HomeMy WebLinkAboutR30-Economic Development Agency
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ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
SUBJECT:
AFFORDABLE SENIOR CITIZEN
RENTAL HOUSING HOME GRANT
AND DISPOSITION AND
DEVELOPMENT AGREEMENT (DDA)-
TELACU SENIOR HOUSING
FROM: Maggie Pacheco
Deputy Director/Director
Housing & Community Development
0:" ., L
I . · ~. . . .. . DEVELOPMENT SAN BERNARDINO II
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Svnopsis of Previous Commission/Council/Committee Action(s):
On November 21, 2002, Redevelopment Committee Members Anderson, Suarez and Estrada unanimously voted
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Recommended Motion(s):
OPEN JOINT PUBLIC HEARING
CLOSE PUBLIC HEARING
DATE:
December 5, 2002
(Communitv Development Commission)
MOTION A: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO (I) ACKNOWLEDGING RECEIPT OF A SUMMARY REPORT RELATING TO
THE PROPOSED 2002 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA (AGENCY)
AND TELACU HOUSING - SAN BERNARDINO 11, INC., A CALIFORNIA NON-PROFIT
CORPORATION (DEVELOPER), 750 WEST 4TH STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE TRANSFER BY THE
REDEVELOPMENT AGENCY OF THE PARCEL LOCATED AT 750-752 WEST 4TH STREET TO
THE DEVELOPER - CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
(Mavor and Common Council)
MOTION B: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO (I) ACKNOWLEDGING RECEIPT OF A SUMMARY REPORT RELATING TO
THE PROPOSED 2002 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA (AGENCY)
AND TELACU HOUSING - SAN BERNARDINO 11, INC., A CALIFORNIA NON-PROFIT
CORPORATION (DEVELOPER), 750 WEST 4TH STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE TRANSFER BY THE
REDEVELOPMENT AGENCY OF THE PARCEL LOCATED AT 750-752 WEST 4TH STREET TO
THE DEVELOPER - CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
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Contact Person(s):
Project Area(s)
Maggie Pacheco
Central City North
Phone:
(909) 663- 1044
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Ward(s):
Supporting Data Attached: Ii! Staff Report Ii! Resolution(s) Ii! Agreement(s)/Contract(s) Ii! Map(s) 0 Letters
FUNDING REQUIREMENTS Amount: $ 362,000
HOME Grant Program
2002/2003 HOME Grant Budget
Source:
SIGNATURE:
Maggie hec, Deputy Director/Director
Housmg & Community Development
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Commission/Council Notes:
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P:\Clerical Services Dept\Margaret Parkct.Agenda\CDC 2002\02-12-16 Musi\02.12-16 TELACU Senior Housing.doc
COMMISSION MEETING AGENDA
Meeting Date: 12/16/2002
Agenda Item Number: l.Jo
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
Affordable Senior Citizen Rental Housine Home Grant and
DisDosition and DeveloDment Aereement (DDA)-
TELACU Senior Housine DeveloDment San Bernardino II. Inc. (4th and H Streets)
BACKGROUND AND CURRENT ISSUE:
TELACU is a non-profit community development corporation founded in the late 1960's to promote
community and economic development activity. For the past 15 years, TELACU has participated in
the U.S. Department of Housing & Urban Development (HUD) Section 202 Program. TELACU has
developed senior housing throughout many communities in California such as Baldwin Park, El
Monte, Alhambra and Monterey Park. The 202 Program provides grants to qualified non-profits to
finance affordable rental housing for seniors.
Since April 2000, the Redevelopment Agency has been working with TELACU to develop senior
housing in the San Bernardino community. TELACU and the Agency began their Eartnership by
identifying several probable sites and agreed that the site located at 602-666 West 6 Street in the
Central City North Redevelopment Project Area was the most suitable and appropriate for senior
housing. This project is under construction and anticipated to be completed in the sununer of2003.
Since the approval of the first site, TELACU submitted and received funding approval on two other
202 HUD projects: (1) at the 4th and H Street location and (2) on Commercial and Waterman Road.
TELACU received a Notice of Funds approval in October 2001 for the 4th and H Street project (the
"Site") for an estimated $9 million grant to construct and operate 75 senior units on the Site.
With the authorization of the Community Development Commission, the Agency acquired the vacant
property located at 750-752 West 4th Street (the "Property") adjacent to the TELACU Project Site
with $42,500 plus customary closing cost in federal HOME funds with the intent of transferring title
to TELACU. This Property and TELACU's site will be the Consolidated Site of the new senior
housing project (the "Project").
Subsequently, TELACU, the Agency and the City's Development Services Staff began the planning
of the Project and in August 2002, the City's Planning Commission approved TELACU's request for
a Conditional Use Permit (CUP) to construct the senior housing complex on the 2.82-acre Site.
The Project consists of a 75-unit, three story senior citizen housing complex with a community
center. The Project will include a common multi-purpose room, kitchen, library, laundry room,
storage, space, an attractive lobby/foyer and offices. Seventy-four of the units will have one bedroom
with a living room, kitchen, and bathroom containing approximately 540 square feet. The manager's
unit will have two bedrooms. The Site Plan prepared by Gregory Villanueva, F AlA Architects and
approved by the Planning Commission is attached and will also be presented at today's meeting.
COMMISSION MEETING AGENDA
Meeting Date: 12/16/2002
Agenda Item Nnmber: J{30
P;\Clerical Services Dept\Margaret Parkcr\Agenda\CDC 2002\02-12-16 MusilO2-12-16 TELACU Senior Housing.doc
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Economic Development Agency Staff Report
TELACU Senior Housing
Page 2
The projected construction Project budget is estimated at $9.2 million. This budget includes land,
building construction, off-site improvements, architectural and ancillary fees. Considering the
amount of and the purpose for which the 202 Grant can be used, the Project has an approximate
$362,000 shortfall for which TELACU seeks financial support. The $362,000 will be used to offset
related off-site improvements imposed on the Project via the approved CUP and which are not
covered under the 202 Grant. TELACU proposes to submit their working drawings for plan check in
December 2002, submit for a firm HUD commitment in February 2003, and commence construction
in April 2003.
In accordance with redevelopment law, the Agency is required to hold a hearing prior to the
disposition of land it owns and to prepare a Summary Report outlining its expenditures affiliated with
the disposition and DDA.
ENVIRONMENTAL IMPACT:
Prior to the release of any federal funds, the Agency must adhere to the National Environmental
Protection Agency (NEP A) environmental guidelines. All mandated notices of release of funds
would be published prior to the disbursement of HOME funds. Furthermore, as part of the CUP
process, the Project has been determined exempt per Section 15332, Infill Project, of the California
Environmental Quality Act (CEQA).
FISCAL IMPACT:
The $362,000 Grant obligation will be funded from the Agency's HOME Grant Program approved
2002-2003 budget.
RECOMMENDATION:
That the Community Development Commission and the Mayor and Common Council approve the
attached Resoluti s.
<--
Maggie ac eco, Deputy Director/Director
Housing & Community Development
P:\C1erica1 Services Dcpt\Margaret Parker\Aaenda\cOC 2002\02-12-16 Musi\02-12-16 TELACU Senior Housing.doc:
COMMISSION MEETING AGENDA
Meeting Date: 12/16/2002
Agenda Item Number: J!JO
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO (1) ACKNOWLEDGING RECEIPT
OF A SUMMARY REPORT RELATING TO THE PROPOSED 2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, CALIFORNIA (AGENCY) AND TELACU HOUSING _ SAN
BERNARDINO n, INC., A CALIFORNIA NON-PROFIT CORPORATION
(DEVELOPER), 750 WEST 4TH STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE
TRANSFER BY THE REDEVELOPMENT AGENCY OF THE PARCEL
LOCATED AT 750-752 WEST 4TH STREET TO THE DEVELOPER _
CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
acquired, using HOME Grant Funds in the amount of $42,500, interest to the property located at
750 West 4th Street, (APN 0132-092-23) (the "Site") for the purpose of providing affordable
senior rental housing within the Central City North Redevelopment Project Area (the "Project
Area"); and
WHEREAS, TELACU Senior Housing Development San. Bernardino II, Inc. (the
"Developer") is a non-profit housing organization that specializes in the development of
affordable HUD 202 senior rental housing; and
WHEREAS, Developer is the owner of the properties located at 772-776 West 4th Street
and 421-447 North H Street (the "Property"), adjacent to the Site, and the Developer desires to
develop the Property and the Site, which consists of 2.82 acres, for the development of 75 units
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of senior rental housing (the "Project"); and
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WHEREAS, the Agency and Developer desire to execute the Affordable Senior Citizen
Rental Housing HOME Grant and Disposition and Development Agreement ("DDA") which
provides for the transfer of the Site to the Developer and to further provide a HOME Grant in
the amount of $362,000 to the Developer for the purpose of constructing off-site improvements
related to the Project; and
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WHEREAS, it is appropriate for the Community Development Commission to take the
actions with respect to the 33433 Report and the DDA and to formalize transfer of title to the
Site from the Agency to Developer for disposition and redevelopment pursuant to the DDA,
subject to the conditions set forth in the DDA and this Resolution.
NOW, TIlEREFORE, TIlE COMMUNITy DEVELOPMENT COMMISSION OF TIlE
CITY OF SAN BERNARDlNO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
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Section I. On December 16, 2002, the Community Development Commission (the
"Commission") conducted a full and fair joint public hearing with the Mayor and Common
Council of the City of San Bernardino relating to the disposition and redevelopment of the Site
by the Developer pursuant to the terms and conditions of the DDA. The minutes of the City
Clerk shall include a record of all communication and testimony submitted to the Commission
by interested persons relating to the joint public hearing, the 33433 Summary Report and the
approval of the DDA.
Section 2. This Resolution is adopted in order to satisfy the provisions of Health and
Safety Code Section 33433 as it relates to the disposition and transfer of the Site (to be
developed together with the Property) by the Agency to the Developer on the terms and
conditions set forth in the DDA. A copy of the DDA in the form submitted at the joint public
hearing is on file with the Agency Secretary. The Commission hereby finds and determines as
follows:
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(I) The disposition and redevelopment of the Site by the Developer is
consistent with the Redevelopment Plan for the Central City North Redevelopment Project
Area, the Agency Implementation Plan, and the City's Consolidated Plan;
(2) The terms and conditions of the DDA contain sufficient assurances that
the Site will be redeveloped for affordable senior rental housing purposes as permitted Wlder the
redevelopment plan;
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(3) The transfer of the Site to the Developer by the Agency, subject to the
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satisfaction of the terms and conditions of the DDA, has been determined by the Commission to
be beneficial and will sustain the implementation of the redevelopment plan and assist the
community in increasing the supply of affordable senior rental housing for low and moderate
income households.
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Section 3.
The Commission hereby find and determine that no further
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environmental review of the disposition and redevelopment of the Site pursuant to the DDA is
necessary at this time under the National Environmental Policy Act (NEP A) and the California
Environmental Quality Act (CEQA), as amended, in light of following facts: (I) the
Conditional Use Permit (CUP) No. 20-12 for the Site as approved by the Planning Commission
on August 20, 2002, and the Commission has found that the project is exempt from CEQA
pursuant to Section 15132, infill housing project, and furthermore the development
contemplated pursuant to the DDA is consistent with the CUP conditions of approval; and (2)
the Site is also situated within the boundaries of the Central City North Redevelopment Project
Area and by virtue of the fact set forth in subparagraph (2), pursuant to the provisions of Title
14, California Code of Regulation Section 15180, no further review of the potential effect of the
redevelopment of the Site in accordance with the DDA is required at this time under NEPA and
CEQA and the final EIR for the Central City North Redevelopment Project Area.
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Section 4.
The Commission hereby approves, receives and files the 33433 Summary
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Report and the provisions of the DDA in the form as submitted at this joint public hearing.
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Section 5.
The Commission hereby approves the disposition of the Site by the
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Agency to the Developer as set forth in the DDA. The Executive Director is hereby authorized
and directed to execute the DDA on behalf of the Agency together with such technical and
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conforming changes as may be recommended by the Executive Director and approved by the
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Agency Counsel. The signature of the Executive Director on the DDA shall provide conclusive
evidence that the DDA has taken effect. In the event that the DDA may not be fully executed by
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the parties within sixty (60) days following the date of adoption, of this Resolution, the
2 authorization granted to the Executive Director to execute the DDA on behalf of the Agency
3 shall be of no further force or effect.
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Section 6.
Provided that the DDA has been fully executed by the parties within the
5 period of time set forth in Section 5 of this Resolution, the Executive Director of the Agency is
6 hereby authorized and directed to take all actions set forth in this DDA on behalf of the Agency.
7 The Executive Director is further authorized and directed to execute the final form of Agency
8 Grant Deed transferring title to the Site from the Agency to Developer upon satisfaction of all
9 applicable conditions set forth in the DDA.
Section 7. The Resolution shall become effective immediately upon its adoption.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO (1) ACKNOWLEDGING "'RECEIPT
OF A SUMMARY REPORT RELATING TO THE PROPOSED 2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, CALIFORNIA (AGENCY) AND TELACU HOUSING - SAN
BERNARDINO II, INC., A CALIFORNIA NON-PROFIT CORPORATION
(DEVELOPER), 750 WEST 4TH STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE
TRANSFER BY THE REDEVELOPMENT AGENCY OF THE PARCEL
LOCATED AT 750-752 WEST 4TH STREET TO THE DEVELOPER -
CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
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Development Commission of the City of San Bernardino at a
meeting thereof, held
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO (1) ACKNOWLEDGING RECEIPT OF A
SUMMARY REPORT RELATING TO THE PROPOSED 2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DlSPosmON AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, CALIFORNIA (AGENCY) AND TELACU HOUSING _ SAl"J
BERNARDINO n, INC., A CALIFORNIA NON-PROFIT CORPORATION
(DEVELOPER), 750 WEST 4TH STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE
TRANSFER BY THE REDEVELOPMENT AGENCY OF THE PARCEL
LOCATED AT 750-752 WEST 4TH STREET TO THE DEVELOPER _
CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
acquired, using HOME Grant Funds in the amount of $42,500, interest to the property located at
750 West 4th Street, (APN 0132-092-23) (the "Site") for the purpose of providing affordable
senior rental housing within the Central City North Redevelopment Project Area (the "Project
Area"); and
WHEREAS, TELACU Senior Housing Development San Bernardino II, Inc. (the
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"Developer") is a non-profit housing organization that specializes in the development of
affordable HUD 202 senior rental housing; and
WHEREAS. Developer is the owner of the properties located at 772-776 West 4th Street
and 421-447 North H Street (the "Property"), adjacent to the Site, and the Developer desires to
develop the Property and the Site, which consists of2.82 acres, for the development of75 units
of senior rental housing (the "Project"); and
WHEREAS, the Agency and Developer desire to execute the Affordable Senior Citizen
Rental Housing HOME Grant and Disposition and Development Agreement ("DDA") which
provides for the transfer of the Site to the Developer and to further provide a HOME Grant in
the amount of $362,000 to the Developer for the purpose of constructing off-site improvements
related to the Project; and
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WHEREAS, Section 33431 requires the Mayor and Common Council to consent to the
transfer of the Site from the Agency to the Developer and it is therefore appropriate for the
Mayor and Common Council to take the actions with respect to the 33433 Report and the DDA
and to formalize transfer of title to the Site from the Agency to Developer for disposition and
redevelopment pursuant to the DDA, subject to the conditions set forth in the DDA and this
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Resolution.
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NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED
BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
FOLLOWS:
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Section 1.
On December 16, 2002, the Mayor and Common Council conducted a
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full and fair joint public hearing with the Community Development Commission of the City of
San Bernardino relating to the disposition and redevelopment of the Site by the Developer
pursuant to the terms and conditions of the DDA. The minutes of the City Clerk shall include a
record of all communication and testimony submitted to the Mayor and Common Council by
interested persons relating to the joint public hearing, the 33433 Summary Report, and the
approval of the DDA.
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Section 2.
This Resolution is adopted in order to satisfy the provisions of Health and
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Safety Code Section 33433 as it relates to the disposition and transfer of the Site (to be
developed together with the Property) by the Agency to the Developer on the terms and
conditions set forth in the DDA. A copy of the DDA in the form submitted at the joint public
hearing is on file with the Agency Secretary. The Mayor and Common Council hereby find and
determine as follows:
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(1) The disposition and redevelopment of the Site by the Developer is
consistent with the Redevelopment Plan for the Central City North Redevelopment Project
Area, the Agency Implementation Plan, and the City's Consolidated Plan;
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(2) The terms and conditions of the DDA contain sufficient assurances that
the Site will be redeveloped for affordable senior rental housing purposes as permitted under the
redevelopment plan;
(3) The transfer of the Site to the Developer by the Agency, subject to the
satisfaction of the terms and conditions of the DDA, has been determined by the Mayor and
Common Council to be beneficial and will sustain the implementation of the redevelopment
plan and assist the community in increasing the supply of affordable senior rental housing for
low and moderate income households.
Section 3.
The Mayor and Common Council hereby find and determine that no
further environmental review of the disposition and redevelopment of the Site pursuant to the
DDA is necessary at this time under the National Environmental Policy Act (NEP A) and the
California Environmental Quality Act (CEQA), as amended, in light offollowing facts: (I) the
Conditional Use Permit (CUP) No. 20-12 for the Site as approved by the Planning Commission
on August 20, 2002, and the Commission has found that the project is exempt from CEGA
pursuant to Section 15132, infill housing project, and furthermore the development
contemplated pursuant to the DDA is consistent with the CUP conditions of approval; and (2)
the Site is also situated within the boundaries of the Central City North Redevelopment Project
Area and by virtue of the fact set forth in subparagraph (2), pursuant to the provisions of Title
14, California Code of Regulation Section 15180, no further review of the potential effect of the
redevelopment of the Site in accordance with the DDA is required at this time under NEPA and
CEQA and the final EIR for the Central City North Redevelopment Project Area.
Section 4.
The Mayor and Common Council hereby approve, receive and file the
33433 Summary Report and the DDA in the form as submitted at this joint public hearing.
Section 5.
The Mayor and Common Council hereby approve the disposition and
transfer of the Site by the Agency to the Developer as set forth in the DDA.
Section 6.
This Resolution shall take effect upon its adoption and execution in the
manner as required by the City Charter.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO (1) ACKNOWLEDGING RECEIPr OF A
SUMMARY REPORT RELATING TO THE PROPOSED 2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSmON AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, CALIFORNIA (AGENCY) AND TELACU HOUSING _ SAN
BERNARDINO II, INC., A CALIFORNIA NON-PROFIT CORPORATION
(DEVELOPER), 750 WEST 41H STREET, CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA AND (2) AUTHORIZING THE
TRANSFER BY THE REDEVELOPMENT AGENCY OF THE PARCEL
LOCATED AT 750-752. WEST 4TH STREET TO THE DEVELOPER _
CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a
meeting thereof, held on the
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day of
, 2002, by the following vote to wit:
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Council Members:
Absent
Aves
Navs
Abstain
ESTRADA
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_ LONGVILLE
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MCGINNIS
DERRY
SUAREZ
ANDERSON
MC CAMMACK
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Rachel G. Clark, City Clerk
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The foregoing resolution is hereby approved this
day of
,2002.
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Judith Valles, Mayor
City of San Bernardino
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Approved as to form and Legal Content:
By:
City Attorney
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SUMMARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTION 34333
OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW 2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT AND
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA
(AGENCY) AND TELACU HOUSING - SAN BERNARDINO II, INC., A CALIFORNIA
NON-PROFIT CORPORATION (DEVELOPER), 750 WEST 4TH STREET, CENTRAL
CITY NORTH REDEVELOPMENT PROJECT AREA
INTRODUCTION:
This Summary Report (the "Report") has been prepared by the Redevelopment Agency of the
City of San Bernardino (the "Agency") pursuant to Section 33433 of the California Health and
Safety Code. This Report sets forth certain details of the proposed 2002 Affordable Senior
Citizen Rental Housing Home Grant and Disposition and Development Agreement By and
Between the Redevelopment Agency of the City of San Bernardino, California (Agency) and
TELACU Housing - San Bernardino II, Inc., a California Non-Profit Corporation (Developer),
750 West 4th Street, Central City North Redevelopment Project Area ("DDA"), with regard to
the transfer of 750 West 4th Street, (the "Site") and development of the Site together with the
Developer's Property located at 772-776 West 4th Street and 421-447 North H Street, City of San
Bernardino ("Property"). The following describes the provisions, terms and conditions and costs
and benefits of the DDA to the Agency. .
A. SALIENT POINTS OF THE DDA:
· The purpose of the DDA is to facilitate the development of a 75 unit HUD 202 affordable
three-story senior citizen complex accompanied with a community center, common multi-
purpose room, kitchen, library, laundry room, storage space, an attractive lobby/foyer and
offices. Seventy-four of the units will have one bedroom with living room, kitchen and
bathroom containing approximately 540 square feet with on-site manager's unit having two
bedroom. All necessary infrastructure improvements such as streets, sewers, gutters,
relocation of traffic signal, landscaping, etc. ( the "Project"). The Project will be developed
on the Site and the Property.
· The Site was acquired by the Agency with federal HOME Investment Partnership Grant
Funds in the amount of $42,500. The Agency purposes to transfer the Site to the Developer
who will consolidate the Site with the Developer's Property. Under federal and state law,
the Agency is authorized to donate or transfer property to a non-profit organization for the
purpose of providing affordable housing opportunities to low and moderate income persons
consistent with the provisions of the redevelopment plan for the Central City North
Redevelopment Project Area.
· The developer has the background, experience and financial capability of developing the
Project and has been successful in securing a financial commitment of $9.2 million in HUD
Section 202 -Capital Griint Funds to develop the Project.
I
P:\Clerical Services Dept\Margaret Parker\Agenda\CDC 2002\02-12-16 Musi\02.12-16 TELACU Swnmary Report.doc
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B.
COST OF THE DDA TO THE AGENCY:
This Section outlines the total costs of the DDA to the Agency, including, but not limited to land
acquisition costs, clearance costs, relocation costs, the costs of any improvements, if applicable.
As stated above, the Agency has expended $42,500 in the acquisition of the Site and will transfer
the Site to the Developer at not cost solely for the purpose of providing affordable housing
opportunities for low- moderate income households. The Agency further intends to provide the
Developer with $362,000 federal HOME Grant to construct necessary off-site improvements
(i.e., streets, sewers, landscaping, traffic signal relocation, etc.) related to the Project. Pursuant
to the terms of the DDA, the Agency is not obligated to provide any additional funds to the
Project and the Developer has the responsibility to construct the Project with its own funds, as
noted above.
C. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED DETERMINED
AT THE HIGHEST AND BEST USES PERMITTED UNDER THE
REDEVELOPMENT PLAN; AND ESTIMATED VALUE OF THE INTEREST TO
BE CONVEYED BASED ON THE REQUIRED REUSE AND WITH THE
CONDITIONS. COVENANTS AND RESTRICTIONS REQUIRED:
The estimated AS IS value of the Site is $42,500. The value was established by an appraisal of
the Site. The Agency proposes to transfer the Site to the Developer at the highest and best uses
permitted under the Redevelopment Plan, which is housing. The transfer of the Site to the
Developer is necessary to facilitate the implementation of the redevelopment plan for the Central
City North Redevelopment Project Area, which obligates the Agency to insure that affordable
housing opportunities are affordable to all project area residents. The Developer is required
under the DDA to restrict all 74 housing units for persons of low and moderate income for a
period of not less than 55 years; furthermore, if the Agency does not financially assist the
Project, the Project would not be viable due to the financial limitations and financing available
for the Project. The Agency's assistance will be used to bridge the gap of $362,000 and will
provide for the construction of the need infrastructure improvements such as: curbs, gutters,
sidewalks, traffic signal relocation, landscaping, etc. that are necessary components for housing.
In conclusion, the interest to be conveyed to Developer has been determined to be fair market
value based on the reuse and development of the Project subject to conditions, covenants and
restrictions place by the Agency under the DDA, the conditions of the Site, the conditions of the
Redevelopment Plan, and the evidence contained in this Report. The interest to be conveyed to
the Developer will be developed in conformance with the City's General Plan and Housing
Element, Municipal Development Code, and Agency's AB 1290 Implementation Plan.
2
P:\Clerical Services DeptlMargaret ParkeMgenda\CDC 2002\02-12-16 Musi\02-12-16 TELACU Summary Report.doc
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D.
EXPLANATION OF WHY THE TRANSFER OF THE SITE AND THE
PROPERTY WILL ASSIST IN THE ELIMINATION OF B[;IGHT WITH
REFERENCE TO ALL SUPPORTING FACTS AND MATERIALS RELIED
UPON IN MAKING SUCH EXPLANATION:
The development proposed under the DDA will reduce blight, create new inclusionary housing
units for the Agency and City, provide affordable housing to elderly seniors, temporary
construction and permanent jobs for area residents; improve the image and enhance
neighborhood conditions; develop under-utilized property and increase property values in the
area, thus improving the quality of life for residents within the Central City North Project Area.
In addition to blight eradication, the proposed Project is consistent with the adopted Agency
Five- Year Implementation Plan, which sets forth the following goals and objectives.
· Creation of viable housing options within the redevelopment project area that span a range of
incomes, including housing for the indigent;
· Creative implementation of catalyst projects which spur reinvestment on surrounding blocks.
· Improvements or construction of new water and sewer lines, streets, sidewalks, parkways,
and lighting in the public right of way.
e · Continued participation in the enhancement of the public infrastructure system.
The DDA will assist the Agency in meeting several of its objectives and goals set forth above,
specifically, by encouraging reinvestment and revitalizing blighted neighborhoods and by
providing decent, up-scale senior rental housing for area residents at affordable rent.
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2002
AFFORDABLE SENIOR CITIZEN RENTAL
HOUSING HOME GRANT AND
DISPOSITION AND DEVELOPMENT
AGREEMENT
By and Between
e
The Redevelopment Agency of the
City of San Bernardino, California
(Agency)
And
TELACU Housing - San Bernardino II, Inc.
A California Non-Profit Corporation
(Developer)
750 West 4th Street
Central City North
Redevelopment Project Area
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TABLE OF CONTENTS
SUBJECT OF AGREEMENT Recitals ..................................................................................1
I. DEFINITIONS ........ ........... .............. ................ ......... ...................................... ..........2
1.1 Agency Affordable Housing Grant....................................................................2
1.2 Certificate of Completion ..................................................................................2
1.3 City ..........................................................................................................2
1.4 Closing/Closing Date/Close of Escrow .............................................................2
1.5 Agency Deed......... .............................................................................................3
1.6 Escrow ...... ... ...... ... '... '" .... .., ........ ..... .., ...... ..... ... ........................ ........ '" ..... ....3
1.7 HUD Section 202 Grant.....................................................................................3
1.8 Hazardous Substances................... ........................................... ...................... ....3
1.9 HUD ..........................................................................................................3
1.10 HUD Capital Advance Documentsc...................................................................3
1.11 Project ............................................................................................. .............3
1.12 Redevelopment Plan ............................................................................... ...........4
1.13 Agency Regulatory Agreement..........................................................................4
1.14 Schedule of Performance ...................................................................................4
1.15 Senior Citizen Household ..................................................................................4
1.16 Site ..........................................................................................................4
1.17 Title Company ...................................................................................................4
1.18 Low-Income Senior Citizen Household.............................................................4
2. PURPOSE OF AGREEMENT ......................................................................................4
3. DISPOSITION OF PARCEL A, ACQUISITION OF PARCEL B AND ESCROW ...5
3.3 Conditions to Closing ....... ..... ....... .... .................... '..................... ................... ....5
3.4 Tax Reporting and Miscellaneous Matters ........................................................8
3.5 Escrow Procedures and Conveyance of Parcel A ..............................................8
3.6 Title Matters....................................................................................................... 9
3.7 Developer Financing ........................................................................................1 0
3.8 Condition of Site .......................................................................... ....................11
3.9 Cost of Escrow .................................................................................................13
3.10 Cancellation of Escrow Prior to Closing Upon Failure of
Conditions Without Fault By Either Party, Default & Termination................ 14
3.11 Responsibilities of Escrow Agent....................................................................14
3.12 No Real Estate or Broker Commission Payable ..............................................14
4. DEVELOPMENT OF THE PROJECT BY DEVELOPER ........................................15
4.1 Scope of Development.....................................................................................15
4.2 Taxes, Assessments, Encumbrances and Liens ...............................................21
4.3 Change in Ownership Management and Control of the Developer--
Assignment and Transfer .................................................................................21
4.4 Security Financing; Right of Holders ..............................................................23
4.5 Right of the Agency to Satisfy Other Liens on the Site after Conveymce
of Title of Developer.... .......... ........... ........................................................... ....26
4.6 Certificate of Completion ................................................................................26
4.7 Developer Job Program....................................................................................27
4.8 {Reserved No Text}.........................................................................................28
4.9 Agency Affordable Housing Grant..................................................................28
.
5. USE OF THE SiTE......................................................................................................29
5. I Use of the Site............ ............. .................... .;............................ .~..................... .29
5 .2 No Inconsistent Uses....................................................................................... .29
5.3 Discrimination Prohibited................................................................................2 9
5.4 Effect of Covenants.............................. ........................................................... .29
6. ENFORCEMENT ........................................................................................................30
6.1 General Conditions ..........................................................................................30
6.2 Legal Action.....................................................................................................31
6.3 Rights and Remedies are Cumulative ..............................................................31
6.4 Damages....................................................................................................... .31
6.5 {Reserved --NO TEXT} ..................................................................................31
6.6 Right to Re-enter, Repossess and Revest.........................................................32
6.7 Mutual Indemnification ...................................................................................34
6.8 Attorneys' Fees.......................... ................ .............................................. ....... ..34
7. MISCELLANEOUS ............ ................ ................ ....................... .................................34
7.1 Governing Law ................................................................................................34
7.2 Notices ...................................................................................................... ..34
7.3 Conflicts of Interest..........................................................................................3 5
7.4 Nonliability of Agency Officials and Employees............................................35
7.5 Enforced Delay: Extension of Time ofPerformance.......................................35
7.6 Books and Records ..........................................................................................36
7.7 Modifications........... .......................... ............... ............................................. ..36
7.8 Merger of Prior Agreements and Understandings ...........................................36
7.9 Representations and Warranties ofDeveloper.................................................36
7.10 Representations and Warranties of the Agency...............................................37
7.11 Binding Effect of Agreement...........................................................................39
7.12 Assurances to the Act in Good Faith ...............................................................39
7.13 Severability.................................... ..................................................................3 9
7.14 HUD Modifications .........................................................................................39
7.15 Right of HUD ...................................................................................................39
.
Exhibit "A" --
Exhibit "B" --
Exhibit "c" --
Exhibit "D" --
Exhibit "E" --
Exhibit "F" --
Exhibit "G" --
Exhibit "H" --
.
Legal Description of Parcel A
Legal Description of Parcel B
Legal Description of the Project Site
Fornl of Certificate of Completion
Schedule of Performance
Form of Agency Grant Deed
Scope of Development
Form of Agency Regulatory Agreement
42
43
46
49
51
54
62
63
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2002
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT
THIS 2002 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING HOME GRANT
AND DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement") is dated as of
, 2002, by and between THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the
"Agency") and TELACU HOUSING - SAN BERNARDINO II, INC., a California nonprofit
public benefit corporation (the "Developer"). This Agreement is entered into with respect to
certain facts presented in these Recitals:
--RECITALS--
(a) The Agency owns the vacant parcel of land located at 750 W. 4th Street.(
APN.0134-093-23 San Bernardino, California, as more specifically described
in Exhibit "A", attached hereto and incorporated herein by reference (the "Parcel
A"). The Agency pursuant to the terms of this Agreement plans to convey and
transfer fee simple title to Parcel A to the Developer to consolidate with
Developers land noted in (b) below and to construct the Project in (c) below.
The Developer has an option to purchase the vacant land located at 772 - 776 4th
Street, San Bernardino, California, as more specifically described in Exhibit "B",
attached hereto and incorporated herein by reference (the "Parcel B").
(b)
(c) Developer desires to construct and operate a Senior Housing Complex consisting
of seventy-four (74) one (I) bedroom affordable senior housing units and one (I)
two bedroom, manager's unit, on Parcel A and B described above (the "Project
Site"); and
(d) The Project is entitled, "TELACU HOUSING-SAN BERNARDINO" and is
designated as Project No. 143-EE044-W AH-NP; and
(e) The Project proposed shall be constructed on both Parcel A and B described in
Recital (a) and (b) above herein collectively referred to as the "Site". The Site is
depicted and described on Exhibit "C", attached hereto and incorporated herein by
this reference; and
(f)
Developer has obtained approval from the United States Department of Housing
and Urban Development ("HUD") for Section 202 Capital Advance Program
Funding for the Project in the amount of $ 8.980.400 and Developer will enter
into HUD Capital Advance Documents (as hereinafter defined) with HUD at the
time of the initial HUD closing; and
I
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(g)
Agency is desirous of aiding Developer in the construction o{ the Project by
defraying a portion of the cost of construction of the Project (the "Agency
Affordable Housing Grant"); and
(h) Agency's participation in the Project is limited to the amounts to be set forth in
this Agreement.
(i) Developer is responsible for the construction of the said Project at its sole
expense, from the funding sources described above, and any other funding source
available to it for that purpose; and
(j) The Agency has determined that development of the Site pursuant to this
Agreement and the fulfillment generally of the Agreement are in the vital and best
interest of the City and the Agency.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS SET FORTH HEREIN, THE AGENCY AND THE DEVELOPER HEREBY
AGREE AS FOLLOWS:
I. DEFINITIONS.
e In addition to the meaning ascribed to certain words and phrases as set forth in the
Recitals of this Agreement, other words and phrases shall have the meaning described below:
1.1 Agency Affordable Housing Grant. The term "Agency Affordable Housing
Grant" refers to a sum not to exceed three hundred sixty-two thousand dollars ($362,000) which
the Developer may use and apply during the course of the improvement of the Project to pay for
costs not included within the HUD Capital Advance as provided in Section 4.9.
1.2 Certificate of Completion. The term "Certificate of Completion" shall mean that
certain Certificate of Completion, attached hereto as Exhibit "0".
1.3 City. The term "City" shall mean the City of San Bernardino, a charter city,
having its offices at 300 North "0" Street, San Bernardino, California 92418.
1.4 Closing/Closing Date/Close of Escrow. The terms "Closing", "Closing Date"
and "Close of Escrow" shall mean the date on which the conditions for the completion of the
performance ofthe duties of the parties have been satisfied and the Agency Deed and the Agency
Regulatory Agreement are filed for record in the Office of the County Recorder of San
Bernardino County, California. The Closing shall occur on or before the date provided in the
Schedule of Performance attached hereto as (Exhibit "E") .
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1.5 Agency Deed. The term "Agency Deed" shall mean that certaip grant deed by
which th~ Agency shaH convey rnd transfer Parcel A to the Developer in substantiaHy the form
attached hereto as Exhibit "F".
1.6 Escrow. The term "Escrow" shaH mean the land transfer and construction
financing transaction account by and among the Developer, the Agency, and the escrow
department of the Title Company. For the purpose of this Agreement, the parties hereby
designate the escrow department of the Title Company to serve as the "Escrow Agent".
1.7 HUD Section 202 Grant. The term "HUD Section 202 Grant" shaH mean that
certain grant of funds in the approximate amount of $ 8.980.400 , to be made by HUD to the
Developer for the acquisition of Parcel B and improvement of the Project pursuant to that certain
Notification of Selection for Section 202 Fund Reservation for Project No. 143-EE044- W AH-NP
dated, October 31, 2001. The HUD Section 202 Grant is sometimes referred to herein as the
"HUD Capital Advance".
1.8 Hazardous Substances. The term "Hazardous Substances" shaH mean (i) any
hazardous or toxic substance or material including petroleum, petroleum-based products,
asbestos and asbestos containing materials (ACM) and lead-based paint (LBP), or waste which is
or becomes regulated by any local governmental authority, the State of California or the United
States Government and/or (ii) any substance or material identified by the United States
Government, the State of California or any local governmental authority as hazardous or toxic
and which is included on any list of such substances published by any such governmental entity.
1.9 HUD. The term "HUD" shall mean the United States Department of Housing and
Urban Development.
1.10 HUD Capital Advance Documents. The term "HUD Capital Advance
Documents" shall mean the various documents by and between HUD and the Developer which
evidence the terms and conditions of the HUD Section 202 Grant to the Developer for the
Project. The HUD Capital Advance Documents include without limitation the HUD note, the
HUD regulatory agreement, the HUD deed of trust, the HUD use agreement and HUD Capital
Advance Agreement and the HUD Project Rental Assistance Contract.
1.11 Project. The term "Project" shaH mean all of the work of investigation, design,
construction, improvement, modification, and financing necessary in order for the Developer to
acquire the Site and construct and place in service thereon the affordable senior citizen rental
housing project consisting of seventy-four (74) one (1) bedroom rental units reserved for
occupancy by Senior Citizen Households and one (1) unit with two (2) bedrooms reserved for
occupancy by on-site management personnel. The Project also includes aH related landscaping,
driveways, utilities, and any improvements which may be required by the City on the Site or
within the public rights-of-way adjacent to the Site. The functional elements of the Project are
more particularly described in the Scope of Development and Site Improvement Plan Concept
attached as Exhibit "G" (the "Scope of Development").
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1.12 Redevelopment Plan. The tenn "Redevelopment Plan" shall mean the
Redevelopment Plan for Central City North Redevelopment Project. A- copy of the
Redevelopment Plan is on file in the Office of the City Clerk of the City. The Redevelopment
Plan is incorporated herein by this reference as though fully set forth herein.
1.13 Agency Regulatory Agreement. The tenn "Agency Regulatory Agreement"
shall mean that certain Low-Income Senior Citizen Household rental housing regulatory
agreement and declaration of covenants and restrictions affecting the Site and the Project by and
between the Developer and the Agency in the fonn attached hereto as Exhibit "H".
1.14 Schedule of Performance. The tenn "Schedule of Perfonnance" shall mean that
certain Schedule attached hereto as Exhibit "E".
1.15 Senior Citizen Household. The tenn "Senior Citizen Household" shall mean and
refer to a person or family eligible to occupy a rental dwelling unit at the Project under the HUD
Capital Advance Documents and the Agency Grant Deed, who is/are at the time of initial
occupancy of the rental dwelling unit by such person(s):
(i) 62 years of age or older; and, if applicable
(ii)
provided at least one (1) member of the family is 62 years of age or older, a
"qualified pennanent resident", as this tenn is defined in Civil Code Section
51.3(b)(2) and (3).
During the tenn of the HUD Capital Advance Documents compliance by the Developer
with such documents will be deemed compliance with the definition set forth in this Section 1.15
and in Section 1.18.
1.16 Site. The tenn "Site" shall mean that certain unimproved real property located
within the Project Area in the City of San Bernardino, County of San Bernardino, State of
California, consisting of Parcel A and Parcel B consisting of 2.83 acres of land (more or less)
and more particularly described in the legal description attached as Exhibit "C".
1.17 Title Company. The tenn "Title Company" shall mean North American Title
Company or such other title company mutually agreeable to Agency and Developer.
1.18 Low-Income Senior Citizen Household. The tenn "Low-Income Senior Citizen
Household" shall refer to a Senior Citizen Household which has the household income
characteristics ofa "low-income family" as set forth at 42 United States Code Section 1437a(b).
2. PURPOSE OF AGREEMENT.
The purpose of this Agreement is to effectuate the Redevelopment Plan by improving the
Site as well as to assist in providing affordable rental housing which is reserved for occupancy
by Senior Citizens Households and Low-Income Senior Citizen Households. The redevelopment
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of the Project on the Site and the fulfillment generally of this Agreement are in !he best interests
of the City and the welfare of its residents and are in accordlince with the public purposes and
provisions of applicable federal, state, and local laws and regulations under which the Project has
been undertaken and is being assisted.
3. DISPOSITION OF PARCEL A, ACQUISITION OF PARCEL B AND ESCROW.
3.1 Subject to the satisfaction of the terms and conditions of this Agreement the
Developer hereby agrees to accept from Agency and Agency agrees to transfer to Developer
Parcel A on the terms hereinafter set forth.
3.2 The Developer and the Agency hereby agree to establish the Escrow for the
transfer of Parcel A from the Agency to the Developer. The Developer and the Agency shall
cause the Escrow to be opened within sixty (60) days following the full execution of this
Agreement. This Agreement shall constitute the joint escrow instructions of the Agency and the
Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent and
the Escrow shall be deemed to be opened when the Escrow Agent has received a fully executed
copy of this Agreement and assigned its escrow account transaction identification to this
Agreement. Escrow Agent is empowered to act under these instructions. Agency and Developer
shall cooperate with the Escrow Agent and promptly prepare, execute, and deliver to the Escrow
Agent such additional escrow instructions consistent with the terms herein as shall be reasonably
necessary. No provision of any additional escrow instructions shall modify this Agreement and
in the event of any conflict between the provisions of this Agreement and such additional escrow
instructions, the provisions of this Agreement shall prevail.
The Developer represents that it has entered into a contract to acquire Parcel B, and
Developer shall acquire title to Parcel B concurrently with the closing of escrow for Parcel A and
the Agency Affordable Housing Grant.
3.3 Conditions to Closing.
(a) The obligation of the Developer to accept title to Parcel A and to Close the
Escrow shall be contingent upon the satisfaction, or waiver by Developer, of each and all of the
following conditions (collectively, the "Developer Conditions") by the dates set forth herein:
(i) Agency has deposited into Escrow a certificate (FIRPTA Certificate) in
such form as may be required by the Internal Revenue Service pursuant to Section 1445
of the Internal Revenue Code and a California Form 590-RE (Residency Certificate,)
pursuant to Section 18805 of the California Revenue and Taxation Code;
(ii) HUD has issued its "Firm Commitment" to the Developer for the Project
as provided in 24 CFR Part 850 and the Developer has approved the terms thereof;
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(iii) Agency has prepared and the Developer has approved a l~gal description
of Parcel A which shall be attached to the Agency Deed when delivered to the Escrow
Agent;
3.8;
(iv) Developer has accepted the condition of Parcel A as provided in section
(v) Developer has obtained all necessary approvals from govemmental
agencies with jurisdiction over the Project for the issuance of all permits and other
entitlements for the construction of the Project;
(vi) the Title Company has confirmed that it shall issue a CLTA Owner's
policy of title insurance for Parcel A in a form acceptable to the Developer;
(vii) Agency has executed and delivered to the Escrow Agent in recordable
form the Agency Grant Deed, Agency Regulatory Agreement and all other documents
required under this Agreement in recordable form;
(viii) the HUD use agreement, the HUD regulatory agreement, HUD deed of
trust and other recordable documents required by HUD ("HUD Recording Documents")
have been delivered to the Escrow Agent in recordable form, and the Developer has
received and the Escrow Agent has confirmed that the proceeds of the HUD Section 202
Grant are immediately available to the order and account of the Developer in an amount
sufficient to fund the Escrow, if applicable, together with all other payments and
disbursements approved by HUD to be made at the time of the Closing; and
(ix) the Agency has deposited with the Escrow Agent the full amount of the
Agency Affordable Housing Grant for use and application by the Developer as provided
in Section 4.9. The Agency acknowledges that the Agency Grant funds are to pay for
Project-costs not included in the HUD Capital Advance and that the Agency Grant funds
are to be disbursed to pay for Project-costs before funds under the HUD Capital Advance
are disbursed for the Project.
Any waiver of the satisfaction of the foregoing conditions by the Developer must be
express and in writing. In the event that the foregoing conditions have not been satisfied within
the time provided in the Schedule of Performance but not in all events by a date not later than 30
calendar days of written request from the Developer, or in the event that the Agency may be in
default, the Developer may terminate this Agreement by delivering a written notice in
accordance with Section 3.10, subject to any cure rights provided therein. From time-to-time
during the period when the Escrow is open the Agency may send written notices to the
Developer which reference this Section 3.3(a), and within ten (10) days following the receipt of
such a notice the Developer shall provide the Agency with a suitably detailed written report
which describes the action, if any, which the Developer believes may be necessary in order for
any of the Developer Conditions to the Closing to be satisfied.
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(b) The obligation of the Agency to transfer Parcel A to the Developer and to Close
the Escrow shall be contingent upon the satisfaction, or waiver by the Agency, of each of the
following conditions (collectively, the "Agency Conditions") by the date set forth herein:
(i) Developer has provided the Agency with the information set forth in
Section 3.7, and the Firm Commitment from HUD for the HUD Section 202 Capital
Grant remains in full force and effect without material modification or change, and such
other commitments as necessary to finance the acquisition of Parcel B and development
of the Project or otherwise provided Agency with financial statements or loan
commitments which evidence the Developer's capability to accept title to Parcel A and
acquire Parcel B and develop the Project remain in full force and effect without material
modification or change;
(ii) Developer has delivered its written notice of acceptance of the condition
of Parcel A to the Agency as provided in Section 3.8;
(iii) Developer has not made or attempted to make a Transfer in violation of
Section 4.3 and no default by the Developer exists under this Agreement;
(iv) Developer has deposited into Escrow and executed in recordable form the
certificate of acceptance of the Agency Deed, the Agency Regulatory Agreement and the
other documents required under this Agreement and delivered to the Escrow Agent any
other funds required to pay costs of the Developer to be paid at time of Closing;
(v) Developer has accepted the condition of Parcel A and shall have timely
performed each and every other obligation of Developer hereunder;
(vi) Developer has submitted the final building plans for the Project for
approval by the Agency as provided in Section 4.1 below and the Agency has approved
such final building plans;
(vii) the Developer and the Agency jointly approved a list of Project-related
improvement items which are to be included in total project costs for which the
Developer may apply the proceeds ofthe Agency Affordable Housing Grant; and
(viii) Developer has obtained all other necessary governmental approvals for the
issuance of all permits and other entitlement for the construction of the Project, subject
only to the submission of final plans and the payment of the applicable permit fees and
public capital improvement charges.
Any waiver of the satisfaction of the foregoing conditions by the Agency must be express
and in writing. In the event that the foregoing conditions have not been satisfied within the time
provided in the Schedule of Performance, or in the event that the Developer may be in default,
the Agency may terminate this Agreement by delivering a written notice in accordance with
Section 3.10, subject to any cure rights provided therein. From time-to-time during the period
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when the Escrow is open the Developer may send written notices to the Agency- which reference
this Section 3.2 (b), and within ten (10) days following the receipt of such notice the Agency
shall provide the Developer with a suitably detailed written report which describes the action, if
any, which the Agency believes is necessary in order for any of the foregoing Agency Conditions
to the Closing to be satisfied.
3.4 Tax Reporting and Miscellaneous Matters. Prior to the Closing, Developer and
Agency shall execute and deliver a certificate (Taxpayer ill Certificate) in such form as may be
required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or the regulations
issued pursuant thereto, certifying as to the description of Parcel A, date of Closing, gross price,
(if any), and taxpayer identification number for Developer and Agency. Prior to the Closing,
Developer and Agency shall cause to be delivered to the Escrow Agent such other items,
instruments and documents, and the parties shall take such further actions, as may be necessary
or desirable in order to complete the close of Escrow.
3.5 Escrow Procedures and Conveyance of Parcel A.
(a) The Closing shall occur upon satisfaction of the Developer Conditions and the
Agency Conditions as applicable; provided however that notwithstanding any other provision of
the Schedule of Performance or Section 7.5 to the contrary, in the event that the Closing has not
occurred by a date not later than on or before April 30, 2003, for any reason, then after such date,
either party who is not then in default may give its written notice of termination of the Escrow
which references this Section 3.5(a), whereupon, this Agreement shall terminate and the Escrow
shall be canceled. The Escrow Agent shall return any documents or funds then in its possession
to the party who delivered such documents or funds, and each party shall pay one-half (y,) of the
Escrow Agent's reasonable cancellation charges, if any. Upon the payment of such Escrow
cancellation charges the parties shall be mutually released from any further liability hereunder.
The final date for the Closing may be extended by the mutual written agreement of the parties.
(b) Within ten (10) days prior to the estimated time of the Closing, the Escrow Agent
shall advise the Agency and the Developer in writing of the approximate amount of the fees,
charges, and other costs necessary to Close the Escrow, and of any documents which have not
been provided by said party and which must be deposited in Escrow to permit Closing.
(c) On or before the third business day preceding the Closing Date, Agency shall
tender the Agency Affordable Housing Grant in immediately available funds to the Escrow
Agent, if requested by the Developer under Section 4.9, and the Agency shall execute,
acknowledge and deposit into Escrow: (i) the Agency Deed; (ii) the Agency Regulatory
Agreement; and (iii) the FIRPTA Certificate.
(d) On or before the the Closing, Developer shall execute and acknowledge as may be
required and deposit into Escrow: (i) the acceptance of the Agency Deed; (ii) as required by
HUD, the HUD Recording Documents; (iii) other security documents of a lender approved by
Agency pursuant to Section 3.7, if any; (iv) the Agency Regulatory Agreement; and (vi) payment
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to the Escrow Agent of Developer's share of costs, if any, as.. detennined by the Escrow Agent
pursuant to Section 3.9.
(e) Upon the completion by the Agency and Developer of the deliveries and actions
specified in these escrow instructions the Escrow Agent shall be authorized to pay any
documentary transfer taxes and recording fees, if required by law, and thereafter cause to be
recorded in the appropriate records of San Bernardino County, California, the Agency Deed, the
HUD Deed of Trust, HUD Regulatory Agreement, HUD Use Agreement, the Agency Regulatory
Agreement and the other instruments delivered or exchanged by the parties through this Escrow.
Concurrent with recordation, the Escrow Agent shall deliver the Title Policy to Developer.
Following recordation, the Escrow Agent shall deliver copies of said instruments to Developer
and Agency (including without limitation the delivery to the Agency of a complete set of the
final and fully executed copies of the HUD Capital Advance Documents) and provide the parties
with copies of the final Escrow closing statement of each party; In addition, after deducting any
sums specified in this Agreement, the Escrow Agent shall disburse funds to the party entitled
thereto.
3.6 Title Matters.
(a) At Closing, Agency shall convey fee title to Parcel A to Developer subject only
to: (i) the HUD Use Agreement, the HUD Deed of Trust and the HUD Regulatory Agreement;
(ii) the Senior Citizen Household use restriction as set forth in the Agency Deed; (iii) the other
covenants, conditions and restrictions set forth in the Agency Deed; (iv) the Agency Regulatory
Agreement; (v) nondelinquent real property taxes and assessments; (vi) utility easements; (vii)
public street easements; (viii) applicable zoning and development regulation of the City as
affects Parcel A; and (ix) covenants, conditions, and restrictions, easements, and other
encumbrances and title exceptions approved by Developer under Section 3.6(b) or otherwise
created or consented to by Developer and acceptable to HUD under the tenns of the HUD
Capital Advance Documents (collectively, the "Pennitted Exceptions").
(b) Within fifteen (IS) days after the Escrow is deemed opened, the Agency shall
deliver to the Developer a preliminary title report for Parcel A issued by the Title Company,
dated as of the opening of Escrow, together with copies of all title exception/matters referenced
therein. Within thirty (30) days following its receipt of the preliminary title report, the
Developer shall deliver to Agency written notice specifying in detail any exception (other than
those exceptions specifically listed in Section 3.6(a) disapproved and the reason therefor. Within
fifteen (IS) days following its receipt of such written notice of the Developer the Agency shall
deliver written notice to the Developer as to whether the Agency will or will not cause the
disapproved exceptions to be removed or to be endorsed with endorsements providing the
Developer with reasonable assurance with respect to the disapproved exceptions. If Agency
elects not to cure the disapproved exceptions, Developer may tenninate this Agreement, without
any liability of Agency to Developer by giving notice which references this Section 3.6(b) and
the parties shall be mutually released from any further duty or responsibility. If Agency so elects
to cure the disapproved exceptions, Agency shall do so on or before the Closing.
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(c) Upon the Closing, the Title Company shall furnish Develope[ with a CLTA
owner's policy of title insurance insuring Developer's fee interest in Parcel A subject only to the
Permitted Exceptions (the ''Title Policy"). The Agency acknowledges that the permitted
Exceptions and the Title Policy must also be in a form acceptable to HOD under the HOD
Capital Advance Documents. Agency shall pay the premium charged by Title Company for the
issuance of the Title Policy. The Developer shall be responsible for obtaining and paying for the
cost of any title policy insuring the interest of HUD or any other interested person in Parcel A
and/or the Project.
3.7 Developer Financing.
(a) Within the time set forth in the Schedule of Performance, the Developer shall
submit to the Executive Director of the Agency (the "Executive Director") for approval evidence
reasonably satisfactory to the Executive Director that the Developer has the financial capability
necessary for the development of the Project and operation of the Senior Citizen Household
rental housing facility following its completion pursuant to this Agreement. Such evidence of
financial capability shall include all of the following:
(i) reliable cost estimates for Developer's total cost of acquiring Parcel B and
developing the Project (including both hard and soft costs);
(ii) a complete copy of the Firm Commitment for the HOD Section 202
Capital Grant executed by HOD for the financing and acquisition of Parcel B and
development of the Project;
(iii) a financial statement and/or other documentation reasonably satisfactory
to the Executive Director sufficient to demonstrate that Developer has adequate funds
available and committed (inclusive of the funds available to the Developer following the
Close of Escrow under the Agency Grant) to cover the difference between the total
acquisition and development costs of the Project;
(iv) a copy of the proposed contract between Developer and its general
contractor for all of the improvement of the Project certified by Developer to be a true
and correct copy thereof. The Executive Director shall also have the right to review and
approve any revisions that are made to the proposed contract with the general contractor
after its approval by the Executive Director. The form of construction contract required
by HUD and the approval of the contractor by HUD shall be deemed approved by
Agency;
(v) evidence of the good faith efforts of the Developer to implement a local
resident employment history program during the course of construction and improvement
of the Project as set forth in Section 4.7;
(vi) Project operating cost projections and a completed Project management
operations plan in a form reasonably satisfactory to the Executive Director which
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demonstrates that the Developer has an acceptable plan of operation anI!. management of
the Project. Such a management operations plan approved or accepted by HUD under the
terms of the HUD Capital Advance Documents shan be deemed acceptable to the
Executive Director.
(b) Developer covenants and agrees to take an action furnish all information, give an
consents and pay an sums required to keep the Firm Commitment and the HUD Section 202
Grant in fun force and effect and shan comply with an conditions thereof, and shan promptly
execute, acknowledge and deliver an applications, credit applications and data, financial
statements, and documents in connection therewith, and shan actuany draw upon and utilize the
fun amount of HUD Section 202 Grant only for the costs of the Project authorized under the
HUD Capital Advance Documents including but not limited to acquisition of Parcel B
architectural, engineering, legal, organizational, insurance, developer fees and for paying for the
cost of construction and improvement of the Project.
(c) The Developer hereby authorizes the Agency to contact HUD from time-to-time
as the Agency may deem necessary or appropriate to confirm information as relates to the HUD
Section 202 Grant for the Project.
3.8 Condition of Site.
(a) The Developer shall have the right to approve the physical condition of Parcel A,
including its soil and environmental condition, based upon Developer's inspection of Parcel A
and the records of Agency. Developer shan at its sole cost and expense retain the consultant or
consultants of its choice to assist the Developer in its review of any and an aspects of the soils,
environmental, geotechnical and other physical conditions of Parcel A, including all information,
reports and records of the Agency pertaining to the physical condition of Parcel A. Developer
and its consultants shall also have the right to make any inspection of Parcel A and to conduct
any intrusive soil sampling tests it deems appropriate with respect to either its geotechnical soils
investigations or soils investigations relating to the potential presence of any Hazardous
Substance on Parcel A. Developer shall notifY Agency at least seventy-two (72) hours in
advance of any entry onto Parcel A pursuant to Section 3.8(c) and in the event Developer or its
consultant desires to conduct tests involving the drilling, trenching or boring of the soils located
on Parcel A, Developer's consultant shall work with and cooperate with the Agency to assure
that an such tests are conducted in a manner consistent with the highest industry standards and in
a manner that will not damage or injure Parcel A. Within the time provided in the Schedule of
Performance, the Developer shan conduct and complete its own independent inspection and
investigation of Parcel A, and its investigation of an records and reports concerning the physical
condition of Parcel A, determine if the soils, environmental, geotechnical and other physical
conditions of Parcel A are suitable for the development and construction of the Project on Parcel
A. The Developer shan not rely on any statement or representation by the Agency or the City
relating to the conditions of Parcel A. Without limiting the foregoing, the Agency makes no
representation or warranty as to whether Parcel A presently complies with environmental laws or
whether Parcel A contains any Hazardous Substance. By not later than the date indicated in the
Schedule of Performance, the Developer shall deliver a written notice to the Agency which
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references this Section 3.8 and includes a statement that either: (i) the Developer accepts the
condition of Parcel A in its "AS IS", "WHERE IS" and""SUBJECT TO ALL FAULTS"
conditions; or (ii) the Developer disapproves the condition of Parcel A for the specific reason(s)
or grounds set forth in such notice. The Agency shall have no obligation or liability to the
Developer to correct, cure, remedy or abate any soils, environmental, geotechnical or other
physical condition of Parcel A, including without limitation the remediation of any Hazardous
Substance thereon, which may provide the Developer with a basis to disapprove the condition of
Parcel A. If Developer notifies Agency in writing of its disapproval of the soils, environmental,
geotechnical and/or other physical conditions of Parcel A, then this Agreement shall be subject
to termination by either party without liability to the other upon the giving of notice of
termination which references this Section 3.8, whereupon the parties shall be mutually released
from all further responsibilities or liabilities.
(b) Developer shall take Parcel A in its "AS IS", "WHERE IS" and "SUBJECT TO
ALL F AUL TS" condition and the Developer shall be responsible for any defects in Parcel A,
whether patent or latent, including, without limitation, the physical, environmental and
geotechnical condition of Parcel A, and the existence of any contamination, Hazardous
Substances, vaults, debris, pipelines, abandoned wells or other structures located on, under or
about Parcel A. Agency makes no representation or warranty concerning the physical,
environmental, geotechnical or other condition of Parcel A, the suitability of Parcel A for the
Project, or the present use of Parcel A, and specifically disclaims all representations or
warranties of any nature concerning Parcel A made by it, the City and their employees, agents
and representatives. The foregoing disclaimer of the Agency includes, without limitation,
topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence
of Hazardous Substances or similar substances, the purpose for which Parcel A is suited, or
drainage. The Agency shall not be responsible for grading Parcel A and makes no representation
nor warranty concerning the compaction of soil upon Parcel A, nor of the suitability of the soil
for construction.
The Developer has specifically reviewed and accepts the provisions of this Section 3.8
(b), and the provisions of this Section 3.8(b) shall survive the Close of Escrow.
Initials of Developer
(c) Prior to the date specified in the Schedule of Performance for the approval of the
condition of Parcel A under this Section 3.8 the Developer, its employees, agents or contractors
have the right at the Developer's sole cost and expense to enter onto Parcel A to conduct soils,
engineering, or other tests and studies, to perform preliminary work or for any other purposes to
carry out the terms of this Agreement; provided however, that no work of improvement of the
Project shall cornmence until the Escrow has Closed and the Developer has acquired the fee title
interest in Parcel A from the Agency. Developer shall indemnify, defend and hold Agency
harmless from and against any claims, injuries or damages arising out of or involving any such
entry or activity as provided in Section 6.8. Any such activity shall be undertaken by the
Developer only after securing any necessary permit from the appropriate governmental agencies
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and delivering to the Agency certificates of insurance evidencing the coverllges required in
Section 6.8. "
3.9 Cost of Escrow.
(a) At Closing, the Escrow Agent is authorized to allocate certain Escrow costs as
follows: Agency shall pay (i) the documentary transfer tax; (ii) recording fees for the Agency
Deed and the Agency Regulatory Agreement; (iii) the premium for the Title Policy; and (iv) all
of the customary service charges and expenses of the Escrow Agent. Developer shall pay (I) the
recording charges for all financing documents and other matters, including the HUD Capital
Advance Documents; (2) the price for any endorsements or binders to the Title Policy as the
Developer may in its discretion request (including any separate policies of title insurance in favor
ofHUD or third parties as may be necessary). Each party shall pay its own attorneys' fees. Any
other usual and customary fees or costs which are not specifically allocated herein shall be paid
by the Agency provided however that the parties who incur special messenger or overnight
delivery charges shall be solely responsible for such expenses of the Escrow Agent.
(b) Ad valorem taxes and assessments on Parcel A, if any, for the current year shall
be prorated by the Escrow Agent as of the date of Closing, and the Agency responsible for any
such taxes or assessments levied, assessed or imposed prior to Closing, and the Developer
responsible for those after Closing. If the actual taxes are not known at the date of Closing, the
proration shall be based upon the most current tax figures. When the actual taxes for the year of
Closing become known, Developer and Agency shall, within thirty (30) days after written notice,
prorate the taxes in cash between themselves outside of the Escrow.
(c) In the event that a party who is not then in default may terminate this Agreement
before the Closing, the parties shall each pay one-half (Yz) of the Escrow Agent's fees, charges,
and expenses, including Title Policy cancellation charges, if any. In the event that a party who is
not in default may terminate this Agreement as provided in Section 3.10, then the party who is in
default shall be responsible for paying for all of the Escrow Agent's fees, charges, and expenses,
including Title Policy cancellation charges, if any.
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Fault By Either Party, Default and Termination. The Escrow may be canceled and this
Agreement terminated prior to the Closing upon the written notice of either party who then shall
have fully performed its obligations hereunder if: (i) either the Developer Conditions or Agency
Conditions have not occurred or have not been approved, disapproved, or waived as the case
may be, by the approving party by the date established either in the Schedule of Performance or
herein for the occurrence of such condition; or (ii) Escrow is not in a position to close by no later
than on or before April 30, 2003, for any reason. In the event of the foregoing, the terminating
party may demand, in writing, return of its money, papers, or documents from the Escrow Agent
and shall deliver a copy of such notice to the non-terminating party. Fifteen (15) days after such
notice has been delivered to the Escrow Agent and the other party, this Agreement shall
terminate and the Escrow Agent shall cancel the Escrow without further instruction, whereupon
the parties shall be mutually released from any further obligation; provided however, that the
mutual representations of the parties under Section 3.13 and the indemnity provisions of Section
3.8(c), and Section 6.7 shall survive any such termination of this Agreement.
3.11 Responsibilities of Escrow Agent.
(a) All funds received in Escrow shall be deposited by the Escrow Agent in an
escrow account with any state or national bank doing business in the State of California.
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(b) All communications from the Escrow Agent shall be directed to the addresses and
in the manner provided in Section 7.2 of this Agreement for notices, demands and
communications between Agency and Developer.
(c) The Escrow Agent is not to be concerned with the sufficiency, validity,
correctness of form, or content of any document prepared outside of Escrow and delivered to
Escrow. The sole duty of the Escrow Agent is to accept such documents and follow Developer's
and Agency's instructions for their use.
(d) Upon the satisfaction of the Developer's Conditions and the Agency's Conditions,
the Escrow Agent shall comply with the final written Escrow Closing instructions addressed to
the Escrow Agent by the Developer and by the Agency.
(e) The Escrow Agent shall in no case or event be liable for the failure of any of the
conditions to Closing, or for forgeries or false impersonation, unless such liability or damage is
the result of negligence or willful misconduct by the Escrow Agent.
3.12 No Real Estate or Broker Commission Payable. The parties mutually represent
and warrant that no real estate broker commission or tinder's fee is payable to a third party in
connection with the transfer of Parcel A by the Agency to the Developer.
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4.
DEVELOPMENT OF THE PROJECT BY DEVELOPER.
4. I Scope of Development.
(a) Except for the work of technical investigation and testing of soils as authorized
under Section 3.8, no other work of improvement of the Project shall be undertaken on Parcel A
prior to the Closing. It is the intent of the parties that promptly following the Close of the
Escrow the Developer shall commence the work of improvement of the Project on the Site
(Parcel A and Parcel B). The Project consists of the elements set forth in the Scope of
Development (See: Exhibit "G").
(b) The City's zoning ordinance and the City's building requirements will be
applicable to the use of the Site and development of the Project. The Developer acknowledges
that the plans for development of the Site as set forth in the Scope of Development shall be
subject to the City's zoning ordinance and building requirements. 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 City requirements which are applicable to the Site or to the Developer or to any
successor in interest of the Developer except by modification or variance duly approved by the
City in accordance with applicable law in its sole and absolute discretion.
(c) The Scope of Development set forth in Exhibit "G" is hereby approved by the
Agency upon its execution of this Agreement. The Project shall be developed and completed 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 upon in writing by and between the Developer and the Agency. The Executive
Director of the Agency is authorized to approve the preliminary and the final construction plans
for the Project, together with the preliminary and the final landscaping plans provided that the
Executive Director finds at the time of such approval that such plans are reasonably consistent
with the Scope of Development.
(d) The approval of the Scope of Development by the Agency shall not be binding
upon the Mayor and Common Councilor the Planning Commission of the City with respect to
any approvals of the Project required by such other bodies under applicable law. If any revision
of the Scope of Development is required by another government official, agency, department or
bureau having jurisdiction over the development of the Site and the Project as a result of
development project permits, reviews and approvals under applicable law, the Developer and the
Agency shall cooperate in efforts to either modify the Scope of Development to accommodate
such regulatory requirements or obtain waivers or recommendation of such revisions by the
regulatory agencies. The Agency shall not unreasonably withhold approval of such revisions to
the Scope of Development as may be required by such regulatory approval powers.
(e) Notwithstanding any provision to the contrary in this Agreement, the Developer
agrees to accept and comply fully with any and all reasonable conditions of approval applicable
to all permits and other governmental actions affecting the development of the Site and the
Project.
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(f) The Developer shall at its sole cost and exp'ense cause landScaping plans in
connection with development of the Project to be prepared and submitted to the City by a
licensed landscape architect within the times provided in the Schedule of Performance. The
Developer shall prepare and submit to the City for its approval, preliminary and landscaping
plans for the Project which are consistent with City Code requirements. These plans shall be
prepared, submitted and approved within the times respectively established therefor in the
Schedule of Performance as shown on Exhibit "E" and shall be consistent with the Scope of
Development.
(g) The Developer shall at its sole cost and expense prepare and submit development
plans, construction drawings and related documents within the times provided in the Schedule of
Performance for the development of the Project. Such development plans, construction drawings
and related documents shall be prepared and submitted in sufficient detail necessary to obtain all
necessary building permits from the City for construction of the Project. 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 within thirty (30) calendar days following
the City's receipt of said plans. Any failure by the City to approve any of such plans or to issue
necessary permits for the development of the Site within said thirty (30) calendar day period
shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended
by that period of time beyond said thirty (30) calendar day period in which the City 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. If the city fails to approve or disapprove the plans
within thirty (30) days following submission, the plans are deemed approved.
(h) During the preparation of all drawings and plans in connection with 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 City of construction plans and related documents. The Developer shall
communicate and consult with the Agency as frequently as is 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 of reasonable architectural review and approval
of building exteriors and design of the structures to be constructed on the Site. The Agency shall
also 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.
(j) [RESERVED--NO TEXT]
(k)
[RESERVED--NO TEXT]
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(I) The Executive Director of the Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made in this Agreement within the
times established in the Schedule of Performance as long as such 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 plans, drawings or related
documents, the Executive Director of the Agency shall state in 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 the 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
Executive Director of 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
Agency.
(m) If the Developer desires to make any change in the 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 Executive Director of the Agency
and/or the City for their independent approval. The Executive Director of 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 Executive Director of 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 Executive Director of 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 4.1 (s) hereof.
(n) The Developer, upon receipt of a notice of disapproval 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 their independent approval in the manner provided in
Section 4.1 (g) hereof.
(0) The Developer shall have the right during the course of construction of the Project
to make changes in construction of structures and "minor field changes" 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 structure. Said "minor field changes" shall be defined as
those changes from the approved construction drawings, plans and 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 Section shall be deemed
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to constitute a waiver of or change in the City's Building Code requirements.governing such
"minor field changes" or in any and all approvals by the City olherwise required for such ''minor
field changes".
(P) The cost of designing, constructing, installing and equipping the Project,
including the installation of all off-site public improvements, shall be borne by the Developer
provided however that the Developer may use and apply the Agency Affordable Housing Grant
as set forth in Section 4.9.
(q) [RESERVED--NO TEXT]
(r) 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 for utility services prior to the commencement of applicable portions
of said construction, and the Developer shall take reasonable precautions to ensure the safety and
stability of surrounding properties during said construction.
(s) The Developer shall commence the work of improvements of the Project on the
Site within ninety (90) days following the Close of Escrow for the Site, and thereafter shall
diligently prosecute such construction to completion. All construction and development
obligations and responsibilities of the Developer as related to the Project shall be initiated and
completed 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 Developer shall substantially complete the improvement of the Project by the
date set forth in the Schedule of Performance. During the course of the construction of the
Project the Schedule of Performance may be revised 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 not
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. Following the commencement of the
work of improvement of the Project, all changes in construction shall also require the prior
written approval ofHUD.
(t) During the period of construction of the Project, the Developer shall submit to the
Agency written progress reports when and as reasonably requested by the Agency but in no
event more frequently than every four (4) weeks. The reports shall be in such form and detail as
may reasonably be required by the Agency, and shall include a reasonable number of
construction photographs taken since the last such report submitted by the Developer. In
addition, the Developer will attend Agency meetings when requested to do so by Agency Staff.
(u) Prior to the entry by the Developer to conduct limited testing on Parcel A
pursuant to Section 3.7, and following the Closing before the commencement of any construction
by Developer of the Project, Developer shall procure and maintain, at its sole cost and expense,
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in a form and content satisfactory to Agency, during the entire term of such entry or construction,
the following policies of insurance: ..
(i) a policy of comprehensive general liability insurance written on a per
occurrence basis in an amount not less than either (i) a combined single lirnit of ONE
MILLION DOLLARS ($1,000,000.00) or (ii) bodily injury limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per person, ONE MILLION DOLLARS
($1,000,000.00) per occurrence, ONE MILLION DOLLARS ($1,000,000.00) products
and completed operations and property damage limits of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) per occurrence and FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) in the aggregate.
(ii) a policy of workers' compensation insurance in such amount as will fully
comply with the laws of the State of California and which shall indemnify, insure and
provide legal defense for both the Developer, Agency, and the City against any loss,
claim or damage arising from any injuries or occupational diseases occurring to any
worker employed by or any persons retained by the Developer in the course of carrying
out the work or services contemplated in this Agreement.
(iii) a policy of comprehensive automobile liability insurance written on a per
occurrence basis in an amount not less than either (i) bodily injury liability limits of
TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) per person and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) per occurrence and property
damage liability limits of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per
occurrence and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the
aggregate or (ii) combined single limit liability of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00). Said policy shall include coverage for owned, non-owned,
leased and hired vehicles.
(iv) during the course of construction and improvement of the Project a policy
of builder's risk insurance covering the full replacement value of the Proj ect.
All of the above policies of insurance shall be primary insurance and shall name the City
and the Agency, and their officers, employees, and agents as additional insureds. The insurer
shall waive all rights of subrogation and contribution it may have against the City and the
Agency and their officers, employees and agents and their respective insurers. All of said
policies of insurance shall provide that said insurance may not be amended or canceled without
providing thirty (30) days prior written notice by registered mail to Agency. In the event any of
said policies of insurance are canceled, the Developer shall, prior to the cancellation date, submit
new evidence of insurance in conformance with this Section to the Executive Director. No work
or improvement of the Site or operation of the Project shall commence until the Developer has
provided Agency with certificates of insurance or appropriate insurance binders evidencing the
above insurance coverages, and said certificates of insurance or binders are approved by Agency.
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The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated at ieast "A(vii)" or better in the most
recent edition of Bests Insurance Rating Guide or an equivalent rating in The Key Rating Guide
or in the Federal Register unless such requirements are modified or waived by the Executive
Director of the Agency due to unique circumstances.
Developer shall provide in all contracts with contractors, subcontractors, architects, and
engineers who provide services in connection with the improvement of the Project that such
persons shall maintain the same policies of insurance required to be maintained by Developer
pursuant to this Section, unless waived by the Executive Director of the Agency.
Compliance by the Developer with the insurance requirements of HUD for Section 202
projects shall be deemed to meet the foregoing requirements during the period of the HUD
Capital Advance Documents so long as the Agency, City and their officers, employees, and
agents as additional insureds on all said policies as evidenced by certificates of insurance issued
to the City and the Agency.
The Developer agrees that the provisions of this Section shall not be construed as limiting
in any way the extent to which the Developer may be held responsible for the payment of
damages to any persons or property resulting from the Developer's activities or the activities of
any person or persons for which the Developer is otherwise responsible.
e (v) The Developer for itself and its successors and assigns agrees that in the
construction of the Project, the Developer will not discriminate against any employee or
applicant for employment because of sex, marital status, race, color, religion, creed, national
origin, or ancestry.
(w) The Developer shall carry out its construction of the Project in conformity with
the HUD Capital Advance Documents and all applicable laws, including all applicable state
labor standards and requirements.
(x) The Developer shall, at its own expense, secure or shall cause to be secured, any
and all permits which may be required for such construction, development or work by the City or
any other governmental agency having jurisdiction. The Agency shall cooperate in good faith
with the Developer in the Developer's efforts to obtain from the City or any other appropriate
governmental agency any and all such permits applicable to the development of the Project.
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(y) Officers, employees, agents or representatives of the Agency shall have the right
of reasonable access to the Site, without the payment of charges or fees, during normal
construction hours during the period of construction of the Project for the purpose of verifying
compliance by the Developer within the terms of this Agreement. Such officers, employees,
agents or representatives of the Agency shall be those persons who are so identified by the
Executive Director. Any and all officers, employees, agents or representatives of the Agency
who enter the Site pursuant hereto shall identifY themselves at the job site office upon their
entrance on to the Site and shall at all times be accompanied by a representative of the Developer
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while on the Site; provided, however, that the Developer shall make a repr~sentative of the
Developer available for this rurpose at all times during "normal construction hours upon
reasonable notice from the Agency. The Agency shall indemnify and hold the Developer
harmless from injury, property damage or liability arising out of the exercise by the Agency
and/or the City of this right of access, other than injury, property damage or liability relating to
the negligence of the Developer or its officers, agents or employees.
(z) The Agency shall inspect relevant portions of the construction site prior to issuing
any written statements reflecting adversely on the Developer's compliance with the terms and
conditions of this Agreement pertaining to development of the Site.
4.2 Taxes, Assessments, Encumbrances and Liens. The Developer shall pay prior
to the delinquency all real property taxes and assessments assessed and levied on or against the
Site subsequent to the Close of Escrow. The Developer shall not place and shall not allow to be
placed on the Site any mortgage, trust deed, deed of trust, encumbrance or lien not otherwise
authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or
attachment made on the Site, or shall assure the satisfaction thereof. Nothing herein contained
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. The covenants of the Developer set forth in this Section relating to the placement of any
unauthorized mortgage, trust deed, deed of trust, encumbrance or lien, shall remain in effect only
until the Certificate of Completion has been recorded with respect to redevelopment of the
Project.
4.3 Change in Ownership Management and Control of the Developer _
Assignment and Transfer.
(a) Transfer as used in this Section 4.3, the term "Transfer" means:
(I) Any total or partial sale, assigrunent or conveyance, or any trust or power,
or any transfer in any other mode or form, by the Developer of more than a 49% interest
(or series of such sales, assigrunents and the like which in the aggregate exceed a
disposition of more than a 49% interest) with respect to its interest in this Agreement, the
Site, or the Project, or any part thereof or any interest therein or of the improvements
constructed thereon, or any contract or agreement to do any of the same; or
(2) Any total or partial sale, assigrunent, conveyance, or transfer in any other
mode or form, of or with respect to any ownership interest of the Developer, its nonprofit
corporation business organization (or series of such sales, assigrunents and the like which
in the aggregate exceeded a disposition of more than a 49% interest); or
(3) Any merger, consolidation, sale or lease of all or substantially all of the
assets of the Developer in the Agreement, the Site or the Project (or series of such sales,
assigrunents and the like which in the aggregate exceeded a disposition of more than a
49% interest); or
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(4) The leasing of part or all of the Site or the Project except for the lease of
the Project upon its completion by the Developer to Low-Income Senior Citizen
Households.
(b) This Agreement is entered into solely for the purpose of the redevelopment of the
Site and the improvement of the Project and the subsequent operation and use of the Site by the
Developer for renovated dwelling unit occupancy by Low-Income Senior Citizen Households in
accordance with the terms of this Agreement. The Developer recognizes that the qualifications
and identity of the Developer are of particular concern to the Agency, in view of:
(I) the importance of the redevelopment of the Site to the general welfare of
the community; and
(2) the fact that a Transfer is for all practical purposes a transfer or disposition
of the responsibilities of the Developer, as applicable, with respect to the redevelopment
of the Site and the Project.
The Developer further recognizes and acknowledges that it is because of the
qualifications and identity of the Developer that the Agency is entering into this Agreement with
the Developer, and, as a consequence, Transfers are permitted only as provided in this
Agreement.
(c) The limitations on a Transfer as set forth in this Section 4.3 shall apply until such
time as a Certificate of Completion is approved by the Agency and filed for recordation as
provided in Section 4.6. Except as expressly permitted in this Agreement, the Developer
represents and agrees that it has not made nor shall it create or suffer to be made or created, any
Transfer, either voluntarily or by operation of law without the prior written approval of the
Agency until such time as a Certificate of Completion has been recorded. Any Transfer made in
contravention of this Section 4.3 shall be voidable at the election of the Agency and shall then be
deemed to be a default under this Agreement. After the date of recordation of a Certificate of
Completion, certain other provisions of this Agreement shall nonetheless be applicable to
subsequent conveyances of interest in the Site, or portions thereof, as provided in the Agency
Regulatory Agreement.
(d) The following types of a Transfer shall be permitted and approved by the Agency
and are referred to herein as a "Permitted Transfer":
(I) Any Transfer by the Developer creating a "Security Financing Interest" in
the Site (including such a Transfer under the HUD Capital Advance Documents) which
conforms to the provisions of Section 4.4;
(2) Any Transfer directly resulting from the foreclosure of a Security
Financing Interest created by the Developer in the Site or the granting of a deed in lieu of
foreclosure of a Security Financing Interest;
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(3) Any Transfer of any interest in the Developer, irr;spective of the
percentage of ownership to any non-profit affiliate of or other non-profit entity controlled
by the Developer, or to any other entity in which the Developer owns a controlling
interest;
(4)
transferee.
Any Transfer of the Site or the Project to HUD and thereafter, to HUD's
(e) No Permitted Transfer of this Agreement or any interest in the Site or the Project,
by the Developer (other than a Permitted Transfer created pursuant to a Security Financing
Interest under Section 4.3(d)) shall be effective unless, at the time of the Permitted Transfer, the
person or entity to which such Transfer is made, shall expressly assume the obligations of the
Developer under this Agreement and such person also agrees to be subject to the conditions and
restrictions to which the Developer is subject under this Agreement. Such an assumption of
obligation shall be evidenced by a written instrument delivered to the Agency in a recordable
form which is satisfactory to the Agency.
(f) The Agency may, in its reasonable discretion, approve in wntmg any other
Transfer as requested by the Developer, provided such proposed transferee can demonstrate
successful and satisfactory experience in the ownership, operation, and management of a Low-
Income Senior Citizen Household rental housing facility operation similar to the Project. Any
such transferee for itself and its successors and assigns, and for the benefit of the Agency shall
expressly assume all of the obligations of the Developer to the Agency under this Agreement.
There shall be submitted to the Agency for review all instruments and other legal documents
proposed to effect any such other Transfer; and the approval or disapproval of the Agency shall
be provided to the Developer in writing within thirty (30) days of receipt by the Agency of the
Developer's request, and the Agency approval of a transfer and shall not be unreasonably
withheld or delayed upon written notice to the Agency, and any Transferee approved by HUD
shall be deemed approved by the Agency; provided however such Transferee shall assume the
obligations of this Agreement.
(g) Following the issuance of a Certificate of Completion, the Developer shall be
released by the Agency from any liability under this Agreement which may arise from a default
of a successor in interest occurring after the date of such a Transfer; provided, however that the
covenants of the Developer as set forth in the Agency Regulatory Agreement shall run with the
land for the term as provided in the Agency Regulatory Agreement.
4.4 Security Financing; Right of Holders.
(a) Notwithstanding any provision of Section 4.3 to the contrary, mortgages, deeds of
trust, or any other form of lien required for any reasonable method of financing the construction
and improvement of the Project, including without limitation the HUD Section 202 Grant and
any security interest or lien in the Site arising under the HUD Capital Advance Documents, are
permitted before the recordation of the Certificate of Completion (referred to in Section 4.6 of
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this Agreement). The Developer shall notify the Agency in writing in advance Qf any mortgage,
deed of trust, or other form of lien for financing if the Developer proposes to enter into the same
before the recordation of any Certificate of Completion other than the HUD Capital Advance
Documents. The Developer shall not enter into any such other conveyance for construction
financing without the prior written approval of the Agency, which approval the Agency shall
grant if: (i) such approval by the Agency is a condition of the disbursement of the proceeds of the
HUD Section 202 Grant to the Developer for the Project; or (ii) any such other conveyance is
. permitted under the HUD Section 202 Capital Grant for the Project and 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 constructing the Project on the Site.
(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 improvements on the Site 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 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.
(d) 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 improvement of the Site or to guarantee such construction or completion.
(e) Whenever the Agency shall deliver any notice or demand to the Developer with
respect to any breach or default by the Developer in the completion of construction of the
Project, or any breach or default of any other obligations which, if not cured by the Developer,
entitle the Agency to terminate this Agreement or exercise its right to re-enter Parcel A, or a
portion thereof under the Agency Grant Deed, the Agency shall at the same time deliver to each
holder of record of any mortgage, deed of trust or other security interest authorized by this
Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the
Agency are concerned) have the right, at its option, to commence the cure or remedy of any such
default and to diligently and continuously proceed with such cure or remedy, within one hundred
twenty (120) calendar days after the receipt of the notice; and to add the cost thereof to the
security interest debt and the lien of its security interest. If such default shall be a default which
can only be remedied or cured by such holder upon obtaining possession, such holder shall seek
to obtain possession with diligence and continuity through a receiver or otherwise, and shall
remedy or cure such default within one hundred twenty (120) calendar days after obtaining
possession; provided that in the case of a default which cannot with diligence be remedied or
cured, or the remedy or cure of which cannot be commenced, within such one hundred twenty
(120) calendar day period, such holder shall have such additional time as is reasonably necessary
to remedy or cure such default of the Developer. Nothing contained in this Agreement shall be
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deemed to permit or authorize such holder to undertake or continue the construction or
completion of the Project (beyond the extent necessary to conserve or protect the improvements
or construction already made) without first having expressly assumed the Developer's
obligations by written agreement satisfactory to the Agency. The holder in that event must agree
to complete, in the manner provided in this Agreement, the improvements to which the lien or
title of such holder relates and must submit evidence satisfactory to the Agency that it has the
qualifications and financial responsibility necessary to perform such obligations. Any such
holder completing such improvements in accordance herewith shall be entitled, upon written
request made to the Agency, to be issued Certificate of Completion by the Agency.
Notwithstanding the preceding paragraph, the provisions of this Section 4.4( e) shall not
be applicable during the term of the BUD Capital Advance Documents, unless such application
of this Section 4.4(e) is first approved in writing by BUD.
(1) In any case where, one hundred eighty (180) calendar days after default by the
Developer the holder of any mortgage, deed of trust or other security interest creating a lien or
encumbrance upon the Site or any portion thereof has not exercised the option to construct the
applicable portions of the Project, or has exercised the option but has not proceeded diligently
and continuously with construction, the Agency may purchase the mortgage, deed of trust or
other security interest by payment to the holder of the amount of the unpaid debt, including
principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to
the holder by the Developer under the loan documents between holder and the Developer. If the
ownership of Parcel A has vested in the holder, the Agency, may, at its option but not its
obligation be entitled to a conveyance from the holder to the Agency upon payment to the holder
of an amount equal to the sum of the following:
(I) The unpaid mortgage, deed of trust or other security interest debt,
including principal, accrued and unpaid interest, late charges, costs, expenses and other
amounts payable to the holder by the Developer under the loan documents between the
holder and the Developer, at the time title became vested in the holder (less all
appropriate credits, including those resulting from collection and application of rentals
and other income received during foreclosure proceedings.)
(2) All expenses, if any, incurred by the holder with respect to foreclosure.
(3) The net expenses, if any (exclusive of general overhead), incurred by the
holder as a direct result of the subsequent ownership or management of the Parcel A,
such as insurance premiums and real estate taxes.
(4) The cost of any improvements made by such holder.
(5) An amount equivalent to the interest that would have accrued on the
aggregate on such amounts had all such amounts become part of the mortgage or deed of
trust debt and such debt had continued in existence to the date of payment by the Agency.
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(6) After expiration of the aforesaid one h\ll1dred eighty (180) calendar day
period, the holder of any mortgage, deed of trust or other security affected by the option
created by this Section, may demand, in writing, that the Agency act pursuant to the
option granted hereby. If the Agency fails to exercise the right herein granted within
sixty (60) calendar days from the date of such written demand, the Agency shall be
conclusively deemed to have waived such right of purchase of the or the mortgage, deed
of trust or other security interest.
Notwithstanding the preceding paragraph, the provisions of this Section 4.4(f) shall not
be applicable during the term of the HUD Capital Advance Documents, unless such application
of this Section 4.4(f) if first approved in writing by HUD.
(g) In the event of a default or breach by the Developer of a mortgage, deed of trust
or other security interest with respect to Parcel A (or any portion thereof) prior to the issuance of
a Certificate of Completion for the Project (or any portion thereof), and the holder has not
exercised its option to complete the development, the Agency may cure the default but is under
no obligation to do so prior to completion of any foreclosure. In such event, 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 4.4(g) upon Parcel A or the Site (or any portion thereof) to the extent of
such costs and disbursements; provided however, any such lien in favor of the Agency as may
arise under this Section 4.4(g), shall be subject to the prior written approval of HUD. Any such
lien shall be subordinate and subject to mortgages, deeds of trust or other security instruments
executed by the Developer for the purpose of obtaining the funds to construct and improve the
Site as authorized herein.
4.5 Right of the Agency to Satisfy Other Liens on the Site after Conveyance of
Title to Developer. After the conveyance of title to Parcel A by the Agency to the Developer
and prior to the recordation of the Certificate of Completion (referred to in Section 4.6 of this
Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any
unauthorized liens or encumbrances on Parcel A, the Agency shall after one hundred twenty
(120) calendar days prior written notice to the Developer have the right, but not the obligation, to
satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall
require the Developer to payor make provisions for the payment of any tax, assessment, lien or
charge so long as the Developer in good faith shall contest the validity or amount thereof, and so
long as such delay in payment shall not subject the Site, or any portion thereof, to forfeiture or
sale.
4.6 Certificate of Completion.
(a) Following the written request therefor by the Developer and the completion of
construction of the Project, excluding any normal and minor building "punch-list" items to be
completed by the Developer, the Agency shall furnish the Developer with a Certificate of
Completion for the Site substantiated in the form set forth in Exhibit "D".
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(b) The Agency shall not unreasonably withhold the issuance of.a Certificate of
Completi.m. A Certificate of Completion shall be, and shaii so state, that it is a conclusive
determination of satisfactory completion of all of the work of improvement of the Project. After
the recordation of the Certificate of Completion, any party then owning or thereafter purchasing,
leasing or otherwise acquiring any interest in the Site shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that
such party shall be bound by any covenants contained in the Agency Grant Deed and the Agency
Regulatory Agreement.
(c) Any Certificate of Completion shall be in such form as to permit it to be recorded
in the Recorder's Office of San Bernardino County where the Site is located.
(d) If the Agency refuses or fails to furnish a Certificate of Completion after written
request from the Developer, the Agency shall, within fifteen (15) calendar days of the written
request or within three (3) calendar days after the next regular meeting of the Agency, whichever
date occurs later, provide to the Developer a written statement setting forth the reasons with
respect to the Agency's refusal or failure to furnish a Certificate of Completion. The statement
shall also contain the Agency's opinion of the action the Developer must take to obtain a
Certificate of Completion. If the reason for such refusal is confined to the immediate
unavailability of specific items or materials for construction or landscaping at a price reasonably
acceptable to the Developer or other minor building "punch-list" items, the Agency may issue its
Certificate of Completion upon the posting of a bond, cash or irrevocable letter of credit,
reasonably approved as to form and substance by the Agency Counsel and obtained by the
Developer in an amount representing a fair value of the work not yet completed as reasonably
determined by the Agency. For the purpose of the preceding sentence, the words "minor
building punch-list items" refers to Project construction items which do not in the aggregate
exceed a total cost often percent (10%) of the amount of the HUD-approved construction budget
for the Project. If the Agency shall have failed to provide such written statement within the
foregoing period, the Developer shall be deemed conclusively and without further action of the
Agency to have satisfied the requirements of this Agreement with respect to the Site as if a
Certificate of Completion had been issued therefor.
(e) A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements described herein, or any part
thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion as
referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the
continuing covenants or conditions subsequent contained in the Agency Grant Deed attached
hereto as Exhibit "F".
4.7 Developer Job Program.
(a) The Developer will use good faith efforts to cause the general contractor who
shall be retained by the Developer to construct the Project to recruit (and to encourage its
subcontractors to recruit) local residents of the City of San Bernardino to perform work and
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construction services relating to the improvement of the Project. Such good faith efforts
covenant of the Developer shall remain in effect during the' course of the construction and
improvement of the Project. The Agency shall consult with the Developer from time-to-time to
assist the Developer in formulating programs to implement the foregoing: provided however that
this covenant of the Developer is not intended to require the Developer (or its general contractor
and subcontractors) to implement any program or engage in any pattern or practice of
recruitment or hiring at the Project which would violate applicable law.
(b) Developer agrees to use good faith efforts to hire residents of the City of San
Bernardino for available job openings in the completed Project. Such good faith efforts covenant
of the Developer shall remain in effect during the term of the Agency Regulatory Agreement.
The Agency shall consult with the Developer from time to time to assist Developer in
formulating programs to implement the foregoing. The foregoing is not intended to require
Developer to implement any program or engage in any pattern or practice of recruitment or
hiring at the Project which would violate applicable law.
4.8 [RESERVED - NO TEXT).
4.9 Agency Affordable Housing Grant.
(a) The total cost of the Project includes the cost of certain improvements which the
HUD Capital Advance funds are not intended to pay for, including on-site exterior architectural
design amenities, additional landscape treatments and the like. The difference between the total
Project costs and the HUD Capital Advance is to be funded by Agency Affordable Housing
Grant not to exceed the sum specified in Section 1.1 Such additional improvements shall be
caused to be constructed by the Developer concurrently with the improvement of the Project and
shall be in accordance with plans acceptable to the Agency, the City, the Owner and HUD. Prior
to Close of Escrow the list of those improvements costs not included within the Capital Advance
shall be agreed upon by the Developer and the Agency. The Agency funds not exceeding the
amount specified in Section 1.1 shall be applied to pay for costs included in the budget of total
Project costs and all such disbursements of the Agency Affordable Housing Grant funds shall be
approved by the Agency and Developer.
(b) The Agency shall tender the full amount of the Agency Affordable Housing Grant
to the Escrow Agent at the time of the Close of Escrow for the account of Developer to be held
and administered by the Escrow Agent for such purpose. The proceeds of the Agency
Affordable Housing Grant shall be disbursed by the Escrow Agent at the Close of Escrow to the
order and account of the Developer to pay for Project-related cost items as jointly approved by
the Developer and the Agency. Provided that the Developer is not in default under this
Agreement, the Escrow Agent shall disburse the proceeds of the Agency Affordable Housing
Grant at the Close of Escrow for the account and credit of the Developer.
(c) The Developer is solely responsible for obtaining the approval from the City of
the design plans and specifications for the additional improvements for the Project, to be paid for
in whole or in part using the proceeds of the Agency Affordable Housing Grant, prior to
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commencement of any such work. In the event that the total cost payable for th_e completion of
the installation of such improvements may exceed the amount o[the Agency Affordable Housing
Grant, the Developer shall be solely responsible for paying for such additional cost from other
sources of funds available to the Developer.
5. USE OF THE SITE.
5.1 Use of the Site. Developer hereby covenants and agrees, for itself and its
successors and assigns, that Parcel A or the Site shall be developed, used and maintained as
rental housing for occupancy by Senior Citizen Households as more fully set forth in the Agency
Deed (Exhibit "F") and Agency Regulatory Agreement (Exhibit "H").
5.2 No Inconsistent Uses. Developer covenants and agrees that it shall not devote
the Parcel A or any part of the Site to uses inconsistent with the Agency Regulatory Agreement.
In the event of a conflict between the application of the provisions of the Agency Regulatory
Agreement to Parcel A or the Site and the Project and the application of the HUD Capital
Advance Documents to the Site and the Project, such conflict shall be resolved in favor of the
BUD Capital Advance Documents.
5.3 Discrimination Prohibited. Except as provided in the BUD Capital Advance
Documents and the Agency Deed and the Agency Regulatory Agreement with respect to the
reservation of each of the rental units in the Project for occupancy by Senior Citizen Households,
there shall be no discrimination against, or segregation of, any persons, or group of persons, on
account of race, color, creed, religion, sex, marital status, familial status, physical or mental
disability, ancestry or national origin in the rental, sale, lease, sublease, transfer, use, occupancy,
or enjoyment of the Site, or any portion thereof, nor shall the Developer, or any person claiming
under or through Developer, 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, sub lessees, or vendees of the Site or any portion thereof. The
nondiscrimination and nonsegregation covenants contained herein and in the Agency Deed shall
remain in effect in perpetuity.
5.4 Effect of Covenants. Subject to the provisions of Section 7.15 hereof, the
Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the
restrictions and community redevelopment and affordable rental housing covenants running with
the land, whether or not appearing in the Agency Deed or the Agency Regulatory Agreement for
and in its own right and for the purposes of protecting the interests of the community in whose
favor and for whose benefit the covenants running with the land have been provided. The
community redevelopment and affordable rental housing covenants in favor of the Agency shall
run without regard to whether Agency has been remains or is an owner of any land or interest
therein in Parcel A, or the Site, and shall be effective as both covenants and equitable servitudes
against Parcel A, or the Site. Agency shall have the right, if any of the .:ommunity
redevelopment and affordable rental housing covenants set forth in this Agreement which are
provided for its benefit are breached, to exercise all rights and remedies and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the curing of such
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the terms of this Agreement under a theory of third-party beneficiary or otherwise except the
City as the successor in regulatory function of the Agency as provided in Health and Safety Code
Section 33334.4, or other applicable law. The covenants running with the land and their duration
are set forth in the Agency Deed and the Agency Regulatory Agreement. Nothing in this
Agreement or in the Agency Deed or the Agency Regulatory Agreement shall be deemed to limit
the power of the City to enforce any provision of any development project permit which it may
approve in connection with the Project, or to otherwise enforce any provision of law against the
Developer and the Site and the Project.
6. ENFORCEMENT.
6.1 General Conditions
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a) In the event that either the Developer Conditions or the Agency Conditions have
not been approved, disapproved or waived by the parties, as the case may be, prior to the Closing
by the applicable date set forth in the Schedule of Performance, then the remedies of the parties
shall be as set forth in Section 3.10. In the event that a breach or default may occur prior to the
Close of Escrow, and subject to the extension of time set forth in Section 7.5 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 prosecute such cure,
correction or remedy to completion (and where any time limits for the completion of such cure,
correction or remedy are specifically set forth in this Agreement, then within said time limits),
such party shall not be deemed to be in default hereunder.
(b) From and after the Close of Escrow and subject to the extensions of time set forth
in Section 7.5 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 prosecute such cure, correction or remedy to completion (and where any time limits
for the completion of such cure, correction or remedy are specifically set forth in this Agreement,
then within said time limits), such party shall not be deemed to be in default hereunder.
(c) The injured party shall give written notice of default to the party in default,
specifying the default complained of by the nondefaulting party. Delay in giving such notice
shall not constitute a waiver of any default nor shall it change the time of default.
(d) 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 not deprive either party of
its right to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
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(e) After the Close of Escrow, the Agency shall 'have no right to terminate this
Agreement without the prior written approval ofHUD,
6.2. 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 other
remedy consistent with the purposes of this Agreement. Such legal actions 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 District Court in the Central District ofCalifomia.
(b) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
(c) In the event that any 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 Chair of the Agency, or in such other manner as may be provided by law.
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(d) In the event 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 John Clem
for service of process and at such address as may be specified in written notice to the Agency),
or in such other manner as may be provided by law, and shall be valid whether made within or
without the State ofCalifomia.
6.3 Rights and Remedies are Cumulative. Except with respect to any rights and
remedies expressly declared to be exclusive in Section 3.10 and Section 3.12 of this Agreement
as relates to a failure of conditions precedent occurring before the Close of Escrow, the rights
and remedies of the parties as set forth in this Section 6 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.
6.4. Damages. If either party defaults with regard to any provision of this Agreement,
the nondefaulting party shall serve written notice of such default upon the defaulting party. If
the defaulting party does not diligently commence to cure such default after service of the notice
of default and promptly complete the cure of such default within a reasonable time, not to exceed
thirty (30) calendar days (or such shorter period as may otherwise be specified in this Agreement
for default), after the service of written notice of such a default. In the event that a default
relates to a matter arising after the Close of Escrow the defaulting party shall be liable to the
other party for damages caused by such default.
6.5 [RESERVED-NO TEXT]
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6.6
Right to Re-enter, Repossess and Revest.
(a) The Agency shall, upon thirty (30) calendar days notice to the Developer which
notice shall specify this Section 6.6, have the right, at its option, to re-enter and take possession
of all or any portion of Parcel A, together with all improvements thereon, and to terminate and
revest in the Agency the estate conveyed to the Developer hereunder, if after conveyance of title,
the Developer (or its successors in interest) shall:
(I) Fail to commence construction of all or any portion of the improvements
as required by this Agreement for a period of ninety (90) calendar days after written
notice to proceed from the Agency; provided that the Developer shall not have obtained
an extension or postponement to which the Developer may be entitled pursuant to Section
7.5 hereof; or
(2) Abandon or substantially suspend construction of all or any portion of the
improvements for a period of ninety (90) calendar days after written notice of such
abandonment or suspension from the Agency; provided that the Developer shall not have
obtained an extension or postponement to which the Developer may be entitled to
pursuant to Section 7.5 hereof; or
(3) Assign or attempt to assign this Agreement, or any rights herein, or
transfer, or suffer any involuntary transfer, of Parcel A or the Site or the Project or any
part thereof, in violation of this Agreement, and such violation shall not have been cured
within thirty (30) calendar days after the date of receipt of written notice thereof from the
Agency to the Developer.
(b) The thirty (30) calendar day written notice specified in this Section shall specify
that the Agency proposes to take action pursuant to this Section and shall specify which of the
Developer's obligations set forth in Subsections (I) through (3) herein have been breached. The
Agency shaH proceed with its remedy set forth herein only in the event that the Developer
continues in default of said obligation(s) for a period of thirty (30) calendar days following such
notice or, upon commencing to cure such default, fails to diligently and continuously prosecute
said cure to satisfactory conclusion.
(c) The right of the Agency to reenter, repossess, terminate, and revest shaH be
subject and subordinate to, shaH be limited by and shaH not defeat, render invalid or limit:
(l) Any mortgage, deed of trust or other security interest permitted by this
Agreement;
(2) Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages, deeds of trust or other security interests;
(3) Any leases, declarations of covenants, conditions and restrictions,
easement agreements or other recorded documents applicable to the Site.
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(d) The Agency Grant Deed shall contain appropriate references and provisions to
give effect to the Agency's right, as set forth in this Section under specified circumstances prior
to the recordation of a Certificate of Completion with respect to such portion, to reenter and take
possession of such portion, or any part thereof, with all improvements thereon, and to terminate
and revest in the Agency the estate conveyed to the Developer.
(e) Upon the reinvesting in the Agency of title to Parcel A, or any part thereof, as
provided in this Section, the Agency shall, pursuant to its responsibilities under State law, use its
best efforts to resell Parcel A, or any part thereof, at fair market value as soon and in such
manner as the Agency shall find feasible and consistent with the objectives of such law, to a
qualified and responsible party or parties (as determined by the Agency) who will assume the
obligations of making or completing the improvements, or such other improvements in their
stead as shall be satisfactory to the Agency and in accordance with the uses specified for Parcel
A and/or the Site, or any part thereof. Upon such resale of Parcel A and/or the Site, or any part
thereof, the proceeds thereof shall be applied:
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(I) First, to make any payment made or necessary to be made to discharge or
prevent from attaching or being made any subsequent encumbrances or liens due to
obligations incurred with respect to the making or completion of the agreed
improvements or any part thereof on the Site or any portion thereof; next to reimburse the
Agency on its own behalf or on behalf of the City for all actual costs and expenses
incurred by the Agency and the City, including but not limited to customary and
reasonable fees or salaries to third party personnel engaged in such action (but excluding
the Agency's or the City's general overhead expense), in connection with the recapture,
management and resale of the Site or any portion thereof; all taxes, assessments and
water and sewer charges paid by the City and/or the Agency with respect to the Site or
any portion thereof; any amounts otherwise owing to the Agency by the Developer and
its successor transferee; and
(2) Second, to the extent that any and all funds which are proceeds from such
resale are thereafter available, to reimburse the Developer, or its successor transferee, up
to the amount equal to the sum of: (I) the Purchase Price paid by the Developer for
Parcel A (or allocable to the applicable part thereof); and (2) the costs incurred for the
development of Parcel A, or applicable part thereof, or for the construction of the
improvements thereon including, but not limited to, costs of carry, taxes and items set
forth in the Developer's cost statement which shall be submitted to and approved by the
Agency.
(3) Any balance remaining after the foregoing application of proceeds shall be
retained by the Agency.
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(f) Notwithstanding the prOVlSlons of subsection (a) through subsection (e),
inclusive, above, this Section 6.6 shall not be applicable during the term of the HUD Capital
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Advance Documents, unless such application of this Section 6,.6 is first approvl;d in writing by
HUD.
6.7 Mutual Indemnification. The Developer agrees to indemnify and hold the City
and the Agency, and their officers, employees and agents, harmless from and against all claims
for liability for 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 claims or liability for damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its obligations hereunder.
6.8 Attorneys' Fees. In the event oflitigation between the parties arising out of this
Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and
other costs and expenses incurred, including such fees and costs incurred on appeal, in addition
to whatever other relief to which it maybe entitled. As used in the preceding sentence, the words
"reasonable attorney's fees" in the case of the Agency, include the salary and benefits payable to
lawyers employed in the Office of the City Attorney of the City, who provide legal counsel to the
Agency in such litigation as allocated on an hourly basis.
7. MISCELLANEOUS.
7.1 Governing Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
7.2 Notices. Notices, demands, and communications between Agency and Developer
shall be sufficiently given if personally delivered or dispatched by registered or certified mail,
postage prepaid, return receipt requested, to the following addresses:
If to Agency:
Redevelopment Agency
of the City of San Bernardino, California
20 I North "E" Street, Suite 30 I
San Bernardino, California 9240 I
Attn: Executive Director
If to Developer:
TELACU Housing - San Bernardino II, Inc.
clo Tom Provencio, Vice President
5400 E. Olympic Blvd., Suite 300
Los Angeles, CA 90022
Any notice shall be deemed to have been received as of the earlier time of actual receipt
by the addressee thereof or the expiration of forty-eight (48) hours after depositing of such notice
in the United States Postal System in the manner described in this Section. Such written notices,
demands, and communications may be sent in the same manner to such other addresses as a
party may from time to time designate by mail.
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7.3 Conflicts of Interest. No member, official, or employee of Ag~ncy shall have
any persorJal interest, direct or int'irect, in this Agreement nor shall any such member, official, or
employee participate in any decision relating to this Agreement which affects his personal
interests or the interests of any corporation, partnership, or association in which he is, directly or
indirectly, interested.
7.4 Nonliability of Agency Officials and Employees. No member, official,
employee, or consultant of Agency or City shall be personally liable to Developer, or any
successor in interest of Developer, in the event of any default or breach by Agency or for any
amount which may become due to Developer or to its successor, or on any obligations under the
terms of this Agreement.
7.5 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 majeure
events of war, insurrection, strikes, lockouts, riots, 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 entity (provided that acts or failure to act ofthe City or Agency shall not
extend the time for the Agency to act hereunder except for delays associated with lawsuit or
injunction 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 commence 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 the Developer to obtain a satisfactory commitment from HUD for the
HUD Section 202 Capital Grant or to satisfy any other condition of this Agreement relating to
the acquisition of the Site and the redevelopment of the Project 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 7.5. The parties hereto expressly acknowledge and agree that changes in either
general economic or regulatory conditions or changes in the economic or regulatory 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
provide 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 or regulatory conditions or changes in such economic
assumptions relating to the terms and covenants of this Agreement could impose an
inconvenience or hardship on the continued performance of such party under this Agreement, but
that such inconvenience or hardship is not a force majeure event and does not excuse the
performance by such party of its obligations under this Agreement.
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7.6
Books and Records.
(a) Maintenance of Books and Records. Developer shall prepare and maintain all
books, records, and reports necessary to substantiate Developer's compliance with the tenus of
this Agreement or reasonably required by the Agency.
(b) Right to Inspect. The Agency shall have the right, upon not less than seventy-
two (72) hours notice, at all reasonable times, to inspect the books and records of the Developer
pertinent to the purposes of this Agreement. Said right of inspection shall not extend to
documents privileged under attorney-client or other such privileges.
7.7 Modifications. Any alteration, change or modification of or to this agreement, in
order to become effective, shall be made by written instrument or endorsement thereon and in
each such instance executed on behalf of each party hereto.
7.8 Merger of Prior Agreements and Understandings. This Agreement and all
documents incorporated herein contain the entire understanding among the parties hereto relating
to the transactions contemplated herein and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written are merged herein and shall be of
no further force or effect.
7.9 Representations and Warranties of Developer The Developer hereby makes
the following representations, covenants and warranties and acknowledges that the execution of
this Agreement by the Agency has been made in material reliance by the Agency on such
covenants, representations and warranties:
(1) The Developer is a duly organized and validly existing. 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 transactions contemplated
hereby. The persons executing this Agreement and the instruments referenced herein on
behalf of the Developer hereby represent and warrant that such persons have the power,
right and authority to 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.
(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 tenus.
(4) Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby shall result in a breach of or constitute a default under
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any other agreement, document, instrument or other obligation to which VIe 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 or to the Site.
All representations and warranties contained in this Section 7.9 are true and correct on
the date hereof and on the Closing Date and Developer's liability for misrepresentation or breach
of warranty, representation or covenant, wherever contained in this Agreement, shall survive the
execution and delivery of this Agreement and the Close of Escrow.
7.10 Representations and Warranties of 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 and the acquisition by the Developer of the Site will
have been made in material reliance by the Developer on such covenants, representations and
warranties:
(1) Each and every undertaking and obligation of the Agency under this
Agreement shall be performed by the Agency timely when due; and that all
representations and warranties of the Agency under this Agreement and its exhibits shall
be true in all material respects at the Closing as though they were made at the time of
Closing.
(2) 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.
(3) The Agency has taken all requisite action and obtained all requlSlte
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.
(4) The persons executing any instruments for or on behalf of the Agency
have been authorized to act on behalf of the Agency and that the 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,
be valid and enforceable against the Agency in accordance with its terms. No approval,
consent, order or authorization of, or designation or declaration of any other person, is
required in connection with the valid execution and delivery of and compliance with this
Agreement by the Agency.
(5) Prior to the Closing, the Agency will be the owner of (and the Developer
will acquire hereunder) the entire right, title and interest in Parcel A to effectively vest in
the Developer good and marketable fee simple title to Parcel A, that the Developer will
acquire Parcel A free and clear of all liens, encumbrances, claims, rights, demands,
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easements, leases or other possessory interests, agreements, covenants. conditions, and
restrictions of any kind or character (including, without limiting the generality of the
foregoing, liens or claims for taxes, mortgages, conditional sales contracts, or other title
retention agreement, deeds of trust, security agreements and pledges and mechanics lien)
except for the matters covered in Section 3.6(a).
(6) There are no pending or, to the best of the Agency's knowledge,
threatened claims, actions, allegations or lawsuits of any kind, whether for personal
injury, property damage, property taxes or otherwise, that could materially and adversely
affect the value or use of Parcel A or prohibit the sale thereof, nor to the best of the
Agency's knowledge, is there any govermnental investigation of any type or nature
pending or threatened against or relating to Parcel A or the transactions contemplated
hereby.
(7) Between the date of this Agreement and the Close of Escrow, the Agency
will continue to manage, operate and maintain Parcel A in the same manner as existed
prior to the execution of this Agreement.
(8) There are no contracts or agreements to which the Agency is a party
relating to the operation, maintenance, service, repair, development, improvement or
ownership of Parcel A which will survive the Close of Escrow except as may be set forth
in the Agency Grant Deed.
(9) Parcel A [is]/[is not] located within a designated earthquake fault zone
pursuant to California Public Resources Code Section 2621.9 and a designated area that
is particularly susceptible to ground shaking, liquefaction, landslides or other ground
failure during an earthquake pursuant to California Public Resources Code Section 2694.
(10) The Agency has taken all appropriate action to reserve the sum of
$362,000 for the Agency Affordable Housing Grant for the Project as provided in Section
4.9.
If the Agency becomes aware of any act or circumstance which would change or render
incorrect, in whole or in part, any representation or warranty made by the Agency under this
Agreement, whether as of the date given or any time thereafter through the Closing Date and
whether or not such representation or warranty was based upon the Agency's knowledge and/or
belief as of a certain date, the Agency will give immediate written notice of such changed fact or
circumstance to the Developer, but such notice shall not release the Agency of its liabilities or
obligations with respect thereto.
All representations and warranties contained in this Section 7.10(a) are true and correct
on the date hereof and on the Closing Date and the Agency's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained in this Agreement, shall
survive the execution and delivery of this Agreement and the Close of Escrow.
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7.11 Binding Effect of Agreement. This Agreement. shall be binding..upon and shall
inure to the benefit of the parties hereto, their legal representatives, successors, and assigns. This
Agreement shall likewise be binding upon and obligate the Site and the successors in interest,
owner or owners thereof, and all of the tenants, lessees, sublessees, and occupants of such Site.
7.12 Assurances to Act in Good Faith. Agency and Developer agree to execute all
documents and instruments and to take all action and shall use their best efforts to accomplish
the purposes of this Agreement. Agency and Developer shall each diligently and in good faith
pursue the satisfaction of any conditions or contingencies subject to their approval.
7.13 Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law. If, however, any
provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
7.14 HUD Modifications. In the event HUD shall reasonably request modifications to
this Agreement and/or the exhibits hereto, as a condition to the issuance of its Finn Commitment
for the disbursement of the proceeds of the HUD Section 202 Grant to the Developer neither the
Developer nor Agency will unreasonably withhold their consent to such modification.
7.15 Rights of HUD.
(a) The tenns and prOVlSlons of this Agreement and the Agency Regulatory
Agreement shall be subordinate to the tenns and provisions of the HUD Capital Advance
Documents and any other documents entered into by Developer in connection with the HUD
Section 202 Grant for the Project. Notwithstanding anything contained herein to the contrary, in
the event the Secretary ofHUD (Secretary) should take title to the Project and/or the Site through
foreclosure, deed in lieu of foreclosure, or otherwise, all covenants, conditions and restrictions
set forth in this Agreement shall cease and tenninate and be of no further force or effect,
provided however, that nothing herein shall be deemed to prevent the Agency from accepting a
transfer in its sole and absolute discretion oftitle in the Site and/or the Project from the Secretary
in any such event.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any
provision in this Agreement contradicts, modifies, or in any way changes the tenns of the HUD
Capital Advance Documents, the tenns of the HUD Capital Advance Documents shall prevail
and govern; or if any provision of this Agreement in any way tends to limit the Secretary in its
administration of the National Housing Act of 1937, as amended, or the Housing Act of 1959, as
amended, or the regulations pursuant thereto with respect to the Project this Agreement shall be
deemed amended by the parties to the extent required by HUD so as to comply with such acts,
regulations and HUD Capital Advance Documents.
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(c) Notwithstanding anything in this Agreement to the contrary, nQ amendment to
this Agreement shall be effective without the prior written approval of the Secretary ofHUD, its
successors or asSignS.
IIII
IIII
IIII
IIII
IIII
IIII
IIII
IIII
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IN WITNESS WHEREOF the Agency and Developer have executed thi~ Agreement as
of the datc first written above. n
AGENCY
THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
Date:
By:
Executive Director
DEVELOPER
TELACU HOUSING - SAN BERNARDINO II,
INC., a California non-profit corporation
Dated:
By:
APPROVED:
By:
Agency Special Counsel
P:\Forms\Housing Forms\Housing Projects\4th-H\TELACU Reg Agmt.doc
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EXHffiIT "A"
LEGAL DESCRIPTION OF PARCEL A
THAT PORTION OF LOT 2,BLOCK 26, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK
7 OF MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
DESCRmED AS FOLLOWS:
BEGINNING AT A POINT 200 FEET EAST OF THE SOUTHWEST CORNER OF SAID
LOT 2; THENCE RUNNING NORTH 150 FEET TO THE NORTH LINE OF SAID LOT;
THENCE EAST 50 FEET; THENCE SOUTH 150 FEET TO THE SOUTH LINE OF SAID
LOT; THENCE WEST 50 FEET TO THE POINT OF BEGINNING.
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EXHffiIT "B"
(LEGAL DESCRIPTION OF PARCEL B)
PARCEL 1:
THAT PORTION OF LOT 3, BLOCK 26, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK
7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY, DESCRmED AS FOLLOWS:
COMMENCING AT A POINT IN THE WEST LINE OF SAID LOT 3, 150 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE
NORTH 50; THENCE WEST 150 FEET TO THE WEST LINE OF SAID LOT; THENCE
SOUTH 50 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE WEST 150 FEET OF LOT 2, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
e PARCEL 3:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE 1, RECORDS OF SAID COUNTY, DESCRmED AS FOLLOWS:
BEGINNING AT A POINT 200 FEET NORTH OF THE SOUTHWEST CORNER OF LOT 2
OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE NORTH 50 FEET; THENCE
WEST 150 FEET; THENCE SOUTH 50 FEET TO THE POINT OF BEGINNING.
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PARCEL 4:
THE WEST 50 FEET OF THE EAST ONE-HALF OF LOT 2, BLOCK 26, ACCORDING TO
MAP OF THE CITY OF SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 5:
THE SOUTH ONE-HALF OF THE WEST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
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PARCEL 6:
THE EAST 69 FEET OF LOT 4, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 7:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 PAGE
1, RECORDS OF SAID COUNTY, AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT ON THE WEST LINE OF SAID LOT 3, 250 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET FOR A
PLACE OF BEGINNING; THENCE SOUTH AT RIGHT ANGLES, 100 FEET, MORE OR
LESS TO THE SOUTH LINE OF SAID LOT 3; THENCE EAST ALONG THE SOUTH LINE
OF SAID LOT 3, A DISTANCE OF 150 FEET, MORE OR LESS, TO THE SOUTHEAST
CORNER OF SAID LOT 3; THENCE RUNNING NORTH ALONG THE EAST LINE OF
SAID LOT 3, 150 FEET, MORE OR LESS TO THE NORTHEAST CORNER OF SAID LOT
3; THENCE RUNNING WEST ALONG THE NORTH LINE OF SAID LOT 3, 150 FEET,
MORE OR LESS, TO A POINT DIRECTLY NORTH OF THE PLACE OF BEGINNING;
THENCE SOUTH TO THE PLACE OF BEGINNING.
PARCEL 8:
THE WEST 81 FEET OF THE EAST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 9:
THE NORTH 50 FEET OF THE WEST ONE-HALF OF LOT 3, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 10:
ALL THAT PORTION OF LOT 2, BLOCK 26, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
COMMENCING 250 FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT;
THENCE NORTH 150 FEET TO THE NORTH LINE OF SAID LOT 2; THENCE EAST 48.5
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FEET; THENCE SOUTH 150 FEET; THENCE WEST 48.5 FEET TO TJiE POINT OF
BEGINNING. '>
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EXHffiIT "c"
LEGAL DESCRIPTION OF THE PROJECT SITE
(PARCEL A AND PARCEL B)
PARCEL 1:
THAT PORTION OF LOT 3, BLOCK 26, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK
7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY, DESCRffiED AS FOLLOWS:
COMMENCING AT A POINT IN THE WEST LINE OF SAID LOT 3, 150 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE
NORTH 50 FEET; THENCE WEST 150 FEET TO THE WEST LINE OF SAID LOT THENCE
SOUTH 50 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE WEST 150 FEET OF LOT 2, BLOCK 26, CITY SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
e PARCEL 3:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE 1, RECORDS OF SAID COUNTY, DESCRffiED AS FOLLOWS:
BEGINNING AT A POINT 200 FEET NORTH OF THE SOUTHWEST CORNER OF LOT 2
OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE NORTH 50 FEET; THENCE
WEST 150 FEET; THENCE SOUTH 50 FEET TO THE POINT OF BEGINNING.
PARCEL 4:
THE WEST 50 FEET OF THE EAST ONE-HALF OF LOT 2, BLOCK 26, ACCORDING TO
MAP OF THE CITY OF SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 5:
THE SOUTH ONE-HALF OF THE WEST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
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PARCEL G:
THE EAST 69 FEET OF LOT 4, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE I, RECORDS OF SAID COUNTY.
PARCEL 7:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 PAGE
1, RECORDS OF SAID COUNTY, AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT ON THE WEST LINE OF SAID LOT 3, 250 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET FOR A
PLACE OF BEGINNING; THENCE SOUTH AT RIGHT ANGLES, 100 FEET, MORE OR
LESS TO THE SOUTH LINE OF SAID LOT 3, A DISTANCE OF 150 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID LOT 3; THENCE RUNNING NORTH
ALONG THE EAST LINE OF SAID LOT 3, 150 FEET, MORE OR LESS TO THE
NORTHEAST CORNER OF SAID LOT 3; THENCE RUNNING WEST ALONG THE
NORTH LINE OF SAID LOT 3, 150 FEET, MORE OR LESS, TO A POINT DIRECTLY
NORTH OF THE PLACE OF BEGINNING, THENCE SOUTH TO THE PLACE OF
BEGINNING.
PARCEL 8:
THE WEST 81 FEET OF THE EAST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 9:
THE NORTH 50 FEET OF THE WEST ONE-HALF OF LOT 3, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE I, RECORDS OF SAID COUNTY.
PARCEL 10:
ALL THAT PORTION OF LOT 2, BLOCK 26, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
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COMMENCING 250 FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT;
THENCE NORTH 150 FEET TO THE NORTH LINE OF sAiD LOT 2; THENCE EAST 48.5
FEET; THENCE SOUTH 150 FEET; THENCE WEST 48.5 FEET TO THE POINT
BEGINNING.
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EXHffiIT "D"
When Recorded, Mail to:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
CERTIFICATE OF COMPLETION
The undersigned officer of the Redevelopment Agency of the City of San
Bernardino (the "Agency") hereby certifies as follows:
By its Resolution No. _, adopted and approved
Agency has resolved as follows:
e Section 1. The improvements required to be constructed in accordance with that
certain Disposition and Development Agreement (the "Agreement") dated as of
by and between the Agency and TELACU Housing-San Bernardino 11, Inc., a California non-
profit public benefit corporation, (the "Developer") on the lands (the "Property") more fully
described in Exhibit "A" attached hereto and incorporated herein by this reference, have been
completed in accordance with the provisions of the Agreement.
, 200_ the
Section 2. This Certificate of Completion shall constitute a conclusive
determination of satisfaction of the agreements and covenants contained in the Agreement with
respect to the obligations of the Developer, and its successors and assigns, to construct and
develop the improvements on the Property, excluding any normal and customary tenant
improvements and minor building "punch-list" items, and including any and all buildings and
any and all parking, landscaping and related improvements necessary to support or which meet
the requirements applicable to the building and its use and occupancy on the Property, whether
or not said improvements are on the Property or on other property subject to the Agreement, all
as described in the Agreement, and to otherwise comply with Developer's obligations under the
Agreement with respect to the Property and the dates for the beginning and completion of
construction of improvements thereon under the Agreement; provided, however, that the Agency
may enforce any covenant surviving this Certificate of Completion in accordance with the terms
and conditions of the Agreement and the grant deed (Recorded Instrument No. )
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e pursuant to which the Property was conveyed under the A~eement. The .i\greement is an
official record of the Agency and a copy of the Agreement may be inspected in the office of the
Secretary of the Agency, 201 North "E" Street, Suite 301, San Bernardino, California, during
regular business hours.
Section 3. The Property to which this Certificate of Completion pertains is
more fully described in Exhibit "A" attached hereto.
DATED AND ISSUED this _ day of
,200_.
Executive Director of the Redevelopment
Agency of the City of San Bernardino
[NOTARY JURAT ATTACHED]
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EXHmIT "E"
Schedule of Performance
Execution of Al!reement
Agreement shall be authorized,
executed and delivered by Developer
to Agency.
Evidencing of Financing
Developer shall provide Agency with
evidence of financing for the Project
pursuant to Section 3.7 of the Agreement.
Design
Developer shall prepare all plans and
specifications and obtain all required
permits.
Evidence of Insurance
Developer shall furnish to the Agency, a
certificate of insurance as set forth in
Section 4.1 of the Agreement.
Opening of Escrow
Agency and Developer shall open escrow
to complete HUD Initial Closing
Agencv Funding
HUD Initial Closing
Commencement of Construction
Developer shall commence construction
of the improvements of the Site pursuant
to Section 4.1 and Exhibit "D".
Comnletion of Construction
Developer shall complete the construction
of all improvements on the Site as well as
off-site improvements.
On or before December 16. 2002.
On or before March 3 I. 2003.
unless extended for up to six months
by HUD.
No later than March 31. 2003.
Prior to the Developer or its agents
commencing construction of the Site.
Within 30 calendar days of written request
from the Agency or Developer.
On or before HUD Initial Closing.
On or before Anril 30. 2003.
Within ten calendar days ofHUD
Initial Closing.
Within 365 calendar days after HUD Initial
Closing or as extended by HUD.
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Certificate of ComDletion
To be issued by the Agency at request
of Developer upon completion of construction
in accordance with Section 4.6 of the Agreement.
Within fifteen calendar days of written
request from the Developer to Agency.
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EXHIBIT "E"
Schedule of Performance (Continued)
It is understood that this Schedule of Performance is subject to all of the terms and conditions of
the text of the Agreement. The summary of the items performance in this Schedule of
Performance is not intended to supersede or modify the more complete description in the text; in
the event of any conflict of or inconsistency between this Schedule of Performance and the text
of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by
written agreement signed by both the Developer and the Agency. The Executive Director of the
Agency shall have the authority to approve extensions of time without action of the Community
Development Commission of the Agency not to exceed a cumulative total of 180 days.
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EXHffiIT "F"
Form of Agency Grant Deed
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EXHmIT "F"
RECORDING REQUESTED BY
Redevelopment Agency of the
City of San Bernardino
)
)
)
)
)
)
)
)
)
)
)
AND WHEN RECORDED MAll. TO:
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
AND
HOME FUNDS COMMUNITY REDEVELOPMENT
AFFORDABLE SENIOR CITIZEN RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANT AND RESTRICTIONS
THIS GRANT DEED OF A PUBLIC AGENCY AND HOME FUNDS COMMUNITY
REDEVELOPMENT AFFORDABLE SENIOR CITIZEN RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS, COVENANTS AND
RESTRICTIONS (the "Agency Grant Deed") hereby grants from the Redevelopment Agency of
the City of San Bernardino a body corporate (the "Agency") that certain real property situated at
750 West 4th Street APN. 0134-093-23, San Bernardino, California (the "Property") to
TELACU Housing-San Bernardino II, Inc., a California non-profit public benefit corporation,
(the "Developer"), subject to the HOME Program (Title 24 Code of Federal Regulations Part 92
et seQ.) and community redevelopment affordable single family housing conditions, covenants
and restrictions contained in PART B hereof. The Agency is the grantor in this Grant Deed and
the Developer is the grantee.
For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby
grants to the Developer, subject to the HOME Program and community redevelopment
affordable senior citizen housing conditions, covenants and restrictions of this Ag~ncy Grant
Deed, all of the right, title and interest of the Agency in the Property, as more particularly
described below:
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(-- The Property--)
See Exhibit "A" attached hereto, on file in the Official Records of
the Office of the Recorder of San Bernardino County.
PARTB
The grant of the Property by the Agency to the Developer is expressly subject to the satisfaction
of the following HOME Program and community redevelopment affordable senior citizen
housing conditions, covenants and restrictions as arise under that certain agreement entitled
"2002 Affordable Senior Citizen Rental Housing HOME Grant and Disposition and
Development Agreement", dated as of , (the "Agreement") by and between
the Agency and the Developer:
1. the Property shall be reserved for use, improvement and occupancy for senior
citizen household multi-family residential purposes, as the term "Senior Citizen
Household" is defined below; and
2.
the Developer shall reserve, for a term of fifty-five (55) years commencing on the
date of recordation of this Agency Grant Deed, not less than eighty percent (80%)
of the rental housing units as shall hereafter be constructed on the Property as set
forth in the Agreement for use and occupancy at "affordable rents" by "lower
income households" composed of Senior Citizen Households, as the terms
"affordable rents" and "lower income households" are defined below; and
3. for the purpose of subparagraph I and 2, above the following definitions of
certain terms shall apply:
"affordable rents" means and refers to a sum of rent, including a reasonable utility
allowance, for a particular Senior Citizen Household which occupies a rental
housing unit on the Property which is computed in accordance with the provisions
of Health and Safety Code Section 50053 as may be amended from time to time;
"lower income households" means and refers to persons and families whose
income does not exceed the qualifying limits for lower income families as
established and amended from time to time pursuant to Section 8 of the United
States Housing Act of 1937 at 80 percent of area median income, adjusted for
family size and revised annually; and
"Senior Citizen Household" means and refers to a person or family eligible to
occupy a rental dwelling unit on the Property under the "HUD Capital Advance
Documents", as this term is defined in the Agreement, and after the expiration of
the term of the HUD Capital Advance Documents, the words Senior Citizen
Household shall mean and refer to a person or family who is/are at the time of
initial occupancy of the rental dwelling unit by such person(s):
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(i) 62 years of age or older; and, if applicable
(ii) provided at least one (1) member of the family is 62 years of age or older,
a "qualified permanent resident", as this term is defined in Civil Code
Section 51.3(b)(2) and (3) as such section of the Civil Code presently
exists or may hereafter be amended from time to time.
4. During the term of the HUD Capital Advance Documents, compliance by the
Developer with the HUD Capital Advance Documents as relates to "Senior
Citizen Households", "affordable rents" and "lower income households" shall be
deemed compliance with the provisions of this PART B of the Agency Grant
Deed. During the term of such HUD Capital Advance Documents, in the event of
any conflict between the provisions of PART B of this Agency Grant Deed and
the HUD Capital Advance Documents, the provisions of the HUD Capital
Advance Documents shall control.
PART C
Subject to the covenant of the Developer as provided in PART B, Developer shall refrain from
restricting the rental, sale, or lease of any portion of the Property on the basis of race, color,
creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin
of any person. All such deeds, leases, or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a)
Deeds: In deeds the following language shall appear: Except as specifically
provided in the Regulatory Agreement with respect to renting the units within the
Project to Senior Citizens, as such term is defined therein and subject to the
covenant in the Agency Grant Deed improved on the Property by the
Redevelopment Agency of the City of San Bernardino which reserves the
Property for use, improvement and occupancy by Senior Citizen Households, as
this term is defined in Recorded Instrument No. the Developer herein
covenants by and for itself, its heirs, executors, administrators, and assigns, and
all persons claiming under or through them, that there shall be no discrimination
against or segregation of any person or group of persons on account ofrace, color,
creed, religion, sex, marital status, age, physical or mental disability, ancestry, or
national origin in the sale, lease, rental, sublease, transfer, use, occupancy, tenure,
or enjoyment of the land herein conveyed, nor shall the Developer itself, or any
persons 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, sub lessees, or vendees
in the land herein conveyed. The foregoing covenants shall run with the land.
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(b)
Leases: In leases the following language shall appear: Th.p lessee herein
covenants by and for itself, its heirs, executors, administrators, successors, and
assigns, and all persons claiming under or through them and this lease is made
and accepted upon and subject to the following conditions: Subject to the
covenant of the Developer as provided improvement on the Property by the
Redevelopment Agency of the City of San Bernardino which reserves the
Property for the use, improvement and occupancy by Senior Citizen Households,
as this term is defined in Recorded Instrument No. , that there shall be
no discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, age, physical or mental
disability, ancestry, or national origin in the leasing, subleasing, renting,
transferring, use, occupancy, tenure, or enjoyment of the land herein leased nor
shall the lessee 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,
sub lessees, subtenants, or vendees in the land herein leased.
(c)
Contracts: In contracts the following language shall appear: Subject to the
covenant of the Developer as provided improvement on the Property by the
Redevelopment Agency of the City of San Bernardino which reserves the
Property for the use, improvement and occupancy by Senior Citizen Households,
as this term is defined in Recorded Instrument No. , there shall be no
discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, age, physical or mental
disability, ancestry, or national origin in the sale, lease, rental, sublease, transfer,
use, occupancy, tenure, or enjoyment of the land, nor shall the transferee 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, sub lessees, or vendees
of the land.
The foregoing covenants shall remain in effect in perpetuity. During the term of the HUD
Capital Advance Documents, in the event of any conflict between the provisions of PART C of
this Agency Grant Deed and the HUD Capital Advance Documents, the provisions of the HUD
Capital Advance Documents shall control.
PARTD
No violation or breach of the covenants, conditions, restrictions, provIsIons or limitations
contained in PART B, PART C or PART F of this Agency Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing
or security instrument permitted by and approved by the Agency pursuant to the Agreement;
provided, however, that any successor of Developer to the Property shall be bound by such
remaining covenants, conditions, restrictions, limitations and provisions, whether such
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successor's title was acquired by foreclosure, deed In lieu of foreclosure, trustee's sale or
otherwise.
PARTE
The terms and provisions of PART B, PART C and PART F of this Agency Deed shall be
subordinate to the terms and provisions of the HUD Capital Advance Documents and any other
documents entered into by and between the Developer and the Secretary of Housing and Urban
Development in connection with the improvement of the Property. Notwithstanding anything
contained herein to the contrary, in the event the Secretary of HUD (Secretary) should take title
to the Property through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants,
conditions and restrictions set forth in PART B, PART C, PART D and PART F of the Agency
Grant Deed shall cease and terminate and be of no further force or effect. Notwithstanding
anything in this Agency Grant Deed to the contrary, in the event any provision in this Agency
Grant Deed tends to contradict, modify, or in any way change the terms of the HUD Capital
Advance Documents, the term of the HUD Capital Advance Documents shall prevail and
govern; or if any provision of this Agency Grant Deed in any way tends to limit the Secretary in
its administration of the National Housing Act of 1937, as amended, or the Housing Act of 1959,
as amended, or the regulations pursuant thereto, this Agency Grant Deed shall be deemed
amended so as to comply with such acts, regulations and HUD Capital Advance Documents.
Notwithstanding anything in this Agency Grant Deed to the contrary, no amendment to PART B
through PART F, inclusive of this Agency Grant Deed by the Developer, or its successors or
assigns and the Agency shall be effective at any time during the period of time when the HUD
Capital Advance Documents are in effect without the prior written approval of the Secretary, its
successors or assigns.
PART F
The provisions of this Agency Grant Deed are expressly declared by the Agency to promote and
increase, improvement and preservation of the community's supply oflow- and moderate-income
housing. The transfer of the Property by the Agency to the Developer for this purpose and the
recordation of this Agency Grant Deed is required by the provisions of 24 Code of Federal
Regulations Part 92, and is also authorized by Health and Safety Code Sections 33334.2 and
33334.3, and other applicable law and actions of the Agency. Upon the delivery of this Agency
Grant Deed to the Developer, the HOME Program and the community redevelopment affordable
housing conditions, covenants and restrictions as contained herein shall be covenants and
restrictions which affect the Property and shall run with the land and shall be enforceable by: (i)
the Agency as HOME Program regulatory covenants under 24 CFR Part 92, et sea., or
alternatively, (ii) enforceable by either the Agency or by the City of San Bernardino, a municipal
corporation, as community redevelopment affordable housing conditions, covenants and
restrictions against the Developer and each successor in interest or assignee of the Developer in
the Property as provided in Health and Safety Code Section 33334.3(f)(2). No person other than
the City of San Bernardino or the Agency or HUD shall be deemed to be authorized to enforce
any provision of this Agency Grant Deed as a covenant or restriction which runs with the land
and affects the Property.
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THIS AGENCY GRANT DEED is executed as of the date indicated below next to the
authorized signature of the Executive Director of the Agency. ..
Dated:
Approved As To Form and Legal Content:
Agency Special Counsel
[NOTARY JURAT ATTACHED]
AGENCY
Redevelopment Agency of the City
of San Bernardino
By:
Executive Director
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ACCEPTANCE OF AGENCY GRANT DEED AND HQME FUNDS COMMUNITY
REDEVELOPMENT AFFORDABLE SENIOR CITIZEN RESIDENTIAL
HOUSING DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANTS AND RESTRICTIONS
BY THE DEVELOPER
The undersigned officers of TELACU Housing-San Bernardino II, Inc., a California non-profit
public benefit corporation (the "Developer"), hereby accepts the delivery of the instrument
identified above as the "Grant Deed of a Public Agency and HOME Funds and Community
Redevelopment Affordable Senior Citizen Residential Housing Development, Use and
Occupancy Conditions, Covenants and Restrictions" (the "Agency Grant Deed"), and the
transfer of the Property from the Redevelopment Agency of the City of San Bernardino, subject
to the conditions, covenants and restrictions contained in the Agency Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the Property in an "AS IS",
"WHERE IS" and "SUBJECT TO ALL FAULTS" condition and that the Developer is solely
responsible for causing the Property to be improved as set forth in the Agreement by and
between the Agency and the Developer.
The Developer hereby further accepts and agrees to each of the community redevelopment
affordable senior citizen residential housing. use, improvement and occupancy conditions,
covenants and restrictions contained in the Agency Grant Deed touch and concern the Property
and are HOME Program and community redevelopment covenants which run with the land,
subject to the provisions of PART E of the Agency Grant Deed during the period of time when
the BUD Capital Advance Documents are in effect.
DEVELOPER
TELACU Housing-San Bernardino II, Inc.,
a California non-profit public benefit corporation
Date:
By:
Its:
By:
Its:
[NOTARY JURAT ATTACHED]
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EXHIBIT "G"
Scope of Development
A. General Proiect Descriotion
The Site contains approximately 123.370 square feet. The Project shall consist of the
construction of seventy four (74) one bedroom units designated as affordable housing for
senior citizens of very low income, as defined by federal law and regulations, and one (1)
two bedroom managers unit.
B. Design Obiectives
The following is a statement of design objectives for development of the Site:
1.
The creation and achievement of an attractive and pleasant environment reflecting
a high level of concern for architectural and urban design principles both in terms
of the development itself and its compatibility and suitability with the surrounding
community.
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2. The provision of a pleasing, safe and well-maintained living environment and
vehicle parking in an urban environment.
C. Develooment Standards
The Project shall be designed and constructed in accordance with the approved terms and
conditions of approval of the land use entitlements approved by the City of San
Bernardino for this Project, attached here to and incorporated herein by reference.
D. Lot Consolidation
The Developer shall be responsible for consolidating parcel B and shall adhere to the
City's Public Work requirements when consolidating lots.
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EXHIBIT "H"
Agency Regulatory Agreement
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EXHIBIT "H"
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
Redevelopment Agency of the City )
of San Bernardino )
ATTN: Executive Director )
201 North "E" Street )
Suite 301 )
San Bernardino, California 92401 )
NO RECORDING FEE PURSUANT TO
GOVERNMENT CODE SECTION 27383
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGENCY REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
(HOME Program 24 Code of Federal Regulation
Part 92; Health and Safety Code Section 33334.2)
THIS AGENCY REGULATORY AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS (the "Agency Regulatory Agreement") is
made and entered into as of this day of 2002, by and
between the Redevelopment Agency of the City of San Bernardino,
a body corporate and politic (the "Agency") and TELACU Housing-
San Bernardino II, Inc., a California nonprofit corporation (the
"Developer" ) .
- -RECITALSh
A. The Agency and the Developer have entered into that
certain Agreement, dated as of ,2002 (the "Agreement").
A copy of the Agreement is on file with the Agency Secretary.
B. Pursuant to the terms of the Agreement, the Agency
will provide resources to the Developer for improvement of the
"Project" subject to the conditions of the "HUD Capital Advance
Documents", as these terms are more specifically described in
the Agreement, and the Agency has agreed to provide the
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Developer with an Agency affordable Housing Grant in support of
the Project, subject to certain conditiong.
C. In consideration for the Agency Affordable Housing
Grant, the Developer has agreed to maintain a certain number of
the rental dwelling units in the Project as available at
"affordable rent" to low income Senior Citizen Households as
these terms are defined in the Agreement for the term of this
Agency Regulatory Agreement and to further agree to observe all
the terms and conditions set forth below.
D. The Agency has agreed to provide the Agency Affordable
Housing Grant on the condition that the Project be maintained
and operated in accordance with Health and Safety Code Sections
33334.2 and 33413 and in accordance with certain additional
restrictions concerning affordability, operation, and
maintenance of the Project, as specified in this Agency
Regulatory Agreement.
E. In order to ensure that the Project will be used and
operated in accordance with these conditions and restrictions,
the Agency, and the Developer wish to enter into this Agency
Regulatory Agreement for themsel ves and their successors and
assigns.
THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, ITS SUCCESSORS AND ASSIGNS AND TELACU HOUSING-SAN
BERNARDINO II, INC., ITS SUCCESSORS AND ASSIGNS HEREBY COVENANT
AND AGREE AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.1 Definitions When used in this Agency Regulatory
Agreement, certain terms and phrases as denoted by an initially
capitalized letter shall have the same meaning as found in the
Agreement unless the specific context of the usage of a term or
phrase may otherwise require, and certain additional defined
terms which appear below in this Section 1.1 shall have the
meaning in this Agency Regulatory Agreement as ascribed below:
a. "Adjusted Income" shall mean the total anticipated annual
income of all persons in a household which occupies (or
is proposed to occupy) a Unit as calculated in accordance
with 25 California Code of Regulations Section 6914 or
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pursuant to a successor state housing program regulation
that utilizes a reasonably similar method of calculation
of adjusted annual income. In the event that no such
program exists, the Agency shall provide the Developer
with a reasonably similar method of calculation of
adjusted income as provided in 25 California Code of
Regulations Section 6914.
b.
"Agreement" means that certain Affordable Senior
Citizen Rental Home Grant and Disposition and
Development Agreement dated as of 2002, by and
between the Developer and the Agency. A copy of the
Agreement is on file with the Agency Secretary and is
incorporated herein by this reference.
c.
"Certificate of
issuance by the
occupancy for the
of
of
Occupancy Date" means the date
City of the initial certificate
Project.
d.
"City" shall mean the City of
California.
San Bernardino,
"Closing Date" shall mean the date of recordation of
this Agency Regulatory Agreement.
f. "HOME Assisted Units" shall mean the seventy-four (74)
rental Units in the Project.
g.
h.
"Management Agent" shall mean
management agent selected by the
management of proj ect as provided
this Agency Regulatory Agreement.
the experienced
Developer for the
in Section 5.2 of
"Developer"
II, Inc.,
corporation.
shall mean TELACU Housing -San Bernardino
a California nonprofit public benefit
i. "Site" shall mean the real property described in
Exhibit "A" attached hereto and incorporated herein.
j. "Agency Regulatory Agreement" shall mean this Agency
Regulatory Agreement and Declaration of Restrictive
Covenants.
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k.
"Rent" shall mean the total of each monthly payment by
the tenants of a Unit to the Developer for the
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n.
following: use and occupancy of the Unit and land and
associated facilities, including parking -(other than
parking services acquired by tenants on an optional
basis); any separately charged fees or service charges
assessed by the Developer which are required of all
tenants, other than security deposits; the cost of an
adequate level of service for utilities paid by the
tenant, including garbage collection, sewer, common
area, water, electricity, gas and other heating, and
refrigeration costs, but not telephone service; any
other interest, taxes, fees or charges for use of the
land or associated facilities and assessed by a public
or private entity other than the Developer, and paid
by the tenant.
1.
"Restricted UnitsU shall mean the seventy-four (74)
Units which are affordable Rent - restricted pursuant
to this Agency Regulatory Agreement.
m. "Senior Citizen Households" shall have the meaning as
set forth in the Agreement.
"TermU shall mean the period of fifty-five (55) years,
beginning on the date of recordation of the Agency
Regulatory Agreement and ending on the fifty fifth
(55th) anniversary following such date.
o. "Lower Incomeu shall mean the annual income for lower
income households with an Adjusted Income as
established and amended from time to time pursuant to
Section 8 of the United States Housing Act of 1937, as
amended, and as published by the State of California
Department of Housing and Community Development.
p.
ARTICLE 2
"UnitsU shall mean the
Citizen Household rental
constructed on the Site.
seventy-five (75)
dwelling units
Senior
to be
SENIOR CITIZEN HOUSEHOLD RESTRICTED UNITS
-- RENT AND OCCUPANCY AFFORDABILITY COVENANTS
2.1
years of
(74) of
Occupancy Requirement. During the first forty (40)
the Term of this Agreement not less than seventy-four
the Units (the Restricted Units) shall be rented or
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, or if vacant, available for rental and o~cupancy by
le Senior Citizen Households.'" Thereafter for the
fifteen (15) year Term of this Agreement, the
Units shall be rented and occupied by, or if vacant,
.or rental and occupancy by low or moderate income
jefined in Health and Safety Code Section 50093.
Llowable Rent for Restricted Units.
.lbj ect
:>f the
l%) of
Lze.
to Section 2.3 below, the Rent charged the
Restricted Units shall not exceed thirty
one~twelfth of Lower Income, adjusted for
1 calculating the allowable Rent for the Restricted
household size shall be assumed to be one (1) person
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: least one hundred eighty (180) calendar days prior
:1g Rent on any Restricted Unit, the Developer shall
he Agency for review and approval a written request
;rease. Households occupying Units shall be given at
I (90) days written notice prior to any increase in
:>r a Restricted Unit may only be increased one time
d the Rent levels following an increase, or upon a
::y, shall not exceed the applicable Rent levels set
~tion 2.2 .a., above.
lcreased Income of
a Restricted Unit.
a
Senior Citizen Household
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1 the event, upon recertification of an occupant
income for a Restricted Unit, the Developer
lat a Lower Income Household no longer qualifies as a
le household, then such household shall not be
vacate the Project and the Rent Chargeable to that
lall be increased to an amount of Rent which is the
:1t of (i) thirty percent (30%) of that household's
lly income; or (ii) the amount payable by the tenant
or local law. However, when the Restricted Unit is
that household or another unrestricted Unit is
, Unit shall be rented to a Lower Income household at
vel allowed in Section 2.2 for a Restricted Unit as
of commencement of such a new occupancy. Moreover,
,ied by a Lower Income household shall be deemed,
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upon the termination of such Lower Income household's tenancy to
be continuously occupied by a Lower Income household-until that
Unit is reoccupied.
b. If the Project is subject to state or federal rules
governing low income housing tax credits, the provisions of
those rules regarding continued occupancy by, and Rent charged
to, households whose incomes exceed the eligible income
limitation shall apply in place of the provisions set forth in
Section 2.3.a., above.
2.4 Lease Provisions.
a. The Developer shall include in leases or rental
agreements for all Restricted Units provisions which authorize
owner to immediately terminate the tenancy of any household one
or more of whose members misrepresented any fact material to the
household's qualification as a Lower Income and/or Senior
Citizen household and for all Units (except the on-site
manager's unit) any misrepresentation relating to the Senior
Citizen Household qualification. Each lease or rental agreement
for a Restricted Unit shall also provide that the household is
subject to annual certification in accordance with Section 4.1
below, and that, if the household's income increases above the
applicable limits for a Lower Income household such household's
Rent may be subject to increase to the lesser of (i) thirty
percent (30%) of that household's actual adjusted monthly
income; or (ii) the amount payable by the Tenant under the State
or local law, or the household may be required to vacate the
Unit.
b. The leases for Restricted Units shall provide that if
the Project is subject to State or federal rules governing low
income housing tax credits, the provisions of those rules
regarding continued occupancy by, and increases in Rent for
households whose incomes exceed the eligible income limitation
shall apply in place of the provisions set forth in Section
2.4.a, above.
2.5 HUD Compliance. During the period of time when the
HUD Capital Advance Documents are in effect with respect to the
Project, compliance by the Developer with the requirements of
the HUD Section 202 program and the HUD Capital Advance
Documents including the form of tenant lease approved by HUD
shall be deemed compliance by the Developer with requirements of
this ARTICLE 2, and Section 3.1, and ARTICLE 4, and in the event
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of a conflict between any such provision of this Agreement and
the HUD Capi tal Advance Documents, the requirements - of the HUD
Capital Advance Documents shall control.
ARTICLE 3
OPERATION AND MAINTENANCE OF THE PROJECT
3.1 Use as Senior Citizen Rental Housing. The Project
shall be operated only as rental housing for Senior Citizen
Households, except for not more than one (1) of the Units which
may be used and occupied by on-site resident manager(s) employed
by the Developer and/or the Management Agent. No part of the
Project shall be operated as transient housing.
3 .2 Compl iance wi th the Agreement. The Developer shall
comply with all the terms and provisions of the Agreement.
3.3 [RESERVED--NO TEXT]
3.4 Taxes and Assessments. The Developer shall pay all
real and personal property taxes, assessments and charges and
all franchise, income, employment, withholding, sales, and other
taxes assessed against it, or payable by it, at such times and
in such manner as to prevent any penalty from accruing, or any
lien or charge from attaching to the Site; provided, however,
that the Developer shall have the right to contest in good
faith, any such taxes, assessments, or charges. In the event
the Developer exercises its right to contest any tax,
assessment, or charge against it, the Developer, on final
determination of the proceeding or contest, shall immediately
payor discharge any decision or judgment rendered against it,
together with all costs, charges and interest.
3.5 Nondiscrimination. Except as otherwise required by
the rental requirements of the HUD Section 202 program and the
HUD Capital Advance Documents, all of the Units shall be
available for occupancy on a continuous basis to Senior Citizen
Household members of the general public (who are also income
eligible with respect to the Restricted Units). The Developer
shall not give preference to any particular class or group of
persons in renting the Units. There shall be no discrimination
against or segregation of any person or group of persons, on
account of race, color, creed, religion, sex, sexual
orientation, age, marital status, national origin, or ancestry
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in the leasing, subleasing, transferring, use, occupancy,
tenure. or enjoyment of any Unit. Neither the Developer nor any
person claiming under or through the Developer, shall establish
or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use, or occupancy, of tenants, lessees, sublessees, subtenants,
or vendees of any Unit or in connection with the employment of
persons for the operation and management of any Unit. All
deeds, leases or contracts made or entered into by owner as to
the Units or the Site or portion thereof, shall contain
covenants prohibiting discrimination as prescribed herein. The
Developer shall include a statement in all advertisements,
notices and signs for the availability of Units for rent to the
effect that owner is an Equal Housing Opportunity Provider.
ARTICLE 4
SENIOR CITIZEN HOUSEHOLD AND INCOME
CERTIFICATION AND REPORTING
4.1 Age and Income Certification.
a. The Developer shall obtain and complete prior to
initial occupancy and thereafter maintain on file income
certifications from each tenant household renting any of the
Restricted Units. The Developer shall make a good faith effort
to verify that the income provided by an applicant or occupying
Senior Citizen Household in an income certification is accurate
by taking one or more of the following steps as a part of the
verification process: (1) obtain an income tax return for the
most recent tax year; (2) conduct a credit agency or similar
search; (3) obtain an income verification form from the
applicant's current employer; (4) obtain an income verification
form from the United States Social Security Administration
and/or the California Department of Social Services if the
applicant receives assistance from either of such agencies; or
(5) if the applicant is unemployed and has no such tax return,
obtain another form of independent verification. On the
anniversary of the occupancy of such Restricted Unit the
Developer shall recertify the household income of the Senior
Citizen Household occupying the Restricted Unit. Copies of
tenant income certification shall be available to the Agency
upon request.
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b. The Developer shall verify, prior to the o:cupancy of
each Unit, that the Senior Citizen Ho~sehold satisfies the
requirements of a senior citizen household as provided in the
Agreement. Thereafter, the Developer shall annually verify that
the Senior Citizen Household retains its qualification as a
Senior Citizen Household. For purposes of this Section 4.l.b,
the Developer may conclusively rely upon the evidence of the age
of the occupant(s) of the Unit as presented in a valid
California Driver's License, other form of identification issued
by the State or federal government which includes a date of
birth.
4.2 Annual Restricted Unit Rental Affordability Report to
Agency. Commencing on the June 30 next following the
Certification of the Occupancy Date and on each June 30
thereafter during the Term of the Agency Regulatory Agreement,
the Developer shall submit a report to the Agency, in a form
approved by the Agency. The annual report shall include for
each Restricted Unit covered by this Agency Regulatory
Agreement, the Rent and the income and family size of the Senior
Ci t i zen Household occupying the Restricted Uni t . The report
shall also state the date the tenancy commenced for each
Restricted Unit and such other information as the Agency may be
required by law to obtain; provided, however, that the Agency
shall take reasonable steps to maintain the confidential nature
of the information contained therein relating to any Restricted
Unit.
4.3 Additional Information. The Developer shall provide
any additional information reasonably requested by the Agency,
including without limitation such Project-related income and
expense accounting information. The Agency shall have the right
to examine and make copies of all books, records or other
documents of Developer which pertain to any Unit; provided,
however, that the Agency shall take reasonable steps to maintain
the confidential nature of the information contained therein.
4.4 Records. The Developer shall maintain complete,
accurate and current records pertaining to the Units, and shall
permit any duly authorized representative of the Agency (during
business hours and upon not less than seventy-two (72) hours
notice) to inspect records, including records pertaining to
income and household size of tenant households of Restricted
Units; provided, however, that the Agency shall take reasonable
steps to maintain the confidential nature of the information
contained therein relating to any household.
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ARTICLE 5
PROPERTY MANAGEMENT
5.1 Management Responsibilities. The Developer shall be
responsible for management of the Project, including, without
limitation, the selection of tenants, certification and
recertification of household size, and income for the Restricted
Units and the age of the head of household of all Units,
evictions, collection of rents and deposits, maintenance,
landscaping, routine and extraordinary repairs, replacement of
capital items, and security. The Agency shall have no
responsibility for the management or operation of the Site or
the Project.
5.2 Management Agent. The proj ect shall at all times be
managed by an experienced management agent (the "Management
Agent") reasonably acceptable to the Agency, with demonstrated
ability to operate senior citizen residential rental facilities
similar to the Project in a manner that will provide decent,
safe, and sanitary housing. For the purposes hereof, if the
Developer directly performs the functions of the Management
Agency by its employees or by means of a service contract with
an entity owned or controlled by the Developer, such a
Management Agent shall be deemed approved by the Agency. If the
Management Agent is an entity or person other than the
Developer, its employees or an entity owned or controlled by the
Developer, the Developer shall submit for the Agency's approval
the identity of any proposed Management Agent, together with
additional information relevant to the background, experience
and financial condition of any proposed Management Agent as
reasonably requested by the Agency. If the proposed Management
Agent meets the standard for a qualified Management Agent set
forth above, the Agency shall approve the proposed Management
Agent by notifying the Developer in writing. Unless the
proposed Management Agent is disapproved by the Agency within
thirty (30) days, which disapproval shall state with reasonable
specificity the basis for disapproval, it shall be deemed
approved. The Developer is hereby approved by the Agency as the
Management Agent for the Project. Any Management Agent approved
by HUD during the term of the HUD Capital Advance Documents
shall be deemed approved by the Agency.
5.3. Maintenance of the Site and the Project.
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a. The Developer shall maintain tJ1:e Site and the Project
in good repair and a neat, clean and orderly condition, ordinary
wear and tear excepted. In the event that, at any time during
the term of this Agency Regulatory Agreement, there is an
occurrence of an adverse condition on any area of the Site in
contravention of the general maintenance standard described
above (a "Maintenance Deficiency"), then the Agency shall notify
the Developer in writing of the Maintenance Deficiency and give
the Developer (60) days from receipt of such notice to cure the
Maintenance Deficiency as identified in the notice. In the
event the Developer fails to cure or commence to cure the
Maintenance Deficiency within the time allowed, the Agency may
conduct a public hearing following transmittal of written notice
thereof to the Developer ten (10) days prior to the scheduled
date of such public hearing in order to verity whether a
Maintenance Deficiency exists and whether the Developer has
failed to comply with the provision of this Section 5.3.a. If,
upon the conclusion of a public hearing, the Agency makes a
finding that a Maintenance Deficiency exists and that there
appears to be non-compliance with the general maintenance
standard, as described above, thereafter the Agency shall have
the right to enter the Site and perform all acts necessary to
cure the Maintenance Deficiency, or take other action at law or
equity the Agency may then have to accomplish the abatement of
the Maintenance Deficiency. Any sum expended by the Agency for
the abatement of a Maintenance Deficiency as authorized by this
Section 5.3.a shall become a lien on the Site. If the amount of
the lien is not paid within thirty (30) days after written
demand for payment by the City has been presented to the
Developer, the Agency shall have the right to enforce the lien
in the manner as provided in Section 5.3.c.
b. Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Site shall be removed by
the Developer from any exterior surface of a structure or
improvement on the Site 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 place on the Site and such graffiti
is visible from an adjacent or contiguous public right-of-way
and thereafter such graffiti is not removed within 72 hours
following the time of its application; then in such event and
without notice to the Developer, the Agency shall have the right
to enter the property and remove the graffiti. Notwithstanding
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any provision of Section 5.3 to the contrary, any sum expended
by the Agency for the removal of graffiti from the Site as
authorized by this Section 5.b, shall become a lien on the Site.
If the amount of the lien is not 'paid within thirty (30) days
after written demand for payment by the Agency to the Developer,
the Agency shall have the right to enforce its lien in the
manner as provided in Section 5.3c.
c. The parties hereto further mutually understand and
agree that the rights conferred upon the Agency under this
Section 5.3 expressly include the power to establish and enforce
a lien or other encumbrance against the Site, or any portion
thereof, in the manner provided under Civil Code Sections 2924,
2924b and 2924c in the amount reasonably necessary to restore
the Site to the maintenance standard required under Section
5.3a, or Section 5.3.b, including reasonable attorneys fees and
costs of the Agency associated with the abatement of the
Maintenance Deficiency or removal of graffiti and the collection
of the costs of the Agency in connection with such action. The
provisions of this Section 5.3 shall be a covenant running with
the land for the Term of the Agency Regulatory Agreement and
shall be enforceable by the Agency, and its successors and
assigns. Nothing in the foregoing provisions of this Section
5.3 shall be deemed to preclude the Developer from making any
alternations, additions, or other changes to any structure or
improvement or landscaping on the Site, provided that such
changes comply with applicable law. No lien as may arise under
this Section 5.3 shall interfere with or be superior to the
security interest of any mortgage secured by the Site.
d. Notwithstanding the foregoing provisions of this
Section 5.3, during the term of the HUD Capital Advance
Documents, the Agency shall not enter the Site, except in an
emergency, without the prior written approval of HUD, and any
lien of the Agency authorized under this Section 5.3 shall also
be subject to the prior written approval of HUD.
5.4 Insurance Coverage. The Developer shall
in full force and effect during the term of
Regulatory Agreement insurance coverage as follows:
cause to have
this Agency
(i) If any building or improvements erected by the
Developer on the Site shall be damaged or destroyed by
an insurable cause, the Developer shall, at its own
cost and expense, diligently repair or restore the
Site and the Project consistent with the original
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(ii)
plans and specifications for the Project. _ Such work
or repair shall be commenced within One Hundred Twenty
(120) days after the damage or loss occurs and shall
be completed wi thin one year thereafter. All
insurance proceeds collected for such damage or
destruction shall be applied to the cost of such
repairs or restoration and, if such insurance proceeds
shall be insufficient for such purpose, the Developer
shall make up the deficience;
a policy of comprehensive general liability insurance
written on a per occurrence basis in an amount not
less than either (i) a combined single limit of ONE
MILLION DOLLARS ($1,000,000.00) or (ii) bodily injury
limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)
per person, ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, ONE MILLION DOLLAR($l,OOO,OOO.OO) products
and completed operations and property damage limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per
occurrence and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) in the aggregate.
(iii) a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State
of California and which shall indemnify, insure and
provide legal defense for both the Developer, Agency,
and the City against any loss, claim or damage arising
from any inj uries or occupational diseases occurring
to any worker employed by or any persons retained by
the Developer in the course of carrying out the
activities in this Agency Regulatory Agreement.
(iv) a policy of comprehensive automobile liability
insurance written on a per occurrence basis in an
amount not less than either (i) bodily injury
liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) per person and FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) per occurrence and property
damage liability limits of ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) per occurrence and ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) in the aggregate or
(ii) combined single limit liability of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00). Said policy shall
include coverage for owned, non-owned, leased and
hired vehicles.
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All of the above policies of insurance shall _be primary
insurarce and shall r.ame the City and 'the Agency, and their
officers, employees, and agents as additional insureds. The
insurer shall waive all rights of subrogation and contribution
it may have against the City and the Agency and their officers,
employees and agents and their respective insurers. All of said
policies of insurance shall provide that said insurance may not
be amended or canceled without providing thirty (30) days prior
written notice by registered mail to Agency. In the event any of
said policies of insurance are canceled, the Developer shall,
prior to the cancellation date, submit new evidence of insurance
in conformance with this Section to the Executive Director. No
operation of the Project shall commence until the Developer has
provided Agency with certificates of insurance or appropriate
insurance binders evidencing the above insurance coverages, and
said certificates of insurance or binders are approved by
Agency.
The policies of insurance required by this Agreement shall
be satisfactory only if issued by companies qualified to do
business in California, rated at least "A(vii)" or better in the
most recent edition of Bests Insurance Rating Guide or an
equivalent rating in The Key Rating Guide or in the Federal
Register unless such requirements are modified or waived by the
Executive Director of the Agency due to unique circumstances.
Compliance by the Developer with the insurance requirements
of HUD under the HUD Capital Advance Documents shall be deemed
to meet the foregoing requirements during the period that the
HUD Capital Advance Documents are in effect so long as the
Agency, City and their officers, employees, and agents as
additional insureds on all said policies as evidenced by
certificates of insurance issued to the City and the Agency.
The Developer agrees that the provisions of this Section
shall not be construed as limiting in any way the extent to
which the Developer may be held responsible for the payment of
damages to any persons or property resulting from the
Developer's activities or the activities of any person or
persons for which the Developer is otherwise responsible.
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MISCELLANEOUS AND PRIORITY OF HUD
CAPITAL ADVANCE DOCUMENTS
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6.1 Term. The provisions of this Agency Regulatory
Agreement shall apply to the Site for the entire Term. This
Agency Regulatory Agreement shall bind any successor, heir or
assign of the Developer, whether a change in interest occurs
voluntarily or involuntarily, by operation of law or otherwise,
with or without the approval of the Agency, except as expressly
released by the Agency.
6.2 Priority of HUD Capital Advance Documents. This
Agency Regulatory Agreement shall be subject to and subordinate
to the terms and provisions of the HUD Capital Advance Documents
and any other documents entered into by and between the
Developer and the Secretary of Housing and Urban Development in
connection with the improvement or operation of the Project.
Notwi thstanding anything contained herein to the contrary, in
the event the Secretary of HUD (Secretary) should take title to
the Site through foreclosure, deed in lieu of foreclosure, or
otherwise, all covenants, conditions and restrictions set forth
this Agency Regulatory Agreement shall cease and terminate and
be of no further force or effect. Notwithstanding anything in
this Agency Regulatory Agreement to the contrary, in the event
any provision in this Agency Regulatory Agreement tends to
contradict, modify, or in any way change the terms of the HUD
Capital Advance Documents, the term of the HUD Capital Advance
Documents shall prevail and govern; or if any provision of this
Agency Regulatory Agreement in any way tends to limit the
Secretary in its administration of the National Housing Act of
1937, as amended, or the Housing Act of 1959, as amended, or the
regulations pursuant thereto, this Agency Regulatory Agreement
shall be deemed amended so as to comply with such acts,
regulations and HUD Capital Advance Documents.
6.3 [RESERVED--NO TEXT]
6.4 Non-Liability of Officials, Employees and Agents. The
Agency shall not be personally liable to the Developer for any
obligation created under the terms of this Agency Regulatory
Agreement except in the case of actual fraud or willful
misconduct by such person.
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6.5 Covenants to Run With the Land. Subjeqt to the
provisions of Section 6.2, the Agency and' the Developer hereby
declare their express intent that the covenants and restrictions
set forth in this Agency Regulatory Agreement are affordable
redevelopment housing covenants and that each and every
provision of this Agency Regulatory Agreement shall run with the
land, and shall bind all successors in title to the Site and/or
the Project; provided, however, that on the expiration of the
Term of this Agency Regulatory Agreement said covenants and
restrictions shall expire.
6.6 Enforcement by the Agency. If the Developer fails to
perform any obligation under this Agency Regulatory Agreement,
and fails to cure the default within thirty (30) days after the
Agency has notified the Developer in writing of the default or,
if the default cannot be cured within thirty (30) days, fails to
commence to cure within thirty (30) days and thereafter
diligently pursue such cure, the Agency shall have the right to
enforce this Agency Regulatory Agreement by any or all of the
following actions, or any other remedy provided by law:
a.
Action to Compel Performance or for Damages. The
Agency may bring an action at law or in equity to
compel the performance of the obligations of the
Developer under this Agency Regulatory Agreement,
and/or for damages.
b. Enforce Liens. The Agency may enforce and execute
upon the lien rights of the Agency as conferred under
Section 5.3 of this Agency Regulatory Agreement;
provided that during the term of the HUD Capital
Advance Documents, HUD has consented in writing to any
such lien.
6.7 Attorneys' Fees and Costs. In any action brought to
enforce this Agency Regulatory Agreement, the prevailing party
shall be entitled to all costs and expenses of suit, including
attorneys' fees. This section shall be interpreted in
accordance with California Civil Code Section 1717 and judicial
decisions interpreting that statute. For the purposes of this
Section 6.7, the salary, fringe benefits and overhead expenses
of lawyers employed in the Office of City Attorney of the City
of San Bernardino shall be deemed to be attorney's fees.
6.8 Recording and Filing. The Agency and the Developer
shall cause this Agency Regulatory Agreement, and all amendments
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and supplements to it, to be recorded in the Official Records of
the County of San Bernardino, California.
6.9 Governing Law. This Agency Regulatory Agreement shall
be governed by the laws of the State of California, except those
provisions preempted by federal law.
6.10 Amendments. This Agency Regulatory Agreement may be
amended only by a written instrument executed by all the parties
hereto or their. successors in title, and duly recorded in the
real property records of the County of San Bernardino,
California; provided however, that during the period of time
when the provisions of the HUD Capital Advance Documents are in
effect this Agency Regulatory Agreement may not be amended
without the prior written approval of the Secretary of HUD.
6.11 Notice. All notices given or certificates delivered
under this Agency Regulatory Agreement shall be deemed received
on the delivery or refusal date shown on the delivery receipt,
if: (i) personally delivered by a commercial service which
furnishes signed receipts of delivery or (ii) mailed by
certified mail, return receipt requested, postage prepaid,
addressed as shown on the signature page. Any of the parties
may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or
communications shall be sent.
6.12 Severability. If any provision of this Agency
Regulatory Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining
portions of this Agency Regulatory Agreement shall not in any
way be affected or impaired thereby.
6.13 [RESERVED--NO TEXT.
6.14 Relationship of Parties. The relationship between the
Agency and the Developer during the term of this Agency
Regulatory Agreement shall not be construed as a joint venture,
equi ty venture, or partnership. The Agency does not undertake
nor assume any responsibility or duty to the Developer or any
third party with respect to the ownership of the Site or the
operation of the Project or the actions of the Developer. The
Developer shall have no authority to act as an agent of the
Agency or to bind the Agency to any obligation.
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6.15 Waiver. Any waiver by the Agency of any obligation in
this Agency Regulatory Agreement must be in writing. - No waiver
will be implied from any delay or failure by the Agency to take
action on any breach or default of the Developer or to pursue
any remedy allowed under this Agency Regulatory Agreement or
applicable law. Any extension of time granted to the Developer
to perform any obligation under this Agency Regulatory Agreement
shall not operate as a waiver or release from any of its
obligations under this Agency Regulatory Agreement. Consent by
the Agency to any act or omission by the Developer shall not be
construed to be a consent to any other or subsequent act or
omission or to waive the requirement for the Agency's written
consent to future waivers.
6.17 Other Agreements. The Developer represents that it
has not entered into any agreements that would restrict or
compromise its ability to comply with the terms of this Agency
Regulatory Agreement. Except for the HUD Capital Advance
Documents and any other documents required by HUD under the HUD
Section 202 program, the Developer shall not enter into any
agreements that are inconsistent with the terms of this Agency
Regulatory Agreement without the express approval by the Agency
in writing.
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IN WITNESS WHEREOF, the Agency and the Developer have for
themselves and their successors and assigns executed this Agency
Regulatory Agreement by duly authorized representatives in
counterpart original copies, all as of the date first written
above.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Executive Director
APPROVED AS TO FORM:
Agency Counsel
DEVELOPER
TELACU Housing-San Bernardino II,
Inc., a California non-profit
corporation
Date:
By:
By:
[ALL OFFICER/PRINCIPAL
SIGNATURES TO BE NOTARIZED]
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EXHffiIT "Au
LEGAL DESCRIPTION OF THE SITE
PARCEL 1:
THAT PORTION OF LOT 3, BLOCK 26, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK
7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY, DESCRmED AS FOLLOWS:
COMMENCING AT A POINT IN THE WEST LINe OF SAID LOT 3,150 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE
NORTH 50 FEET; THENCE WEST 150 FEET TO THE WEST LINE OF SAID LOT THENCE
SOUTH 50 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE WEST 150 FEET OF LOT 2, BLOCK 26, CITY SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
e PARCEL 3:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE I, RECORDS OF SAID COUNTY, DESCRmED AS FOLLOWS:
BEGINNING AT A POINT 200 FEET NORTH OF THE SOUTHWEST CORNER OF LOT 2
OF SAID BLOCK 26; THENCE EAST 150 FEET; THENCE NORTH 50 FEET; THENCE
WEST 150 FEET; THENCE SOUTH 50 FEET TO THE POINT OF BEGINNING.
PARCEL 4:
THE WEST 50 FEET OF THE EAST ONE-HALF OF LOT 2, BLOCK 26, ACCORDING TO
MAP OF THE CITY OF SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, PAGE I, RECORDS OF SAID COUNTY.
PARCEL 5:
THE SOUTH ONE-HALF OF THE WEST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
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PARCEL 6:
THE EAST 69 FEET OF LOT 4, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7
OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 7:
THAT PORTION OF LOT 3, BLOCK 26, CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 PAGE
1, RECORDS OF SAID COUNTY, AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT ON THE WEST LINE OF SAID LOT 3, 250 FEET NORTH OF
THE SOUTHWEST CORNER OF SAID BLOCK 26; THENCE EAST 150 FEET FOR A
PLACE OF BEGINNING; THENCE SOUTH AT RIGHT ANGLES, 100 FEET, MORE OR
LESS TO THE SOUTH LINE OF SAID LOT 3, A DISTANCE OF 150 FEET, MORE OR
LESS, TO THE SOUTHEAST CORNER OF SAID LOT 3; THENCE RUNNING NORTH
ALONG THE EAST LINE OF SAID LOT 3, 150 FEET, MORE OR LESS TO THE
NORTHEAST CORNER OF SAID LOT 3; THENCE RUNNING WEST ALONG THE
NORTH LINE OF SAID LOT 3, 150 FEET, MORE OR LESS, TO A POINT DIRECTLY
NORTH OF THE PLACE OF BEGINNING, THENCE SOUTH TO THE PLACE OF
BEGINNING.
PARCEL 8:
THE WEST 81 FEET OF THE EAST ONE-HALF OF LOT 4, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 9:
THE NORTH 50 FEET OF THE WEST ONE-HALF OF LOT 3, BLOCK 26, CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 1, RECORDS OF SAID COUNTY.
PARCEL 10:
ALL THAT PORTION OF LOT 2, BLOCK 26, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
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COMMENCING 250 FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT;
THENCE NORTH 150 FEET TO THE NORTH LINE OF SAID LOT 2; THENCE EAST 48.5
FEET; THENCE SOUTH 150 FEET; THENCE WEST 48.5 FEET TO THE POINT
BEGINNING.
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
December 20, 2002
TO:
Margaret Parker, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution CDC/2002-42
At the Mayor and Common Council meeting of December 16, 2002, the City of San Bernardino
adopted Resolution CDC/2002-42- Resolution 1) acknowledging receipt of a summary report
relating to the proposed 2002 Affordable Senior Citizen Rental Housing Home Grant and
Disposition and Development Agreement by and between the Redevelopment Agency AND
Telacu Housing - San Bernardino IL Inc..... and 2) authorizing the transfer by the
Redevelopment Agency of the parcel located at 750-752 West 4th Street to the Developer -
Central City North Redevelopment Project Area.
Section 5 of the Resolution states, in part.... "In the event that the DDA may not be fully
executed by the parties within sixty (60) days following the date of adoption of this Resolution,
the authorization granted to the Executive Director to execute the DDA on behalf of the Agency
shall be of no further force or effect." The resolution and agreement will be null and void if
not executed by February 14, 2003.
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 ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt of this memorandum.
Signed: 'fila 1:1/-; /tuPi/ )
Date: /c;l!:2({=-/tJ.R
(
Please sign and return
'"
...
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): ;2-1"'-0'2.- Item# 12.'30 A
Vote: Ayes 2- to Nays ij Abstain
Change to motion to amend original documents:
Reso. # On Attachments: ~ Contract term:
Note on Resolution of Attachment stored separately: ==-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
Date Sent to Mayor: (-Z -l 'l -az..
Date of Mayor's Signature: \)- \ 3'-0;;>
Date ofClerk/CDC Signature: I ?-lcn:.7;;r
~1)(~./2.00 2. -4-c_
Absent 1
ZcD2-- 3q I
Resolution #
.6-
~
Null/Void After: (,,0 VA--() I 2..- I J.j -03
J
By:
Reso. Log Updated: v"
Seal Impressed: /
Date Memo/Letter Sent for Signature: I') -;)0 ,,0 'r
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: ~Date Returned: I ''?J-03
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):
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance Dev. Services
Police Public Services Water
Notes:
Yes / No By
Yes No / By
-
Yes No ,/ By
-
Yes No }/ / By
Yes N07 B
EDA/
Finance
MIS
Others:
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: c:nL-
Date: 1'.),-03
Revised 0 I /12/0 1
-."
=-,'~-',,,-,,
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): , L -I b -02-
Vote: Ayes 2-~i.o Nays
Change to motion to amend original documents:
Item # GO f;;
f') Abstain
Reso" # On Attachments: / Contract term: -
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTV
Date Sent to Mayor: ['2- n -0 L-
Date of Mayor's Signature: \~- \ '1!;'0 d
Date ofClerk/CDC Signature: l;}- \ "( -Of
Date Memo~tter Sent for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached:
Resolution #
7.dJ Z -39 I
B Absent 1
Stt COC I LOO Z -1 Z-
I
Null/Void After: -
By: -
Reso. Log Updated:
Seal Impressed:
/'
V
Date Returned: ---
See Attached:
SeeA~
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):
Copies DistribU70:
City Attorney
Parks & Rec.
Code Compliance Dev. Services
Police Public Services Water
Notes:
Ves V'
Byf
By
BYF
By
By_
Ves
Ves
Ves
Ves
No
No~
No~
No /
No /
EDA
/
MIS
Finance
Others:
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 01/12/01