HomeMy WebLinkAboutCDC/2006-06
RESOLUTION NO. CDC/2006-6
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
TO EXECUTE AN AMENDMENT TO THE 2005 MEADOWBROOK
SINGLE-FAMILY RESIDENTIAL DEVELOPMENT AGREEMENT BY
AND BETWEEN THE AGENCY AND MEADOWBROOK PARK HOMES,
INC., AND MAKING CERTAIN FINDINGS AND DETERMINATIONS
(CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA)
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WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") is a
public body, corporate and politic; and
WHEREAS, on January 10,2005, the Community Development Commission and the
Mayor and Common Council approved and authorized the execution of the 2005 Meadowbrook
Single Family Residential Development Agreement ("2005 Agreement") between the Agency
and Meadowbrook Park Homes, Inc. ("Developer") to acquire eight (8) Agency Lots, develop
and sell new single family homes to income eligible households; and
WHEREAS, the Agency and the Developer seek to amend the 2005 Agreement as
follows in the manner as contained in the Amendment to the 2005 Agreement:
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1. The allocation of downpayment assistance in. favor of a particular qualifie
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homebuyer shall not exceed $62,500 to be applied to the payment of a portion of th
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purchase price of a New Home to a Qualified Homebuyer (the "Agenc
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Downpayment Assistance") and which shall be funded from the Agency approve
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Low and Moderate Income Housing Funds in the total aggregate amount not t
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exceed $500,000;
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ll. An additional allocation of downpayment assistance may be needed to aSSlS
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particular Qualified Homebuyers in excess of the amounts available in item i. abov
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and shall be funded from the potential profits of the New Homes (the "Addition
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Agency Purchase Assistance") in an aggregate amount that is necessary to allow
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Qualified Homebuyer, at either 120% or 80% of the County median income, a
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applicable, to qualify for the Completed New Home purchase price payable by an
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Qualified Homebuyer and meet the housing affordability costs requirements a
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required under California Redevelopment Law;
5 111. Transfer to the Developer the property located at 214 East 4th Street, San Bernardino
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California (APN: 135-142-19) (the "Agency Lot") for a purchase price of $90,000 fo
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the development of an unrestricted market rate new home;
8 IV. Make other modifications to the 2005 Agreement related to the mechanics of th
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distribution of the "New Home Profit", if any, as the term is defmed in the 200
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Agreement; and
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WHEREAS, the Developer shall develop and improve the Agency Lot as transferred t
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the Developer pursuant to the 2005 Agreement and the Amendment with a New Home, using th
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design and improvement standards which are consistent with City Development Permit III No.
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03-34, as previously approved by the Planning Commission on November 18,2003; and
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WHEREAS, the Agency has prepared and published a notice of a joint public hearing i
The San Bernardino County Sun Newspaper on January 23 and 30, 2006, regarding th
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consideration and approval of the Amendment to the 2005 Agreement; and
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WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma
transfer the Agency Lot to the Developer subject to the Mayor and Common Council an
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Community Development Commission adopting a Resolution authorizing the Agency to transfe
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such Agency Lot in light of the findings set forth herein, pursuant to Health and Safety Cod
Section 33433; and
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WHEREAS, the Agency has prepared a SunImary Report that describes the salient point
ofthe Amendment to the 2005 Agreement and identifies the cost to the Agency of the dispositio
of the Agency Lot for development of an unrestricted market rate New Home; and
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WHEREAS, pursuant to Health and Safety Code Section 33334.30) and in order t
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comply with the requirements thereof, the Community Oevelopment Commission as th
governing body of the Agency is required to make certain findings and determinations base
upon substantial evidence as presented to the Community Development Commission to the effec
that as the result of the increases in housing prices due to the escalating costs of labor an
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materials within the City of San Bernardino since the date of the 2005 Agreement, the Agenc
has incurred and paid expenditures from the Low and Moderate Income Housing Fund of th
Agency that exceed fifty percent (50%) of the cost of producing the New Homes to b
constructed by the Developer upon the seven (7) Type A Agency Lots and the one (1) Type B
Agency Lot, and that the Developer has made a good faith attempt but has not been able t
obtain commercial or private means of financing for the eight (8) New Homes upon the Type
Agency Lots and the Type B Agency Lot at the same level of affordability and quantity a
required by the Agency in accordance with the terms and provisions of the 2005 Agreement bu
for the inclusion of the additional assistance as shall be obtained from the Agency from fund
attributable to the Low and Moderate Income Housing Fund as hereinafter set forth in thi
Resolution and in the Amendment to the 2005 Agreement.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
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19 Section 1.
20 respects.
21 Section 2.
The Recitals contained III this Resolution are true and correct in al
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On February 6, 2006, the Community Development Commission and th
Mayor and Common Council conducted a full and fair joint public hearing and considered th
written Agency Staff Report relating to the Amendment to the 2005 Agreement, the Surnm
Report and the testimony submitted relating to the disposition and development of the Agenc
Lot by the Developer pursuant to the terms and conditions of the 2005 Agreement and th
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Amendment. The minutes of the City Clerk for the February 6, 2006, joint public hearing of th
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Community Development Commission and the Mayor and Common Council shall include
2 record of all communication and testimony submitted to the Community Developmen
3 Commission and the Mayor and Common Council at the joint public hearing by intereste
4 persons relating to the Summary Report, the sale of the Agency Lot and the approval of th
5 Amendment to the 2005 Agreement.
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Section 3.
This Resolution is adopted in order to satisfy the provisions of Health an
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Safety Code Section 33433 as those provisions relate to the disposition of the Agency Lot to th
Developer on the terms and conditions set forth in the 2005 Agreement and the Amendment.
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The Community Development Commission hereby finds and determines as follows:
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(i)
The Summary Report contains the information described in Health and Safet
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Code Section 33433(a)(2)(B);
(ii)
The disposition and development of the Agency Lot by the Developer i
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accordance with the 2005 Agreement and the Amendment is consistent with th
affordable single family housing supply preservation and expansion programs 0
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the Agency Housing Implementation Plan;
(iii) The terms and conditions of the 2005 Agreement and the Amendment contai
assurances that the Agency Lot will be developed by the Developer as a "Ne
Home", as this term is defined in the 2005 Agreement and the Amendment; and
(iv) The disposition of Agency Lot to the Developer on the terms set forth in the 2005
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Agreement and the Amendment shall assist in the elimination of the conditions 0
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blight and in the area adjacent to the Agency Lot.
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Section 4.
The Community Development Commission hereby finds and determine
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that the environmental review of the approved 2005 Agreement, the Amendment to the 200
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Agreement and the development activities contemplated thereunder are "categorically exempt'
and no potentially adverse environmental effects are anticipated to be associated with th
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development of the Agency Lot, and a Notice of Exemption under California Environmenta
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Quality Act ("CEQA") relating to the development as defined therein will be filed with th
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Section 5.
The Community Development Commission hereby receives and approve
4 the Summary Report and the Amendment to the 2005 Agreement in the form as submitted at thi
5 joint public hearing.
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Section 6.
The Community Development Commission hereby further fmds an
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determines, pursuant to the requirements of Health and Safety Code Section 33334.30) an
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based upon evidence as presented to the Community Development Commission at the join
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public hearing referred to hereinabove in this Resolution in the form of the Agency Staff Repo
and/or all oral presentations as made by Agency Staff, that as the result of the increases i
housing prices due to the escalating costs of labor and materials within the City of S
Bernardino since the date of the 2005 Agreement, the Agency has incurred and paid expenditure
from the Low and Moderate Income Housing Fund of the Agency that exceed fifty percen
(50%) of the cost of producing the affordable New Homes to be constructed by the Develope
upon the seven (7) Type A Agency Lots and the one (I) Type B Agency Lot ("Agency Lots")
and that the Developer as the owner of the New Homes, prior to the sale thereof to Qualifie
Homebuyers, subject to the 45 year Regulatory Agreement being included as a condition of eac
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such sale, has made a good faith attempt, but has not been able to, obtain commercial or privat
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means of financing for the eight (8) New Homes upon the Agency Lots at the housin
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affordability levels as required by the Agency in accordance with the terms and provisions of th
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2005 Agreement and the Amendment.
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Section 7.
The Community Development Commission hereby approves th
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disposition of the Agency Lot to the Developer on the terms set forth in the 2005 Agreement an
the Amendment to the 2005 Agreement and hereby authorize the Interim Executive Director t
execute the Amendment to the 2005 Agreement on behalf of the Agency, and the Interi
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Executive Director of the Agency is hereby authorized to make minor corrections, additions
clarifications and interpretations to the Agreement, provided, however, that said changes are no
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substantive in nature, do not increase the monetary impact to the Agency and are consented to b
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This Resolution shall take effect upon its adoption and execution.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
TO EXECUTE AN AMENDMENT TO THE 2005 MEADOWBROOK
SINGLE-FAMILY RESIDENTIAL DEVELOPMENT AGREEMENT BY
AND BETWEEN THE AGENCY AND MEADOWBROOK PARK HOMES,
INC., AND MAKING CERTAIN FINDINGS AND DETERMINATIONS
(CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA)
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Communi
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Development Commission of the City of San Bernardino at a. i oint regular
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thereof, held on the 6th day of February
Commission Members: Aves
ESTRADA x
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LONGVILLE --1L
MCGINNIS x
DERRY x
KELLEY x
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JOHNSON x
MC CAMMACK
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, 2006, by the following vote to wit:
Abstain
Navs
Absent
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,2006.
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February
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aIles, Chairperson
"ty Development Commission
City of San Bernardino
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Approved as to form and Legal Content:
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J/()J~
By:
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AMENDMENT
TO THE
2005 MEADOWBROOK SINGLE FAMILY
RESIDENTIAL DEVELOPMENT AGREEMENT
(Meadowbrook Neighborhood Restoration Area)
THIS AMENDMENT TO THE 2005 MEADOWBROOK SINGLE FAMILY
RESIDENTIAL DEVELOPMENT AGREEMENT (this "Amendment") is dated as of February
6, 2006, by and between Meadowbrook Park Homes, Inc., a California corporation (the
"Developer"), and the Redevelopment Agency of the City of San Bernardino, a public body,
corporate and politic (the "Agency"), and is entered into in light of the facts set forth in the
following Recital paragraphs:
-- RECITALS --
A. The Developer and the Agency have previously entered into an agreement entitled
"2005 Meadowbrook Single Family Residential Development Agreement", dated as of January
10,2005 (the "Agreement").
B. As of the effective date of this Amendment, the Developer has acquired ten (10)
of the "Agency Lots", as this term is defined in the Section 1.01(b) of the Agreement.
C. The Developer and the Agency believe it is appropriate to consider and approve
this Amendment in order that: (i) the Agency has provided a program of secondary mortgage
loan assistance in the form of the Agency Downpayment Assistance to Qualified Homebuyers of
Completed New Homes in the Project whose income levels do not exceed one hundred and
twenty percent (120%) of County median income for the seven (7) New Homes to be built upon
the Type A Agency Lots as defined in the Agreement and eighty percent (80%) of County
median income for the one (I) New Home to be built upon the Type B Agency Lot as defined in
the Agreement; (ii) in addition to the Agency Downpayment Assistance and in order to make
certain other modifications to the Agreement as the same relate to the mechanics for the
distribution of the "New Home Profit", if any, as said term is defined in the Agreement between
the Developer and the Agency and the use of the potential New Home Profit for purposes of
funding either in whole or in part the Additional Agency Purchase Assistance; and (iii) to include
within the scope of the Agreement one (I) additional Agency parcel of land as a Type C Agency
Lot as defined in the Agreement.
D. Pursuant to Health & Safety Code Section 33334.3(j) and in order to comply with
the requirements thereof, the governing body of the Agency has made certain findings and
determinations based upon substantial evidence as presented to said governing body as
referenced in the approving Resolution for this Amendment stating to the effect that as the result
of the increases in housing prices due to the escalating costs of labor and materials within the
City of San Bernardino since the date of the Agreement, the Agency has incurred and paid
expenditures from the Low and Moderate Income Housing Fund of the Agency that exceed fifty
percent (50%) of the cost of producing the New Homes to be constructed by the Developer upon
the seven (7) Type A Agency Lots and the one (I) Type B Agency Lot, and that the Developer as
the owner of the New Homes prior to the sale thereof to Qualified Homebuyers, subject to the
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Regulatory Agreement being included as a condition of each such sale, has made a good faith
attempt but has not been able to obtain commercial or private means of financing for the eight
(8) New Homes upon the Type A Agency Lots and the Type B Agency Lot at the same level of
affordability and quantity as required by the Agency in accordance with the terms and provisions
of the 2005 Agreement.
NOW, THEREFORE, THE DEVELOPER AND THE AGENCY DO HEREBY AGREE
AS FOLLOWS:
Section 1. (a) Unless the context of the usage of a term or phrase in this Amendment
may otherwise require, the meaning of words and phrases in this Amendment, which are
indicated by an initially capitalized letter, shall be the same as set forth in the Agreement.
(b)
The Recitals of this Amendment are true and correct.
(c)
reference.
The text of the Agreement is hereby incorporated into this Amendment by this
Section 2. This Amendment sets forth the terms and conditions of an amendment to
the text of the Agreement. This Amendment integrates all of the terms and conditions mentioned
herein and supercedes all negotiations, discussions, and understandings between the parties with
respect to the Project and the Agreement as hereby modified by this Amendment, including all
items of assistance, which the Agency shall provide to the Developer under the Agreement as
modified by this Amendment.
Section 3. The Effective Date of the Agreement occurred on January 10,2005. The
parties recognize that the public hearing required pursuant to Section 1.05(c) of the Agreement
has been duly conducted by the Agency and such provisions of said Section shall no longer be a
condition precedent to the transfer of any of the Agency Lots to the Developer.
Section 4. The text of Section 1.01(b) of the Agreement is hereby modified to add
new defined terms for "Additional Agency Purchase Assistance" and "Effective Date of the
Amendment to the Agreement" and the other modifications as set forth below to the other
previously defined terms as set forth in the Agreement:
"Additional Agency Purchase Assistance. The words "Additional Agency Purchase
Assistance" mean and refer to that amount of additional subsidy to be provided by the
Agency in addition to the Agency Downpayment Assistance in the manner and subject to
the terms and provisions as provided in this Amendment. It is anticipated that the
Additional Agency Purchase Assistance for each New Home to be sold to a Qualified
Homebuyer for purposes of maintaining the affordability housing costs covenants for the
New Homes, whose income does not exceed either 120% or 80% of County median
income, as applicable, will be funded first from the potential New Home Profit from each
sale of a New Home to the extent needed and then from a deferral of the Agency Lot
Purchase Price, if and to the extent required, and in the manner as provided in Section
4.08. In the event additional downpayment assistance amounts are still required after the
application of the sources of funds specified in the preceding sentence, the Developer
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shall have the sole obligation to provide such other financing as may be legally
permissible under the circumstances to accomplish the sale of the New Homes to
Qualified Homebuyers."
Agency Downpayment Assistance, second sentence shall read as follows:
"The amount of such Agency Downpayment Assistance in favor of a particular Qualified
Homebuyer shall not exceed $62,500 for that portion as shall be funded from the Agency
Low and Moderate Income Housing Fund plus such additional amounts to be funded
from the deferral of the Agency Lot Purchase Price as provided in Section 4.08(d) and the
potential profits of the New Homes in an aggregate amount that is necessary to provide
downpayment assistance to allow a Qualified Homebuyer to qualify at either 120% or
80% of County median income, as applicable, based upon the Completed New Home
purchase price payable by any Qualified Homebuyer in order to assure compliance with
the affordability covenants relative to the purchase price of the Completed New Homes."
Agency Lot Purchase Price shall be amended by the addition of a new subparagraph
(iv) to read as follows:
"(iv) for a Type C Agency Lot as added pursuant to this Amendment, the Agency Lot
Purchase Price shall be equal to $90,000; such additional Type C Agency Lot is located
at 214 East 4th Street, San Bernardino, California (APN: 0135-142-19).
"Effective Date of the Amendment to the Agreement. The words "Effective Date of
the Amendment to the Agreement" mean and refer to the date on which the Amendment,
as approved by the governing board of the Agency on February 6, 2006, has been fully
executed by the officers or representatives of the parties."
Neighborhood Restoration Area shall be amended to read as follows:
"The words "Neighborhood Restoration Area" mean and refer to the areas within the City
of San Bernardino within which the Agency has designated for purposes of revitalizing
and restoring the housing stock thereof which for purposes of this Amendment includes
the lands identified in the vicinity map attached to this Amendment as Exhibit "A" and
the property located at 214 East 4th Street, San Bernardino, California (APN: 0135-142-
19)."
New Home Sales Costs shall be amended as follows:
"(1) the Additional Agency Purchase Assistance and the Agency Lot Purchase Price,
whether or not there has been a deferral of the actual payment thereof as authorized by
Section 4.08( d) hereof, plus the actual and reasonable escrow and title insurance costs
paid by the Developer for the purchase of the Agency Lot through the Agency Lot
Transfer Escrow;"
"(9) a Developer overhead fee of five percent (5%) of the cost items under (2), (3), (5)
and (6), above, provided that the construction lender may allow either a fixed dollar
amount or a lesser percentage amount to be funded from the proceeds of a construction
loan for the New Homes; in such case the final calculation of the Developer overhead fee
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shall be reconciled at the time and in the manner as set forth in Section 4.10 hereof so
that said fee is equal to an amount not greater than said five percent (5%) figure; and"
"(10) a Developer profit allowance of ten percent (10%) of the gross sales price of the
Completed New Home on the Agency Lot; provided, however, that upon the sale of each
such Completed New Home, no Developer profit allowance shall be paid in cash to the
Developer upon the sale and close of escrow only if either the Agency has deferred any
portion of the Agency Lot Purchase Price or there remains any unpaid balance of the
Agency Lot Purchase Price that is then secured by a deed of trust on the Type C Agency
Lot, and the final determination of said Developer profit allowance shall be calculated at
the time and in the manner as set forth in Section 4.10 hereof upon the Release Date."
Section 5. The parties agree that the Type B Agency Lot shall be sold to the
Developer for a consideration equal to $100 payable upon the Effective Date of the Amendment
to the Agreement. The parties recognize that the fee title transfer from the Agency to the
Developer of the Type B Agency Lot has previously occurred, and, upon payment of the $100
consideration amount, the Agency shall release the promissory note and reconvey any security
interests in the Type B Agency Lot to the Developer. All provisions of Section 2.15(c) and
Section 2.17 shall be deemed to be automatically amended to conform with the intent hereof to
eliminate the requirement for any promissory note, deed of trust or any formula for the
calculation of a greater purchase price for the Type B Agency Lot. The parties shall mutually
prepare a Memorandum of Understanding that shall contain a composite recitation of the
remaining provisions of Sections 2.15( c) and 2.17 that shall continue to be applicable to the use
and subsequent transfer of the Type B Agency Lot to a Qualified Homebuyer. Such
Memorandum of Understanding shall also set forth any other references contained elsewhere in
the Agreement that additionally shall be deemed modified by the intent hereof.
Section 6. As of the Effective Date of the Amendment to the Agreement, Sections
4.08(c), (d) and (e) of the Agreement are hereby amended to read as follows:
"Section 4.08. Agencv Downpavment Assistance and Additional Agencv
Purchase Assistance to Qualified Homebuvers.
(c) The amount of the Agency Downpayment Assistance, to be
provided from the $500,000 amount as made available by the Agency from the Agency
Low and Moderate Income Housing Fund shall not exceed $62,500 for each of the eight
(8) combined Type A Agency Lots and the Type B Agency Lot subject to further
provisions contained in (d) below;
(d) The Agency has the discretion to provide, or make available
additional sums to pay for the Agency Downpayment Assistance or other amounts, in
addition to the amounts as specifically referred to and set aside under Section 4.08(a)
above. Such additional sums as committed by the Agency pursuant to this Amendment
shall include the Additional Agency Purchase Assistance as provided herein; however,
the total amount of downpayment assistance of which a portion shall be funded from the
potential profits of the sale of the New Homes, when added to the above set forth dollar
amount of the Agency Downpayment Assistance as allocated for each New Home shall
not exceed that amount of the combined Agency Downpayment Assistance and the
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Additional Agency Purchase Assistance which is required to be provided to one or more
Qualified Homebuyers to qualify at 120% or 80% of County median income, as
applicable, and subject to compliance with the applicable affordability housing costs
covenant based upon the Completed New Home purchase price payable by any Qualified
Homebuyer, and all such amounts shall be disbursed for the account of such Qualified
Homebuyer through the applicable New Home Escrow. Additionally, the Developer may
request that the Interim Executive Director consider and approve the deferral of the
payment of any Agency Lot Purchase Price for funding additional shortfall amounts as
Additional Agency Purchase Assistance in addition to the required Agency
Downpayment Assistance for the sale of a particular New Home to a Qualified
Homebuyer if it is demonstrated in writing to the sole satisfaction of the Interim
Executive Director that the portion of the Agency Lot Purchase Price as thus requested to
be deferred will be secured as to the repayment thereof by the deeds of trust on the Type
C Agency Lots. Such deferred amounts, if any, as included within the Additional
Agency Purchase Assistance shall be jointly and severally secured by each of the Type C
Agency Lots as then owned by the Developer and shall be paid as to principal and
interest upon the earlier to occur of (i) the sale of the first of the Type C Agency Lots
with a New Home or (ii) one hundred twenty (120) calendar days from the date of such
deferred amount, unless a prepayment has been remitted to the Agency at the option of
the Developer. Any payment of such deferred amount upon the sale of the first of the
Type C Agency Lots or any prepayment of the amounts owed to the Agency as such
deferral amount shall include the principal amount and accrued and unpaid interest
thereon calculated from and after one hundred twenty (120) calendar days from the date
of such deferred amount to the date of such payment or prepayment at the annual rate of
interest equal to six percent (6.0%) per annum.
(e) Notwithstanding any other prOVISIOn of this Section 4.08, the
Agency shall have no obligation to fund any Additional Agency Purchase Assistance or
any Agency Downpayment Assistance loan for a Qualified Homebuyer of a Completed
New Home on any Developer Lot after March 31, 2007."
Section 7. As of the Effective Date of the Amendment to the Agreement, Sections
4.09(b), (c), and (d) of the Agreement is hereby amended to read as follows:
"Section 4.09. Agency Participation in New Home Profit.
(b) The Developer hereby agrees to pay to the Agency fifty percent (50%) of
the New Home Profit realized by the Developer upon the completion of the sale of the
entire eight (8) New Homes on the Type A Agency Lots and the Type B Agency Lot in
the manner and at the time as provided in Section 4.10. The New Home Profit payment
by the Developer to the Agency shall be an amount, which is in addition to the sum
payable by the Developer to the Agency as the Agency Lot Purchase Price or any deferral
thereof as set forth in Section 4.08(d).
(c) The Developer shall pay the Agency the applicable amount of the New
Home Profit at the time set forth in Section 4.1 O.
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(d) The Developer shall prepare and deliver to the Agency its New Home
Sales Costs Certificate for all eight (8) of the Completed New Homes within sixty (60)
days following the close of the New Home Escrow for the last of the eight (8) Completed
New Homes as set forth in Section 4.10. The Agency shall have the right to conduct and
complete a financial audit of the information presented in such New Home Sales Costs
Certificate at the expense of the Agency in accordance with generally accepted
accounting principles as provided in Section 4.07 at anytime either prior to the Release
Date and for a period of time not to exceed sixty (60) calendar days after the Release
Date. The Developer shall cooperate with the Agency and its agents in the conduct of
any such audit of the financial information set forth in the New Home Sales Costs
Certificate, including the delivery to the Agency upon request of underlying construction
or service contracts and invoices for services performed or products delivered to the
Developer by third parties relating to the Project."
Section 8. As of the Effective Date of the Amendment to the Agreement, the
Agreement is hereby modified to add a new Section 4.10, which reads as follows:
"Section 4.10. Distribution of New Home Profit Upon the Release Date.
(a) Subject to the provisions of Sections 4.09(d) and 5.05, the obligations of
the Developer as arise in favor of the Agency under Article III and Article IV of this
Amendment shall terminate thirty (30) days after the date on which each of the following
has occurred and it is anticipated that each of the following items which are under the
sole control and direction of the Developer will occur within sixty (60) days after the
completion and sale of the last of the eight (8) New Homes on the Type A Agency Lots
and the Type B Agency Lot:
(i) the Developer has completed the construction of all of the New
Homes on each of the Type A Agency Lots and the Type B Agency Lot and has
caused each Completed New Home to be sold to a Qualified Homebuyer;
(ii) the New Home Escrow Holder has delivered to the Agency final
copies of both the buyer's and the seller's escrow settlement statements for each
of the New Home Escrows for the New Homes described in (i) above;
(iii) the Agency has received from the Developer a New Home Sales
Costs Certificate for the Completed New Homes identified in (i) above and the
Developer has prepared a suitably detailed reconciliation of the amounts of the
New Home Profit and setting forth as the actual amount of the New Home Profit
available for distribution to the Developer and the Agency on the Release Date;
such New Home Sales Costs Certificate shall also set forth the amounts actually
received by the Developer as the Developer overhead fee as item (9) of the
definition of New Home Sales Costs, the amount of the profit received by the
Developer as item (10) of the definition of New Home Sales Costs, the amount of
the Additional Agency Purchase Assistance and any deferral of the Agency Lot
Purchase Price;
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CDC/2006-6
(iv) the Developer has delivered to the Agency a check in the amount
of the New Home Profit as calculated by the Developer in accordance with
Section 4.08; for purposes of such calculation, the Developer shall assume that the
Agency Lot Purchase Price has been paid at the time of the sale of the applicable
New Home for any deferral of the Agency Lot Purchase Price that is then secured
as to the repayment thereof by the Type C Agency Lots; the Developer shall also
assume that the Additional Agency Purchase Assistance is an expense item as set
forth in the item (1) of the definition of New Home Sales Costs for purposes of
calculating the New Home Profit; and
(v) the Developer is not in material default under this Amendment.
(b) The "Release Date" as this term is used in Section 4.09 and Section
4.10(c) shall occur when the provisions of Section 4.10(a) have been satisfied. On or
before sixty (60) calendar days from and after the Release Date on which the Agency has
received the New Home Sales Costs Certificate under subparagraph (iii) and the check
for the amount of the New Home Profit pursuant to subparagraph (iv), the Agency shall
have the right to conduct such independent audit or review of the Developer's financial
records of the Project as the Agency may in its discretion undertake in accordance with
Section 4.07.
(c) Prior to the Release Date, no portion of the New Home Profit, if any, as
may be payable to the Developer, shall be distributed to any partner, member, manager,
shareholder, affiliate or employee of the Developer. The Agency shall receive as a
priority distribution of the amount of any deferred Agency Lot Purchase Price that was
deferred in the manner provided in Section 4.08(d), plus interest from the date which is
one hundred twenty (120) calendar days after the deferral of the Agency Lot Purchase
Price to the payment date to the Agency in whole of said deferred amount, with such
priority payment to be made from the sale of the first of the Type C Agency Lots. The
Developer shall be entitled to the Developer profit allowance as provided in the definition
of New Home Sales Costs item (10) provided that there are no deferrals of the Agency
Lot Purchase Price or all such deferrals of the Agency Lot Purchase Price have been
repaid in whole and thereafter the profits, if any, payable to the Agency and the
Developer shall be calculated upon the Release Date in the manner as set forth in Section
4.09 as the New Home Profits,"
Section 9. Except as modified or amended by this Amendment, all of the provisions
of the Agreement shall remain in full force and effect following the Effective Date of this
Amendment.
1/1
1/1
/II
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CDC/2006-6
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to the
Agreement as of the dates set forth below.
AGENCY
Date: 02-14-06
By:
i-tA~
, Interim Executive Director
APPROVED AS TO FORM:
1 (JJ6tUV
DEVELOPER
Meadowbrook Park Homes, Inc.,
a California corporation
Date:
>I /~ / /71,P
/
By:
h~_
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8
CDC/2006-6
EXHIBIT "A"
Legal Description and Vicinity Maps
'CncI2006-6
LEGAL DeSCRIPTION
Re~1 property In the Oty of San Bernardino, County of San Bernardino, State of California,
described as fOllows:
Lot 3, Block "A", Cypre;s Tract, in the County of San Bernardino, State of California, as per plat
recorded In book 3 of maps, page (5) 85, records. of said county.
APN: 0135-142-19-0-00
"
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