets that are essential to sustaining a viable downtown such as the
Meadowbrook Park, Ralph Hernandez Community Center, and the seat of City and County
government, etc.
CURRENT ISSUE:
ANR has been successful in negotiating the purchase of twenty-three (23) parcels on Sierra Way,
Rialto Avenue, Allen, King and 2nd Streets. This includes an Agency-owned parcel at 145 Sierra
Way that was acquired by the Agency through HUD under the auspices of the ARR Program. The
Agency acquired the property for $25,000 and will convey the property to ANR'S Qualified Buyer
pursuant to the License Agreement (Exhibit "B") at the same price the Agency paid for the property.
See Map of the Area (Attachment A). ANR proposes to develop twenty-three (23) new single-story
and two-story detached homes consistent with an urban setting (RU-I zoning) ranging in square
footage from 1,400 to 1,700 square feet. The elevations offered will be contemporary interpretations
of Victorian and Craftsman style homes taking into consideration San Bernardino's history and also
being mindful of existing architectural assets. The projected costs for acquisition, demolition, and
development are estimated to be $4.2 million with estimated sales price of $3.7 million (average sales
price $175,000), resulting in an approximate $500,000 financial gap. ANR has requested that the
Agency provide up to the $500,000 in the form of a grant. To the extent that their costs are less than
$4.2 million and there is a costs savings, the savings will be used to reduce the Agency's financial
contribution to the Project Site. This request is consistent and comparable (per unit basis) to other
requests granted by the Agency to ANR to develop six (6) infill housing units in NIP Area #1 and to
Century Vintage homes for development of Arrow Vista.
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P:\C\erical Services Dcpl\Margarcl Parker\Agcnda\CDC 2003\03-02-03 ANR Meadowbrook Park [ntilt Housing .doc
COMMISSION MEETING AGENDA
Meeting Date: 02103/2003
Agenda Item Number: R.J.J
Economic Development Agency Staff Report
ANR Industries, Inc. Meadowbrook Park
Single Family Infill Housing Proposal
Page 2
ANR is also requesting the Agency's assistance in land assemblage to the extent that they are
unsuccessful in directly purchasing key parcels, the provision of beautification grants to adjacent
qualified homeowners to spruce up the exterior of their homes, assistance with establishment of a
landscaping maintenance district and expedited plan check and building permits, etc. It is proposed
that the maximum $500,000 grant be disbursed during the course of construction and as set forth in
the Grant Development Agreement. In return for the Agency's assistance, the Agreement requires
that not less than ten (10) of the single family homes built are made available to households who will
occupy the home and who earn not more than 120% of the County median income (i.e., family of
four = $60,350). The eligible homebuyer will have to execute a Regulatory Agreement which sets
forth the requirement for occupancy, maintenance and should the homebuyer sell the home prior to
the expiration of the regulatory agreement term (45 years), the homebuyer is required to share any
equity gained from the sale of the property pursuant to the formula set forth in the regulatory
agreement (Exhibit "G").
The development concept provides an opportunity to recycle underutilized properties that have sat
idle for an extended period of time and without any interest from local landowners to redevelop the
area; it also presents a window of opportunity to introduce a fresh and unique development theme that
can be used to transform a neighborhood that has declined, and to create a significant and dramatic
visual and economic impact that will act as a stimulus to urban renewal and the rejuvenation of the
City's downtown.
Moreover, the proposed housing development will be developed within the boundaries of the IVDA
Project Area and as such, under State law, the Agency would receive credit for only half of the units
built in this development (II) and IVDA would receive one hundred percent (100%) credit of the
units built (23). Because IVDA relies on the Agency to produce the IVDA's requirement for
affordable housing under State Redevelopment Law and, in fact, provides the City's annual share of
the housing fund to the Agency, Staff is proposing that the Commission consider making a request to
IVDA to allow the Agency to take one hundred percent (100%) credit for all the units built within
this development, future developments and any other housing projects undertaken by the Agency
within the IVDA Project Area, hence the reason for introducing Resolution B attached hereto.
ENVIRONMENT AL IMPACT:
The proposed project is categorized as an infill housing project and will be developed consistent with
the City's General Plan and Zoning; thus a negative declaration will be filed for the project.
FISCAL IMPACT:
Execution of an Agreement between the parties will result in an Agency financial commitment of an
amount of not to exceed $500,000. These funds will be appropriated from the Agency's 2002/2003
Housing Fund (low/mod).
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P:\Clerical Services Dcpl\Margarct ParkerlAgcndalCDC 2003\03-02-03 ANR Meadowbrook Park Infill Housing .doc
COMMISSION MEETING AGENDA
Meeting Date: 02103/2003
Agenda Item Number: RJJ
Economic Development Agency Staff Report
ANR Industries, Inc. Meadowbrook Park
Single Family Infill Housing Proposal
Page 3
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolutions.
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P:\Clcrical Services Dcpt\Margarct ParkcrlAgenda\CDC 2003\03-02-03 ANR Meadowbrook Park Infill Housing ,doc
COMMISSION MEETING AGENDA
Meeting Date: 02/03/2003
Agenda Item Nnmber: /l ;23
ATTACHMENT A
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1
RESOLUTION NO:
2
3
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF. THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE MEADOWBROOK SINGLE FAMILY
RESIDENTIAL GRANT DEVELOPMENT AGREEMENT BY AND
BETWEEN THE AGENCY AND ANR INDUSTRIES, INe.
4
5
6
7
8
9
WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") is a
10
public body and politic, exercising governmental functions and powers and organized and
11
existing under chapter 2 of the Community Redevelopment Law of the State of California
12
(Health and Safety Code Section 33020, et seq.); and
WHEREAS, the Agency desires to assist ANR Industries, Inc., a local housing
developer ("Developer") who has the experience, financial strength and background in
developing affordable housing in the City of San Bernardino, with the development of twenty-
three (23) single family homes in the area bounded by 2ndand Rialto Streets, between Sierra
Way and Allen Avenue located within the Inland Valley Development Agency (IVDA")
Project Area boundaries, but within the City of San Bernardino City limits ("Meadowbrook
Park Single Family Infill Housing Development"); and
WHEREAS, the Meadowbrook Park Single Family Infill Housing Development has
been determined to be categorically exempt from the California Environment Quality Act
13
14
15
16
17
18
19
20
21
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23
(CEQA) requirements, per Section 15332, Class 32; and
WHEREAS, under Section 33334.2 of the California Community Redevelopment Law,
the Agency is authorized to utilize low and moderate income housing funds (" Housing Fund")
24
25
26
to provide housing opportunities to families and individuals whose income do not exceed
120% ofthe area median income for San Bernardino County and the Agency desires to provide
27
"
financial assistance to the Developer in an amount of not too exceed $500,000; and
P:\C1eriul Services Dept\Marpm Par\r.enRcso]ulions\200J\OJ-QZ-QJ ANR Meadowbrook Resolution A.doc
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WHEREAS, the Developer and Agency desire to develop the Meadowbrook Park
Single Family Infill Housing Development in accordance with the provisions of the Grant
Development Agreement (the "Agreement").
1
2
3
4
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
hereby authorized and directed to execute on behalf of said Commission the Agreement
between the Agency and Developer in order to effectuate the provisions of Agreement and
development of the Meadowbrook Park Single Family Infill Housing Development.
15
Section 3.
5
6
7
Section 1.
8
The Executive Director of the Agency ("Director") or hislher designee is
The Director or hislher designee is hereby authorized to reimburse the
13 Developer pursuant to the Agreement the sum of not too exceed Five Hundred Thousand
9
10
11
12
Section 2.
14 Dollars ($500,000) from the Agency's Housing Fund (2002/2003 EDA Budget).
16
The Director or hislher designee is authorized to make changes to the
17
Agreement, provided said changes are not substantive in nature and do not increase the
Agency's financial contribution, and as approved by Agency Counsel.
18
Section 4.
19
The Community Development Commission has determined that the
Project is "categorically exempt" pursuant to CEQA, Section 15332, Class 32, guidelines.
20
Section 5.
21
/11
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The Resolution shall become effective immediately upon its adoption.
P:\Clerical Service! Dept\Marpm Parker\Rcsolulions\200JIOJ-02.()) ANR Meadowbrook Resolution A.doc
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND
AUmORlZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE MEADOWBROOK SINGLE FAMILY
RESIDENTIAL GRANT DEVELOPMENT AGREEMENT BY AND
BETWEEN THE AGENCY AND ANR INDUSTRIES, INC.
.,
2
3
4
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
7 Community Development Commission of the City of San Bernardino at a
meeting
8
thereof, held on the
day of
Aves
, 2003, by the following vote to wit:
9
Commission Members:
Navs
Abstain
Absent
10
ESTRADA
LONGVILLE
MCGINNIS
DERRY
SUAREZ
ANDERSON
MC CAMMACK
11
12
13
14
15
16
17
18
19
Secretary
20
21
The foregoing resolution is hereby approved this
day of
,2003,
22
23
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
24
25
26
27 By:
?8
P:\Clerical Services DepI\M1t'J&Rl Parker\Resolutions\l
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RESOLUTION NO:
"
2
3
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO REQUESTING
THAT THE INLAND VALLEY DEVELOPMENT AGENCY. (IVDA)
ENACT A PROGRAM AUTHORIZING A ONE HUNDRED PERCENT
(100%) INCLUSIONARYIREPLACEMENT HOUSING CREDIT TO THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") FOR ANY AGENCY-ASSISTED HOUSING PROJECTS
UNDERTAKEN BY THE AGENCY WITHIN THE IVDA PROJECT
AREA BOUNDARIES.
4
5
6
7
8
9
WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") is a
10
public body and politic, exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the State of California
11
12
13
(Heath and Safety Code Section 33020, et seq.); and
WHEREAS, the Inland Valley Development Agency ("IVDA") is a public body and
14
15
politic, exercising governmental functions and powers and organized and existing under
16 .
Chapter 2 of the Community Redevelopment Law of the State of California (Health and Safety
Code Section 33492.41); and
WHEREAS, under Section 33334.2 of the California Community Redevelopment Law,
the Agency is authorized to utilize low and moderate income housing funds ("Agency Housing
17
18
19
20
Fund") to provide housing opportunities to families and individuals, renting or purchasing
housing within the City of San Bernardino's jurisdiction ("City") whose income does not
exceed 120% of the area median income for San Bernardino County; and
21
22
23
WHEREAS, the Agency desires to assist ANR Industries, Inc. ("Developer") with the
development of twenty-three (23) single family homes ("Housing Units") in the area bounded
by 2nd and RiaIto Streets, between Sierra Way and Allen Avenue situated within the Inland
24
25
26
Valley Development Agency (IVDA") Project Area boundaries, but within the City of San
Bernardino City limits. ("Meadowbrook Park Single Family Infill Housing Development") in
27
28
P:\C1ericaI Scrvil;es Dept\Marpm PartccrJl.esolutionsUOO3\O]..{)2..{)] ANR Meadowbrook Resoh.ltion D.doc
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accordance with the provisions
between the Agency and Developer; and
WHEREAS, under California Redevelopment State Law, a redevelopment agency may
satisfy the incIusionary housing requirements, (15% of all housing units developed within a
Redevelopment Project Area must be made available at affordable housing cost to, and
occupied by, persons and families of low or moderate income), by developing or rehabilitating
housing units outside a Redevelopment Project Area, however, of such housing units provided
outside a Redevelopment Project Area, 'the Agency must provide two Housing Units for every
housing unit developed inside the Agency's Project Area; thus the Agency would receive credit
for the development of only fifty percent (50%) of the Housing Units develop in the lVDA
Redevelopment Project Area such as the Meadowbrook Park Single Family InfiII Housing
Development ("Housing), andthe lVDA would receive one-hundred (100%) percent credit for
the Housing Units; and
WHEREAS, the lVDA was formed to specifically protect, develop enhance and
preserve the military facilities at the former Norton Air Force Base and as such the lVDA
relies on the Agency to fulfill its affordable housing obligations pursuant to Section 33334.2
and furthermore transmits all their 20% Set Aside Housing Fund, generated within the City
limits, to the Agency for the provision of affordable housing opportunities within the City's
jurisdiction; and
WHEREAS, the lVDA depends and relies on the Agency to assist lVDA in meeting its
incIusionary and replacement housing requirements, and as such, the Agency desires to receive
one hundred (100%) credit for the twenty-three (23) Housing Units to be developed by the
Developer within the lVDA Project Area, and furthermore, the Agency desires to have lVDA
make a fmding allowing the Agency to take one hundred percent (100%) credit for all units the
Agency develops or rehabilitates within the lVDA Project Area.
/1/
P:\C\crica.l Sctviccs Depl'lMuguet Parker\Rcsolutions\200J\03.o2'()) ANR Meadowbrook Resolution a.doc
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NOW, TIIEREFORE, THE COMMUNITY DEVELOPMENT COMMISSI()Ne)F THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DElERMINE AND ORDER, AS
FOLLOWS:
,
1
2
3
4
Section 1.
The Chairperson or his/her designee is hereby authorized and directed to
5
6
on behalf of said Commission to request that the IVDA adopt a Resolution providing 100%
credit to the Agency for any developed or rehabilitated housing units undertaken by the
Agency within the IVDA Project Area boundaries.
The Resolution shall become effective immediately upon its adoption.
7
8
Section 2.
9
III
10
11 III
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20
III
21
III
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III
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III
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III
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26 III
27 III
"8 III
III
P:\Ck:ricaI. Savices DepI\Matpret Pari:a\RcsohltiDns\200l\OJ-02.(1J ANR Meadowbrook Raolution B.~
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'.
1
, '.'.
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO REQUESTING
THAT THE INLAND VALLEY DEVELOPMENT AGENCY (IVDA)
ENACT A PROGRAM AUmORIZING A ONE HUNDRED PERCENT
(100%) INCLUSIONARYIREPLACEMENT HOUSING CREDIT TO THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") FOR ANY AGENCY-ASSISTED HOUSING PROJECTS
UNDERTAKEN BY THE AGENCY WITHIN THE IVDA PROJECT
AREA BOUNDARIES.
2
3
4
5
6
7
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
8
Community Development Commission of the City of San Bernardino at a
meeting
9
thereof, held on the
day of
Aves
, 2003, by the following vote to wit:
10
Commission Members:
Navs
Abstain
Absent
11
ESTRADA
12
LONGVILLE
13
MCGINNIS
14
DERRY
15
16 SUAREZ
17 ANDERSON
18 MC CAMMACK
19
20
21
Secretary
22
The foregoing resolution is hereby approved this
day of
,2003.
23
24
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
25
26
27
Approved
ntent:
28 By:
4
, '~
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MEADOWBROOK SINGLE F AMIL Y RESIDENTIAL
GRANT DEVELOPMENT AGREEMENT
By and Between
The Redevelopment Agency of the
City of San Bernardino
(Agency)
And
ANR Industries, Inc.
A California Corporation
(Developer)
TABLE OF CONTENTS
Page
ARTICLE I TERMS AND CONDITIONS............................. . . . . 1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Integration of All Agreements Relating to
the Project and Definition of Terms........ 1
Parties to the Agreement............... . . . . 8
Prohibition Against Change in Ownership,
Management and Control of Developer and
Assignment of Agreement........ . . . . . . . . . . . . 9
Benefit to Project Areas.................. 10
List of Exhibits to Agreement............. 10
ARTICLE II DISBURSEMENT OF AFFORDABLE HOUSING DEVELOPMENT
GRANT AND DISPOSITION OF THE AGENCY LOT......... . . . . . . . . . . . . . . 11
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
Section 2.14.
Section 2.15.
Section 2.16.
Section 2.17.
Section 2.18.
Section 2.19.
Section 2.20.
Section 2.2l.
Section 2.22.
Section 2.23.
Section 2.24.
1/29/03 2:00 JITm
532003:94.3
Affordable Housing Development Grant...... 11
Disposition of Agency Lot... . . ......... . .. 14
Developer Agreement to Undertake the
proj ect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sale of Completed New Homes to Qualified
Homebuyers................................19
RESERVED - NO TEXT.... . . . . . . . . . . . . . . . . . . . . 21
RESERVED - NO TEXT ........... .............22
RESERVED - NO TEXT. . . . . . . . . . . . . . . . . . . . . . . . 22
Inspection and Review of Agency Lot....... 22
Due Diligence Investigation of the Agency
Lot and the Project by the Developer...... 23
Due Diligence Approval Certificate........ 24
Books and Records of the Agency Relating to
the .Z\gency Lot... . . . . . . . . . . . . . . . . . . . . . . . . . 25
Condition of the Agency Lot; Developer's
Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Review and Approval of Condition of Title in
the Agency Lot by the Developer........... 27
RESERVED - NO TEXT ................. .......28
Extension of Due Diligence Period......... 28
Developer's Conditions Precedent.......... 28
The Agency's Conditions Precedent......... 29
RESERVED - NO TEXT ............ ............30
Satisfaction of Conditions................ 30
Termination............. . ...... . .. . .. ..... 31
RESERVED - NO TEXT ....... ....... ...... ....31
RESERVED - NO TEXT ....... ....... ...... ....31
RESERVED - NO TEXT........................ 31
Representations and Warranties.. . . . . .. . ... 31
- i -
Section 2.25.
Section 2.26.
Damage, Destruction and Condemnation...... 34
Developer Market Reports to the Agency 35
ARTICLE III
DEVELOPMENT OF THE DEVELOPER LOTS AND THE
AGENCY LOT..................................... 36
Section 3.0l.
Section 3.02.
Section 3.03.
Section 3.04.
ARTICLE IV
Development by Developer.................. 36
Property Taxes and Assessments... . ........ 44
Prohibition Against Transfer.............. 44
Security Financing; Right of Holders...... 44
USE OF THE DEVELOPER LOTS. . . . . . . . . . . . . . . . . . . . . . 46
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Maintenance of the Developer Lots......... 47
Obligation to Refrain from Discrimination. 47
Form of Nondiscrimination and Nonsegregation
Clauses. . . .. . .. .... . ...... ...... . . . .... ... 47
Effect and Duration of Covenants Under
Section 4.01 and Section 4.04 .............49
ARTICLE V DEFAULTS, REMEDIES AND TERMINATION.................. 49
Section 5.01.
Section 5.02.
Sectior. 5.03.
Section 5.04.
Defaults - General.... ............. .... ...49
Legal Actions............................. 50
Rights and Remedies are Cumulative........ 51
Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VI GENERZ\L PROVISIONS................................. 52
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Notices, Demands and Communications Between
the Parties............................... 52
Conflict of Interest...................... 52
Warranty Against Payment of Consideration
for Agreement.............. . . . . . . . . . . . . . . . 53
Nonliability of Agency Officials and
Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Enforced Delay: Extension of Time of
Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Inspection of Books and Records........... 54
Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Real Estate Commissions................... 55
Indemnification. ... . .. .. . . ... . . . . . ........ 55
Attorneys' Fees........................... 55
Effect. . . . ... ... . . . ........ . ..... . .. . . ... . 55
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT. . . . . . . . 56
:/29/03 2;00 Jrr~
S320:J3:94.3
- ii -
Section 7.01.
Entire Agreement....... .... . ... ........... 56
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "("
EXHIBIT "0"
EXHIBIT "E"
EXHIBIT "F"
EXHIBIT "("II
u
SXHIBIT "HI!
SXHIBIT "I"
;..,'29/03 2: CO J:71..'":".
s3=003:9~.3
Legal Description of Agency Lot
Form of Agency License Agreement (may affect the
Agency Lot)
Legal Description of Developer Lots
Form of Notice of Agreement
Project Description/Scope of Development
Schedule of Performance
Form of Section 33334.3 Covenant
Copy of HUD Mortgagee Letter 2000-30
Form of Agency Grant Deed (for Completed New
Agency Home)
- III -
MEADOWBROOK SINGLE FAMILY RESIDENTIAL
GRANT DEVELOPMENT AGREEMENT
THIS MEADOWBROOK SINGLE FAMILY RESIDENTIAL GRANT
DEVELOPMENT AGREEMENT (this "AgreementU) is entered into as of
2003, by and between the REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, a public body corporate and politic
(the "AgencyU) and ANR INDUSTRIES, INC., a California
corporation (the "DeveloperU) in light of the facts set forth in
the following paragraphs of the Recitals:
RECITALS
[INSERT TEXT OF RECITAL FACTS AS APPROPRIATE]
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE
AGENCY AND THE DEVELOPER HEREBY AGREE AS FOLLOWS:
ARTICLE I
TERMS AND CONDITIONS
Section 1.01. Integration of All Agreements Relating
to the ProCect and Definition of Terms.
~
(a) ~his Agreement integrates all of the terms and
conditions mentioned herein and supercedes all negotiations,
discussioY1s and understandings between the par;:ies with respect
to the Pro=ect and all items of assistance which the Agency may
hereafter provide to the Developer.
(b) =r, addition to the words which have defined meanings
as set forth in the preceding paragraphs of this Agreement,
certain other phrases or terms as used in this Agreement shall
have the meaning set forth as follows:
Adjusted Family Income. The words "Adj usted Family IncomeU
mean the anticipated total annual income (adjusted for
family size) of each individual or family residing or
treated as residing in the New Home as calculated in
accordance with Treasury Regulation 1.167(k) - 3b)(3) under
the Code, as adjusted, based upon family size in accordance
with the household income adjustment factors adjusted and
amended from time to time, pursuant to Section 8 of the
United States Housing Act of 1937, as amended.
J3-J2-CJ ~~R-Meadowt~:~, ~eve;~pme~t Aqree~ent
1
Affordable Housing Cost. The words "Affordable Housing
Cost" shall have the meaning as set forth in Health and
Safety Code Section 50052.5, as this section may hereafter
be amended from time-to-time by the State of California. A
Qualified Homebuyer, and/or the Successor-In-Interest of
such Qualified Homebuye~, if any, shall pay no more than an
Affordable Housing Cost as its purchase price for the New
Home as of the applicable Delivery Date.
Affordable Housing Development Grant. The words
"Affordable Housing Development Grant" mean and refer to
the grant to the Developer of certain low- and moderate-
income housing funds of the Agency in the total aggregate
amount not to exceed Five Hundred Thousand Dollars
($500,000) which the Developer shall use and apply in
connection with the redevelopment of ten (10) New Homes on
the Developer Lots, plus the New Agency Home, which shall
be reserved for sale and occupancy by Qualified Homebuyers.
The amount of the Affordable Housing Development Grant as
disbursed by the Agency to the Developer shall be subj ect
to final audit and adjustment by the Agency as provided in
Sectio:1 2.05 in the event that the actual and reasonable
Project development costs incurred by the Developer are
less chan the estimated Project development costs of
$ 4, 162,011 shown in the Proj ect development cost pro forma
as on file with the Agency.
Agency License Agreement. The words "Agency License
Agree:7lent" mean and refer to the license agreement by and
between the Developer and che Agency affecting the Agency
Lot. The Developer may enter the Agency Lot and perform
the ,'i8rk 8n the Agency Lot pursuant to the terms of the
Agency :"icense .'\greement and this Agreement. The form of
the Agancy License Agreemenc is attached as Exhibit "B".
Agency Lot. The words "Agency Lot" mean and refer to the
parcel of land located in the City of San BerClardino and
more parcicularly described In ExhibiL "A". The Agency
acquired the Agency Lot from Lhe United States Secretary of
the Department of Housing and Urban Development.
Completed New
"Completed New
to the purchase
the Agancy for
Home (a.g., tha
Agency Home Purchase Price. The words
Agency Home Purchase Price" mean and refer
price payable by the Qualified Homebuyer to
the purchase of the Completed New Agency
Agency Lot as improved with the New Agency
-J3-'J2--J3 ANR-01eado..~~:2{ ::e':elcpment A:;;,"ee:ner.':
2
Home) at the close of the Agency New Home Escrow. The
Completed New Agency Home Purchase Price shall be an amount
which is no more than the maximum amount of the sales price
of the Completed New Agency Home as computed under the
applicable provisions of the HUD land purchase program
pursuant to which the Agency acquired the Agency Lot,
including HUD Mortgagee Letter No. 2000-30. A coy of HUD
Mortgagee Letter No. 2000-30, is attached as Exhibit "HH.
Completed New Agency Home. The words "Completed New Agency
HomeH mean and refer to the new single family residential
unit to be designed, constructed and improved by the
Developer on the Agency Lot under the terms and conditions
of the Agency License Agreement and made available for sale
and occupancy by a Qualified Homebuyer designated by the
Developer.
Delivery Date. The words "Delivery DateH mean the
delivery of title and possession of the New Home
Developer to the Qualified Homebuyer at the close
New Heme Escrow.
date of
by the
of each
Developer Lot. The words "Developer LotH mean and refer to
eaeh of the nineteen (19) parcels of land located in the
City of San Bernardino and more particularly described in
Exhibi t "CH. In the event that the Developer may be able
to acquire additional parcels of land within the vicinity
of the site shown in the diagram attached to Exhibit "CH,
the Developer at its option may designate up to three (3)
such parcels as "Developer LotsH for the purposes of this
Agreement as set forth in Section 2.06.
Effective Date. The words "Effective DateH mean and refer
to the date on which this Agreement has been fully executed
by the officers or representatives of the parties following
an approving majority vote of the governing board of the
Agency authorizing the execution of this Agreement by the
Agency.
Environmental Laws. The words "Environmental LawsH mean
all federal, state, local, or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees,
or requirements of any government authority regulating,
relating to, or imposing liability of standards of conduct
concerning any hazardous substance (as later defined), or
pertaining to occupational health or industrial hygiene
(and only to the extent that the occupational health or
0J-G2-Q3 .'\."?-~~"d:;.itt::)"" :Je;leloprner,~ Agreemer.t
3
industrial hygiene laws, ordinances, or regulations relate
to hazardous substances on, under, or about the Site),
occupational or environmental conditions on, under, or
about the Site or Sales Office, as now or may at any later
time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et
seq.]; the Resource Conservation and Recovery Act of 1976
("RCRA") [42 USC Section 6901 et seq.]; the Clean Water
Act, also known as the Federal Water Pollueion Control Act
("FWPCA") [33 USC Section 1251 ee seq.]; the Toxic
Substances Control Act ("TSCA") [15 USC Section 2601 et
seq.]; the Hazardous Materials Transportation Act ("HMTA")
[49 USC Section 1801 et seq.]; the Insecticide, Fungicide,
Rodenticide Act [7 USC Section 6901 et seq. ] the Clean Air
.Zl.ct [42 USC Section 7401 et seq.]; the Safe Drinking Water
Act [42 USC Section 300f et seq.]; the Solid Waste Disposal
Act [42 USC Section 6901 et seq.]; the Surface Mining
Control and Reclamation Act [30 USC Section 101 et seq.]
the Emergency Planning and Community Right to Know Act [42
USC Section 11001 et seq.]; the Occupational Safety and
Health Act [29 USC Section 655 and 657]; the California
Underground Storage of Hazardous Substances Act [H & S C
Section 25288 et seq.]; the California Hazardous Substances
Account Act [H & S C Section 25300 et seq.]; the California
Safe Drinking Water and Toxic Enforcement Act [H & S C
Section 24249.5 et seq.] the Porter-Cologne Water Quality
Act [Water Code Section 13000 et seq.] together with any
amendments of or regulations promulgated under the statutes
cited above and any other federal, state, or local law,
statute, ordinance, or regulation no'" in effect or later
enacced that pertains to occupational healeh or industrial
hygiene, and only to the extent the occupa::ional health or
industrial hygiene laws, ordinances, or regulations relate
to hazardous substances on, under, or aboue the Site, or
the regulation or protection of the enviro:1ment, including
ambient air, soil, soil vapor, ground'"ater, surface water,
or land use.
Hazardous Substances. The words "Hazardous Substances"
mean and include without limitation:
those substances included within the definiteness of
"hazardous substance," "hazardous wasce," "hazardous
material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLJI., RCRA, TSCA,
HMTA, or under any other environmental law; and
OJ ':=--;] ';''J;l-Me3cic'~'!:''::ol<_ ::-evelopreent ....greement
4
those substances listed in
Department of Transportation
172.101J, or by the EPA, or any
hazardous substances [40 CFR Part
the United
(DOT)Table
States
[49 CFR
successor agency, as
302J; and
other
become
under
and
substances, materials, and wastes that are or
regulated or classified as hazardous or toxic
federal, state, or local laws or regulations;
any material, waste, or substance that is:
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant
to 33 USC Section 1321 or listed pursuant to
33 USC Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
Moderate-Income Household. The words "Moderate-Income
HouseholdH mean persons and families whose income does not
exceed one hundred and twenty percent (120%) of the area
median income of the City adjusted for family size by the
State Department of Housing and Community Development in
accordance with adjustment factors adopted and amended from
time to time by the United States Department of Housing and
Urban Development pursuant to Section 8 of the United
States Housing Act of 1937, as amended, and Health and
Safety Code Section 50093, as this section may hereafter be
amended from time-to-time by the State of California.
Net Development Cost. The words "Net Development CostH
mean and refer to certain of the actual, reasonable and
necessary construction and resale COSeS as incurred by ehe
Developer during the course of construction and improvement
of the New Agency Home on the Agency Lot prior to the
transfer and sale of the Completed New Agency Home to a
Qualified Homebuyer. Net Development Cost shall be payable
by the Agency to the Developer from a portion of the
~3-,'~-.~J .~.NP-~.eadJ'..b!"~J~ :::'e'H~~~prcten~ Ag:ee",ent
5
Completed New Agency Home Purchase Price paid by the
Qualified Homebuyer to the Agency. The Net Development
Cost calculation performed by the Developer at the time of
sale of the Completed New Agency Home to a Qualified
Homebuyer shall be subject to audit and verification by the
Agency in accordance with HUD Mortgagee Letter 2001-30.
Net Development Cost Certificate. The words "Net
Development Cost Certificaten mean and refer to the written
accounting and cost certification prepared by the Developer
and submitted to the Agency not later than fifteen (15)
days before the date scheduled for the close of the New
Agency Home Escrow. The Net Development Cost Certificate
shall contain a suitably detailed description of the basis
on which the Developer has determined the amount payable to
the Developer from the sale of Completed New Agency Home to
the Qualified Homebuyer at the close of the Agency New Home
Escrow. The portion of the Completed New Agency Home
Purchase Price sales price amount payable to the Developer
as indicated in the Net Development Cost Certificate shall
be no more than as permitted under HUD Mortgagee Letter
2001-30.
New Agency Home. The words "New Agency Homen mean and
refer to the affordable new single family dwelling unit to
be desigCled, constructed, installed and financed by the
Developer on the Agency Lot in accordance with the New
Agency Home Plans; provided however, that the Developer
shall have first executed the Agency License Agreement
prior to entering the Agency Lot to perform any of the Work
on the Agency Lot.
New Agency Home Escrow. The words "New Agency Home Escrown
mean and refer to the escrow transaction through which the
Agency shall sell the Agency Lot, as improved by the
Developer with the Completed New Agency Home, to the
Qualified Homebuyer designated by the Developer.
New Home. The words "New Homen mean and refer to each of
the completed single-family residential dwelling units
(including the land and landscape improvements thereon) as
shall be constructed and installed by the Developer on each
Developer Lot.
New Home Escrow. The words "New Home Escrown
refer to the real estate conveyance transaction
by and between the Developer and the Qualified
mean and
or escrow
Homebuyer
:;-<<'3 ;,-"R-Meil;:c'~':;:cck ='eve~cp:ne'H .~.1:ee:ner_:
6
(or later, by and between the Qualified Homebuyer and the
Successor-In-Interest) for the conveyance and sale of the
New Home. The transfer of each New Home from the Developer
to a Qualified Homebuyer (or later, by and between the
Qualified Homebuyer and the Successor-In-Interest) shall
be accomplished upon the close of the New Home Escrow.
Notice of Agency Concurrence. The words "Notice of Agency
ConcurrenceH mean and refer to the acknowledgment executed
by the Executive Director of the Agency and delivered to
the holder of the New Home Escrow, in which the Agency
confirms that the proposed Qualified Homebuyer, appears to
satisfy all of the Adjusted Family Income and other
requirements of the Section 33334.3 Covenant for occupancy
of the New Home.
Project. The word "projectH means and refers to the
acquisition and redevelopment by the Developer of at least
ten (10) New Homes on ten (10) of the Developer Lots, as
designa ted by the Developer, which shall be reserved for
occupancy and sale to Qualified Homebuyers. The Project is
more particularly described in the Scope of Development
attached as Exhibit "EH. The Project shall be undertaken
by the Developer in accordance with the dates set forth in
the Schedule of Performance attached as Exhibit "FH.
Qualified Homebuyer. The words "Qualified HomebuyerH mean
the purchasers of each of the ten (10) New Homes from the
Developer (e.g.: all persons identified as having a
property ownership interest vested in the New Home as of
the close of the New Home Escrow) which the Developer shall
reserve for sale and occupancy by Qualified Homebuyers. At
the c~ose of the New Home Escrow involving a Qualified
Homebuyer, the Qualified Homebuyer shall: (i) have an
annual Adj usted Family Income which does not exceed the
household income qualification limits of a Moderate-Income
Household; and (ii) pay no more than an Affordable Housing
Cost for the New Home pursuant to the terms of the purchase
transaction for the New Home, including all sums payable
by the Qualified Homebuyer for its purchase money mortgage
financing, insurance, escrow and other fees and costs. In
the case of the Completed New Agency Home, the purchaser
from the Agency as designated by the Developer upon the
completion of the Work on the New Agency Home shall also be
a Qualified Homebuyer whose household income does not
exceed 115% of County median household income, adjusted for
family size.
'3-J2-J) A..'iP.-.'!e~:CG'''c~::,: Le.;e~~;:r,'[er.t ."gre-=m,,~,:
7
Qualified Residence Period. The words "Qualified Residence
PeriodH mean in the case of each New Home sold to a
Qualified Homebuyer, and the Completed New Agency Home, as
applicable, the period of time beginning on the Delivery
Date and ending on the date which is forty-five (45) years
after the Delivery Date.
Real Estate Sales and Marketing Work. The words "Real
Estate Sales and Marketing WorkH refer to the services LO
be provided by the Developer relating to the marketing of
the Completed New Agency Home for sale to a Qualified
Homebuyer. The Real Estate Sales and Marketing Work
includes without limitation the presentation of the
Completed New Agency Home to one or more Qualified
Homebuyers for the purpose of causing a Qualified Homebuyer
to purchase the Completed New Agency Home from the Agency
upon the completion of all of the Work and the satisfaction
of all of the applicable other terms and conditions
pertaining to such sale of the Completed New Agency Home to
the Qualified Homebuyer under the Agreement.
Section 33334.3 Covenant. The words "Section 33334.3
CovenantH mean the Redevelopment Agency of the City of San
Bernardino Community Redevelopment Housing Affordability
Covenants and Restrictions by and among the Qualified
Homebuyer, the Developer and the Agency pertaining to the
New Home, and the Completed New Agency Home, as applicable.
Work. The word "WorkH refers LO all of the activities of
the Developer which may hereafter be undertaken on a Agency
Lot subject to tr.e terms and conditions of the Agreement.
The Work includes: (i) the preparation of the Agency Lot
for the construction of the New Agency Home including. the
installation of all off-site public improvements and
utility connections as required; (ii) the construction of
the New Agency Hcme in accordance with the New Agency Home
Plans; and (iii) the Real Estate Sales and Marketing Work.
Section 1.02.
Parties to the Agreement.
(a) The Agency. The Agency is a public body,
corporate and politic, exercising governmental functions and
powers and organized and existing under Chapter 2 of the
Community Redevelopment Law of the State of California (Health
and Safety Code Section 33020, et ~.) The principal office of
':'~-_~-.J3 A.'1?~:-le.,;i0.;t~<)"io: 2e'Je:Jp~er.t Aq~ee"'e~.:
8
the Agency is located at 201 North "E" Street, Suite 301, San
Bernardino, California 92401.
Inc. ,
mailing
is:
(b) The Developer. The
a California corporation.
address of the Developer for
Developer ANR Industries,
The principal office and
purposes of this Agreement
Section 1.03. Prohibition Against Change in
Ownership, Management and Control of Developer and Assignment of
Agreement. The qualifications and identity of the Developer are
of particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into
this Agreement with the Developer. No voluntary or involuntary
successor in interest of the Developer shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
Except as set forth in Section 3.03, prior to the
completion of the Project the Developer shall not assign all or
any part of this Agreement, or any rights hereunder, without the
prior written approval of the Agency Executive Director, which
approval shall not be unreasonably conditioned, withheld or
delayed. For the purpose of this Agreement, the words
"completion of the Project" mean and refer to the date by which
the Developer has caused both the Completed New Agency Home to
be sold to a Qualified Homebuyer and the date on which the
Developer has also caused at least ten (10) New Homes to be sold
to Qualified Homebuyers; provided however, that both the New
Agency Home Escrow and the tenth (loth) New Home Escrow shall
each be closed by a date not later than as indicated in the
Schedule of Performance.
The Developer shall promptly notify the Agency in
writing of any material change in the identity of the parties
either comprising or in control of the Developer, as well as any
and all changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer
or any of its partners or officers has been notified or may
otherwise have knowledge or information. This Agreement may be
terminared by the Agency prior to the completion of the Project
if there is any material change, whether voluntary or
involuntary, in membership, ownership, management or control of
the Developer (other than such changes occasioned by the death
or incapacity of any individual shareholder or officer) that has
not been approved by the Agency prior to the time of such change
or the Age:1cy may seek other appropriate relief in the event
-J3-::-"] ANR-Meadc''':;~:;;:( Develapment Aqreement
9
that at any time following the initial disbursement of the
Affordable Housing Development Grant p~ior to the completion of
the Project such a material change occurs in the ownership, or
control of the Developer, the Developer's interest under the
Agreement or the Developer's ownership interest in the Developer
Lots or any portion thereof; provided, however, that (A) the
Agency shall first notify the Developer in writing of its
intention to terminate this Agreement or assert any other such
remedy, and (B) the Developer shall have thirty (30) calendar
days following its receipt of such written notice to commence
and thereafter diligently and continuously proceed with the cure
of the default of the Developer hereunder and submit evidence of
the initiation of satisfactory comple1:ion of such cure to the
Agency in a form and substance deemed satisfactory to the
Agency, in its reasonable discretion.
For the purpose of this Section 1.03 the words
"material change" refer to any total or partial sale,
assignment, or conveyance, or any trust power or any transfer in
any other mode or form by the Develope~ of more than a forty-
nine percent (49%) interest of the ownership of the Developer,
and/or a series of such sales, assignments or conveyances which
in the aggregate exceed a disposition or change of more than a
fo~ty-nine percent (49%) interest of the ownership of the
Developer.
Section 1.04. Benefit to prcject A~eas. The Agency
has determined that the redevelopment of the Developer Lots by
the Developer in accordance with this .'\.greement will eliminate
blight and p~ovide needed affordable housing to the Meadowbrook
Redevelopment Project Area as well as to areas in proximity
thereto, which housing is needed due to the insufficiency of new
affordable housing within the City generally.
Section 1.05. List
following is a listing of
Agreement. Each such exhibit
reference into the text of this
of Exhibi~s to Agreement.
the Exhibits attached to
is inco~porated by this by
Agreeme~.c :
The
this
this
EXHIBIT "A"
Legal Description of Agency Lot
EXHIBIT "B"
Form of Agency Lice~,se Agreement (may affect
the Agency Lot)
EXHIBIT "C"
Legal Description of Developer Lots
EXHIBIT "D"
Form of Notice of Ag~eement
2}-'22-,23 .~_"R-Meacc'''''cr::'o~ 2e'leiopmer.t Aqre'lment
10
EXHIBIT "E"
EXHIBIT "F"
EXHIBIT "G"
EXHIBIT "H"
EXHIBIT "I"
Project Description/Scope of Development
Schedule of Performance
Form of Section 33334.3 Covenant
Copy of HUD Mortgagee Letter 2000-30
Form of Agency Grant Deed (for Completed New
Agency Home)
ARTICLE II
DISBURSEMENT OF AFFORDABLE HOUSING DEVELOPMENT
GRANT AND DISPOSITION OF AGENCY LOT
Section 2.01. Affordable Housing Development Grant.
(a) Subject to the terms and conditions set forth in
this Agreement, the Agency hereby allocates and reserves the sum
of Five fiur.dced Thousand Dollars ($500,000) to the Developer for
disbursement in installments (the Affordable Housing Development
Grant) as provided in this Section 2.01 in support of the
Project.
(b) Provided that the Developer has delivered its Due
Diligence Approval Certificate to the Agency as provided in
Section 2.03, and provided that the Agency conditions precedent
set forth in Section 2.17 have been satisfied, the Agency shall
disburse the Affordable Housing Development Grant to the
Developer in installments as follows:
(i)
Initial disbursement: the
of fee title interest of
(19) Developer Lots, the
the sum of $75,000 to the
in Section 2.01(c);
Developer's acquisition
not less than nineteen
Agency shall disburse
Developer as provided
(ii) Second disbursement: upon the recordation of a
construction loan in favor of the Developer for
the financing of the construction of not less
than eleven (11) New Homes on eleven (11)
Developer Lots designated by the Developer, the
Agency shall disburse the sum of $75,000 to the
Developer as provided in Section 2.01(e);
J3-n-.)J A.\;",-Mea::i?'..;b~::;: :'e'.el:cme:lc .'\.c;,ae::>ent
11
(iii) Third disbursement: upon the issuance by the City
to the Developer of certificates of occupancy for
completed New Home Nos. 1 through 11 inclusive,
the Agency shall disburse the sum of $125,000 to
the Developer as provided in Section 2.01(f);
(iv) Fourth disbursement: upon the issuance by the
City to the Developer of certificates of
occupancy for completed New Home No. 12 through
19 inclusive, the Agency shall disburse the sum
of $125,000 to the Developer as provided in
Section 2.01(g);
(v) Fi fth disbursement: upon the completion of the
Project, as defined in Section 1.03 and receipt
by the Agency of the Developer's certification of
actual Project development costs incurred as
provided in Section 2.05, the Agency shall
disburse the sum of $100,000 to the Developer as
provided in Section 2.01 (h) .
(c) Provided the other Agency condi tions precedent
set forth in Section 2.17 have been satisfied, the initial
disbursement. or the Affordable Housing Development Grant shall
be payable co the Developer within thirty (30) days following
receipt by the Agency Executive Director that the Developer has
submitted the following documents to the Agency:
(i) Due Diligence Approval Cercificate; and
(ii) evidence as reasonably satisfactory to the Agency
Executive Director that the Developer has
obtained a binding coromitment from a reputable
construction lending institution to provide the
Developer with a construction loan in an amount
sufficient, when combined with the equity f'.mds
of the Developer, to fund the construction and
improvement of noc less than eleven (11) New
Homes on the Developer Lots, and the construccion
of the New Agency Home on the Agency Lot; and
(iii) evidence as reasonably satisfactory to the Agency
Executive Director that the Developer has
acquired fee title interest in not less than
nineteen (19) of the Developer Lots.
'-']-:~= -]3 ;":;i<-Mea::!:;..t:[:;'2 . = ",.:",~ ::O:]1'.en: Agreement
1 ~
~L
Evidence that the condition of subparagraph (iii),
above has been satisfied, may be provided to the Agency
Executive Director by a written acknowledgment of a title
insurance company which confirms that it has caused the deeds to
be recorded whereby the Developer acquires fee title in the
Developer Lots concurrently upon the recordation of the Notice
of Agreement and the disbursement of the initial installment of
t:he .Z\ffordable Housing Development Grant through an escrow of
such title insurance company for the account of the Developer.
(d) Upon the initial disbursement of the Affordable
Housing Development Grant the Developer shall execute and cause
to be recorded the Notice of Agreement (See: Exhibit "DN)
against each of the Developer Lots at no cost to the Agency.
The Developer shall provide the Agency with evidence
satisfactory to the Executive Director that the Notice of
Agreement has been recorded against each of the Developer Lots,
subject only to permitted financing liens for the Project as
described in Section 3.04.
(e) Provided that the Developer is not then in
default under this Agreement, the second disbursement of the
P,ffordable Housing Development Grant shall be payable to the
Developer concurrently upon the recordation of the construction
10a!1 as previously approved by the Executive Director of the
Agency under Section 2.01(c), which construction loan shall
provide for an initial disbursement: to the Developer by such
lending institution of at least $100,000 for Project development
costs, for t:he improvement of eleven (11) New Homes on the
Developer Lots. The Developer shall provide the Agency with at
least thirty (30) days written notice of the date on which the
Developer reasonably believes the recordation of such
cor.st:ruction loa!1 shall occur, the Agency shall pay the second
insc:allment of the Affordable Housir.g Development Grant for the
account of the Developer through the construction loan
disbursement escrow account: established by such construction
lender and the Developer.
(f) Provided the Developer is not then in default
under this Agreement, the third disbursemer.t of the Affordable
Housing Development Grant shall be payable to t:he Developer
wi thin thirty (30) days following the receipt by the Agency of
written certification from the Developer that t:he City has
issued certificates of occupancy for completed New Home Nos. 1
through 11, inclusive.
'~]-':'2-';} A."i"-Mea:i:c'"cr::;o.: ::e']e~0pr,e~.: .".cjreerr.e:1t
13
(g) Provided the Developer is not then in default
under this Agreement, the fourth disbursement of the Affordable
Housing Development Grant shall be payable to the Developer
within thirty (30) days following the receipt by the Agency of
written certification from the Developer that: (i) the Developer
has caused at least six (61 New Homes to be sold to Qualified
Homebuyers; and that (ii) the City has issued certificates of
occupancy for completed New Home Nos. 12 through 19, inclusive.
(h) Provided the Developer is not then In default
under this Agreement, the fifth and final disbursement of the
Affordable Housing Grant shall be payable to the Developer
wi thin thirty (30) days following the receipt by the Agency of
written certification from the Developer that its actual and
reasonable Project development costs incurred as of the
completion of the Project are not less than $4,162,011 as shown
in the proj ect development cost pro forma as on file with the
Agency.
(i) In the event that the final Project development
cost certification under Section 2.01(h) indicates that the
actual and reasonable Project development costs are less than
the product of the actual number of Developer Lots fully
improved olus the New Agency Home multiplied by the sum of
$159,218 is less than $3,184,360, then In such event the
Affordable Housing Development Grant shall be reduced by a ratio
of $1 for each $8.33 that such actual and reasonable Project
development costs are less than $3,184,360.
Section 2.02.
Disposition of the Agency Lot.
la) Provided that the Developer has delivered its Due
Diligence Approval Certificate to the Agency as provided in
Section 2.03, the Agency shall make the Agency Lot available to
disposition to a Qualified Homebuyer as designated by the
Developer subject to the following conditions:
Ii) the Developer shall have indicated in its Due
Diligence Certificate that it intends to
undertake the Work on the Agency Lot subject only
to an approving majority vote of the governing
board of the Agency in its discretion in
accordance with Health and Safety Code Section
33433, authorizing the execution of the Agency
License Agreement and the disposition of the
Agency Lot, as improved by the Developer with the
.J]~,)2-.)3 A:,R-~ea.:jo..',=,~':o~ :e-.'e~QP:ne~,~ Aq!"ee.'1',ent
14
Completed New Agency Home, to a Qualified
Homebuyer as designated by the Developer at a
sales price (the Completed New Agency Home
Purchase Price) which is not more than the
$25,000 land purchase price paid by the Agency
for the Agency Lot, plus the Net Development Cost
estimate for the Completed New Agency Home, based
upon the Developer's written budget for the
improvement of the New Agency Home in accordance
with the New Agency Home Plans;
(ii) the Agency shall have approved the New Agency
Home Plans, the amount of the Completed New
Agency Home Purchase Price and the Net
Development Cost estimate as submitted by the
Developer, as part of the public hearing for the
disposi tion of the Completed New Agency Home as
set forth in subparagraph Ii), above;
(iii)
provided that
subparagraphs
the Developer
Agency License
the conditions described in
Ii) and (ii) have been satisfied,
and the Agency have executed the
Agreement;
liv) the other conditions set forth in Section 2.17(b)
have been satisfied.
Ib) Provided the Agency has authorized the
disposition of the Completed New Agency Home to a Qualified
Homebuyer, as set forth in Section 2.02 la) Ii), the parties shall
complete the final form of the l\gency License l\greement. The
final form of the Agency License JI.greement shall set forth the
Completed New Agency Home Purchase Price based upon the Net
Development Cost estimate and shall include a complete and
itemized budget and description of the Work to be undertaken by
the Developer on the Agency Lot and a schedule for the
completion of such Work. The Agency License Agreement shall
also include acknowledgment by the Agency that the Developer may
create and the Agency shall cooperace with the recordation of a
construction loan security interest in the Agency Lot in favor
of the Developer's construction lender to provide the Developer
with a portion of the estimated cost of improvement of the New
Agency Home in an amount not to exceed eighty percent 180%) of
the Developer's estimated Net Development Cost for the Completed
New Agency Home. The Developer shall construct and install the
New Agency Home on the Agency Lot in a good and workman like
CJ-,:.2-GJ A.'JR-M,"ad<=,,"'br:o:o:< ;)eve::;pmer.: Aqreemet1t
15
manner, as provided in the final form of the Agency License
Agreement.
Icl Upon the completion of the Work on the Agency Lot
by the Developer, the Agency shall transfer and sell all of its
right, title and interest in the Agency Lot as improved with the
Completed New Agency Home to the Qualified Homebuyer designated
by the Developer. The Completed New Agency Home Purchase Price
payable by such Qualified Homebuyer to the Agency for the
Completed New Agency Home shall be an amount which does not
exceed the actual Net Development Cost for the Completed New
Agency Home as confirmed by the Net Development Cost Certificate
of the Developer, including the cost paid by the Agency for the
Agency Lot.
Idl The disposition of the Completed New Agency Home
to the Qualified Homebuyer designated by the Developer shall
take place through the New Agency Home Escrow to be administered
by the Escrow Holder. The New Agency Home Escrow shall be
deemed open ("Opening of New Agency Home Escrow") upon deli very
of a fully executed copy of the Agency License Agreement to the
Escrow Holder. The Escrow Holder shall promptly confirm to the
parties the escrow number and the title insurance order number
assigned to such escro',oJ. The Escrow Holder shall be a title
company or escro',; service as mutually acceptable to the Agency
and the Developer.
I e I Provided that the Developer and the l\gency have
jointly executed the Agency License Agreement, then the
Developer may thereafter take possession of the Agency Lot under
the Agency License Agreement, and cause the Work on the Agency
Lot to be undertaken. The words "Close of Escro1tJ, n "Closing
Date" and "Closing" in the case of the New Agency Horne Escrow
shall mean and refer to the date when the last of the following
has occurred: (i) the Developer has completed the Work on the
Agency Lot; (iil the Developer has submitted its Net Development
Cost Certificate to the Agency; (iii) the Developer has
designated a Qualified nomebuyer to purchase the Completed New
Agency Home and the Agency has issued its Notice of Agency
Concurre:1ce with respect to such Qualified Homebuyer; liv) the
Qualified Homebuyer has executed the escrow instructions as the
purchaser thereof; Iv) the Qualified Homebuyer and the Developer
have mutually satisfied all of the remaining conditions for the
close of New Agency Home Escrow; and (vi) the Escrow Holder is
in receipt of the Completed New Agency Home Purchase Price, the
fully executed form of the Section 33334.3 Covenant and all
necessary documents and the Escrow Holder lS in a position to
,~3-.~:-:; _;;''J,,-M,"aJ:::'..;i:,~:::;~ )evel:::::mell" Ac;re-;me:-.:
16
comply with the final written instructions of the parties and
cause the Agency Grant Deed for the Completed New Agency Home to
be recorded and the policy of insurance for the Completed New
Agency Home to be delivered to the Qualified Homebuyer.
(f) The Developer shall deliver to the Agency the
information relating to the Qualified Homebuyer described in
Section 2(e) of the Section 33334.3 Covenant, within five (5)
days following the Developer's designation of such Qualified
Homebuyer as the prospective purchaser of the Completed New
Agency Home. Concurrently upon the Developer's delivery to the
Agency of the household income and occupancy information
described in Section 2 (e) of the Section 33334.3 Covenant, the
Developer shall also request that the Agency issue its Notice of
Agency Concurrence with respect to the Qualified Homebuyer
designated by the Developer. Within ten (10) days following its
receipt of such written information and request from the
Developer relating to the Qualified Homebuyer, the Agency shall
provide the Developer with a preliminary confirmation of the
approval or rejection of the income and household occupancy
qualifications of the proposed Qualified Homebuyer. In the
event that the Agency may request additional information
relating to the confirmation of the matters described in tr.e
preceding sentence with respect to the Qualified Homebuyer, t::e
Developer shall cause such additional information to be provided
to the JI.gency as promptly as feasible. The Executive Directcr
of the Agency shall issue a preliminary determination of his
concurrence of the eligibility of the Qualified Homebuyer within
ten (101 days following receipt of such completed income and
household occupancy information. Provided that the proposed
Qualified Homebuyer also qualifies to obtain purchase money
~ortgage financing for the purchase of the Completed New Agency
Home wich cerms and costs not in excess of an Affordable Housing
Cost for such Quali f ied HomebiJyer, as evidenced by a written
mortgage lending contract by and between the Qualified Homebuyer
and a financial lending institution which is issued within sixty
(60) days following the Executive Director's preliminary
concurrence of the eligibility of the Qualified Homebuyer
designated by the Developer, the Executive Director of the
Agency shall issue a Notice of Agency Concurrence with respec:
to such Qualified Homebuyer to the Escrow Holder. In the event
that the Agency may later discover that the written information
provided to it in support of a request for issuance of a Notice
of Agency Concurrence is false or incorrect in any material
respect, then in such event the Agency may exercise all of its
remedies tc enforce the provisions of this Agreement and the
Section 33334.3 Covenant, if applicable, notwithstanding the
~'3-j=-OJ ;:UJR-~e!l:::'..Dr~:,.; :'evel.op:ne;-,t Ac;~eemen:
17
fact that a Notice of Agency Concurrence may have been issued in
favor of a particular Qualified Homebuyer.
(g) The Developer and the Agency mutually covenant
and agree to execute all necessary or appropriate written escrow
instructions as may be reasonably requested by the Escrow Holder
in connection with the New Agency Home Escrow. The Developer
shall be solely responsible for the payment of the escrow
cancellation costs of the Escrow Holder in any event of
cancellation.
(h) On or before 12: 00 noon on the business day
preceding the Closing Date, the Agency shall deliver to the
Escrow Holder a grant deed for the Completed New Agency Home in
the form attached hereto as Exhibit "I" (the "Agency Grant
Deed") duly executed and acknowledged by the Agency, which
Agency Grant Deed shall convey all of the right, title and
interest of the Agency in the Completed New Agency Home to the
Qualified Homebuyer. The Escrow Holder shall be instructed to
record the Agency Grant Deed in the Official Records of San
Bernardino County, California, if and when Escrow Holder holds
the various instruments and funds for the accounts of the
parties as set forth herein a'1d can obtain for the Qualified
Homebuyer a CLTA owner's extended coverage policy of title
insurance ("Title Policy") iss'.led by a title insurance compa'1Y
mutually agreed upon by the parties ("Title Company") with
liabili ty in an amount equal to the Completed New Agency Home
Purchase Price insuring that the Completed New Agency Home
consists of a legal subdivided parcel of land with fee title
vested ~'1 ~~e Qualified Homebuyer and subject only to:
'1
\ -
non-delinquent real property taxes;
(2) the provisions of the Agency Grant Deed for the
Completed New Agency Home;
(3) the Section 33334.3 Covenant;
(4) the matters described in 2.13;
(5) such other title exceptions, if any, resulting
from documents bei'1g recorded or delivered
through the Qualified Homebuyer Escrow (Agency
Lot), including without limitation the purchase
money mortgage security interest of the lending
institution providing a purchase money mortgage
~_ .~ '._ A~"?,-.".~.;::~'~:::::;~ :""/e~;;pmen: Agr"e:nel'.~
18
loan to the Qualified Homebuyer, secured by the
Completed New Agency Home.
(i) The Agency shall pay the Developer the Net
Development Cost for the Completed New Agency Home solely from
the proceeds of the Completed New Agency Home Purchase Price
paid by the Qualified Homebuyer at the Close of the New Agency
Home Escrow. No other source of funds of the Agency is
available to the Agency or to the Developer to pay the amount of
the Net Development Cost for the construction, improvement and
sale of the Completed New Agency Home. Notwithstanding the
special fund limitation on the source of Agency funds to pay the
Developer the Net Development Cost, any proceeds of insurance
carried or obtained by the Developer to pay for a property
casual ty loss or destruction to the New Agency Home which may
occur prior to the Close of the New Agency Home Escrow, shall be
used and applied following the occurrence of any such loss or
destruction of the New Agency Home as provided in the Agency
License Agreement.
Section 2.03. Developer Agreement to Undertake the
Prolect. Subject to the satisfaction of the conditions
precedent set forth in Section 2.16, the Developer hereby agrees
to undertake the Project, including the Work on the Agency Lot.
The projecc shall be undertaken in accordance with the schedule
of improvemenc set forth in the Schedule of Performance.
Section 2.04.
Qualified Homebuyers.
Sale
of
Completed
New
Homes
to
(al The Develocer shall designate the twelve (12) New
Homes whic:-, it shall sell to Qualified Homebuyers. Each New
Home whic:-, t:-,e Developer proposes to sell to a Qualified
Homebuyer shall be transferred to such Qualified Homebuyer
through a New Home Escrow. The .Z\.gency shall not be a party to
any such New Home Escrc'^'. The Developer shall instruct the
holder of the New Home Escrow, that the escrow holder shall
comply with the provisions of Section 2.04 (d) of this Agreement
and at the close of eac", New nome Escrow, the escrow holder
shall provide the Agency with a copy of both the "seller'sff and
the "buyer'sff closing statement, together with a complete copy
of the real estate sales agreemenc between the Developer and the
Qualified Homebuyer for the New Home.
(0) The Develcper
information relating to che
Section 2 (el of the Section
shall deliver to the Agency the
Qualified Homebuyer described in
33334.3 Covenant, within five (5)
'1)-02-0J ANR-.'1eadm.;cr::{ ~eve::Jpme:l~ A;;r'-!e:nent
19
days following the Developer's designation of such Qualified
Homebuyer as the prospective purchaser of the New Home.
Concurrently upon the Developer's delivery to the Agency of the
household income and occupancy information described in Section
2 (e) of the Section 33334.3 Covenant, the Developer shall also
request that the Agency issue its Notice of Agency Concurrence
with respect to the Qualified Homebuyer designated by the
Developer. Wi thin ten (10) days following its receipt of such
written information and request from the Developer relating to
the Qualified Homebuyer, the Agency shall provide the Developer
with a preliminary confirmation of the approval or rejection of
the income and household occupancy qualifications of the
proposed Qualified Homebuyer. In the event that the Agency may
request additional information relating to the confirmation of
the matters described in the preceding sentence with respect to
the Qualified Homebuyer, the Developer shall cause such
additional information to be provided to the Agency as promptly
as feasible. The Executive Director of the Agency shall issue a
preliminary determination of his concurrence of the eligibility
of the Qualified Homebuyer within ten (10) days following
receipt of such completed income and household occupancy
information. Provided that the proposed Qualified Homebuyer
also qualifies to obtain purchase money mortgage financing for
the purchase of the New Home with terms and costs not in excess
of an Affordable Housi:1g Cost for such Qualified Homebuyer, as
evidenced by a written ~ortgage lending contract by and between
the Qualified Homebuyer and a financial lending institution,
which is issued 'within sixty (60) days follo'wing the Executive
Director's preliminary concurrence of the eligibility of the
Qualified Homebuyer designated by the Developer, the Executive
Director of the Agency shall issue a Notice of Agency
Concurrence to the Escrow Holder. In the event that the Agency
may later discover that the written information provided to it
in support of a request for issuance of a Notice of Agency
Concurrence is false or incorrect in any material respect, then
In such event the Agency may exercise all of its remedies to
enforce the provisions of this Agreement and the Section 33334.3
Covenant, if applicable, notwithstanding the fact that a Notice
of Agency Concurrence may have been issued in favor of a
particular Qualified Homebuyer.
(c) The Developer and the Agency mutually covenant
and agree to execute all necessary or appropriate written escrow
instructions as may be reasonably requested by the escrow holder
in connection with the New Horne Escrow.
]}-;:-)3 .;NR-~ea~~~c~~~~ ~evelcp~e~~ Aq,eeree~:
20
(d) Each New Home Escrow shall close upon
satisfaction of the applicable escrow conditions by and between
the Developer and such Qualified Homebuyer and when the escrow
holder confirms that:
(i)
it is in receipt of the
Concurrence for the Qualified
Notice of
Homebuyer;
Agency
(ii) the escrow holder shall
recorded a fully executed
33334.3 Covenant for the New
have
from
Home;
recei ved and
of the Section
and
(iii) the escrow holder shall provide the Agency with
evidence in the form of a policy of title
insurance in favor of the Agency which insures
that the Section 33334.3 Covenant is subject only
to the lien for property taxes and the lien in
the New Home of the senior purchase money
mortgage lender to the Qualified Homebuyer.
Ie) In the event that the New Home Escrow may fail to
close for any reason, the Developer shall cause such New Home
Escrow to be cancelled. The Developer shall pay for all of the
costs and expenses of such New Home Escrow and shall indemnify,
defend and hold the Agency harmless from any such costs which
may otherwise have been assessed or charged to the Agency.
Section 2.05.
[Prolect Development Cost Pro Forma]
la) As of the Effective Date of this Agreement, the
Developer has presented the Agency with a Project development
cost pro forma as on file with the Agency. The Agency has
elec::ed to provide the Affordable Housing Development Grant to
the Developer based upon the Project development cost est~mate
presented by the Developer in the Project development cos:: pro
forma.
(b) In the event that as of the date of the
submission of the certificate of the Developer under Section
2.01 (h), the actual and reasonable proj ect development costs as
incurred are less the sum of the product of the actual number of
Developer Lots fully improved multiplied by $159,218 is less
than $3,662,014, then in such event, the Affordable Housing
Development Grant shall be reduced by a ratio of $1 for each
$8.33 that such actual and reasonable Project development costs
are less than $3,184,360.
';}~:,:-'JJ NJ,,~:-te3jc'..I:::::: J'!'/e~')~~en: Agree:ner.t
21
(c) The Developer shall maintain accounting books and
records of Project development costs incurred in accordance with
generally accepted principles of business accounting. The
Agency shall have the right to conduct at its expense the
accounting books and records of the Developer relating to the
proj ect upon the request of the Agency. The Developer shall
cooperate with the Agency in the production of its accounting
books and records as reasonably required by the Agency and its
auditors ~o conduct an audit of actual Project development
costs.
(d) In the event that the Agency determines that any
portion of the Affordable Housing Development Grant is
refundable by the Developer to the Agency as a result of the
certifica~ion of the Developer under Section 2.05(b) or the
audit of ~he Agency under Section 2.05 (c), then the Developer
shall re::,.it the such portion of the Affordable Housing
Developmen~ Grant to the Agency within thirty (30) days of
written de~and therefore by the Agency.
Section 2.06. Developer to Exercise Best Efforts to
Obtain Add::.tlonal Developer Locs. The Developer shall exercise
best effor~s to obtain at least three (3) additional parcels of
land fro~ third parties in the neighborhood in which the Project
shall be ~ndertaken. All such additional parcels of land as so
acquired ::,y the Developer shall be deemed "Developer Lots" for
the purpose of this Agreement, and the Developer shall construct
and insta~~ New Homes on each such parcel. In the event that
the Develcper may fail to acquire and improve at least three (3)
such addi~::.onal parcels of land before the date set forth in the
Schedule ~- Performance, the Developer acknowledges that the
amount of the Affordable Housing Development Grant shall be
subject tc a reduction or partial refund to the Agency as set
forth in Section 2.05.
Section 2.07.
[RESERVED - NO TEXT]
Section 2.08.
Inspection and Review of Agency Lot.
~';ithin fifteen (15) days following the Sffective Date,
the Agency shall deliver true, correct and complete copies or
originals 8f the following documents and items (collectively,
"Due Diligence Items") to the Developer as relate to the Agency
Lot:
. i I
copies of all
toxic waste,
soils, seismic,
engineering,
geologic, drainage,
environmental and
:o~;:-)3 A~?-~e~~~~~~;:~ Deve.oprnen~ ~~,eerne~t
22
similar type reports and surveys (including, but
not limited to, any Environmental Site
JI.ssessments of the Agency Lot), if any, in the
possession or control of the Agency and
correspondence relating thereto, if any, within
the Agency's possession or control;
Iii) notices of violations, including, but not limited
to, zoning ordinances, development or building
codes affecting the Agency Lot the Agency's
possession or control;
(iii) disclosure of any legal
or condition of the
knowledge of the Agency;
matters affecting the
Agency Lot within
use
the
liv) a preliminary title insurance report on the
Agency Lot issued by the Title Company;
(v) a copy of the real estate purchase agreement by
and between the Agency and the United States
Secretary of the Department of Housing and Urban
Development for the Agency's purchase of the
Agency Lot from the United States Secretary of
the Department of Housing and Urban Development.
Section 2.09. Due
Agency Lot and the Project by
Diligence Investigation
the Developer.
of
the
la) For sixty (60) days from the Effective Date, and
subject to the extensions of time set forth below in Section
2.15, the Developer shall have the right to examine, inspect and
investigate the Developer Lots and the Agency Lot (the "Due
Diligence Period") to determine whether their condition, and the
undertaking of the Project thereon by the Developer, is
acceptable to the Developer in its sole and absolute discretion.
(b) During the Due Diligence Period, the Agency shall
permit the Developer, its engineers, analysts, contractors and
agents cO conduct such physical inspections and testing of the
Agency Lot as the Developer deems prudent with respect to the
physical condition of the Agency Lot, including the inspection
or investigation of soil and subsurface soil geotechnical
condition, drainage, seismic and ocher geological and
topographical matters, and for purposes of surveying the
potential presence of any hazardous substances, if any. Any
such investigation work on the Agency Loc may be conducted by
:;:;-.^,:- 3 ;'~'i;;-~e"~o',,,b,:JQ', ['e."e~'QP:ne": Ag,eem":lt
23
the Developer and/or its agents during any normal business hours
upon seventy-two (72) hours prior notice to the Agency, which
notice will include a description of any investigation work or
tests to be conducted by the Developer on the Agency Lot. Upon
the Agency's request, the Developer will provide the Agency with
copies of any test results.
(c) During the Due Diligence Period, the Developer
shall also have the right to investigate all other matters
relating to the proj ect, including the zoning, use and
compliance with other applicable laws which relate to the use
and development and improvement of the Project, including the
Agency Lot. The Agency shall cooperate fully to assist the
Developer in completing such inspections and investigations of
the condition of the Agency Lot. The Agency shall have the
right, but not the obligation, to accompany the Developer during
such investigations and/or inspections of the Agency Lot.
Section 2.10.
Due Diligence Approval Certificate.
(a) Within sixty (60) days following the Effective
Date, the Developer shall complete its investigation of the
Developer Lots, the Agency Lot and the proj ect (subj ect to the
extensions of time set forth in Section 2.15) and deliver a due
diligence approval certificate signed by the Developer (the "Due
Diligence Approval Certificate") to the Agency which either:
(i)
indicates
wi th the
the Work
condition
that the Developer is ready to proceed
Project, including the performance of
on the Agency Lot and accepts the
of the Agency Lot or;
(" "
\ ll,~
indicates that the Developer
proceed with the Project.
has
elected not
to
(b) In the event that the Developer submits its Due
Diligence Approval Certificate to the Agency under subparagraph
(i) of Section 2.10(a), the Developer shall include in such
submission a set of New Agency Home Plans for the Agency Lot,
together with an itemized written budget estimates for the Net
Development Cost payable by a Qualified Homebuyer for the
Completed New Agency Home. Such New Home Plans and Net
Development Cost estimates shall be in a form as reasonably
acceptable to the Executive Director of the Agency and such
acceptance by the Executive Director shall not be unreasonably
withheld, conditioned or delayed by the Executive Director. The
Agency shall schedule a public hearing for the consideration of
,)J~; 2- ,J .;.';:; -~ea:::.c.'::r:o ~ :e'ie ~;;t;;me",: A::j ~eeme~ ~
24
the disposition of the Completed New Agency Home to a Qualified
Homebuyer designated by the Developer in accordance with Health
and Safety Code Section 33433 within thirty (30) days following
its receipt of such a Due Diligence Approval Certificate.
(c) In the event that the Agency may in its sole
discretion, determine that it shall not approve the disposition
of the Agency Lot upon the conclusion of the public hearing
described in Section 2.01 (a) (ii), the parties shall be mutually
released and discharged with respect to any further right, duty
or obligation with respect to the Project.
(d) In the event that the Developer may at its sole
discretion, indicate in its Due Diligence Approval Certificate
its election not to proceed with the Project, or in the event
that by a date no later than ninety (90) days following the
Effective Date, the Developer may fail to deliver its completed
Due Diligence Approval Certificate to the Agency for any reason,
then in such event, the parties shall be mutually released from
any further obligation or liability under this Agreement.
Section 2.11. Books and Records of the Agency
Relating to 1:he .z'.gency Lot. As part of the Developer's due
diligence investigations during the Due Diligence Period, the
Developer shall be afforded full opportunity by the Agency to
examine all books and records which relate to the Agency Lot in
the possession of the Agency and/or the Agency's agents or
e~ployees, including the reasonable right to make copies of such
books and records. During the Due Diligence Period, the Agency
will make sufficient staff available to assist the Developer
with obtaining access to information relating to 1:he Agency Lot
which is i~ the possession or co~trol of Agency.
Section 2.12. Condition of the Agency Lot;
Developer's Release. The Developer acknowledges and agrees that
it shall be given a full opportunity under this Agreement to
inspect and inves1:igate every aspect: of the Agency Lot during
the Due Diligence Period. The Developer shall accept the
delivery of possession to the Agency Lot in an "AS IS,u "WHERE
IS" and "SUBJECT TO ALL FAULTSu condition. The Developer
further agrees and represents to the Agency that by a date no
later than the end of the Due Diligence Period, the Developer
shall have conducted and completed (or waived the completion) of
all of its independent investigation of the condition of the
Agency Lot which the Developer may believe to be indicated. The
Developer hereby acknowledges that it shall rely solely upon its
own inves1:igation of the Agency Lot and its own review of such
;',<.:-.~3 .:"'''P.-Meacj",...::r-::-::~ :e','e:;)~1".e~.~ Agreement
25
information and documentation as it deems appropriate for the
purpose of accepting the condition and possession of the Agency
Lot. The Developer is not relying on any statement or
representation by the l\gency relating to the condition of the
Agency Lot unless such statement or representation is
specifically contained in this Agreement. Without limiting the
foregoing, the Agency makes no representation or warranty as to
whether the Agency Lot presently comply with Environmental Laws
or whether the Agency Lot contain any Hazardous Substance.
Furthermore, to the extent that the Agency has provided the
Developer with information relating to the condition of the
Agency Lot, including information and reports prepared by or on
behalf of the City of San Bernardino, the Agency makes no
representation or warranty with respect to the accuracy,
completeness or methodology or content of such reports or
information.
Without limiting the above, except to the extent
covered by an express representation or warranty of the Agency
set forth in this Agreement, the Developer, on behalf of itself
and its successors and assigns, waives and release the Agency
and its successors and assigns from any and all demands, claims,
legal or administrative proceedings, losses, liability, damages,
penalties, fines, judgments, costs or expenses whatsoever
(i~cludingf without l~~itation, attorneys' fees 2~d costs),
whether direct. or indi :-ect, known or unknown, foreseen or
unforeseen, arising fror:-, or relating to the physical condition
of the Agency Lot or ar,y law or regulation applicable thereto,
including the presence or alleged presence of harmful or
hazardous substances 2-:1, under or about the Agency Lot
including, without limication, any claims under or on account of
(i) CERCLl\ and similar statutes and any regulations promulgated
thereunder or (ii) any o~her environmental laws.
The Developer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable la'^, which generally provides that the
general release does :1ot extend to claims which the creditor
does not kno'^, of suspect: to exist in his or her favor at the
time the release is agreed to, which, if known to such creditor,
would materially affect a settlement. By execution of this
Agreement:, the Developer acknowledges that it fully understands
the foregoing, and with this understanding, nonetheless elects
to and does assume all risk for claims known or unknown,
described i:1 this Section 2.12 without limiting the generality
of the foregoing:
03-:~-:'J ."J'Ii<-!<Iead.:;'..:;::-:~': "e'''e,:::''men~ Agreo."'er.:
26
The undersigned acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California Civil
Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR.ff
The undersigned,
expressly waives
under any other
effect.
being aware of
any rights it may
statutes or common
this
have
law
code section,
thereunder, as
principles of
hereby
well as
similar
Initials of Developer:
The provisions of this Section 2.12 shall survive
the Close of the New Agency Home Escrow.
Section 2.13.
Title in the Agency Lot
Review and Approval
by the Developer.
of
Condition
of
(a) Within fifteen (15) days following the Effective
Date, the Agency shall cause to be delivered to the Developer a
preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company,
descr ibing the condition of title of the Agency Lot, together
with copies of all exceptions specified therein and with all
easements plotted but excluding matters disclosed on a survey
(the "Preliminary Title Report"). The Developer shall notify
the Agency in writing within ten (10) days of its receipt of
such preliminary title report ("Developer's Title Objection
Notice") of any objections the Developer may have to the title
exceptions contained in the Preliminary Title Report prior to
the expiration of the Due Diligence Period. The l\.gency shall
have a period of five (5) days after receipt of the Developer's
Title Objection Notice in which to deliver written notice to the
Developer ("Agency's Title Notice") of the Agency's election to
ei ther: (i) agree to remove the obj ectionable items prior to the
Close of the New Agency Home Escrow, or (ii) decline to remove
any such title exceptions and withdraw the Agency Lot from
availability for disposition under this Agreement; provided,
however, that the Agency shall be required to remove all
monetary liens and encumbrances created by or as a result of the
3]-,)2-,:3 A...'1?-Meadc;w;:,r;;ok :evf.':::lprr,er,~ Agreeroe:':t
27
Agency's activities. If the Agency notifies the Developer of
its election to withdraw the Agency Lot from availability for-
disposition under this Agreement r-ather than remove the
objectionable items, the parties shall be mutually released from
any further obligation with respect to the Agency Lot or the
Work.
(b) The Agency covenants not to further encumber and
not to place any further liens or encumbrances on the .l\gency
Lot, including, but not limited to, covenants, conditions,
restrictions, easements, liens, options to purchase, options to
lease, leases, tenancies, or other possessory interests without
the prior written consent of the Developer. Upon the issuance
of any amendment or supplement to the Preliminary Title Report
which adds additional exceptions, the foregoing right of review
and approval shall also apply to said amendment or supplement
(provided that the period for the Developer to review such
amendment or supplement shall be the later of the expiration of
the Due Diligence Period or- ten (10) days from receipt of tr.e
amendment or supplement)
Section 2.14.
RESERVED - NO TEXT.
Section 2.15. Extension of Due Diligence Period. _..
the event Agency fails to provide to the Developer the documents
and other information required by Sections 2.08 by the date (s:
set forth therein, the Due Diligence Per-iod for such informatio:c
shall be extended by one (1) day for each day of the delay by
the Agency to permit the Developer to per-form an adequate due
diligence review (but not to exceed a total of thirty (30
days.) The Developer will use its best efforts to notify Agency
of any documents the Agency has failed to deliver to the
Developer with~n the time periods provided in Sections 2.08 and
2.11.
Section 2.16. Developer's Conditions Precedent. The
Developer-'s obligation to acquire the Developer- Lots and to
under-take the Project, including taking possession of the Agency
Lot, shall be conditioned upon the fulfillment of the following
conditions precedent, all of which shall be satisfied (or waived
in writing pursuant to Section 2.19) prior to the initial
disbursement of the Affordable Housing Development Grant:
(1) The Agency shall not
material term of this Agreement
Agency hereunder;
have
to be
defaulted
performed
on
by
any
the
')3-':'2--:'} .:..NR-Mea.;i""'::;r:>~'''; ::e':e~op:l'.e": Aq:-ee:n"r.t
28
(2) the Developer has acquired the fee title interest
in each of the Developer Lots;
(3) the Developer's approval of the contents of all
Due Diligence Items, and the other investigations of the
Project, the Developer Lots and the Agency Lot made by the
Developer, on or before the expiration of the Due Diligence
Period, or such later date if the Due Diligence Period is
extended pursuant to Section 2.15.
(4) the Developer's approval of any notice of change
in representation or warranty given by the Agency pursuant
to Section 2.24(a)hereof;
(5) if the Developer has indicated in its Due
Diligence Approval its readiness to proceed with the
Project then the Agency shall have approved the disposition
of Lhe Agency Lot as set forLh in Section 2.02(a);
(6) if the Agency has approved the disposition of the
Agency Lot as provided in Section 2.02 (a) then the Title
Company shall have committed to issue the Title Policy, for
the Agency Lot in the form described in Section 2.02(h) and
the Developer and Lhe Agency have both executed the Agency
License Agreement;
(7) the Developer has obtained a cons truction
financing loan commitment to cover all costs of development
of at least eleven (11) of the Developer Lots, and the
Agency Lot (when combined with Developer equity), on terms
acceotable to the Developer;
(8) Lhe Agency shall have deemed satisfied (or waived
sa:isfaction of) each of the conditions precedent set forth
in Section 2.17;
(9) provided plans for the improvement of the
Developer Lots have been submitted to the City of San
Berr,ardino by the Developer wi thin days following
the Effective Date, the City of San Bernardino shall have
corr.pleted the plan check for the improvement of the New
Horr.es on the Developer Lots, and if applicable, for the
Agency Lot as approved by the City of San Bernardino
Planning Commission.
Agency's
Section 2.17.
obligation
The
to
Agency's
provide
Condi t ions Precedent. The
the Affordable Housing
~3-n-:3 A.'lR-~e~';.;'~::~cck [;e'"e~:J;::nen: Agreemen~
29
Development Grant and, if applicable, to permit the Developer to
enter the Agency Lot to perform the Work pursuant to the Agency
License Agreement and thereafter to transfer the Completed New
Agency Home to the Qualified Homebuyer designated by the
Developer shall be conditioned upon the fulfillment of the
following conditions precedent, all of which shall be satisfied
(or waived in wri t:ing pursuant to Section 2.19) prior to the
initial disbursement of the Affordable Housing Development
Grant:
(1) the Developer has submitted its Due Diligence Approval
Certification to the Agency on or before the date set
forth in this Agreement;
(2) if the Developer has elected in its Due Diligence
Approval Certificate to proceed with the proj ect then
the Agency shall have approved the disposition of the
Agency Lot as set forth in Section 2.02(b);
(3) the Developer has provided the Agency with
satisfactory evidence of the commitment of a lender to
provide construction financing to the Developer for
the cons~ruction and improvement of the New Agency
Horne and not less than eleven Ill) New Homes on the
Developer Lots, including all applicable development
fees, with an initial construction loan disbursement
amount: (when combined with Developer equity)
sufficient to construct and lmprove the New Agency
Heme and not less than eleven (11) of the Developer
Lots;
(4) the Developer shall nee be in default of any material
cerm of this Agreement to be performed by the
Developer hereunder and each representation and
warranty of the Developer made in this Agreement shall
remain true and correct;
(5) the Developer shall have satisfied (or shall be deemed
to have waived satisfaction of) each of the conditions
precedent set forth in Section 2.16.
Section 2.18.
RESERVED - NO TEXT .
Section 2.19. Satisfaction of Conditions Precedent.
Where satisfaction of any of tr.e conditions precedent in this
Agreement requires action by the Developer or by the Agency,
each party shall use its diligen: best efforts, in good faith,
J3-)~-,~3 ,'\."?-~e3.d:)'...L~::-;)': :-e':e::p:r.e:lc .;:;~eeme:lt
30
and at its own cost, to satisfy such condition. Where
satisfaction of any condition requires the approval of a party,
such approval shall be in such party's sole and absolute
discretion. Either party may waive any of the conditions set
forth in the Agreement, but any such 'waiver shall be effective
only if contained in a writing signed by the applicable party
and delivered to the other party.
Section 2.20. Termination. In addition to the
termination of this Agreement pursuar.c to Section 2.10 (c), in
the event of the conditions set forth in Section 2.16, in the
case of the Developer, or Section 2.17 in the case of the Agency
is not fulfilled within one hundred a"d twenty (120) days after
the Effective Date or waived by the applicable party pursuant to
Section 2 .19, either party may, at ics option, terminate this
Agreement upon written notice, and upon the issuance by either
party of such notice or termination, the parties shall be
mutually released from further obligacions hereunder, and all
documents delivered by the Developer to the Agency shall be
returned to the Developer and all documents delivered by the
Agency to the Developer shall be returned to the Agency.
Nothing in this Section 2.20 shall be construed as releasing any
party from liability for any defaJlt of its obligations
hereunder or breach of its representacions and warranties under
this Agreement occurring prior to che termination of this
~i;gree:T.e:'"lt. .
Section 2.21. RESERVED - NO ~SXT.
Section 2.22. RESERVED - NO cSXT.
Section 2.23. RESERVED - NO cSXT.
Sectior. 2.24. Representatio~.s and Warranties.
(a) Warranties and Represencations by the Agency.
The Agency hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Developer has been made in material reliance by
the Developer on such covenants, representations and warranties:
(i) Warranties True. Each and every undertaking and
obligation of the Agency under chis Agreement shall be
performed by the Agency timely when due; and that all
representations and warranties of the Agency under this
Agreemer.t and its exhibits shall De true in all material
respeccs as of the Effective Date.
:'J-'JZ~J3 ;.,;j"-;>!e3.(lQ'....t;[]~.: =e'le~opment Agree:ref,:
31
(ii) Due Organization. The Agency is a community
redevelopment agency, duly formed and operating under the
laws of California. The Agency has the legal power, right
and authority to enter into this Agreement and to execute
the instruments and documents referenced herein, and to
consummate the transactions contemplated hereby.
(iii) Requlsite Action. The Agency has taken all
requisite action and obtained all requisite consents for
agreements or matters to which the Agency is a party in
connection with entering into this Agreement and the
instruments and documents referenced herein and in
connection with the consummation of the transactions
contemplated hereby.
(iv) Enforceability of Agreement. The persons
executing any instruments for or on behalf of the Agency
have been authorized to act on behalf of che Agency and
that this Agreement is valid and enforceable against the
Agency in accordance with its terms and each instrument to
be executed by the Agency pursuant hereto or in connection
therewith will, when executed, shall be valid and
enforceaole against the Agency in accordance with its
terms.
(v) Use of Agency Low-Mod Funds. The sole source of
funds which the JI.gency used to acquire the Agency Lot and
which the Agency shall use to make disbursements to the
Developer of each installment of the Affordable Housing
Development Grant, shall be derived from the low-and
moderate-income housing set aside funds of the Agency (as
this term is defined at Health and Safety Code Section
33334.2 and 33334.3 (b)) and from no other source of fu'nds
of the Agency or the City of San Bernardino.
(b) Warranties and Representations by the Developer.
The Developer hereby makes the follO'wing representations,
covenants and warranties and acknowledges that the execution of
this Agreement by the Agency has been made in macerial reliance
by the Agency cn such covenants, representations and warranties:
(1) The Developer is a duly organized and
validly existing California corporation. The
Developer has the legal right, power and authority to
enter into this Agreement and the instruments and
documents referenced herein and to consummate the
(;-02-'-;3 ANP-~eado'..;;;~:JQ~ ~ev'O~oF:r,ent Ac;;reeTr.e:<c
32
transactions contemplated
executing this Agreement
ceferenced herein on behalf
cepresent and warrant that
power, right and authority to
hereby. The persons
and the instruments
of the Developer hereby
such persons have the
bind the Developer.
(2) The Developer has taken all requisite action
and obtained all requisite consents in connection with
entering into this Agreement and the instruments and
documents referenced herein and the consummation of
the transactions contemplated hereby, and no consent
of any other party is required for the Developec's
authorization to enter into this Agreement.
(3) This Agreement is, and all agreements,
instruments and documents to be executed by the
Developer pursuant to this Agreement shall be, duly
executed by and are or shall be valid and legally
binding upon the Developer and enforceable in
accordance with their respective terms.
(4) The Project development cost pro forma as
pcepared by the Developer and submitted to the Agency
as of the Effective Date is to the best information
and belief of the Developer, a fair and reasonable
pcesentation of the costs and expenses which the
Developer expects to incur as of the Effective Date
with respect to the development of the Project.
(5) The books and accounting records of the
Developer with respect to the improvement of the New
Agency Home and performance of any of the Work and the
final accounting for the Net Development Cost for the
Completed New Agency Home, shall conform co the
financial accountability standards of Attachment F of
Office of Management and Budget Circular A-lID, as
evidenced by a notacized statement by the certified
public accountant.
(6) The boo ks and account records of the
Developer with respect to its confirmation and
certification as provided in Section 2.05, of actual
Project development costs as incurred, shall conform
to generally acceptable principles of accounting.
(7) Neither the execution of this Agreement nor
the consummation of the transactions contemplated
')]-02-')] A."I?-Meac.;)\Ob: :s'~ Jev~loprnenc ,'I.,<:eement
33
hereby shall result in a breach of or constitute a
default under any other agreement, document,
instrument or other obligation to which the Developer
is a party or by which the Developer may be bound, or
under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of
any court or governmental body applicable to the
Developer.
(8) The Developer acknowledges that it has been
informed of the provisions of Labor Code Section 1720
by its legal counsel and that the Developer is aware
of the legal effect of its acceptance of the Agency
Affordable Housing Development Grant. The Developer
further represents and warrants to the Agency that the
Developer shall not accept any other financial
assistance from any other public agency in connection
with the Project, including the City of San
Bernardino, unless the Developer first complies with
the applicable provisions of Labor Code Section 1720
in connection with its acceptance of such other
assistance.
(9) The representations and war ran ties
Developer contained in this Section 2.24 (b)
based upon the actual knowledge of
of the
shall be
All representations
Section 2.24(b) are true and
the Effective Date.
and warranties contained in this
correct on the date hereof and on
(c) Change in Facts. If either party becomes aware
of any act or circumstance which would change or render
incorrect, in whole or in part, any representation or warranty
made by such party under this Agreement, whether as of the
Effective Date or any time thereafter and whether or not such
representation or warranty was based upon such party's knowledge
and/or belief as of a certain date, the Agency will give
i~~ediate written notice of such changed fact or circumstance to
the other party, but such notice shall not release such party of
its liabilities or obligations with respect thereto.
Section 2.25. Damage, Destruction and Condemnation.
If the Project suffers damages as a result of any casualty prior
to then the Developer shall give written notice thereof to the
Agency within thirty (30) days after the occurrence of the
casualty. The Developer elects in such notice to the Agency to
CJ-C:-'::, .~"R-~e3.j0''';C~.).)~ ::;e'Jeco>:r.lent Ar;~ee"'en:
34
either: (i) repair or replace such casualty loss or (ii) the
Developer may terminate this Agreement, in which case, the
balance of the Affordable Housing Development Grant as disbursed
to the Developer shall be promptly refunded to the Agency, and
upon the receipt by the Agency of such reimbursement, the
parties shall be mutually released from further responsibility
under this Agreement.
In the event that, prior to the completion of the
Project, any governmental entity shall commence any actions of
eminent domain or similar type proceedings to take any portion
of the Project, the Agency shall give prompt written notice
thereof to the Agency, and the Developer shall have the option
either: (i) to elect not to complete the Project and to promptly
refund the balance of the Affordable Housing Development Grant
as disbursed to the Developer and terminate the Agreement; or
(ii) the Developer may complete such portion of the Project as
not affected by such condemnation proceedings, in which case
Developer shall be entitled to retain the proceeds of such
taking; provided however, that the Developer shall reimburse the
Agency a portion of the balance of the Affordable Housing
Development Grant as previously disbursed to the Developer in a
pro rated amount for each Developer Lot as so acquired by a
third party public agency in eminent domain. The Developer
shall confirm the exercise of its election under subparagraph
(i) or (ii) of the preceding sentence within thirty (30) days of
its receipt of notice of the initiation of any such condemnation
proceedings affecting the Project.
Section 2.26.
Developer Market Reports to the Agency.
(a) From and after the date of the initial
disbursement of the Affordable Housing Development Grant by the
Agency to the Developer until the completion of the Project as
provided in Section 1.03, the Developer shall provide the Agency
with the following financial reports relating to the Project:
(i) within sixty (60) days of the end of each
calendar quarter and upon the request of the
Agency, a report on the status of the Project,
which shall include, at a minimum, the trial
balance, general ledger, cash receipt journal,
cash disbursements journal, sales journal, job
cost summary compared with the Project pro-forma,
bank statement, and quarterly profit and loss
statement, and schedule of cash flows and a
'~-02-:J3 ".NR-~ea,",~.~~:~c, ::.e'fo;,~cpmer.~ A',jreement
35
weekly sales report for New Homes, as applicable;
and
(ii) within one hundred twenty (120) days after the
end of each fiscal year of the Developer, an
annual unaudited financial statement, prepared by
the Developer for the Project, or, if obtained by
the Developer, an audited financial for the
Project.
(b) The Agency shall have the right to inspect the
business and financial records of the Developer as relate to the
Project and the presentation of the information described in
subsection (a), above and in Section 2.05 with respect to the
verification by the Agency of final Project development costs.
The Developer shall provide the Agency (and its auditors or
accountants) with reasonable access to such business records
upon reasonable prior notice from the Agency. The Agency shall
pay for its copying and accounting costs associated with
inspectio~ of the business records provided by the Developer to
the Agency for inspection.
ARTICLE III
DEVELOPMENT OF THE DEVELOPER LOTS AND THE AGENCY LOT
Section 3.01.
Development by Developer.
(a) Scope of Development. It is the intent of the
parties that the Developer Lots and, the Agency Lot shall be
developed as follows: (i) the construction by the Developer on
the Developer Lots of twenty three (23) single family detached
residential dwelling units (e.g., each a New Home), containing a
minimum interior living area of square feet each,
together with all on and off-site improvements such as streets,
curbs, sidewalks, storm drains, gut1::er, utilities, etc, and not
less than twelve (12) of the New Homes shall be reserved for
sale and occupancy by "Qualified Homebuyers" whose Adjusted
family Income at the time of initial occupancy of each New Home
(e. g., close of the applicable New Home Escrow) does not exceed
the household income qualification limits of a Moderate-Income
Household; (ii) the performance of the Work on the Agency Lot by
the Developer pursuant to the Agency License Agreement, and the
Completed New Agency Home shall be reserved for sale and
occupancy by a Qualified Homebuyer whose Adjusted Family Income
~. ._ 'J A.'W-Mea.dc..crx:::, ::'e'/el:;,,"'e~.t Aq~ee;r.e~,:
36
at the time of close of the New Agency Home Escrow does not
exceed 115% of County median household income.
(b) The City's zoning ordinance and the City's
building requirements will be applicable to the use and
development of the New Homes on each Development Lot and the
Agency Lot pursuant to this Agreement. The Developer
acknowledges that any change in the plans for development of the
New Homes on the Developer Lots and/or the Agency Lot as set
forth in the Scope of Development shall be subject to the City's
zoning ordinance and building requirements; provided however not
less than twelve (12) of the New Homes shall be reserved for
sale and occupancy by Qualified Homebuyers as set forth in
Section 3.01 (a) and Section 4.01. No action by the Agency or
the City with reference to this Agreement or related documents
shall be deemed to constitute a waiver of any lawful City
requirements which are applicable to the Developer Lots and the
Agency Lot or to the Developer, any successor in interest of the
Developer or any successor in interest pertaining to the
Developer Lots and/or the Agency Lot, except by modification or
development variance approved by the City consistent with this
l\greement.
:c) The Scope of Development set forth in Exhibit "E"
is hereby approved by the Agency upon its execution of this
Agreement. The New Homes shall be constructed and improved on
the Developer Lots in conformance with the Scope of Development
and any and all other plans, specifications and similar
development documents required by this Agreement, except for
such changes as may be mutually agreed l~pon in writing by and
between t~e Developer and the Agency and the mutual approval of
any suc~ change shall not be unreasonably conditioned, withheld
or delayed. The Developer shall improve the Agency Lot in
accordance with the New Agency Home Plans as referenced in the
Agency License Agreement. The approval by the City of any
element of the Project except for the New Agency Home, which may
be subject to the discretionary or ministerial regulatory review
of the City, shall be deemed to be approved by the Agency.
(d) The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the COITIDOn Council of
the City or the Planning Commission of the City with respect to
any regulatory approvals relating to the improvement of the New
Homes and/or the public improvements necessary for the
development of the Developer Lots and/or the Agency Lot as may
be required by such other bodies. If any material change of the
Scope of Development as previously approved by the Agency shall
J3-G~-.~] A:!R-~ea:::::;..c~:JC'~ C:e':ec:::pme:1t Agree!!'_en:
37
be required by another government official, agency, department
or bureau having jurisdiction over the development of the
Developer Lots and/or the Agency Lot. The Agency shall not
unreasonably withhold or delay approval of such revisions to the
Scope of Development.
(e) The Developer. agrees to accept and comply fully
wi th any and all lawful and reasonable conditions of approval
applicable to all permits and other governmental actions
affecting the development of the Project.
(f) The Developer shall cause landscaping plans in
connection with development of the Project to be prepared by a
licensed landscape architect. The Developer shall prepare and
submi t, preliminary and final landscaping plans for the proj ect
to the City for its approval which are consistent with City Code
requirements. These plans shall be prepared, submitted and
approved within the times established therefor in the Schedule
of Performance.
(g) The Developer shall prepare and submit
development plans, construction drawings and related documents
for the development of the Project consistent with the Scope of
Development to che City. The development plans, construction
drawings and related documents submitted by the Developer to the
City shall be in the form of final drawings, plans and
specifications. Such final drawings, plans and specifications
are hereby defined as those which contain sufficient detail
necessary to obtain a building permit from the City.
(h) During the preparation of all drawings and plans
In connection with the developmenc of the New Homes and the
public improvements necessary for the development of the
Project, the Developer shall provide to the Agency regular
progress reports to advise the Agency of the status of the
preparation by the Developer, and the submission to and review
by the Cicy of construction plans and related documents. The
Developer shall communicate and consult with the Agency as
frequently 2S lS necessary to ensure that any such plans and
related documents submitted by the Developer to the City are
being processed in a timely fashion.
(i) The Agency shall have the right to review all
plans, drawings and related documents pertinent to the
development of the Project in order to ensure that they are
consistent with this Agreement and with the Scope of
Development.
'JJ-G~-~'] ANR-Meado'..iDr:JO~ ='e':e~'')pmer.~ Ag,"ee::\e".~
38
(j) The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and related
documents pertinent to the development of the Project, as
required by the City. The Agency shall cooperate with and shall
assist the Developer in order for the Developer to obtain the
approval of any and all development plans, construction drawings
and related documents submitted by the Developer to the City
consistent with this Agreement as promptly as feasible following
the City's receipt of such plans. Any failure by the City to
approve any of such plans or to issue necessary permits for the
development of the Project within sixty (60) calendar day
following submission by the Developer to the City of complete
and correct plans shall constitute an enforced delay hereunder,
and the Schedule of Performance shall be extended by that period
of time beyond a sixty (60) calendar day period in which the
Ci ty approves said plans; provided, however, that in the event
that the City disapproves of any of such plans, the Developer
shall within thirty (30) calendar days after receipt of such
disapproval revise and resubmit such plans in accordance with
the City's requirements and in such form and substance so as to
obtain the City's approval thereof.
(k) [RESERVED - - NO TEXT]
(1) The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made
in this Agree:nent as long as such modified or revised plans,
drawings and related documents are generally consistent with the
Scope of Development and any other plans which have been
approved by the Agency. Upon any disapproval of such modified
or revised plans, drawings or related documen:s, the Agency
shall statei:1 writing the reasons for such disapproval. The
Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings
or related documents in a manner that addresses ehe reasons for
disapproval and reasonably meets the requirements of the Agency
in order to obtain the Agency's approval thereof. The Developer
shall resubmit such revised plans, drawings and related
documents to the Agency as soon as possible after its receipt of
the notice of disapproval and, in any event, no later than
thirty (30) calendar days thereafter. The Agency shall approve
or disapprove such revised plans, drawings and related documents
in the same manner and within the same times as provided in this
Section for approval or disapproval of plans, drawings and
related documents initially submitted to the Age:1cy, and if no
specific time for approval if specified then the Agency shall so
'))-C;2-03 A:',,-~ea,J-:)'..b~:>~:< 2e.:e~:>prnent Agreemen~
39
approve or disapprove the proposed modifications or revisions
promptly upon the written request of the Developer.
(m) If the Developer desires to make any material
change in the final construction drawings, plans and
specifications and related documents after their approval by the
Agency and/or the City, the Developer shall submit the proposed
change in writing to the Agency and/or the City for approval.
The Agency shall notify the Developer of approval or disapproval
thereof in writing within thirty (30) calendar days after
submission to the Agency. This thirty (30) calendar day period
may be extended by mutual consent of the Developer and the
Agency. Any such change shall, in any event, be deemed to be
approved by the Agency unless rejected, in whole or in part, by
written notice thereof submitted by the Agency to the Developer,
setting forth in detail the reasons therefor, and such rejection
shall be made within said thirty (30) calendar day period unless
extended as permitted herein. The Agency shall use its best
efforts to cause the City to review and approve or disapprove
any such change as provided in Section 3.0l(j) hereof.
(n) The Developer, upon receipt of written notice of
disapproval of a proposed change in construction drawings, plans
and specifications by the Agency and/or the City, may revise
such portions of the proposed change in construction drawings,
plans and specifications and related documents as are rejected
and shall thereafter resubmit such revisions to the Agency
and/or the City for approval in the manner provided In
Section 3.0l(j) hereof.
(0) The Developer shall have the right during the
course of construction to make changes in construction
concerning the interior design of the New Homes and "minor field
changes" with respect to the New Homes, and to make "minor field
changes" to the public improvements necessary for the
development of the proj ect without seeking the approval of the
Agency; provided, however, that such changes do not affect the
type of use to be conducted within all or any portion of a New
Home or the ability of the City to accept the completion of the
public improvements necessary for the development of the
Project; and further provided that the City has approved any
such minor field change to ei ther a New Home or the public
improvements necessary for the development of the Project in
accordance with the standards and practices of the City Building
Department and/or City Public Works Department, as applicable.
Said "minor field changes" shall be defined as those changes
from the approved final construction drawings, plans and
':.J-C~-~.3 A."?-~eado.",=,r:;c" Se'.'elc;:me"t Agreercel1t
40
specifications which have no substantial effect on the
improvements and are made in order to expedite the work of
construction in response to field conditions. Nothing contained
in this subsection shall be deemed to constitute a waiver of or
change in the City's Building Code or Public Works Department
requirements governing such "minor field changes" or in any and
all approvals by the City otherwise required for such "minor
field changes."
(p) Except as otherwise specified in this Agreement,
the cost of constructing the New Homes and, the New Agency Home
and all other improvements on the Project shall be paid for by
the Developer; provided however, that the Agency shall be
obligated to the Developer to pay the Agency Affordable Housing
Development Grant in the installments as provided in Section
2.01.
(q) Developer shall pay the school capital facility
development improvement fees as required and at the time
specified by the San Bernardino Unified School District. All
other development fees imposed by the City as a condition of
issuance of any permit for the development of the Project shall
be paid by the Developer to the City at the time of issuance of
each such permit or, s'.lbject to the approval of the City in its
discretion, at the close of each New Home Escrow, pursuant to
the terms of the City of San Bernardino's Development Fee
Deferral program as may then be in effect.
(r) The Developer shall at its expense cause to be
prepared, and shall pay any and all fees pertaining to the
review and approval thereof by the City, all required
construction, planning and other documents reasonably required
by governmental bodies pertinent to the development of the
Project hereunder including, but not limited to the public
improvements necessary for the development of the Project and to
the specifications, drawings, plans, maps, permit applications,
land use applications, zoning applications and design review
documents for the New Homes, and the New Agency Home.
(s) The Developer shall pay for any and all costs,
including but not limited to the costs of design, construction,
relocation and securing of permits for utility improvements and
connections, which may be required In developing the Project.
The Developer shall obtain any and all necessary approvals prior
to the commencement of applicable portions of said construction,
and the Developer shall take reasonable precautions to ensure
J3-.~1-"; P"}lR-.'leado'~'~=~c;: :e'J"'c:;p~er.: l'.qreemer.:
41
the safety and habitability of surrounding properties during
said construction.
(t) The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified in
the Schedule of Performance, or within such reasonable
extensions of such times as may be granted by the Agency or as
otherwise provided for in this Agreement. The Schedule of
Performance shall be subject to revision from time to time as
mutually agreed upon in writing by and between the Developer and
the Agency. Any and all deadlines for performance by the
parties shall be extended for any times attributable to delays
which are nOl: the fault of the performing party and are caused
by the other party, other than periods for review and approval
or reasonable disapprovals of plans, drawings and related
documents, specifications or applications for permits as
provided in this Agreement.
(u) Prior to and during the period of construction of
the New Ho,",es the Developer shall submit to the Agency written
progress reports when and as reasonably requested by the Agency
but in no event more frequently l:han every t'wel ve (12) weeks.
The repor1::s shall be in such form and detail as may reasonably
be required by the Agency. In addition, the Developer will
attend Agency meetings when requested to do so by Agency Staff.
(v) Prior to any distribution of the Affordable
Housing De'Jelopment Grant, the Developer shall furnish, or shall
cause to be furnished, to the .Z\gency duplicate originals or
appropriate certificates of public indemnity and liabilil:Y
insurance -~ the amount of TvJO Million Dollars ($2,000,000.00)
combined single limit, naming the Agency, the City and the
elected officers, officials, employees, attorneys and agents of
both of t'1em, as additional insureds. Said insurance shall
cover comprehensive general liabilil:y including, but not limited
to, contraotual liability; acts of subcontractors; premises-
operations; explosion, collapse and underground hazards, if
applicable; broad form property damage, and personal injury
including -'-ibel, slander and false arrest. In addition, the
Developer s'1all provide to the Agency adequate proof of
comprehensive automobile liability insurance covering owned,
non-owned and hired vehicles, combined single limit in the
amount of One Million Dollars ($1,000,000.00) each occurrence;
and proof of workers' compensation insurance. Any and all
insurance policies required hereunder shall be obtained from
insurance companies admitted in the State of California and
J~ ,_ :J A';?-~c"'::'2'..;':~::, =e'/c_')p:l'.",~,: .":jre",".e~l:
42
rated at least B+: XII in Best's Insurance Guide, or in special
circumstances, be preapproved by both the Executive Director of
the Agency and the Agency General Counsel. All said insurance
policies shall provide that they may not be canceled or
materially altered unless the Agency and the City receive written
notice of cancellation at least thirty (30) calendar days prior
to the effective date of cancellation. Any and all insura:1ce
obtained by the Developer hereunder shall be primary to any and
all insurance which the Agency and/or City may otherwise carry,
including self insurance, which for all purposes of this
Agreement shall be separate and apart from the requirements of
this Agreement. Any insurance policies governing the Site as
obtained by the Agency shall not be transferred from the Agency
to the Developer. Appropriate insurance means those insurance
policies approved by the Agency Counsel consistent with the
foregoing. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency has issued the
final Certificate of Completion In connection with the
development of the Site. The provisions of the Agency License
Agreement contain requirements relating to insurance coverage
amounts by the Developer which is specific to the Agency Lot and
the performance of the Work by the Developer on the Agency Lot.
(w) The Developer for itself and its successors and
assigns agrees that in the construction of the New Homes and the
undertakir.g of the Project, the Developer will not discriminate
against any employee or applicant for employment because of sex,
marital s':atus, race, color, religion, creed, national origin,
or ancestry.
(x) The Developer shall carry out its construction of
Lhe improvements of the New Homes and the undertaking of the
Project in conforI:lity with all applicable laws, including all
applicable StaLe labor standards and requirements and with
respect ':0 the development of the Project.
(y) The Developer shall, at ics own expense,
or shall cause to be secured, any and all permits which
required for the construction, development or work
Project by the City or any other governmental agency
jurisdiction thereof.
secure
may be
of the
having
(z) Officers, employees, agents or representatives of
the .z\gency and the City shall have the right of reasonable
access to the Developer Lots, during normal business hours
during the period of construction for the purposes of monitoring
the Developer's performance under this Agreement.
:'J-0~-': J ;:':;R-MeajG,,,~~':JGk ='''''/,,~c;::mer.~ .:;';~...ell'''~'':
43
Section 3.02. Property Taxes and Assessments. The
Developer shall pay prior to the delinquency all real property
taxes and assessments assessed and levied on or against the
Developer Lots prior to the close of each New Home Escrow~
Nothing herein shall be deemed to prohibit the Developer from
contesting the validity or, amounts of any tax assessment,
encumbrance or lien, nor to limit the remedies available to the
Developer in respect thereto.
Section 3.03.
Prohibition Against Transfer.
(a I Prior to the completed of the proj ect as set
forth in Section 1.03, the Developer shall not, without prior
written approval of the Agency or except as permitted by this
Agreement, (i) assign or attempt to assign this Agreement or any
right herei:'1 or (iil make any total or partial sale, transfer,
conveyance, lease, leaseback, or assignment of any Developer Lot
or permit to be placed on any Developer Lot any unauthorized
mortgage, :.:rust deed, deed of trust, encumbrance or lien. This
prohibition shall not apply to any of the following: (11 the
reasonable grant by the Developer of utility easements or
permits to facilitate the development of any Developer Lot; (2)
the assignmen:.: of all of the Developer's interes:.: in this
Agreement :':0 a limited liability company of which the Developer
is the managing member (and the assumption of such interes:.: by
such limitec: liability company); (31 any permitted construction
financing interest under Section 3.04; and (4) sales by the
Developer of individual New Homes.
(0) In the absence of specific written agreement or
approval 0'; the Agency, no unauthorized sale, transfer,
conveyance, lease, leaseback or assignment of a Developer Lot
shall be deemed to relieve the Developer or any other party ftom
any obligations under this Agreement.
(c I Developer shall not lease or rer.:': any of the New
Homes, or any structure thereon for commercial or residential
occupancy by any person, pending final sale to a New Homebuyer.
Section 3.04.
Security Financing; Right of Holders.
(a) The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate construction and land
development. Notwithstanding any provision of Section 3.03 to
the contrary, mortgages, deeds of trust, or any other form of
,)3-)2-:3 A."?-~i!a::v''''c::>: :e":,,:Jpr.1er.t Aq=ee:l'e~.:
44
lien required for any reasonable method of financing the
construction and improvement of the Project are permitted on any
Developer Lot before the completion of the Project. The
Developer shall notify the Agency in writing in advance of any
mortgage, deed of trust, or other form of lien for financing of
che proj ect which the Developer proposes to be secured by any
Developer Lot before the recordation of any such Project-related
construction financing security interests. The Developer shall
not enter into any such conveyance for construction financing
without the prior written approval of the Agency, which approval
the Agency shall grant if: (i) any such conveyance is given to
a responsible financial or lending institution including,
without limitation, banks, savings and loan institutions,
insurance companies, real estate investment trusts, pension
programs and the like, or other acceptable persons or entities
for the purpose of financing the construction of the New Homes
on the Developer Lots, and (ii) such loan contains customary
construction lender disbursement controls.
(b) The Developer shall promptly notify the Agency of
any mortgage, deed of trust or other refinancing, encumbrance or
lien that has been created or attached thereto prior to
completion of the construction of the New Homes whether by
voluntary act of the Developer or otherwise; provided, however,
that no notice of filing of preliminary notices or mechanic's
liens need be given by the Developer to the Agency prior to suit
being filed to foreclose such mechanic's lien.
(c) The holder of any mortgage, deed of trust or
other security interest authorized by this Agreement shall in no
manner be obligated by the provisions of this Agreement to
construct or complete the Project Or to guarantee such
construction or completion; provided however, that each surety
under any completion and payment surety bond delivered by the
Developer to the City of San Bernardino, if any, under the terms
of any off-site improvement permit issued by the City to the
Developer, shall noc, by the virtue of any term of this
Agreement, be deemed to be discharged from its obligation to the
City as arises under such surety.
(d) In the event of a default or breach by the
Developer of a mortgage, deed of trust or other security
interest with respect to the Project or any Developer Lot prior
co the completion of the Project and the holder of such security
interest has not exercised its option to complete the Project,
the Agency may cure the default of the Developer with respect to
one or more of the Developer Lots, but is under no obligation to
~3-0:-J3 ~~R-Meadowc,~ok ~evelopme~t Agre~~e~:
45
do so prior to completion of any foreclosure. In the event that
the Agency may cure any such default by the Developer, the
Agency shall be entitled to reimbursement from the Developer of
all costs and expenses incurred by the Agency in curing the
default. The Agency shall also be deemed to have a lien of the
Agency as may arise under this Section 3.04(d) upon the Project
(or any Developer Lot) to the extent of such costs and
disbursements. Any such lien shall be subordinate and subject
to mortgage, deed of trust or other security instrument executed
by the Developer encumbering the applicable Developer Lots.
ARTICLE IV
USE OF THE DEVELOPER LOTS
Section 4.01. Uses.
(a) The Developer covenants and agrees for itself,
its successors, and assigns that at least twelve (12) of the New
Homes to be developed, constructed and improved on Developer
Lo;:s, shall be reserved for sale and occupancy by Qualified
Homebuyers whose Adjusted Family Income at the time of initial
occupancy of each New Home does not exceed the household income
qualification limits of a Moderate-Income Household.
The Developer shall cause to be recorded at the time
of close of each New Home Escrow for each of the twelve (12) New
Homes for which the provisions of this Section 4.0l(a) are
applicable the fully executed form of the Section 33334.3
Covenant. The final form of the Sec;:ion 33334.3 Covenant shall
be delivered to the escrow holder for execution by the Developer
and the Qualified Homebuyer at the time of close of each
applicable New Home Escrow. The selection of the twelve (12)
individual New Homes from among the Developer Lots which shall
be subject to the provisions of this Section 4.0l(a) shall be at
the discretion of the Developer. If the Qualified Homebuyer may
use Agency MAP funds for the purchase of the New Home from the
Developer, the Qualified Homebuyer and the .l\gency shall execute
a separate set of redevelopment affordability covenants in favor
of the Agency to evidence the obligation of the Qualified
Homebuyer to the Agency which arise by virtue of the Qualified
Homebuyer's acceptance of Agency MAP Funds under the Agency MAP
program.
itself,
(b) The Developer further
its successors and assigns
covenants and agrees for
that each of the Developer
G3-.c:- 3 ;'_\lR-,,"ea::l8-~'br:'::~ :e'~el'Jpme'H ."q~eemen:
46
Lots shall be improved, developed and used in accordance with
the Scope of Development. Developer covenants to develop and
use the Developer Lots in conformity with all applicable laws.
(c) Developer shall not
Developer Lots, or any New Home
final sale to a New Homebuyer.
lease or
constructed
rent any
thereon,
of the
pending
Section 4.02. Maintenance of the Developer Lots. The
Developer covenants and agrees for itself, its successors, and
assigns to maintain the each of the Developer Lots in a good
condition free from any accumulation of debris or waste
material, subj ect to normal construction j ob-si te conditions,
and shall maintain in a neat, orderly, healthy and good
condi tion the landscaping on each Developer Lot required to be
planted in accordance with the Scope of Development. In the
event the Developer, or its successors or assigns, fails to
perform the maintenance as required herein, the Agency shall
have the right, but not the obligation, to enter any Developer
Lot and undertake, such maintenance acti vi ties. In such event,
the Developer shall reimburse the Agency for all reasonable sums
incurred by it for such maintenance activities. The obligation
of the Developer under this Section 4.02 '..,ri th respect to the
Developer Lots shall be discharged for each Developer Lot on the
applicable Delivery Date for such Developer Lot, as improved
wit!': a New' :-lome.
Section 4.03. Obligation to Refrain from
Discrimination. The Developer covenants and agrees for itself,
its successors, its assigns and every successor in interest to
each of the Developer Lots, that there shall be no
discrimination against or segregation of any person, or group of
persons, on account of sex, marital status, race, color,
religion, creed, national origi"n or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Site; nor shall the Developer, itself or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee or vendees of the Developer Lots.
Section 4.04. Form of Nondiscrimination and
Nonsegregation Clauses. The Developer covenants and agrees for
itself, its successors, its assigns, and every successor in
interest to the Developer Lots, and each of them, or any part
thereof, that the Developer, such successors and such assigns
shall refrain from restricting the sale, lease, sublease,
:,j-0~ -..;3 r_',,"'-Cl,"aj,=,;.;t:~,,k De'lelc;-:r.le:lt Aqreerner.~
47
rental, transfer, use, occupancy, tenure or enjoyment of each of
the Developer Lots and each of the New Homes, on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially
the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, that there shall be no
discrimination against or segregation of, any person or
group of persons on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry
in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises herein conveyed, nor
shall the grantee or any person claiming under or through
it, establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee, or vendees in the premises
herein co:"veyed. The foregoing covenants shall run with
the land."
(b) In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons
c~aiming under or through them, and this lease is made and
accepted upon and subject cO the following conditions:
That chere shall be no discrimination against or
segregatio" of any person or group of persons, on account
of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in che leasing, subleasing,
trans fer:r-ir':.q, use f occupancy, tenure, or enj oyment of the
premises herein leased nor s:"1all the lessee itself, or any
person claiming under or through it, establish or permit
any such practice or practices of discrimination or
segregaticn with reference cO the selection, location,
number, use, or occupancy, 0: tenants lessees, sublessee,
subtenants, or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital
status, national origin, or ancestry, in the sale, lease,
s'~blease, trans fer, use, occupancy, tenure, or enj oyment of
the premises herein conveyed or leased, nor shall the
transferee or any person claiming under or through it,
establish or permit any such practice or practices of
'~.3- ':-';] .~Ji?-~e3ic'~'b~~,c-j.: :'e'le~",,~,en.t }l.q~i!.;>:nen~
48
discrimination or segregation with reference
selection, location, number, use, or occupancy, of
lessees, sublessees, subtenants, or vendees of the
herein transferred." The foregoing provision
binding upon and shall obligate the contracting
parties and any subcontracting party or parties,
transferees under the instrument.
to the
tenants,
premises
shall be
party or
or other
Section 4.05. Effect and Duration of Covenants Under
Section 4.01 and Section 4.04. The covenants established under
Section 4.04 against discrimination shall remain in effect in
perpetui ty. The covenant respecting uses and occupancy of each
of the twelve (12) New Homes which are designated by the
Developer to be initially occupied by a Qualified Homebuyer as
set forth in Section 4.01 (a), shall remain in effect for the
Qualified Residence Period of each such New Home, and shall run
with the land and shall constitute equitable servitudes thereon,
and shall, without regard to technical classificacion and
designation, be binding for the benefit and in favor of the
Agency, its successors and assigns and the City.
The Agency is deemed the beneficiary of the terms an
provisions of this Agreement and of the covenants running with
the land for and in its o'wn rights and for the purposes of
protecting the interests of the community. The Agency shall
have the right, if suc!'. covenants are breached, to exercise all
rights and remedies and to maintain any actions or suits at law
or In equity or such ocher proper proceedings to enforce the
curing of such breaches to which it or any other beneficiary of
such covenants may be entitled, including, without limitation,
to specific performance, damages and injunctive relief. The
Agency shall have the right to assign all of its rights and
benefits hereunder to the City.
l\.RTICLE V
DEFAULTS, REMEDIES AND TERMINATION
Section 5.01.
Defaults - General.
(a) Subj ect to the extensions of time set forth in
Section 6.05 hereof, failure or delay by either party to perform
any term or provision of this Agreement shall constitute a
default under this Agreement; provided, however, that if a party
otherwise in default commences to cure, correct or remedy such
default within thirty (30) calendar days after receipt of
written notice specifying such default and shall diligently and
continuously prosecuce such cure, correction or remedy to
')J-.:.:-"3 A.'i?-~eaj8'~'b-r'::>c" CevP,c;"r\e~.t Aq~e~me,..t
49
completion (and where any time limits for the completion of such
cure, correction or remedy are specifically set forth in this
l\greement, then within said time limits), such party shall not
be deemed to be in default hereunder.
(b) The injured party shall give written notice of
default to the party ir. default, specifying the default
complained of by the non-defaulting party. Delay in giving such
notice shall not constitute a waiver of any default nor shall it
change the time of default.
(c) Any failure or delays by either party In
asserting any of its rights and remedies as to any default shall
not operate as a waiver of any default or of any such rights or
remedies. Delays by either party in asserting any of its rights
and remedies shall noc: deprive either party of its right to
institute and ITcaintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
Section 5.02.
Legal Actions.
(a) In addition to any other rights or remedies,
either party may institute legal action to cure, correct or
remedy any default, to recover damages for any default, or to
obtain any ocher remedy consistent with the purposes of this
Agreement. Such legal actior.s must be instituted in the
Superior Court of the County of San Bernardino, State of
California, in any other appropriate court in that County, or in
the Federal 8istrict Court In the Central District of
California.
the
Ib) T['.e
interpretaticn
laws of the State of California shall
and enforcement of this Agreement.
govern
Ic) ~.. the event that ar.y legal action is commenced
by the Developer against the Agency, service of process on the
Agency shall be made by personal service upon the Executive
Director or Chairman of the Agency, or in such other manner as
may be provided by law.
(d) In the e'lent that any legal action is commenced
by the Agency against the Developer, service of process on the
Developer shall be made by personal service on (or
such other agent for service of process and at such address as
may be specified in written notice to the Agency), or in such
':.3-':~-,J3 .;;:i~-)-!~~:iowb"=",, =ev"~:j::'"."'~.: .''-g:",err,e:-.:
50
other manner as may be provided by law, and shall be valid
whether made within or without the State of California.
Section 5.03. Rights and Remedies are Cumulative.
Except with respect to any rights and remedies expressly
declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by
either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other
default by the other party.
Section 5.04. Damages If either party defaults with
regard to any provision of this Agreement following the
Effective Date, the non-defaulting party shall serve written
notice of such default upon the defaulting party. If the
defaulting party does not diligently commence to cure such
default within thirty (30) calendar days after service of the
notice of default and promptly complete the cure of such default
within a reasonable time, not to exceed ninety (90) calendar
days (or such shorter period as may otherwise be specified in
this Agreement for any specific default), after the service of
written notice of such default, the defaulting party shall be
liable to the other party for damages caused by such default.
8]-J2-J) A.'iR-Meajc'~<:;,:;;~ :ev~lOFt'\er.t .;gr"err,e:1:
51
ARTICLE VI
GENERAL PROVISIONS
Section 6.01.
Between the Parties.
Notices,
Demands
and
Communications
(a) Any and all notices, demands or communications
submitted by any party to another party pursuant to or as
required by this Agreement shall be proper if In writing and
dispatched by messenger for immediate personal delivery, or by
registered or certified United States mail, postage prepaid,
return receipt requested, to the principal office of the Agency
and the Developer, as applicable, as designated in Section
1.02(a) and Section 1.02(b) hereof. Such written notices,
demands and communications may be sent in the same manner to
such other addresses as either party may from time to time
designate as provided in this Section. Any such notice, demand
or communication shall be deemed to be received by the
addressee, regardless of whether or when any return receipt is
recei ved by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediace personal delivery, or two (2) calendar days after it
is placed in the United States mail as heretofore provided.
(b) In addition to the submission of notices, demands
or cO!T'..l'":1unicc-cions to the parties as set forth above, copies of
all notices shall also be delivered by facsimile as follows:
:0 ~~e Je~elope=:
wi::h copy to:
- S - ..
0: c~ ~e~narCl~O
;d=- -eh copy to:
Lewis Brisbois Bisgaard &
Smit.:-; LL?
650 East ~ospitality ~ane,
Suite 600
San Bernardino, CA 92408
FAX: (909) 387-1138
r.2 :::1E .::'.;e:1cy:
Re~eve:::;~en: Age~cy of the City
2C: ~or:~ "~'f Stree:
~ -, ~"
ou.:.:e ,),,' ~
S2:;, Ber:-.2.rd.:..no, c.:.. 92401
t......'.: (:<9) S38-9~:3
Section 6.02. Conflict of Interest. No member,
official or employee of the Agency having any conflict of
interesc, direct or indirect, related to this Agreement, or in
the development of the Site, shall participate in any decision
relating to this .l\greement. The parties represent and warrant
that they do not have knowledge of any such conflict of
interest.
33.,n..:3 .=-'>';?-:~ea;:2."C:.c:< :e.}elopme~.t A,;:-~e~e~:
52
Section 6.03. Warranty Against Payment of
Consideration for Agreement. The Developer warrants that it has
not paid or given, and will not payor give, any third party any
money or other consideration for obtaining this Agreement.
Third parties, for the purposes of this Section, shall not
include persons to whom fees are paid for professional services
if rendered by attorneys, financial consultants, accountants,
engineers, architects and the like when such fees are considered
necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and
Employees. No member, official or employee of the Agency shall
be personally liable to the Developer, or any successor in
interest, in the event of any default or breach by the Agency or
for any amount which may become due to the Developer or to its
successor, or on any obligations under the terms of this
Agreement, except for gross negligence or willful acts of such
member, officer or employee.
Section 6.05. Enforced Delay: Extension of Time of
Performance. In addition to specific provisions of this
Agreement, performance by either party hereunder shall not be
deemed to be in default, or considered to be a default, where
delays or defaults are due to the force maj eure events of war,
insurrection, strikes, lockouts, riocs, floods, earthquakes,
fires, casualties, acts of God, acts of the public enemy,
epidemics, quarantine restrictions, freight embargoes or lack of
transportation, weather-caused delays, inability to secure
necessary labor, materials or tools, delays of any contractors,
subcontractor or supplier, which are not attributable to the
fault of the party claiming an extension of time to prepare or
acts or failure to act of any public or governmental agency or
enticy (provided that acts or failure to act of the City or
Agency shall not extend the time for the Agency to act hereunder
except for delays as sociated with lawsuit or inj unction
including but without limitation to lawsuits pertaining to the
approval of the Agreement, and the like). An extension of time
for any such force majeure cause shall be for the period of the
enforced delay and shall co~~ence to run from the date of
occurrence of the delay; provided however, that the party which
claims the existence of the delay has first provided the other
party with written notice of the occurrence of the delay within
ten (10) days of the commencement of such occurrence of delay.
The inability of
satisfactory commitment from
improvement of the Project or
the Developer to obtain a
a construction lender for the
to satisfy any other condition of
:,]-02-)] .~_"?~MeadO''''D'-~c:.i :::e-/e:oplCen~ Ag,-ee:r.e,-,:
53
this Ageeement relating to the redevelopment of the Developer
Lots and/or the Agency Lot, if applicable, shall not be deemed
to be a force majeure event or otherwise provide grounds for the
assertion of the existence of a delay under this Section 6.05.
The parties hereto expressly acknowledge and agree that changes
in either general economic conditions or changes in the economic
assumptions of any of them which may have provided a basis for
entering into this Agreement and which occur at any time after
the execution of this Agreement, are not force majeure events
and do not peovide any party with grounds for asserting the
existence of a delay in the performance of any covenant or
undertaking which may arise under this Agreement. Each party
expressly assumes the risk that changes in general economic
conditior:s or changes in such economic assumptions relating to
the teems and covenants of this Agreement could impose an
inconvercience or hardship on the continued performance of such
party under this Agreement, but that such inconvenience or
hardship is not a fOece maj eure event ar:d does not excuse the
perfoemar:ce by such party of its obligations under this
Agreement.
Sect ion 6.06. Inspection of Books and Records. The
Agency shall have the right at all reasonable times at the
Agency's cost and exper:se to inspect the books and records of
the Developee pertaining to the Project, as necessaey for the
Agency, in its reasonable discretion, to enforce its rights
under t~.is Ageeement. Matters discovered by the Agency shall
not: be disclosed to third parties unless required by law or
unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights 0: the Agency hereunder.
The Deve:oper shall also have the eight at all reasonable times
to inspect t:he books and records of the A;ency pertaining to the
Site and/or the development theeeof as peetinent to the purposes
of this ~greement.
Section 6.07. Approvals.
approvals
officers,
Developee,
disappro'ial
Schedule of
(a) Except as otherwise provided in this Agreement,
reauired of the Agency or tne Developer, or any
agents or employees of either the Agency or the
shall not be unreasonably wi t'1held and approval or
shall be given within the c:..me set forth in the
Performance or, if no time is given, within a
" +-'
reasona~_e ~lrne.
(b) The
authorized to slgn
Executive
on his or
Director of the Agency
her own a';thority amendments
is
to
j3<:-,J A".R.-~,",,;;~~c~:;ci( ;:e\:e~<;lpme~.: AJ~ee~,e:":
54
this Agreement which are of routine or technical nature,
including minor adjustments to the Schedule of Performance.
Section 6.08. Real Estate Commissions. The Agency
shall not be liable for any real estate commissions, brokerage
fees or finder fees which may arise or be purported to arise
from or related to this Agreement except with respect to the
actual and reasonable real estate sales commission payable by
the Agency to the real estate broker who represents the Agency
as part of Net Development Costs for the Completed New Agency
Home. .
Section 6.09. Indemnification. The Developer agrees
to indemnify and hold the City, the Agency, and the elected
officers, officials, employees, attorneys and agents of both of
them, harmless from and against all damages, judgments, costs,
expenses and fees arising from or related to any act or omission
of the Developer in performing its obligations hereunder. The
Agency agrees to indemnify and hold the Developer and its
officers, employees and agents, harmless from and against all
damages, judgments, costs, expenses and fees arising from or
related to any act or omission of t:he Agency in performing its
obligations hereunder.
Section 6.10. Attorneys' Fees. If either party
hereto files any action ~- brings any action or proceeding
against the other arising out of this .l\greement, or is made a
party to any action or proceeding brought by the Escrow Holder
or a third party, then as between the Developer and the Agency,
the prevailing party shall ~e entitled to recover as an element
of its costs or sui::, a:-:d not 2S damages, its reasonable
attorneys' fees as f~xed by the Court, in such action or
proceeding or in a seGarete act:ion or proceeding brought to
recover such attorneys' fees. For the purposes hereof the words
"reasonable attorneys' feesu mean and include in the case of the
Agency the salaries and expenses of the lawyers employed by the
Office of City Attorney (allocated on an hourly basis) who may
provide legal services to the Agency in connection with the
representation of the Agency in any such matter.
Section 6.11. Effect. This
binding upon and inure to the benefit of
their respective heirs, executors,
representatives, successors and assigns.
Agreement shall be
the parties hereto and
administrators, legal
))-':2-); A..<lR-Meac;:.-licrv'oK ='e",elGpr:1e:-.: A~reeme:-,:
55
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreemer.t.
(a) This Agreement shall
originals each of which is deemed
Agreement includes pages and
list of attachments at Section 1.05),
entire understanding and Agreement of the
be
to
executed in two
be an original.
attachments
which constitute
parties.
(2 )
This
(See
the
(b) All waivers of the provisions of this Agreement
and all amendments hereto must be in writing and signed by the
appropriate representations of the Agency and the Developer.
03-G~-.J] .~SR-:1ea..~:'..~~.::~ :''';~:.)I:''''eCL( A.J'-ee:r.e~.'::
56
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the dates set forth below.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Agency Chair
By:
Agency Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
DEVELOPER
ANR Industries, Inc., a California
corporation
Date:
By:
.=:-':=_.:'] A.'.I;<-:-!e"do'",b;oo~ :Jevei-:;c",e,.: A'l,eement
57
EXHIBIT "A"
Legal Description of Agency Lot
1/29/83 2:00 J~n
SB2C<,]: 94.3
Exh. "A" - 1
1!29/C3 2'SO ;~m
532J03:94.3
EXHIBIT "B"
Form of Agency License Agreement
(may affect the Agency Lot)
Exh. "B" - 1
1/29/03 =:~= :X~
532003:94.3
EXHIBIT "cn
Legal Description of Developer Lots
Exh.
IIr'II
'-
- 1
EXHIBIT "0"
Form of Notice of Agreement
1/29/03 2:0~ J~~
3320J3::-...3
Exh. "0"
1/29/83 2:00 JITm
532003:94.3
EXHIBIT "E"
Project Description/Scope of Development
Exh. "E" - 1
EXHIBIT "F"
Schedule of Performance
1/29/03 2:CO Jmm
582003:94.3
Exh. "F" -1
:/29/03 2:00 ~mn"
332003:94.3
EXHIBIT "G"
Form or Section 33334.3 Covenant
Exh. "G" - 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of San Bernardino
201 North "En Street, Suite 301
San Bernardino, CA 92401
Attn: Executive Director
(Space Above Line Reserved For Use By Recorder)
RECORDATION OF THIS
INSTRUMENT IS EXEMPT FROM ALL
FEES AND TAXES
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
Daced as of
200
Meadowbrook Single Family
Residential Grant Development Agreement
1/29/03 2 oc Jmrr,
S32C03:94.
Exh. "G" ~ 2
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
(Meadowbrook Single Family Grant Development Agreement)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING AFFORDABILITY COVENANTS AND
RESTRICTIONS (the "Section 33334.3 Covenant") is made and
entered into as of 200_, by and among ANR
Industries, Inc., a California corporation (the Developer"), the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency"), and
(the "Qualified
Homebuyer"), and this Section 33334.3 Covenant relates to the
following facts set forth in Recitals.
R E C I TAL S
A. The Qualified Homebuyer proposes to acquire a single
family residence (the "New Home"), located within the City of
San Bernardino (the "City"), from the Developer, to be owned and
occupied by the Qualified Homebuyer as their principal
residence. The legal description of the New Home is attached
hereto as Exhibit "A" and incorporated herein by this reference.
B. The Agency has used and applied certain affordable
housing development funds from the Low-and Moderate-Income
Housing Funds of several different redevelopment project areas,
to make the New Home available for acquisition by the Qualified
Homebuyer from the Developer subject to the terms and conditions
of the CorrmuClity Redevelopment Law found at Health and Safety
Code SeccioCl 33000, et seq. (the "Act") and this Section 33334.3
Covenant; 2:1d
C. The Act mandates that the acquisition, use and
occupancy of the New Home shall be regulated in certain respects
for the term as provided herein (the "Qualified Residence
Per iod") iCl order to ensure that the Ne'w Home will be used and
occupied in accordance 'with the Act and the affordable single
family residential dwelling unit development goals and
objectives 0: the Agency.
::':9/03 2:00 ]:T~'C',
s32JC3:94.]
Exh. "Go - 3
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND UNDERTAKINGS SET FORTH HEREIN, AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS
HEREBY ACKNOWLEDGED, THE QUALIFIED HOMEBUYER, THE DEVELOPER 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
Section 33334.3 Covenant, the following words and terms shall
have the meaning as provided in the Recitals or in this Section
1 unless the specific context of usage of a particular word or
term may otherwise require:
Adjusted Family Income. The words "Adjusted Family Income"
mean the anticipated total annual income (adjusted for
family size) of each individual or family residing or
treated as residing in the New Home as calculated in
accordance with Treasury Regulation 1.167(k) - 3b) (3) under
.the Code, as adjusted, based upon family size in accordance
wi th the household income adj ustment factors adj usted and
amended from time to time, pursuant to Section 8 of the
United States Housing Act of 1937, as amended.
Affordable Housing Cost. The words "Affordable Housing
Cost" shall have the meaning as set forth in Health and
Safety Code Section 50052.5, as this section may hereafter
be amended from time-to-time by the State of California. A
Qualified Homebuyer and/or the Successor-In-Interest of
such Qualified Homebuyer, if any, shall pay no more than an
Affordable Housing Cost for the New Home as of the
applicable Delivery Date.
Agency Investment Reimbursement. The words "Agency
Investment Reimbursement" mean and refer to the sum of
money which may be payable to the Agency by the Qualified
Homebuyer if, during the Qualified Residence Period, the
Qualified Homebuyer sells, assigns, transfer or otherwise
hypothecates the New Home to any person who does not
satisfy the requirement of a permitted successor-in-
incerest (in other words the Successor-In-Interest
designated by the Qualified Homebuyer is a person or
household whose Adj usted Family Income exceeds the income
level for a Moderate Income Household). The Agency
Investment Reimbursement, and the method or formula for
determining the amount, if any, as may be payable by the
Qualified Homebuyer to the Agency upon the resale of the
New HOITce, is more particularly described in Section 5 of
1/29/03 2:0J Jrr~
S82003:94.3
Exh. \\G" - 4
this Section 33334.3 Covenant. As of the Delivery Date,
the Agency has provided the Developer with the sum of
$41,667 as an affordable housing development assistance
contribution for the improvement of the New Home, and the
provisions of Section 5 of this Section 33334.3 Covenant
are included in satisfaction of the requirements of Health
and Safety Code Section 33334.3 (f) (8)
Code. The word "Code" means the Internal Revenue Code of
1986, as amended, and any regulation, rulings or procedures
with respect thereto.
Delivery Date. The words "Delivery Date" mean the date of
delivery of title and possession of the New Home from the
Developer to the Qualified Homebuyer at the close of the
New Home Escrow. In the case of a Successor-In-Interest,
the words "Delivery Date" refers to the date on which such
Successor-In-Interest acquires the New Home from the
Qualified Homebuyer; provided however, that for the purpose
of establishing the termination date of the Qualified
Residence Period, the Delivery DaLe shall refer to the date
on which this Section 33334.3 Covenant is recorded.
Moderate-Income Household. ':'he words "Moderate-Income
Household" mean persons and families whose income does not
exceed one hundred and twenty percent (120%) of the area
median income of the City adjusced for family size by the
State Department of Housing ar.d Community Development in
accordance with adjustment factors adopted and amended from
time to time by the Uniced States Department of Housing and
Urban Development pursuant to Section 8 of the United
SLates Housing Act of 1937, as amended, and Health and
Safety Code Section 50093, as this section may hereafter be
amended from time-to-time by the State of California.
New Home. The words "New Home" mean and refer to the
completed affordable single-family residential dwelling
uni t (including the land 2:cd landscape improvements
thereon) as constructed and inscalled by the Developer and
sold to the Qualified Homebuyer.
New Home Escrow. The words "New Home Escrow" mean and
refer to the real estate conveyance transaction or escrow
by and between the Developer and the Qualified Homebuyer
(or later, by and between the Qualified Homebuyer and the
Successor-In-Interest) . The transfer of the New Home from
the Developer to the Qualified !-iomebuyer (or later, by and
1/29/03 2:00 j~
332J03:94.3
Exn. "G" - 5
between the Qualified Homebuyer and the Successor-In-
Interest) shall be accomplished upon the close of the New
Home Escrow.
Notice of Agency Concurrence. The words "Notice of Agency
Concurrence" mean and refer to the acknowledgment in
recordable form in which the Agency confirms that the
proposed Successor-In-Interest of the Qualified Homebuyer
satisfies all of the Adjusted Family Income and other
requirements of this Section 33334.3 Covenant for occupancy
of the New Home by the Successor-In-Interest at any time
during the Qualified Residence Period.
Qualified Homebuyer. The words "Qualified Homebuyer" mean
the purchaser of the New Home from the Developer (e. g. :
all persons identified as having a property ownership
interest vested in the New Home as of the close of the New
Home Escrow). At the close of the New Home Escrow, the
Qualified Homebuyer shall: (i) have an annual Adjusted
Family Income which does not exceed the household income
qualification limits of a Moderate-Income Household: (ii)
shall be a first-time homebuyer, as this term is defined in
Health and Safety Code Section 50068.5 as this section may
hereafter be amended from time-to-time by the State of
California; and (iii)pay no more than an Affordable Housing
Cost for the New Home pursuant to the terms of the purchase
trar.saction for the New Home, including all sums payable
by the Qualified Homebuyer for its purchase money mortgage
financing, insurance, escrow and other fees and costs.
Qualified Residence Period.
Period" mean the period of
Date and ending on the date
after the Delivery Date.
The words "Qualified Residence
time beginning on the Delivery
which is forty-five (~5) years
Section 33334.3 Covenant. The words "Section 33334.3
Covenant" mean these Redevelopment Agency of the City of
San Bernardino Community Redevelopment Housing
Affordability Covenants and Restrictions by and among the
Qualified Homebuyer, the Developer and the Agency
pertaining to the New Home.
Successor-In-Interest. The words "Successor-In-Interest"
mean and refer to the person, family or household which may
acquire the New Home from the Qualified Homebuyer at any
time during the Qualified Residence Period by purchase,
assignment, transfer or otherwise a"d whose payr:-cents for
1/29/03 2:00
S52003:94.J
Exh. "G" - 6
the acquisition of the New Home from the Qualified
Homebuyer do not exceed an amount which is an Affordable
Housing Cost for such Successor-In-Interest household. The
Successor-In-Interest does not need to be a "First-Time
Homebuyer" but, such Successor-In-Interest shall have an
income level for the twelve (12) months prior to the date
on which the Successor-In-Interest acquires the New Home
which does not exceed the maximum Adj usted Family Income
level for a Moderate-Income Household. Upon acquisition
of the New Home the Successor-In-Interest shall be bound by
each of the covenants, conditions and restrictions of this
Section 33334.3 Covenant.
The titles and headings of the sections of this Section
33334.3 Covenant 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. Acknowledgments and Representations
Qualified Homebuyer. The Qualified Homebuyer
acknowledges and represents to the Agency that, as
Delivery Date:
of the
hereby
of the
(a) the total household income for the Qualified Homebuyer
does not exceed the maximum amount permitted as Adjusted Family
Income for a Moderate-Income Household, adjusted for family
Slze;
(b) the Qualified Homebuyer intends to promptly occupy the
Ne',-J Home after the Delivery Date as the principal place of
residence for a term of at least two (2) years following the
Delivery Date and the Qualified Homebuyer has not entered into
any arrangement and has no present intention to rent, sell,
transfer or assign the New Home to any third party during the
Qualified Residence Period so as to frustrate the purpose of
this Section 33334.3 Covenant;
(c) the Qualified Homebuyer has no present intention to
lease or rent any room or sublet or rent a portion of the New
Home to any relative of the Qualified Homebuyer or to any third
person at any time during the Qualified Residence Period;
(d)
following
interest,
the sum payable each month by the Qualified Homebuyer
the close of the New Home Escrow as principal and
property taxes and, property casualty insurance for
1/29/03 2:00 Jmm
sa20C3:94.3
Exh. "G" - 7
the acquisition of the New Home does not exceed the Affordable
Housing Cost for the household;
(e) the Qualified Homebuyer agrees to provide the Agency
wi th the following items of information for inspection by the
Agency promptly upon wri~ten request of the Agency:
(i) State and federal income tax returns filed by
all persons who reside in the New Home for the
most -chree (3) recent tax years preceding the
close of the New Home Escrow for inspection of
such State and federal income tax returns;
(ii)
curren-c wage, income
all person residing
close of the New Home
and salary statements
in the New Home at
Escrow;
for
the
(f) The Qualified Homebuyer has been informed by the
Developer that this Section 33334.3 Covenant imposes certain
restrictions on the use and occupancy of the New Home during the
term of this Section 33334.3 Covenant and that this Section
33334.3 Covenant imposes certain restrictions on the resale of
the New Home during "[he Qualified Residence Period. The
Qualified Homebuyer ac~nowledges and understands that these
restrictions shall be ap91icable to the New Home and to any
resale of the New Home from the Delivery Date to the end of the
forty-five (45) year Qualified Residence Period which is
"'"'. ,r-. J1
, L'J'i
(g) Each
r-eprese:l.tat.:or:s
of "[he foregoing acknowledgements and
of the Q~alified Homebuyer are true and correct.
Dateci:
Initials of
Qualified Homebuyer
Section 3. Covenant of the Qualified Homebuyer to Maintain
Affordabili ty of the New Home During the Qualified Residence
Period and Covenant Relating to Sale or Transfer of the New Home
During the Qualified Residence Period to a Successor-In-
Interest.
(a) The Qualified Homebuyer for itself, its heirs,
successors and assigns, hereby covenants and agrees that during
the term of the Qualified Residence Period the New Home shall be
used and, occupied by "[he Qualified Homebuyer as its principal
residence, and that the ,Jew Home shall be reserved for sale, use
~/29/C3 2 OC j~~
S322J3:9"; 3
Exh. "G" -.8
and occupancy by the Qualified Homebuyer and/or for another
Moderate-Income Household as a Successor-In-Interest at an
Affordable Housing Cost. The Qualified Homebuyer, for itself,
its heirs, successors and assigns, further covenants and agrees
that, during the Qualified Residence Period, the Agency shall
have the right and duty as provided in this Section 3 to verify
that each proposed Successor-In-Interest of the Qualified
Homebuyer in the New Home satisfies the income requirements and
Affordable Housing Cost limitations of a Moderate-Income
Household (based upon the Adjusted Family Income of each
household), and that the completion of any resale or transfer of
the New Home to a Successor-In-Interest shall be subject to the
recordation of the "Notice of Agency Concurrenceff as provided in
Section 3(d).
(b) Tr.e Qualified Homebuyer, for itself, its successors
and assigns, hereby covenants and agrees that during the term of
the Qualified Residence Period the Qualified Homebuyer shall not
sell, trans fer or otherwise dispose of the New Home (or any
interest therein) to a Successor-In-Interest without first
giving writ:en notice to the Agency and without first obtaining
the written concurrence of the Agency as provided herein. At
least forty-five (45) days prior to the date on which the
Qualified :-1orc,ebuyer proposes to transfer title in the New Home
cO a Successor-In-Interest, the Qualified Homebuyer shall send a
wricten notice cO the Agency as provided in Section 17 of the
intention of the Qualified Homebuyer to sell the New Home to a
Successor-=n-Interest which includes the following true and
correc~ i~formation:
:~) name of the proposed Successor-In-Interest
(including the identity of all persons in the
household of the Successor-In-Interest, proposing
to reside in the New Home);
(i i) copies of State and federal income tax returns
for the Successor-In-Interest for the calendar
year preceding the year In which the notice of
intention to sell the New Home is given to the
Agency;
(iii) resale price of the New Home payable by the
Successor-In-Interest, including the terms of all
purchase money mortgage financing to be assumed,
provided or obtained by the Successor-In-
Interest, escrow costs and charges, realtor
broker fees and all other resale costs or charges
l/2?/CJ3 2:':0 ~:r~c.
532::,J3: 94.3
Exh. "G" - 9
payable by either the Qualified Homebuyer or the
Successor-In-Interest;
(iv) name address, and telephone number of the escrow
company which shall coordinate the transfer of
the New Home from the Qualified Homebuyer to the
Successor-In-Interest;
(v) appropriate mortgage credit references for the
Successor-In-Interest together with a written
authorization signed by the Successor-In-Interest
authorizing the Agency to contact each such
reference (for the purposes of this subparagraph
(v), appropriate mortgage credit reference may
include a true and correct and complete copy of
the mortgage loan application submitted by the
Successor-In-Interest to its proposed purchase
money mortgage lender); and
(v~) such other relevant information as the Agency may
reasonably request, as provided in Section 3(c).
(c) Within twenty (20) days following receipt of the
notice of intention and accompanying written information
described i~ Section 3(b), the Agency shall provide the
Qualified Hor:\ebuyer with either a preliminary confirmation of
approval or a preliminary rejection of approval in writing of
the income and household occupancy qualifications of the
Successor-Ir.-I~terest. The Agency shall not unreasonably
withhold, co~dition or delay approval or rejection of the
qualifications of the proposed Successor-In-Interest in
connection ,,;~ th any proposed sale of the New Home. In the
event that the Agency may request additional information
relating to the confirmation of the maLters described in Section
3(b) with respect to a proposed Successor-In-Interest, the
Qualified Homebuyer shall provide such information to the Agency
as promptly as feasible.
(d) Upon its final confirmation of approval of the
Adjusted Farr.~ly Income and Affordable Housing Cost eligibility
of the Successor-In-Interest to acquire the New Home, the Agency
shall deliver a written acknowledgment and approval of the
resale of the New Home to the Successor- In- Interest (e. g., the
Notice of Agency Concurrence) in recordable form to the escrow
holder referenced in Section 3 (b) (iv) above, and thereafter the
Successor-In-Interest may acquire the New Home subject to the
satisfaction of the following conditions:
1/29/03 2:CO jn~
532J03:94.3
Exh.
""If
"
10
(i) the income and household occupancy information
provided to the Agency shall be true and
correct, and the Notice of Agency Concurrence
executed by the Successor-In-Interest and the
Agency shall be recorded at the close of the
resale escrow;
(ii) the escrow holder shall have provided the
Agency with a copy of the customary form of the
final escrow closing statement of the Qualified
Homebuyer and the final escrow closing
statement for the Successor-In-Interest; and
(iii) the other conditions of the resale escrow as
established by the Qualified Homebuyer and
Successor-In-Interest shall have been
satisfied.
(e) The Qualified Homebuyer for itself, its successors and
assigns hereby covenants and agrees that during the Qualified
Residence Period the New Home shall not be leased, subleased, or
rented to any third person, except foe- a temporary pee-iod (not
to exceed 12 months) in the event of an emergency or other
unfoe-eseen cie-cumstance as may be expressly approved in writing
by the Agency subject to compliance during the temporary rental
period with the reasonable temporae-y rental occupancy conditions
required by the Agency. The Qualified Homebuyer shall submit a
we-itten request to the Agency prioe- to the commencement of the
temporary occupancy, as practicable, but in any event within not
more than (60) days following the COITJnencement of a temporary
rental occupancy of the New Home by a third party, which notice
to the Agency shall set forth the grounds on which the Qualified
Homebuyer believes an emergency cr other unforeseen circumstance
has occurred and that a temporary e-ental occupancy in necessary.
Section 4. Maintenance Condition
Qualified Homebuyer, for itself, its
hereby covenants and agrees that:
of the New Home. The
successors and assigns,
(a) The exterior areas of t'le Ne',; Home which are subject
to public view (e.g.: all irr.;oe-ovements, paving, walkways,
landscaping, and ornamentation) shall be maintained in good
repair and a neat, clean and oe-derly condition, ordinary wear
and tear excepted. In the event that at any time during the
term of the Qualified Residence Period, there is an occurrence
of an adverse condition on any area of the New Home ',;hich is
l/29/03 2:00 Jmm
582003:94.3
Exh. "G" - 11
subj ect to public view in contravention of the general
maintenance standard described above, (a "Maintenance
Deficiency") then the Agency shall notify the Qualified
Homebuyer in writing of the Maintenance Deficiency and give the
Qualified Homebuyer thirty (30) days from the date of such
notice to cure the Maintenance Deficiency as identified in the
notice. The words "Maintenance Deficiencyu include without
limitation the following inadequate or non-confirming property
maintenance conditions and/or breaches of single family dwelling
residential property use restrictions:
failure to properly maintain the windows, structural
elements, and painted exterior surface areas of the
dwelling unit in a clean and presentable manner;
failure to keep the front and side yard 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 la',;;-) areas to exceed six inches (6U) in
height, or failure to otherwise maintain the
landscaping in a reasonable condition free of weeds
ar.d debris;
parking of any commercial motor vehicle in excess of
7,000 pounds gross weight anywhere on the property, or
tt.e 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 the garage area of the dwelling unit for
purposes other than the parking of motor vehicles and
the storage of personal possessions and mechanical
equipment of persons residing in the New Home,
In the event the Qualified Homebuyer fails to cure or
commence and to diligently proceed to complete the cure of the
Maintenance Deficiency within thirty (30) days from the date of
notice to cure, the Agency may thereafter conduct a public
hearing following transmittal of written notice thereof to the
Qualified Homebuyer ten (10) days prior to the scheduled date of
such public hearing in order to verify whether a Maintenance
Deficiency exists and whether the Qualified Homebuyer has failed
1/29/03 2:00 J~~
532003:94.3
Exh. "G" - 12
to comply with the provision of this Section 4(a). If, upon the
conclusion of a public hearing, the Agency makes a written
finding that a Maintenance Deficiency exists and that there
appears to be non-compliance with the general maintenance
standard, as described above, and that tbe Qualified Homebuyer
has failed to cure such Maintenance Deficiency, then in such
event the Agency shall have the right (in addition to any other
rights or powers then available to the Agency or the City of San
Bernardino) to enter the New Home (exterior areas only) upon ten
(10) days written notice to the Qualified Homebuyer and perform
all acts necessary to cure the Maintenance Deficiency, or the
Agency may take other action at law or equity the Agency may
then deem appropriate 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 4(a) shall become a lien on the New Home. If the amount
of the lien is not paid within thirty (30) days after written
demand for payment by the Agency to the Qualified Homebuyer, the
Agency shall have the right to enforce the lien in the manner as
provided in Section 4 (c) .
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the New Home shall be removed
by the Qualified Homebuyer from any exterior surface of a
scructure or improvement on the New Home 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 New
Home (exterior areas only) and such graffiti is visible from an
adjacent or cor.tiguous 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
Qualified Homebuyer, the Agency shall have the right to enter
the New Home and remove the graffiti. Notwithstanding any
provision of Section 4 (a) to the contrary, any sum expended by
the .l\gency for the removal of graffiti from the New Home as
authorized by this Section 4 (b) shall become a lien on the New
Home. If the amount of the lien is not paid within thirty (30)
days after written demand for payment by the Agency to the
Qualified Homebuyer, the Agency shall have the right to enforce
its lien in the manner as provided in Section 4(c).
(c) The parties hereto further mutually understand and
agree that the rights conferred upon the Agency under this
Section 4 expressly include the power to establish and enforce a
lien or other encumbrance against the New Home in the manner
1/29/03 2:00 JITm
5320J3:94.3
Exh. "Go - 13
provided under Civil Code Sections 2924, 2924b and 2924c in the
amount as reasonably ne::essary to restore the New Home to the
maintenance standard required under Section 4(a) or Section
4 (b), in::luding the reasonable attorneys fees and costs of the
Agency associated wit:' the abatement of the Maintenance
Deficiency or removal 0f graffiti and the collection of the
costs of the Agency i" connection with such action. In any
legal proceeding for en:orcing such a lien against the New Home,
the prevailing party sha~l be entitled to recover its attorneys'
fees and costs of suit. For the purposes of this Section 4, the
words "reasonable attor:-:eys' fees and costs of the Agency" mean
and include the salaries and benefits payable to lawyers
employed by the Office of the City Attorney, allocated on an
hourly basis, who pro-;ide legal services to the Agency in
connection with the enforcement of this Section. The provisions
of this Section 4, shal~ be a covenant running with the land for
the Qualified Residence Period and shall be enforceable by the
Agency in its discretio", cumulative with any other rights or
powers granted by the .:',;ency under applicable law. Nothing in
the foregoing provisio:-:s of this Section 4 shall be deemed to
preclude the Qualified :iomebuyer from making any alterations,
addi tions, or other cha"ges to any structure or improvement or
landscaping 0'-' the New ::0me, provided that such changes comply
with the zoning and de','elopment regulations of the City and
other applicable law.
Section 5. Protection of Agency Investment
Derived From the Low-and Moderate-Income Housing Fund
Home - Agency Investment Reimbursement.
of Moneys
in the New
(a) For the purpose of this Section 5, the following terms
shall have the meaning as provided below:
"Purchase Money Mortgage" means the original balance on the
Delivery Date of the Ne~ Home mortgage provided to the Qualified
Homebuyer by the conventional mortgage lender, plus the original
outstanding balance of t~e Agency MAP Loan, if any.
"Qualified Homebuyer Equity" means the downpayment amount in
cash paid by the Quali:ied Homebuyer for the New Home on the
Delivery Date (e.g.: t!o,e equity or "basis" as defined under the
Code, net of the Pur::~ase Money Mortgage of the Qualified
Homebuyer in the New Ho::-,e), plus the reduction, if any, of the
outstanding principal calance of the Purchase Money Mortgage
secured by the New HOlT,e through the date of the resale of the
New Home.
1/29/03 2:08 JIT~
532:J03:9':;.3
Exh. "G" -" 14
"Resale Price" means the total consideration paid by the
Successor-In-Interest, including real estate broker fees and
co~~issions for the purchase of the New Home, but excluding
escrow fees and mortgage financing costs payable or otherwise
allocated to the Successor-In-Interest in connection with the
transfer of the New Home from the Qualified Homebuyer to the
Successor-In-Interest.
"Resale Profit" means the balance of the following calculation:
(Resale
Homebuyer
Profit.
Price)-(Purchase
Equity + Resale
Money Mortgage)-(Qualified
Cost Adjustment Factor)=Resale
A portion of the Resale Profit shall be payable to the Agency by
the Qualified Homebuyer in accordance with Section 5(b).
"Resale Cost Adjustment Factor" means one of the following sums
determined by reference to the number of years which have
elapsed between the Delivery Date and t:he date on which the
resale and transfer of the New Home to the Successor-In-Interest
occurs:
Date of Resale of New Home
after the Delivery Date:
Resale
Factor:
Adjustment
Cost
From the Delivery Date to the $0
50', anniversary after Delivery
Dat:e
t01e 50',
t:he 10c"
Delivery
From a~d including
anr.iversary to
anniversary after
Date
including the lOth
to the 30th
after Delivery
From and
anniversary
anniversary
Date
From and including the
anniversary to the end of
Qualified Residence Period
30th
the
$5,000.00
$10,000.00
$15,000.00
Lhe
(b) The
LCh'-ar.d
}\gency has used and applied
Moderate-Income Housing Funds
certain moneys from
of the Agency to
:/29/03 2:00 =~~
S320C3:94,3
Exh. "G" - 15
assist with the development of the New Home. In the event that
the New Home may be sold, assigned, conveyed or otherwise
transferred by the Qualified Homebuyer during the term of the
Qualified Residence Period to a person or household whose
Adjusted Family Income exceeds the income level for a Moderate-
Income Household, a portion of the Resale Price of the New Home
in excess of an adjusted sale price amount which the Qualified
Homebuyer paid on such resale date (e.g.: the "Resale Profit"
amount) shall be payable to the Agency as the Agency Investment
Reimbursement in accordance with Health and Safety Code Section
33334.3 (f), and as provided herein. In the event that, at any
time during the Qualified Residence Period, the Qualified
Homebuyer (or any Successor-In-Interest) may sell, assign,
conveyor otherwise transfer the New Home to a person or
household whose Adjusted Family Income exceeds the income level
for a Moderate-Income Household, a portion of the Resale Profit
realized by the Qualified Homebuyer shall be payable to the
Agency as the "Agency Investment Reimbursement" in the amounts
as follows:
Date of Resale of New Home
After Delivery Date
From the Del~very
2::ci a:n.niver:-sary
Delivery Jate
Date to the
after the
~rox the 2~~ anniversary
the lO~ anniversary after
Delivery Date
to
the
From the J..O::'""' anniversary to
end the 20cC anniversary after
the Delivery uate
Portion of Resale Profit
Payable to Agency from Resale
of New Home
100% of Resale Profit is
payable to Agency as Agency
Investment Reimbursement
75% of Resale Profit is
payable to Agency as Agency
Investment Reimbursement
50% of Resale Profit is
payable to Agency as Agency
Investment Reimbursement
From the 20c,- anniversary to 25% of the Resale Profit is
the 30th anniversary after the payable to the Agency as
Delivery Dal:.e Agency Investment
Reimbursement
From the 30t", anniversary 10% of the Resale Profit is
after t~e Delivery Date to payable to the Agency as
the end of the Qualified Agency Investment
Residence Period Reimbursement
1l29/C} :2: DC
Exh. "G" - 16
S320:J]:94.3
(c) Three (3) examples of the application of the formula
described above as "Resale Profit" to determine the amount of
the Agency Investment Reimbursement payable on the date of a
hypothetical resale of the New Home are presented as follows:
EXAMPLE A: Resale to a
exceeds the income level
purchaser whose Adjusted Family
of a Moderate Income Household:
Income
Assume that on the Delivery Date the sales price of the New
Home payable by the Qualified Homebuyer was $145,000 and
thac the resale occurs on the 7th anniversary following the
Delivery Date;
Assume the Resale Price of the New Home is $175,000; and
AsscIT,e that Qualified Homebuyer Equicy as of the date of
the resale is $16,000:
EXAMPLE A CALCULATION OF RESALE
($16,0003+$5,000') =$21, 0005:Resale
BELOW) .
PROFIT: $175,000'-$133,0002-
Profit (SEE ALSO FOOTNOTES,
The
payable
example
F-.gency Investment Reimbursement amount under Example A
a: close of the resale escrow in this hypothetical
is $15,750 (e.g., 75% of $21,000).
SX.z\MPLE B: Resale to a purchaser whose Adj usted Family Income
exceeds t~e income level of a Moderate Income Household:
.z\ssl.::::e same facts as
Price of the New Home
in Exarcple A EXCEPT
is $220,000.
that
che
Resale
':':-.~ ?eS3J..e Pric:e 0: the New ;;8~.e to the Successor-In-I::terest 1:1
:::xc:-nple f-...
ph...s
':':--.'2 ?'....:r.:hase Mo;"e1' Mort.gage a20'...;;-"t
$7 ,e::=:: .::";e;.2)' MAP) of t.r:e New Hone as cr
($126, DOC conventio:-"a2.
t.he De:ivery Jaee.
mo:-~qage
~ 'T~,eJua l i f i ed Homebuye r
oav~er.: p:~s $4,000 reduc:ion
Purchase ~o~ey Mortgage loa~s).
Equitj' i::. the New Earne ($2.2, OeD cash dcwr:
of ou:s:a::ding principal balance on t~e
T~e ?esa2.e Cost Adjustment Factor in the 7:h year.
.:'..gency
T~e ?esale Profit of $21,000 is subject to a 75%
:n~e3:ment Reimbursement, or S:5,750 payable
allocat~cn ~o pay
to the Agency
,:he
(as
. . d' -
p~cvlae l~ ~ec~ion
5 (b) ) .
:i. ,/~? /03 2: DC
5B2083:94.3
Exh.
\\G" - 17
EXlI.MPLE B ClI.LCULATION OF RESALE PROFIT: $215,0006 - $133,000-
($16,0007 + $5, 0008) ~ $61,0009: Resale Profit (SEE FOOTNOTES 6-
10, BELOW).
The Agency Investment Reimbursement under Example B payable
at close of the resale escrow in this hypothetical example is
$41,667 as this amount, although less than $45,750 (e.g.,
$61,000 x 75%), is the full amount of the Agency Investment
Reimbursement.
EX.l\MPLE C: Resale to a purchaser whose Adj usted Family Income
DOES NOT exceed the income level of a Moderate Income Household:
Assume same facts as in Example A and that the Successor-
In-Interest also pays no more than an Affordable Housing
Cost for the New Home at a resale price of $175,000 on the
7th anniversary date following the Delivery Date;
EX~IBIT C CALCULATION OF RESALE PROFIT:
No Agency Reimbursement payable to Agency as the Successor-In-
Interest is a Moderate Income Household in this hypothetical
sale and pays to the Qualified Homebuyer no more than Affordable
Housing Cost for its purchase of the New Home.
(d) The sole source of funds of the Qualified Homebuyer to
pay the Agency the Agency Reimbursement Agreement, shall be from
che Resale Profit amount realized ac the time of resale to a
purchaser whose Adjusted Family Income exceeds the income level
of a Moderate Income Household. In the event that the
applicable a~ount of the Agency Investment Reimbursement is paid
to the Agency at the time of resale of the New Home to a person
or household which does not qualify as a Successor-In-Interest,
the Agency shall cause to be recorded concurrently with the
resale of the New Home to sucn person, a notice of release of
the following provisions of this Section 33334.3 Covenant:
Section 2,
Section 3,
Section 5
Section 7
6 Resale ?=ice of New Home in Exa~ple a.
P~rchase Money Mortgage amount ~s the sa~e as in Example A..
The Q~a~ified Homebuyer Equity ~s the 5a~e as i~ Example A.
T~e Res2~e Cost Adjustment Fa=:=~ is :~e sa~e as In Exa~ple A.
:1/29/032:00 JITun Exh. "G" - :3
582003:94.3
Section 6. Acknowledgment of Subordination of the
Provisions of Section 3, Section 5 and Section 7 (b) of this
Section 33334.3 Covenant to the Mortgage Security Interest of
the First Mortgage Lender.
Concurrently upon the execution and recordation of this
Section 33334.3 Covenant the Qualified Homebuyer shall obtain
certain purchase money mortgage financing for the acquisition of
the New Home from (the "First Mortgage
Lender") . As of the Delivery Date, the Qualified Homebuyer has
provided the Agency with a true and correct copy of the loan
agreement by and between the First Mortgage Lender and the
Qualified Homebuyer.
As a condition to providing its mortgage loan to the
Qualified Homebuyer, the First Mortgage Lender requires the
Agency to agree that the provisions of Section 3, Section 5 and
Section 7 (b) of this Section 33334.3 Covenant shall be junior
and subordinate to the security interest of the First Mortgage
Lender of even date herewith, in the New Home.
The Agerlcy hereby ackrlowledges and agrees that the
provisions of Section 3, Section 5 and Section 7 (b) of this
Section 33334.3 Covenant are subordinate and junior to the
security interest of the First Mortgage Lender of even date
herewith in the New Home. No breach or default by the Qualified
Homebuyer of any provision of Section 3 and/or Section 7 (b) of
this Section 33334.3 Covenant, nor the exercise by the Agency of
any remedy it may have against the Qualified Homebuyer in the
event of such a breach or default shall affect or render invalid
the lien of the First Mortgage :ender in the New Home. In the
event that the First Mortgage Lender (or its assignee) may
foreclose the lien of the First Mortgage Lender in the New Home
through trustee sale, judicial foreclosure or by acceptance of
deed in lieu or foreclosure, the First Mortgage Lender, and its
good faith purchasers for value, shall receive title in the New
Home rree and clear of the provisions of Section 3, Section 5
and Section 7(b) of this Section 33334.3 Covenant.
Section 7. Foreclosure of Purchase Money Mortgage Loan and
Agency Right of Firs.t Refusal.
(a) During the Qualified Residence Period the Agency shall
have the right (but not the obligation) to bid on the purchase
of any mortgage loan lien secured by the New Home at the time of
any trustee foreclosure sale or any judicial foreclosure sale.
1/29/032:00 JrtUU Exh. "G" - 19
582003:94.3
(b) During the Qualified Residence Period the Agency shall
have the right of first refusal to purchase the New Home from
the Qualified Homebuyer on the same terms which the Qualified
Homebuyer may propose to sell the New Home to a third party who
does not qualify as a Successor-In-Interest. The Agency must
exercise such a right of first refusal within thirty (30) days
following written notification of the intention of the Qualified
Homebuyer to resell the New Home to such a third party, and such
notice shall be accompanied with a true and complete copy of the
written sale agreement between the Qualified Homebuyer and such
third party. If the Agency accepts the offer in writing within
such time period the Agency shall be bound to complete the
purchase of the New Home in accordance with the written sale
agreement of such third party. Thereafter the Agency shall pay
the "resale price" to the Qualified Homebuyer and close an
escrow for the transfer of the New Home to the Agency within
sixty (60) days following written notification of the intention
of the Qualified Homebuyer to resell the New House.
Section 8. Covenants to Run With the Land. The Developer,
the Agency and the Qualified Homebuyer hereby declare their
specific intent that the covenants, reservations and
restrictions set forth herein are part of a common plan for the
development of affordable single family housing improvements in
the Northwesc Redevelopment Project and that each shall be
dee~ed covenancs running with the land and shall pass to and be
binding upon the New Home and each Successor-In-Interest of the
Qualified Homebuyer in the New Home for the term provided in
Section 10. The Qualified Homebuyer hereby expressly assumes the
duty and obJ..igation to perform each of the covenants and to
honor each of the reservations and restrict.ions set forth in
this Section 33334.3 Covenant. Each and every contract, deed
or other instrument hereafter executed covering or conveying the
New Home 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 9. Burden and Benefit. The Developer, the Agency
and the Qualified Homebuyer hereby declare their understanding
and intent that the burden of the covenants set forth herein
touch and concern the land in that the Qualified Homebuyer' s
legal interest in the New Home is affected by the affordable
single family dwelling use and occupancy covenants hereunder.
The l\.gency and the Qualified Homebuyer hereby further declare
1129/032:00 J;:1.i1"'< Exh. "G" - 20
5320C3: 94.3
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 New Home by the intended
beneficiaries of such covenants, reservations and restrictions,
and by furthering the public purposes for which moneys from the
Low-and Moderate Income Housing Fund of the Northwest
Redevelopment Project were used and applied by the Agency in
order to make the New Home available for acquisition and
occupancy by the Qualified Homebuyer.
Section 10. Term. This Section 33334.3 Covenant shall
apply to the New Home and the Qualified Homebuyer and to each
Successor-In-Interest as of the Delivery Date for the Qualified
Residence Period e. g.: this Section 33334.3 Covenant shall
remain in full force and effect for forty five (45) years after
the Delivery Date, except as to certain sections hereof as
provided in Section 5 (d). Any provision or section hereof, may
be terminated after the Delivery Date upon agreement by the
Agency and the Qualified Homebuyer (or the Successor-In-Interest
in the New Home), if there shall have been provided to the
Agency an opinion of special legal counsel that such a
termination under the terms and conditions approved by the
.'\gency in its reasonable discretion will not adversely affecc
the Agency or the investment of Low-and Moderate-Income Housing
Funds of the Agency in the New Home.
Section 11. Breach and Default and Enforcement.
(a) E"ailure or delay by the Qualified Homebuyer to honor
or perform any material term or provision of this Section
33334.3 Covenant shall constitute a breach under this Agreement;
provided however, that if the Qualified Homebuyer 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 Qualified Homebuyer shall not be deemed cO be in
default hereunder.
The Agency shall give the Qualified Homebuyer written
notice of breach specifying the alleged breach which if uncured
by the Qualified Homebuyer 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 rwr 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
1/29/03 2 GO :~,
s32JC~:94.3
Exh. "Go - 21
delivering the written notice of breach as specified In this
Sect ion 11.
Except with respect to rights and remedies expressly
declared to be exclusive in this Section 33334.3 Covenant, 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 Qualified Homebuyer 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 4 as related to a Maintenance Deficiency
at the New Home, 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 Qualified
Homebuyer to perform its obligations and
covena~~s hereunder, or enjoin any acts or
things which ~ay be unlawful or in violation of
che rights of ~he Agency; or
(i i \ DY other ac~ion at law or in equity as
-~ ,
necessary or convenient to enforce the
obligations, covenants and agreements of the
Qualified Homeouyer to the Agency.
(b) No third party shall have any right or
enforce any provision of this Section 33334.3 Covenant
of the Agency or to compel the Agency to enforce any
of this Section 33334.3 Covenant against the Qualified
on the Nel^, Home.
power to
on behalf
provision
Homebuyer
Section 12.
shall be governed
Governing Law. This Section 33334.3 Covenant
by the laws of the State of California.
Section 13. Amendment. This Section 33334.3 Covenant may
be amended after the Delivery Date only by a written instrument
executed by the Qualified Homebuyer (or the Successor-In-
Interest, as applicable) and by the Agency. The Developer shall
have not any right or power to approve any such amendment to
1/29/03 2;QC J~~
5B2003:94.3
Exh. "G" - 22
this Section 33334.3
Developer of any such
not be required.
Covenant,
amendment
and
after
the execution by
the delivery date
the
shall
Section 14. Attorney's Fees. In the event that the
Agency brings an action to enforce any condition or covenant,
representation or warranty in this Section 33334.3 Covenant or
otherwise arising out of this Section 33334.3 Covenant, the
prevailing party in such action shall be entitled to recover
from the other party its 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, the words
"reasonable attorneys' fees" in the case of the Agency shall
mean and include the salaries and benefits payable to lawyers
employed by the Office of City Attorney, allocated on an hourly
basis, who provide legal services to the Agency in connection
with the enforcement of this Agreement.
Section 15. Severability. If any provision of this
Section 33334.3 Covenant 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
Section 33334.3 Covenant 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 16. Time
of this Section 3333s.3
of time within which
satisfied, time shall be
is of the Essence. For each provision
Covenant which states a specific amount
the requirements thereof are to be
deemed to be of the essence.
Section 17. Notice. Any notice required to be given
under this Section 33334.3 Covenant shall be given by the Agency
or by the Qualified Homebuyer, as applicable, by personal
delivery or by First Class United States mail at the addresses
specified below or at such other address as mav be specified in
writing by the parties hereto:
If to the Agency:
Executive Director
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Ste 301
San Bernardino, CA 92401
Phone: (909) 384-5081
1/29/03 2:00 JIT~
5a2003:94.3
Exh. "G" - 23
If to the
Qualified Homebuyer:
Attn:
Phone:
Notice shall be deemed given five (5) calendar
date of mailing to the party, or, if personally
received by the Executive Director of the
Qualified Homebuyer, as applicable.
1/29/03 2:00 :~~
5B2003:94.3
Exh. "G" - 24
days after the
delivered, when
Agency or the
IN WITNESS WHEREOF, the Developer, the Qualified Homebuyer
and the Agency have caused this Section 33334.3 Covenant 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 one
original document. The recordation of this Section 33334.3
Covenant is authorized under Health and Safety Code Section
33334.3 (g) .
QUALIFIED HOMEBUYER
Dated:
By:
By:
DEVELOPER
ANR Industries, Inc., a California
corporation
Jated:
By:
AGENCY
Redevelopment Agency of the
City of San Bernardino
Dat:ed:
By:
Executive Director
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
Agency Special Counsel
1/29/03 2:::
S22C03:94.3
Exh. "G" - 25
1/29/03 2 OC J~~
Sa~J03:94.3
EXHIBIT "A"
Legal Description of the New Home
Exh. "G" - 26
EXHIBIT "H"
Copy of HUD Mortgagee Letter 2000-30
1/29/03 2:00 J~m
SB2C03:9<1.3
Exh. "H" - 1
EXHIBIT "I"
Form of Agency Grant Deed
(for Completed New Agency Home)
1/':9/03 2:00 J~~
53':OJ3:9,,-.3
Exh. "I" - 1
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 7, 2003
TO:
Margaret Parker, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution CDC/2003-5
At the Mayor and Common Council meeting of February 3, 2003, the City of San Bernardino
adopted Resolution CDCI2003-S - Resolution approving and authorizing the Executive Director
of the Redevelopment Agency to execute the Meadowbrook Single Family Residential Grant
Development Agreement by and between the Agency and ANR Industries, Inc.
Please obtain all signatures and return the original agreement to the City Clerk's Office. If you
have any questions, please do not hesitate to contact me at ex!. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt of this memorandum.
Signed: )?;bi/'K1Nl,/ii:J!1U.
/ j / Please sign and return
Date: 3;0//(13
/
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 2 -:3'.0 ~) Item # .2231-\ Resolution #
Vote: Ayes i. ') Nays h Abstain.0
Change to motion to amend original documents:
C{X)zcoj-5
,
Absent .8-
Reso. # On Attaclunents: / Contract term:
Note on Resolution of Attaclunent stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By:
NullNoid After: -
Date Sent to Mayor: :::> - -:; . C/'\
Date of Mayor's Signature: ) - s. c: ",
Date of Clerk/CDC Signature: ? (. 0/:,
Reso. Log Updated: ...-
Seal Impressed:
Date Memo/Letter Sent for Signature: d - '1 - 0 ?",
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: L Date Returned: ;-j. ;) c.3
See Attached:
See Attached:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes ,/ No BY{
Yes No ..L By
Yes No ..L BJ=
Yes No / By
~
Yes No / By
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance Dev. Services
Police Public Services Water
EDA V
Finance
MIS
Others:
Notes:
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: ~ Date: '"I. i)_ 0"5
Revised 01/12/0 I
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): '2_- 3 -'O?J Item # 12.2':3 t3 Resolution #
Vote: Ayes [-'I Nays-() Abstain CJ
Change to motion to amend original documents:
eiX'12((;5-(:
,
Absent e
Reso. # On Attachments: - Contract term:
Note on Resolution of Attachment stored separately: ~
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By:
N ull/V oid After:
Reso. Log Updated:
Seal Impressed:
v-"
Date Sent to Mayor:
::)-:j 0:':>
Date of Mayor's Signature:
Date of ClerkJCDC Signature:
,.
Date Memo/Letter Sent for Signature:
60 Day Reminder Letter Sent 01l30Iliilllr.-_
90 Day Reminder Letter Sent on 45th day:
See Attached:
See Attached:
~ached:=
Date Returned:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413,6429,6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234,655,92-389):
Yes..L. No By-L
,
Yes No~ By---+--
Yes No ,/ By i
- By:-
Yes No v'
Yes NO/ ByJ=
Copies Distributed to:
City Attorney
Parks & Rec.
Police
Public Services
Water
EDA --~
Others:
Finance
MIS
Code Compliance
Dev. Services
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: ~
Date:
Revised 01/12/0 I