HomeMy WebLinkAboutCDC/2006-38
.
"
,
,I.
.'
RESOLUTION NO.
CDCj2006-38
2
3
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING THE
TERMINATION OF THE 2003 OLD TOWNE SINGLE-FAMILY
ACQUISITION AND CONSTRUCTION GRANT AGREEMENT
BETWEEN CREATIVE HOUSING SOLUTIONS, INC. AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND AUTHORIZING THE EXECUTIVE DIRECTOR OF
THE AGENCY TO EXECUTE THE TERMINATION AGREEMENT
4
5
6
7
8
WHEREAS, on March 3, 2003, the Community Development Commission of the City of San
Bernardino ("Commission"), on behalf of the Redevelopment Agency of the City of San Bernardino, a
public agency of the State of California (hereinafter referred to as "Agency"), and Creative Housing
Solutions, Inc. ("CHS") entered into the 2003 Old Towne Single-Family Acquisition and Construction
Grant Agreement ("Agreement") to acquire and develop at least sixteen (16) lots; and
WHEREAS, CHS acquired the sixteen (16) vacant lots, constructed and sold two (2) affordable
9
10
11
12
13
single-family homes to owner occupants at affordable housing prices on Victoria Street pursuant to the
14
15
terms of the Agreement, and CHS desires to sell the remaining fourteen (14) lots at rnarket rate prices
subject to the repayment of acquisition grant to the Agency; and
WHEREAS, the Agency disbursed a total of$112, 000 for acquisition of the fourteen (14) lots
from the $200,000 Agency Grant from the low- and moderate-income housing fimd ("Housing Fund")
to CHS and said disbursed Grant fimds will be repaid to the Agency at the rate of$8,000 per lot, plus six
percent (6%) interest commencing from the date that the Grant Funds were disbursed by the Agency
until repaid, thereby ensuring that the Housing Fund is made whole; and
WHEREAS, the Agency and CHS desires to tenninate the Agreement subject to the terms and
conditions stipulated in the proposed Termination Agreement.
16
17
18
19
20
21
22
23
NOW, TIlEREFORE, TIlE COMMUNITY DEVELOPMENT COMMISSION OF TIlE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
24
25
-1-
P:\Agendas\Resolutions\Resolutions\2006\8-21-06 Termination - Old Towne Single-Family Agreement CDC Rno.doc
.,
..
,
'.
CDC/2006-38
Section 1.
On August 21, 2006, the Connnunity Development Commission of the City of
2 San Bernardino ("Commission"), as the governing body of the Agency, approved the termination of the
3 2003 Old Towne Single-Family Acquisition and Construction Grant Agreement pursuant to the tenns
4 and conditions of the Termination Agreement. The Commission hereby approves the Termination
5 Agreement and authorizes the Executive Director of the Agency to execute said Termination Agreement
6 together with such technical nonsubstantive changes as approved by Agency Counsel.
This Resolution shall become effective inunediately upon its adoption.
7 Section 2.
8 /II
9 1/1
/II
10
/II
11
/II
12
/1/
13
/1/
14
/1/
15
/1/
16
/1/
17 /1/
18 /1/
19 //1
20 /1/
21 //1
22 /1/
23 /1/
24 //1
25 //1
-2-
P:\Agendas\Resolutionl\ResolutionsUOO6\a-ZI.06 Termination - Old Towne Single-Falllily Agreement CDC Reso.doc
"
.
"
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING THE
TERMINATION OF THE 2003 OLD TOWNE SINGLE-FAMILY
ACQUISITION AND CONSTRUCTION GRANT AGREEMENT
BETWEEN CREATIVE HOUSING SOLUTIONS, INC. AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND AUTHORIZING THE EXECUTIVE DIRECTOR OF
THE AGENCY TO EXECUTE THE TERMINATION AGREEMENT
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 joint regular
8 meeting thereof, held on the 21st day of August
, 2006, by the following vote to wit:
9 Commission Members:
Navs
Abstain
Absent
Aves
X
10
ESTRADA
BAXTER
VACANT
DERRY
KELLEY
JOHNSON
MC CAMMACK
X
11
12
13
--1L-
X
14
X
15
16
17
18
19
.cb,
The foregoing resolution is hereby approved this dd- day of
August
,2006,
20
21
22
P trick . Morris, ChaJ erson
Co ity Development Commission
of the City of San Bernardino
23
Approved as to Form and Legal Content:
24
25 By: l/'~ rIJ j
Agency C5nfns~--
-3-
P:\Agendu\Rcsolutions\Resolutions\1006\8-21-06 Termination. Old Towne Sing$e-Flmily Agreement CDC Rno.doc
TERMINATION AGREEMENT
WITH RESPECT TO THE
OLD TOWNE SINGLE FAMILY RESIDENTIAL
ACQUISITION AND CONSTRUCTION
GRANT FUNDING AGREEMENT
THIS TERMINATION AGREEMENT (this "Termination Agreement") is entered into as of
this 21st day of August 2006 (the "Effective Date") by and between the Redevelopment Agency of
the City of San Bernardino, a public body corporate and politic (the "Agency"), and Creative
Housing Solutions, a California non-profit public benefit corporation (the "Developer"), for the
purpose of terminating the "Old Towne Single Family Residential Acquisition and Construction
Grant Funding Agreement" dated as of March 3, 2003 (the "2003 Agreement"). The Agency and
the Developer are each a party, and they are collectively the parties, to this Termination Agreement.
RECITALS
WHEREAS, the parties entered into the 2003 Agreement for the purpose of encouraging the
Developer to acquire sixteen (16) residential lots (the "Developer Lots") within the Central City
North Redevelopment Project Area for the potential development of sixteen (16) single-family
affordable homes (collectively, the "SF Homes"). In accordance with the 2003 Agreement, the
Developer purchased sixteen (16) Developer Lots, and the Agency granted the Developer the sum
of Eight Thousand Dollars ($8,000.00) for each acquired Developer Lot (for a grant total amount of
One Hundred Twenty-Eight Thousand Dollars ($128,000.00) (the "Agency Grant") paid by the
Agency to the Developer from the Agency's Low and Moderate Income Housing Fund (the
"Housing Fund"); and
WHEREAS, the Developer has developed and constructed two (2) New SF Homes and has
sold said two (2) New SF Homes to Qualified Homebuyers consistent with the affordable housing
provisions in the 2003 Agreement; and
WHEREAS, the Developer desires to terminate the 2003 Agreement and be released from
any further obligations under the 2003 Agreement as set forth in the 2003 Agreement in order to
develop fourteen (14) market rate housing units consistent with the redevelopment plan for the
Central City North Redevelopment Project Area for the reasons set forth in the Staff Report
accompanying the Resolution of the Community Development Commission with the proviso that
One Hundred and Twelve Thousand Dollars ($112,000.00) of the Agency Grant, plus six percent
(6%) per annum accruing from the date of each funding by the Agency, for each Developer Lot, is
paid in full to the Housing Fund.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE,
AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE AGENCY AND THE
DEVELOPER HEREBY AGREE AS FOLLOWS:
Section 1.
reference.
Recitals. The Recitals set forth above are incorporated herein by this
I
P:\Agendas\Agenda Attachments\Agrmts~Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
Section 2. Repavment of Grant Funds. As consideration payable to the Agency for the
mutual termination of the 2003 Agreement, the Developer shall pay to the Agency concurrently
with the final execution of this Termination Agreement by the Agency and the Developer an
amount equal to One Hundred Twelve Thousand Dollars ($112,000.00) which represents the
principal amount of the grant under the 2003 Agreement as actually disbursed by the Agency to the
Developer for the purchase of fourteen (14) Developer Lots together with interest at the rate of six
percent (6%) per annum which shall accrue commencing from the date of each such grant advance
by the Agency to the Developer until paid in full (collectively, the "Termination Payment"). On the
Effective Date, the Termination Payment shall be the following: (i) One Hundred Twelve Thousand
Dollars ($112,000.00) and (ii) accrued and unpaid interest, which in the aggregate is in the amount
of $135,103.63 through August 22, 2006, and $22.21 per day for each day that is either prior to (as
a deduction amount) or after (as an additional interest factor) said date of calculation upon which
the final payment is actually remitted by the Developer to the Agency. Simultaneously with the
execution of this Termination Agreement and the payment of the Termination Payment to the
Agency, the Agency shall execute and acknowledge each Release of the Notice of Agreement
Relating to Real Property (Creative Housing Solutions) (substantially in the form of Exhibit "A"
attached hereto and incorporated herein by this reference) in connection with fourteen (14)
Developer Lots and release any restrictions, affordability covenants or other restrictions imposed by
the 2003 Agreement.
Section 3. Covenants, Representations and Warranties. The Developer covenants,
represents and warrants to the Agency that: (i) the Developer will develop, construct and improve
each of the fourteen (14) Developer Lots with a market rate housing unit (singularly, "Housing
Unit"), and will sell each of the fourteen (14) Developer Lots as improved by and with a Housing
Unit attached thereto and thereon; (ii) the Developer will sell each Developer Lot, as improved by
and with a Housing Unit, to one or more persons (singularly and collectively, the "Owner") who
will covenant, represent and warrant to the Developer that each such Owner will continuously own
and occupy the Developer Lot, as improved by and with the Housing Unit, as the Owner's principal
residence; and (iii) the Developer will cause each Owner to execute and/or acknowledge one (1) or
more agreements, documents and/or instruments (singularly, the "Document") (as approved by the
Agency in its sole and absolute discretion) wherein each Owner will covenant, represent and
warrant to the Developer that the Developer Lot, as improved by and with the Housing Unit, will be
continuously owned and occupied by the Owner, as its principal residence. This Section 3 shall
survive the execution of this Termination Agreement by the parties, the delivery, the payment of the
Termination Payment by the Developer to the Agency, and the performance and observance of the
terms, covenants, conditions and/or restrictions of this Termination Agreement.
Section 4. Mutual Release of Liabilitv and All Claims. Subject to Section 3 above, this
Termination Agreement is also intended to be a full and final compromise, accord and satisfaction,
novation, mutual release of liability, and settlement of all claims, demands, actions, causes of
action, known or unknown, suspected or unsuspected, arising out of or in any way connected with
the 2003 Agreement, Termination Payment, and all related matters, whether for economic loss, loss
of profits, loss of real property, diminution of value of real property, loss of prospective economic
advantage, consequential damages, incidental damages, injury to person or property or because of
death, and for any and all damages of any kind whatsoever which have been, or which might be,
incurred or sustained by any party or claimant; and, as further consideration and inducement for this
compromise settlement and mutual release, the parties expressly waive the provisions of Civil Code
~ 1542, which states:
2
P:\Agendas\Agenda Attachments\Agnnts-Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
"A GENERAL RELEASE DOES NOT EXTEND TO THE
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
The parties expressly represent and warrant that each party consulted with its separate
independent attorneys with respect to the meaning and significance of Civil Code ~ 1542, and the
parties further represent and warrant that each intends to, and does, waive the provisions of this
statute on the separate advice of their respective attorneys. The parties acknowledge that different
or other facts may be discovered in addition to what each party now knows or believes to be true
with respect to the matters released, and that each party agrees that this Termination Agreement
and release shall be and remain in effect in all respects as a complete and final release of the
matters released, notwithstanding any different or additional facts. Therefore, the parties further
agree that:
(a) Each party is the sole, absolute and unencumbered owner of its respective claims
or causes of action being released, and such claims or causes of action have not been assigned or
otherwise transferred to any other person or entity.
(b) The persons signing this Termination Agreement on behalf of each party are
authorized to do so and their signatures on this Termination Agreement bind the parties.
Facsimile copies, or photocopies, of signatures of the entire Termination Agreement are deemed
duplicate originals and are as binding as original signatures or documents. This Termination
Agreement may be signed in counterparts on different dates and all such counterparts are deemed
one and the same document.
(c) The parties will each bear their own respective attorneys' fees and costs in
connection with this Termination Agreement, compromise, settlement and release.
(d) The releases set forth in this Termination Agreement do not apply to any
performance required by either party by, under or as a result of this Termination Agreement, or
any future transaction among them unrelated to the subject matter of this Termination Agreement.
(e) This Termination Agreement contains and sets forth the full and complete
agreement of the parties relative to the subject matter of this Termination Agreement, which
supercede and replace all prior negotiations and understandings, and no other negotiations, offers,
counteroffers, statements or representations, have been made or relied upon by the parties as an
inducement for executing this Termination Agreement.
(f) The Agency shall indemnify, defend, protect and hold harmless the Developer and
its officers, directors, employees and agents, from and against any and all actions, causes of actions,
3
P:\Agendas\Agenda Attachments\Agnnts-Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
claims, costs, damages, demands, expenses, fees, judgments, liabilities, obligations and/or injuries
(including, without limitation, attorneys' fees, court costs and all attorneys' fees and court costs
incurred in any and all appeals) resulting from: (i) any failure by the Agency, its agents or
employees, to perform or comply with any of its obligations contained in this Termination
Agreement; provided, however, this indemnity shall not apply to any liability hereunder resulting
from the gross negligent acts or omissions or intentional wrongdoing of the Developer, its officers,
directors, agents, employees and/or contractors in connection with or relating to the performance or
non performance of the obligations of this Termination Agreement. This indemnity shall survive
the execution by the parties, the delivery, the payment of the Termination Payment by the
Developer to the Agency, and the performance and observance of the terms, covenants, conditions
and restrictions of this Termination Agreement.
(g) The Developer shall indemnify, defend, protect and hold harmless the Agency, and
its officers, directors, employees and agents, from and against any and all actions, causes of actions,
claims, costs, damages, demands, expenses, fees, judgments, liabilities, obligations, and/or injuries
resulting from: (i) any failure or omission by the Developer, its agents, employees or contractors, to
perform or comply with any of its obligations contained in this Termination Agreement; and/or (ii)
ownership or control of any real or personal property acquired by or owned by the Developer as a
result of the 2003 Agreement including, without limitation, any third-party claim, quiet title action,
action to remove cloud on title, one or more Notice(s) of Agreement Relating To Real Property
(Creative Housing Solutions) recorded against the fourteen (14) Developer Lots (or anyone of
them), or subrogation claim arising out of ownership, maintenance, title, liens, encumbrances,
and/or any restrictive covenants that may be recorded against or may affect any such real or
personal property; provided, however, this indemnity shall not apply to any liability hereunder
resulting from the gross negligent acts or omissions or intentional wrongdoing of the Agency, its
officers, directors, agents or employees in connection with or relating to the performance or failure
to perform the obligations of this Termination Agreement. This indemnity shall survive the
execution by the parties, the delivery, the payment of the Termination Payment by the Developer to
the Agency, and the performance and observance of the terms, covenants, conditions and
restrictions of this Termination Agreement.
(h) This Termination Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of California. Should any party initiate litigation to interpret
or enforce this Termination Agreement or any portion of it, the prevailing party shall be entitled to
recover reasonable attorneys' fees and court costs from the other party. The venue for any action
pertaining to this Termination Agreement or its subject matter shall be limited to the San
Bernardino Superior Court.
Section 5. Unconditional Termination of 2003 Agreement. The 2003 Agreement is
hereby terminated in its entirety and shall be of no further force and effect from and after the date of
this Termination Agreement and the payment to the Agency of the Termination Payment as set forth
in this Termination Agreement. No party to the 2003 Agreement shall have any further rights,
remedies, privileges or obligations pursuant to said 2003 Agreement from and after the date hereof.
All such rights, remedies, privileges and obligations of the parties shall be as set forth in this
Termination Agreement, and there is, and shall be, no other document, agreement or understanding
by and between the parties with respect to the subject matter that was set forth in the 2003
Agreement except as expressly set forth herein. In the event this Termination Agreement is not
mutually executed by the Effective Date or the Agency has not received the Termination Payment
4
P:\Agendas\Agenda Attachments\Agrmts~Amend 2006\08.21-06 CHS Old Towne Tennination Agreement.doc
r -
on or before the Effective Date, the party who executed this Termination Agreement or the Agency
(should the Agency not be in receipt of the Termination Payment on or before the Effective Date)
may terminate this Termination Agreement by providing prior written notice of such termination to
the other party. For purposes of this Termination Agreement, all notices, demands and
communications between the parties shall be sent in the manner and at the addresses provided for in
Section 6.01 of the 2003 Agreement.
Section 6. Effective Date; Effect. This Termination Agreement shall be effective for
purposes of terminating the 2003 Agreement from and after the execution and delivery of this
Termination Agreement by the parties and the payment to the Agency by the Developer of the
Termination Payment. This Termination Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Termination
Agreement as of the dates set forth below and this Termination Agreement is effective as of the date
set forth in the introductory paragraph hereof.
AGENCY
Date:
~/:lqIOh
I
Redevelopment Agency of the City of
San Bernardino, a public body, corporate and politic
BY~ j)~~
aggie Pacheco, Executive Director
APPROVED AS TO FORM:
BY:~~
DEVELOPER
Date:
~ /N!OfD
Creative Housing Solutions,
a California non-profit public benefit corporation
B~~.
Name: '^_^__".~_.~... \
Title: ~9"'" __..e 1:'117- '_.t.....
5
P:\Agendas\Agenda Attachments\Agrmts-Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
Exhibit "A"
RELEASE OF THE NOTICE OF AGREEMENT RELATING TO REAL PROPERTY
(Creative Housing Solutions)
6
P:\Agendas\Agenda Attachments\Agrmts-Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
Creative Housing Solutions
3233 Grand Avenue, No. 76
Chino Hills, California 91709
(SPACE ABOVE LINE FOR USE BY RECORDER)
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
RELEASE OF NOnCE OF AGREEMENT RELATING TO REAL PROPERTY
(Creative Housing Solutions)
RECITALS
The Redevelopment Agency of the City of San Bernardino (the "Agency"), a public body
corporate and politic, and Creative Housing Solutions (the "Developer"), a California non-profit
public benefit corporation, entered into an agreement entitled "Old Towne Single Family
Residential Acquisition and Construction Grant Funding Agreement" (the "2003 Agreement"),
dated March 3, 2003.
Pursuant to the 2003 Agreement, the Agency and the Developer executed a notice (the
"Notice") entitled "Redevelopment Agency of the City of San Bernardino - Notice of Agreement
Relating to Real Property (Creative Housing Solutions)." The Notice affects the real property
described below, and was recorded on in the Official Records for the
County of San Bernardino, State of California, as Instrument Number
The Agency and the Developer have entered into an agreement entitled "Termination
Agreement with Respect To The Old Towne Single Family Residential Acquisition And
Construction Grant Funding Agreement" (the "Termination Agreement"), dated as of
, 200_. The Agency and the Developer desire and intend to
terminate and release one another (including, without limitation, their successors and assigns) from
the terms, covenants, conditions, restrictions and limitations of the 2003 Agreement in accordance
with and subject to the terms, covenants and conditions of the Termination Agreement.
Pursuant to the Termination Agreement, the Agency and the Developer, on behalf of
themselves, their successors and assigns, desire and intend to release the real property described
below from the community redevelopment covenants relating to the development and preservation
of affordable housing on the real property described below as required by the 2003 Agreement,
including, without limitation, the terms, covenants, conditions, limitations and/or restrictions
provided for in Section 4.01(a), Section 4.01(b) and Section 4.01(c) ofthe 2003 Agreement.
7
P:\Agendas\Agenda Attachments\Agrmts-Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
The Agency and the Developer desire and intend to rescind the Notice and to release the real
property described below, and each other (including, their successors and assigns), from the terms,
covenants, conditions, limitations and restrictions of the 2003 Agreement, as provided for, subject
to, and in accordance with, the Termination Agreement.
The Agency and the Developer desire and intend to execute the REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO - RELEASE OF NOTICE OF AGREEMENT
RELATING TO REAL PROPERTY (Creative Housing Solutions) (the "Release Notice") as it
affects the real property described below and to record this Release Notice in the Official Records
of the County of San Bernardino, State of California.
TO ALL INTERESTED PERSONS:
PLEASE TAKE NOTICE that as of the date of recordation of this Release of Notice of
Agreement Relating to Real Property (Creative Housing Solutions), Creative Housing Solutions, a
California non-profit public benefit corporation (the "Developer") and the Redevelopment Agency
of the City of San Bernardino, a public body corporate and politic (the "Agency"), on behalf of
themselves, their successors and assigns, have entered into an agreement entitled:
"Termination Agreement With Respect To The Old Towne Single Family Residential
Acquisition And Construction Grant Funding Agreement," dated as of
200 .
This Release of Notice of Agreement Relating to Real Property (Creative Housing
Solutions) affects the real property described as follows:
[INSERT TEXT OF LEGAL DESCRIPTION FOR EACH DEVELOPER LOT]
The 2003 Agreement has been terminated by and between the Agency and the Developer, in
accordance with, subject and pursuant to the terms, covenants and conditions of the Termination
Agreement. The 2003 Agreement is of no further legal force and effect, and the terms, covenants,
conditions, limitations and restrictions (including, without limitation, the use restrictions provided
for in Section 4.01(a), Section 4.01(b) and Section 4.01(c) of the 2003 Agreement, do not apply to,
encumber, affect, bind, restrict or limit the use of, the real property described above. Accordingly,
the community redevelopment covenants relating to the development and preservation of affordable
housing on the real property described in the preceding paragraph of this Release of Notice of
Agreement Relating to Real Property (Creative Housing Solutions) are null and void, of no further
legal force and effect, and do not affect, bind, apply, encumber, restrict or limit the use of, the real
property described in the preceding paragraph.
1//
1//
/1/
1//
8
P:\Agendas\AgendaAttachments\Agrrnts.Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc
This Release of Notice of Agreement Relating to Real Property (Creative Housing
Solutions) has been executed by the parties as set forth below.
DEVELOPER
Creative Housing Solutions,
a California non-profit public benefit corporation
By:
Name:
Title:
Date:
By:
Name:
Title:
AGENCY
Redevelopment Agency
of the City of San Bernardino
Date:
By:
Maggie Pacheco, Executive Director
APPROVED AS TO FORM:
Agency Counsel
[NOTARY JURATS ATTACHED]
9
P:\Agendas\Agenda Attachments\Agrmts.Amend 2006\08-21-06 CHS Old Towne Termination Agreement.doc