HomeMy WebLinkAboutR31-Economic Development Agency
1'1
,
.
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Maggie Pacheco, Director
Housing and Community Development
OR'I""'AL
I \,;i II V I
SUBJECT:
REHABILITATION LOAN -
PIONEER PARK PLAZA SENIOR
HOUSING COMPLEX (CENTRAL
CITY NORTH REDEVELOPMENT
PROJECT AREA)
DATE:
October 9,2000
._----*---------------------------------------------------*----------------------------------------------------------------------------------------------------------
Svnopsis of Previous Commission/Council/Committee Aetion(s):
On June 8, 2000, the Redevelopment Committee approved a Rehabilitation Loan for the Pioneer Park Plaza Senior
Housing Complex located at 560 N. F Street, downtown San Bernardino and authorized the forwarding of this item to
the Mayor and Common Council and the Community Development Commission for approval.
Recommended Motion(s):
( Community Development Commission)
MOTION:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING THE
LOAN AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY AND A.F.E.
PIONEER ASSOCIATES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, ("BORROWER"), IN
THE AMOUNT OF $250,000, FROM THE AGENCY'S HOUSING FUND, FOR THE
ACQUISITION OF THE PIONEER PARK PLAZA SENIOR HOUSING COMPLEX LOCATED AT
560 NORTH "F" STREET (CENTRAL CITY NORTH PROJECT AREA)
Contact Person(s): Maggie Pacheco
Central City North Redevelopment
Project Area(s) Project Area
Phone:
663.1044
Ward(s):
1st Ward
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $ 250,000
Source: Agency Housing Fund
SIGNATURE:
::::L~A'.OO'/y;'~~~
Maggie Pacheco, Director of Housing
& Community Development
Gary, an Osdel, Executi e Director
Economic Development Agency
--commissio,;/c;;'i';;;cii-N~i_;;;,---------------------------------------------------------------------------------------------------------------.--------.-----------.
GVO:MP:lag: I 0-16-00 Pioneer Park
COMMISSION MEETING AGENDA
Meeting Date: 10/16/2000
Agenda Item Number: ~.3 J-
r I
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
---------------------------------------------------------------------------------------------------------------------
Loan Al!reement - Pioneer Park Plaza Senior Housinl! Located At 560 North F Street. San
Bernardino - Central Citv North Redevelopment Proiect Area
BACKGROUND
In July 1978, the Agency sold the land located at 560 North "F" Street (the "Project") to Pioneer
Park Plaza, a California Limited Partnership (the "Owner"), to construct a 161 unit senior
complex pursuant to the provisions of a Disposition Agreement, dated December 29, 1976.
Approximately in 1979, the Owner completed construction of the Project with the assistance ofa
HUD Section 8 Housing Assistance Grant. The Project is now being sold to A.F.E. Pioneer
Associates, L.P., a California Limited Partnership ("Borrower").
On June 19,2000, the Community Development Commission approved a $250,000, 3%, 35 year
term rehabilitation loan to Borrower for the Project and further authorized Staff to prepare the
appropriate documents and return to the Commission for approval of the agreements.
CURRENT ISSUE
The Borrower who has been engaged in the development and management of affordable and
market rate housing for the past 23 years plans to buy the Project to insure the preservation ofthe
161 elderly affordable housing units. The Borrower has developed over 5,000 units including
market rate and affordable units, manages in excess of 4,000 apartment units throughout
California, Washington and Nevada (Santa Clara, Oakland, Salinas, San Francisco, Mission
Viejo, etc.). All of their properties are owned through its wholly owned subsidiary, Evans
Property Management, Inc. (EPMI). They also have over 3000 housing units under design and
planning, representing over $243 million in project costs.
The Project consists of a 3.87-acre parcel, 160 one-bedroom and one two-bedroom unit in a 2
three-story buildings (unit sizes is between 535 to 660 sq. ft). Common amenities for the Project
include a recreation room and 2 laundry areas. The parcel contains 51 covered parking spaces
and 15 open spaces. All units in the Project are currently occupied. The average annual median
income of the occupants is 28%, or $9100 year, and average household size is one person. All
occupants pay no more than 30% oftheir annual gross income for housing expenses
GYO:MP:lag:l0-16-00 Pioneer Park
COMMISSION MEETING AGENDA
Meeting Date: 10/16/2000
Agenda Item Number: I(?> J
II
Economic Development Agency Staff Report
Pioneer Park Plaza
October 3, 2000
Page Number -2-
The Borrower is planning on investing $6.6 million in total Project costs. This includes
acquisition costs, financing and legal costs, project reserves, and rehabilitation costs, etc. Due to
the age of the Project, the Borrower will be expending up to $900,000 for rehabilitation purposes
due to deferred maintenance items, i.e. resurfacing the parking spaces, landscaping, replacement
of hazards walkways, exterior painting, replacing fencing, carpeting and other exterior and
interior improvements.
The Project is being financed with a combination of tax-exempt mortgage revenue bonds issued
by the California Statewide Communities Development Authority ("Authority") per the June I,
1988 Joint Powers Agreement between the City and Authority, 4% tax credits, developer equity
and Agency housing loan funds. The Borrower will provide several corporate financial
guarantees to the tax creditors as well as other working capital reserves. The Agency's Loan to
Borrower is $250,000, at 3%, 35-year term. The AgeJ;ICY's loan will be applied toward the
acquisition cost of the property in the amount of $4,750,000 rather than rehabilitation of the
Project as previously authorized by the Commission. The reason for the change is that during
the structuring of the tax credit and bond financing, the State and Tax Credit Partners preferred
that their proceeds were used to cover all rehabilitation costs of the Project. This way they are
insured that there are no onerous constraints placed on the rehabilitation of the project and that
the rehabilitation is completed as contemplated by the Borrower's plan. This will also be
beneficial for the Agency as it will require one disbursement of funds if and only when all the
conditions of disbursement are met per the Loan Agreement such as all the Borrower's financing
being in place. The $250,000 equates to an annual payment of approximately $11,546 of which
the Project can afford to repay this annual monthly payment. The Borrower has requested a 35-
year term to match the HUD/IFHA 223 (f) loan terms. The Agency's loan would be secured by a
promissory note and a secondary deed of trust. The Borrower will also execute the attached
Regulatory Agreement to insure that 100% of the units (161) remain affordable to elderly
residents earning no more than sixty (60%) of the median income for San Bernardino County
(i.e. family of2, $22,740) for a period of not less than 55 years and the Project is maintained in a
quality fashion.
The planned Project will help in the preservation of 161 affordabll} elderly housing units and
meet the objectives and goals contained within the Central City North Redevelopment Project
Area Plan and City's Housing Element. Staff, therefore, recommends approval of the Loan
Agreement between the parties.
GYO:MP:lag:lO-16-00 Pioneer Park
COMMISSION MEETING AGENDA
Meeting Date: 10/16/2000
Agenda Item Number: a
!"I
Economic Development Agency Staff Report
Pioneer Park Plaza
October 3, 2000
Page Number -3-
FISCAL IMPACT
Approval of the recommended Loan Agreement will result in a $250,000 expenditure from the
Agency's Redevelopment Housing Fund. Said funds are available in the current budget year
(2000-2001). The Agency will receive annual repayment of the loan in the sum of $11,546
commencing one (I) year following the closing ofthe bond financing, November 2001.
RECOMMENDA nON
That the Community Development Commission adopt the attached Resolution.
~-~
aggie Pacheco, Director
Housing and Community Development
GVO:MP:lag:l0-16-00 Pioneer Park
COMMISSION MEETING f\GENDA
Meeting Date: 10/16/2000
Agenda Item Number: II. 3/
e ,
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RESOLUTION NO.
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPRO
LOAN AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF
OF SAN BERNARDINO AND AFE-PIONEER ASSOCIATES, L.P., A C
LIMITED PARTNERSHIP ("BORROWER"), IN THE AMOUNT OF $250,0
THE LOW-AND MODERATE-INCOME HOUSING FUND, FOR THE ACQUIS
THE PIONEER PARK PLAZA AFFORDABLE ELDERLY RENTAL HOUSING
LOCATED AT 560 NORTH "F" STREET (CENTRAL CITY NORTH PROJE
ING THE
HE CITY
IFORNIA
0, FROM
TION OF
PROJECT
T AREA)
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S~v'a::.s
Jevelop:nent
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7
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c~::9c::a~:.o::. as ~he general partner of A=~-Pio~eer Asscc~a~e~, ~'~"
9
a Cal.:..fcrr;ia limited partnership (collectively, .......:..::--; any related
10
e~ti:y, :he 1'3orrower") has requested that the Redevelopment A?ency
11
of :he
of
,...... ~ -,.
of Sa~ Bernardino
(the
"Agency")
prOVloe a 'loan
~ hce::.cy :8w-a~j moderate-income ho~sing funds in an a~o~n: ~Qt to
1.: - -
13 exceed 5252,0:2 (:he "Loan") for the purpose of providing financing
fer :~e a=~~.:..s.:..:ion 0: a l61-unit m~lti-unit senior rental housing
c8~~lex lccated a: 560 North "f" Stree~, San Bernardino, Ca ifornia
16
anc ge~e~a~~y k~Qwn as Pioneer ?a~k Plaza Affordab~e Elderl}' Rental
,
,
17
H8uslng ?~oje=: (the "Project") in order to assure that the: Project
18
remair'.s 2~la.:..2.2b':'e fo~ l:se 2!1d occ'J.panc:J' b~' lower-.::.r:.come: senior
19
c:.:..t:..ze~
, ,. ,
n2''': 5 '2r: 0":" 0. 3
af:ordable rents for
at
lOr';gest
feasible
the
20
period; a;)d
21
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vJ:-i:::RE.L.S, the Project is consistent with the goals of the
"
-~
Central City North Redevelopment Projec~ .l\rea, the City Housing
24
~leme~~ a~d Consolidated Plan; and
,-
-)
~\l:-1:::EE:;'.S, the Project will result in the preservatio. of 161
26 affordable senior citizen multifamily rental housing units,
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~reser~a:.iQn gca~s p~rsuant ~c Redevelopmen: La~.
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e ~D' ~1'P -e~~-a'5 arc> ~"""Q a~~ ~~""_QJ_
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=~M~ISS=ON ~? :~~
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SAN BERNARDINO AS
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a:;:c:.
7 ex~:..t:..:s, 2:-:~ i:;.s:.:u~e~:s a::ached to ~he Loan Ag.:eeme~t, ~.:c~:..jei
8
sa.:..:i ::::anges
..... ,,-
..Lv,""
subs:antive in ~ature,
are r;o:
and do
.:..n::.:ease
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9
. .
pr':"':1c.:...pa..:..
of
the Loan or ~ateria:~y
change
arno:..:nt
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ar;}'
:e:rffiS
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The
:::xecutive
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as
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is
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a:.::::-:::::~=eci
11
2;-,:j
d.:...:ec:e:i,
behalf
:::
::he
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0::
c.:o\~:..:ie
su:::-:
:'0
12
ce=tif:..ca~ic~ 2~d su~pleme~ta~ ~~s~r~me~~s to t~e Borrower an~/or
13
:r:-:;
E:scr~'..;
:-:82.de~"
p~ovided
:.r,e
Loan
.Z1g:-eemen~1
as
<).rde~
1'....,...,0.'>""
....;.'-"--
14
to -,~....,.... ::-.-= '""';::r, :0:- :.he aceD'...:.:::' ,--'_ ::-:e scrro'wer.
Se:::.~::-:
-'
~ .'1e
a;::;:::-07a~
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I... 0 2:--,
.;g ree:nen t
by
the
16
:'=C:T..;'Tli 5 S ~or::
contemp~ated l~ Sec:.ion
,
"
0:
as
this
Kesc=-u~ion
shall
17
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e.\len:
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i _
the
:;'0
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or
the
Loar.
19
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reason
be
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:,:,r
2!'1
20
'....'.: :::-,lD s~:.::::.\'
days f02.2.0hi:;,g :he aiop:ior. 0= this Resclu:.ion.
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26
S3E2!JCO:;~CC/~:;6
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5
e
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING THE
LOAN AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND AFE-PIONEER ASSOCIATES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP ("BORROWER"), IN THE AMOUNT OF $250,000, FROM
THE LOW-AND MODERATE-INCOME HOUSING FUND, FOR THE ACQUISITION OF
THE PIONEER PARK PLAZA AFFORDABLE ELDERLY RENTAL HOUSING PROJECT
LOCATED AT 560 NORTH "F" STREET (CENTRAL CITY NORTH PROJECT AREA)
~
o
4
5
Ii I
~ .
-:::.~--~- ..-
~-~----- ~.
~~~5 R2SC~~:~c~ S~2:: :ake e::2=: ~~~~2~~:e_.
6
7
u::o~
2..:'.5 :::2ssa.::Je.
- -
I H3?EBY CERTI?Y that the foregoing Resol\.::ion was d\.:ly
8
9
adopted by the Community Development Commission of the Ci:y of
10 San 3ernaydi~o at a
meeting therec:, he~d on
II the day or
614
.15
.627
.28
12
13
Commissi:::::
ESTRADA
LIEN
M':GINN:.s
SC",NETZ
Su.Z\REZ
A.."IDERSOl'
Me CAMMACK
16
17
18
]9
20 day of
21
~~
~o
~~
24
, -
-)
By:
26
S6SJ/CO=1/CGC!4:~~
10/11/CO l:S :~~
I 2000, by the following vote, :0 wit:
AYES
~
ABSTAIN
ABSEN'::'
Secretary
~he foregoing Resolution is hereby approved th~s
, 2000.
Judith Valles, Chairperson
Community Development Commission
or the City of San Bernardino
6
e
..,'
-~
2-+
..,-
-)
26
...27
_28
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'-= .......-._-=--;"\..~_.-.
7
a::ixed -re-
8 c: the C.: :~.
9
]0
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12
13
e 1-+
15
16
17
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19
20
21
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',-, '-' '~'.,. -
:': 5_:'.~: =:::?::.~?::::~;C
ss
..,
,....~...,.,v J~ ~~_. ;~?~:AR::~C
3
- ,
.3ecYe:a::-~'
-+
ueve:o~~e~~ :c~.~ssicn 0: the
of Sa:; 3e:-:-:a:-::i.:..:-:::,
c.:..::v
:E?'?:::::'.:'
-::--,9
f:::reg8.:..:-:g
ar:d
a:~ac:heci
c:)py
5
Ge'.~e'::::c:-::e:--_::
- ..
=:o2:::--.2r::..:..:-'.::
- . .
~::::-...;"":""..:...ss ':"':J!"';
:he
C.:.:y cf
Sa::
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cc::y c:
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:.;:~:;::S.3 ~~J:-!SREO= 1
~::i=.:al sea~ of the Co~munity Develcpmer::
,..- Sa~ Bernardino this day of
::-:e
........,-_..~, -.
'-"'-_.~.._..- -
.._~-_.-
- - "" - "".
"-"-- -
""-_..~. -.-
~ '-0'_"_"- '- ,
:;,es 2_ ''':' :.:........
:". c"..,:
- .
- - - '-
,-,O:T_ll':'.sS':::::-.
"'''''''.-
'-......'-'.
Secretar:i of the
Co~munity Develop~en: Cc~~~SSi2~
of the Cit~' c~ Sa~ 3e=~a=di~c
SB~C/OCGl!:CCi~:~:
~8/1:/JC 1:: J~~
7
REDEVELOPMENT AGENCY OF THE
C:ITY OF SAN BElUIIARD:INO
LOAN AGREEMENT
(P:IONEER PJUUt PLAZA AFFORDABLE
ELDERLY C:IT:IZEN RENTAL HOUSING PROJECT)
- I'T
THIS LOAN AGREEMENT (UAgreement"1 is dated as of Octob r 16,
2000 and is entered into by and between the Redevelopment Age cy of
the City of San Bernardino, a public body, corporate and p litic
(the UAgency") and AFE-Pioneer Associates, L.P., a Cali ornia
limited partnership (collectively with any related entit , the
uBorrower") in connection with the proposed acquisitio and
rehabilitation by the Borrower of the Pioneer Park Plaza E derly
Housing Complex, a l61-unit apartment project reserve for
occupancy by elderly persons (the UProject") located at 560 North
UF" Street, San Bernardino, California (the uProperty"). The
Project includes a two (2) bedroom dwelling unit which sh 11 be
reserved for use by the Borrower's on-site manager for the Pr ject.
A legal description of the Property is attached as Exhib' t UA"
hereto.
WHEREAS, the Agency is organized and existing under Cha
of the Community Redevelopment Law of the State of Cali
(Health and Safety Code Section 33020, at ~.); and
WHEREAS, the Borrower has entered into that certain Agr
of Purchase and Sale of Real Property and Escrow Instructions
December 21, 1999 (the uPurchase Agreement"), with Pionee
Plaza, a California limited partnership (the uSeller"), f
purpose of acquiring the Project; and
ter 2
ornia
ement
dated
Park
r the
WHEREAS, the
pursuant to the
December 29, 1976
Project was constructed in 1979 by the $eller
provisions of a Disposition Agreement dated
by and between the Seller and the Agency; and
WHEREAS, completion of construction of the projec was
assisted by a Department of Housing and Urban Development ('HUD")
Section 8 Housing Assistance Grant which required the Sel er to
insure that the units in the Project remained affordable to e derly
individuals for the duration of the regulatory agreement y and
between the Seller and HUD (i.e., twenty (20) years); and
WHEREAS, the Borrower intends to continue operatin the
Project as affordable rental housing for elderly person and
accordingly the Borrower has applied for and obtained a comm tment
SBEO/0001/DOC/4106-3
10/11/00 950 jmw
1
r----
Ii I
of endorsement of mortgage insurance from the Secretary f the
United States Department of Housing and Urban Developmen (the
"Secretary") under the terms of a Regulatory Agreemen for
Multifamily Housing Project (Project No. 143-11047-PM-PU ICON)
dated as of , 2000, (the "FHA Agreement") by and b tween
the Borrower and the Secretary in favor of Berkshire Mo tgage
Finance Bethesda Limited Partnership, a Massachusetts l'mited
partnership (the "Senior Lender"); and
WHEREAS, the terms "FHA Agreement" is used herein, it means
and includes all related instruments and agreements of the Bo rower
as called for in the FHA Agreement; and
WHEREAS, for the purposes of this Agreement the terms
"elderly", "elderly person", "senior citizen", "senior c' tizen
household" and the like, mean and refer to the following:
(i)
during the term of the FHA Agreement, the term "el
shall have the same meaning as set forth in Sectio
the FHA Agreement; and
erly"
5 of
(ii) from and after the expiration or termination date f the
FHA Agreement the term "elderly" shall have th same
meaning as "senior citizen household" as set fo th in
California Civil Code Section 51.3 as may be amende from
time-to-time.
WHEREAS, in connection with the continued operation
Project under the FHA Agreement, the Borrower will
improvements to the Project at an estimated cost of approxi
One Million Dollars ($1,000,000.00); and
WHEREAS, the Borrower has requested the California Sta
Communities Development Authority (the "Authority") to
multi-unit housing revenue bonds in an aggregate principal
not to exceed Five Million Dollars ($5,000,000.00) (the "8
for the purpose of providing financing for the acquisiti
rehabilitation of the Project; and
f the
make
ately
ewide
issue
mount
nds")
nand
WHEREAS, the Borrower has requested that the Agency pro ide a
loan in the amount of Two Hundred Fifty Thousand D lIars
($250,000.00) to assist the Borrower in consummatin the
transaction contemplated by the Purchase Agreement and t e FHA
Agreement; and
WHEREAS, the Agency desires that the Project continue
available as affordable housing for elderly individua
accordance with the FHA Agreement and applicable provisions
SBEO/0001/OOC/4l06-3
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2
to be
s in
f the
I. Ii I
California Redevelopment Law (Health and Safety Code Section 33000,
~ ~.); and
WHEREAS, the continued operation of the Project as affordable
housing for elderly individuals meets the objectives and goals
contained within the Central City North Redevelopment Project Area
Plan of the Agency; and
WHEREAS, the improvements to be made to the Project by the
Borrower under the FHA Agreement will alleviate any potential
blighting conditions due to the age of the Project and assure the
continued affordability of rental dwelling units therein for use
and occupancy by elderly persons; and
WHEREAS, the Agency desires to lend to the Borrower from Low
and Moderate Income Housing Fund monies available to the Agency,
the principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) in connection with its acquisition of the Property,
subject to and subordinate to the security interest of the Senior
Lender in the Property under the FHA Agreement.
NOW, THEREFORE, in consideration of the premises and for such
other good and valuable consideration receipt of which is hereby
acknowledged the parties hereto agree as follows:
1. The Loan. Subject to the terms and conditions of this
Agreement the Agency shall make a loan to the Borrower in the
principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) (the "Loan"). The Loan shall bear interest at the
rate of three percent (3%) per annum, commencing on the date when
the proceeds of the Loan are disbursed by the Escrow Holder
identified in Section 5, below (the "Escrow"), for the account and
credit of the Borrower; provided however, that the conditions for
such disbursement of the Loan have been satisfied by a date no
later than June 30, 2001. Interest shall be calculated on an
actual days basis of a year equal to 360 days. The Loan shall be
for a term of thirty-five (35) years from the date of such
disbursement. The Loan shall be evidenced by a promissory note
substantially in the form attached hereto as Exhibit "B" (the
"Note") executed by the Borrower in favor of the Agency and shall
be secured by a second deed of trust on the Property substantially
in the form attached hereto as Exhibit "C". Both the Note and the
Deed of Trust shall contain the provisions relating to permitted
subordinate debt in compliance with Section 6(b) of the FHA
Agreement. A copy of the FHA Agreement is on file with the Agency.
The Loan shall be funded at the time set forth in Section 5 of this
Agreement.
SBE0/0001/DOC/4106-3
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3
1'1
2. Use of Funds. The Borrower shall use and appl the
proceeds of the Loan solely for the purpose of acquirin the
Project pursuant to the Purchase Agreement.
3. Reoavment of the Loan.
(a) The Borrower shall, prior to the maturity date 0 the
Note, repay the Loan plus interest in installments as set forth in
the Note.
(b) The Borrower shall, throughout the term of the Loan,
annually pay installments of principal and interest to the Agency,
commencing on the first anniversary following the close 0 the
Escrow and on each such anniversary date thereafter t and
including its maturity date (each, a "payment date") the amount of
Eleven Thousand Five Hundred Forty Six Dollars ($11,546.00) (each,
a "scheduled debt service payment") .
(c) The installments of principal and interest due und r the
Note shall be payable by the Borrower prior to its maturity solely
from the special source of funds defined in the Note as "Surplus
Cash".
4. Securitv for the Loan. The Loan is secured by that
certain Deed of Trust, Security Agreement, Assignment of Rents and
Fixture Filing of even date with the Note (the "Deed of Tr st"),
pursuant to which the Borrower grants to the Agency a secon lien
on the Property, subordinate to the lien created in favor of the
Senior Lender, and its assigns, for the purpose of pro iding
financing for the acquisition and rehabilitation of the Project.
5. Disbursement of Loan. The Agency shall deposit th
into that certain escrow account (the "Escrow") opened pursu
the Purchase Agreement with First American
Company, 1850 Mt. Diablo Boulevard, Suite 300,
California (the "Escrow Holder") wi thin five (5) days fol
written request of the Borrower confirming that the conditio
forth in Section 5 have been satisfied (or shall be satisfie
receipt by the Escrow Holder of the proceeds of the Loan and
funds, including without limitation Borrower equity contrib
and the proceeds of the Bonds). The Agency shall direct the scrow
Holder to pay the proceeds of the Loan to the Seller fo the
account of the Borrower as partial payment of the purchase pr"ce of
the Property when the following conditions have been satisf'ed:
(a) The Borrower shall have executed the Note, the D ed of
Trust and a regulatory agreement substantially in the form at ached
hereto as Exhibit "D" (the "Regulatory Agreement"), pursua t to
SBEO/0001/DOC/4106-3
10/11/00 950 jmw
4
,
,
which the Borrower agrees, for the term of the Loan, that un~ts in
the Project shall remain affordable to elderly persons.
(b) The Agency shall remit the proceeds of the Loan in
immediately available funds to the Escrow Holder for disbursement
for the account of the Borrower within five (5) days following
receipt from the Borrower of a written certification that:
(i) the Borrower is not in default under the Agreement;
(ii) that the Borrower reasonably believes that all conditions
for the completion of the transfer of the Property under
the Purchase Agreement shall be accomplished within five
(5) days following the date of such certificate;
(iii) that the Borrower reasonably believes that all conditions
for the completion of the issuance of the mortgage
insurance of the Secretary under the FHA Agreement and
the delivery of the Bonds in support of the Project shall
be accomplished within five (5) days following the date
of such certification; and
(iv) that the principal, officer or member of the Borrower who
executes such certification on behalf of the Borrower has
been duly authorized by the Borrower to deliver such
certification to the Agency.
(c) The Escrow Holder shall have confirmed that promptly
following its receipt of the funds for the Loan from the Agency,
that the other conditions for satisfaction by the applicable
parties under the terms of the Purchase Agreement and the FHA
Agreement shall concurrently be completed, and the Escrow Holder
shall have provided the Agency with customary evidence of an ALTA
lender's policy of title insurance in favor of the Agency (to be
issued at time of close of the Escrow) insuring the security
interest of the Agency in the Deed of Trust in the Property at the
close of Escrow for the amount of the Loan, subject only ~o the
following matters:
(i) the lien of property taxes not yet payable;
!
(ii) the exceptions created by the Regulatory Agreemen~;
(iii) the first mortgage lien in favor of Berkshire MoJtgage
Finance Bethesda Limited Partnership, a Massach~setts
limited partnership, as the Senior Lender under the FHA
Agreement or its assignee; and
SBEO/0001/DOC/4106-3
10/11/00 950 jmw
5
Ii I
(iv) other non-monetary lien exceptions approved in writ'ng by
the Agency.
(d) Upon the close of the Escrow, the Escrow Holder shall
record the Deed of Trust and the Regulatory Agreement a d the
:j
Subordination Agreement in the form attached hereto as Exhib
in the Office of the Recorder of San Bernardino County and di
the proceeds of the Loan to the Borrower. All costs of the
Holder relating to its services in connection with the
(including the issuance of a lender's policy of title insura
favor of the Agency) shall be borne by the Borrower. Withi
(5) days following the close of the Escrow, the Escrow Holder
deliver to the Agency a copy of the Seller's closing stateme
a copy of the Borrower's closing statement (as the buyer) und
Purchase Agreement. Within thirty (30) days following the cl
the Escrow the Borrower shall cause to be delivered to the
a complete and fully executed copy of: (i) the set of final c
or mortgage insurance loan transcript documents required und
FHA Agreement included all final documents presented to the
Holder prior to the close of the Escrow for final delivery
applicable party; and (ii) the set of final closing 0
transaction documents required under the Bonds. In the even
the Escrow Holder is unable to complete the Escrow transactio
disburse the proceeds of the Loan for the account of the Bo
for any reason wi thin ten (10) days of its receipt of th
funds from the Agency, the Escrow Holder shall return such fu
the Agency without further instruction from either the Borro
the Agency.
t "G"
burse
scrow
Loan
ce in
five
shall
t and
r the
se of
gency
osing
r the
scrow
o the
bond
that
, and
rower
Loan
ds to
er or
(e) As used herein, the term "close of Escrow" mea sand
refers to the time when the Escrow Holder determines that 11 of
the conditions of this Agreement and the Purchase Agreement a d the
FHA Agreement have been complied with by the applicable party. The
Escrow Holder may rely upon a written instruction of the gency
Executive Director addressed to the Escrow Holder as cone usive
evidenced that the conditions for the close of Escrow hav been
satisfied.
6. ReDresentations and Warranties: Certain Covenants.
(a) This Agreement has been, and the Note will be,
executed and delivered by the Borrower, and this Agreement
and the Note will, constitute valid and binding obligations
Borrower.
(b) As of the date hereof, the Borrower is not in d
under any other indebtedness of the Borrower, and the exec
delivery or performance by the Borrower of this Agreement a
SBEO/0001/DOC/4106-3
10/11/00 950 jrnw
6
duly
does,
f the
fault
tion,
d the
III
Note, Deed of Trust and Regulatory Agreement shall not cont avene
any provision of law, statute, rule or regulation 0 any
governmental instrumentality and shall not conflict be
inconsistent with or result in any breach of any terms, cov nants
or provisions of, or constitute a default under, or result on the
creation or imposition of a lien pursuant to the terms of, an loan
agreement, credit agreement or any other agreement, contr ct or
instrument to which the Borrower is a party or by whic the
Borrower is bound or to which the Borrower is subject.
(c) The Borrower hereby covenants that the Borrower wil not
sell, lease, transfer or convey the Project to an entity unr lated
to the Borrower, so long as the Note is outstanding, witho t the
prior written consent of the Agency, which consent may be gi en or
wi thheld by the Agency in its sole discretion. The Bo rower
further covenants that the Borrower shall not incur, create or
suffer the imposition of any indebtedness, other tha the
indebtedness created by the Bonds, secured in any way b the
Project so long as the Note is outstanding.
(d) The Borrower hereby declares that based upon due and
delinquent inquiry, the Borrower reasonably estimates as f the
date hereof, that from and after the close of the Escrow, an mount
of "Surplus Cash", as this term is defined in the Note, sh 11 be
available to make each "scheduled debt service payment" a this
term is also defined in the Note, when due under the Note.
7. Affordability Restrictions.
(a) The Borrower covenants that the covenants relat' ng to
occupancy of each of the 161 multifamily dwelling units (not
including the two (2) bedroom on-site manager unit) by e derly
persons and the rental rate affordability restrictions 0 this
Section 7 will remain in full force and effect for a term of fifty
five (55) years following the close of the Escrow and shall s rvive
the repayment of the Note.
(b) For the purposes of this Section 7:
(i) Ten percent (10%) of the units in the Project (exc usive
of the two (2) bedroom on-site manager unit) for a
subtotal of at least sixteen (16) units, shall tall
times be occupied or reserved for occupancy by e derly
persons who have a household income which is no more
than fifty percent (50%) of median income as dete mined
by HUD for the San Bernardino Riverside PMSA area
("Median Income"); and
SBEO/0001/DOC/4106-3
10/11/00 950 jmw
7
I ~ I
,
(ii) Ninety percent (90%) of the units in the Project
(exclusive of the two (2) bedroom on-site manager unit),
for a subtotal of at least one hundred forty five (145)
units, shall at all times be occupied or reserved for
occupancy by elderly persons who have a household income
which is not more than sixty percent (60%) of Median
Income.
Each elderly person, or elderly person household which
qualifies for occupancy in the Project under either subparagraph
(i) or (ii), above, is referred to as a "Qualifying Tenant". The
elderly person verification and household income determination for
each such Qualifying Tenant shall be made by the Borrower: (1) at
the time of initial occupancy of a unit by a Qualifying Tenant
following the close of the Escrow; (2) upon the renewal of each
Qualifying Tenant's lease; and (3) in the case of units occupied at
the time of the close of the Escrow as part of the "buyer's" and
seller's" rent-roll verification condition under the Purchase
Agreement.
(c) For the purposes of this Section 7:
(i) the Borrower agrees that the total charges for rent,
utilities and related services for each unit of the
Project occupied by a Qualifying Tenant under Section
6 (b) (i) shall not exceed thirty percent (30%) of fifty
percent (50%) of Median Income; and
(ii) the Borrower agrees that the total charges for rent,
utilities and related services for each unit of the
proj ect occupied by a Qualified Tenant under Section
6(b) (ii) shall not exceed thirty percent (30%) of sixty
percent (60%) of Median Income.
Borrower may adjust rents payable by a Qualifying Tenant based
upon changes in Median Income only, and any such adjustment shall
occur no more frequently than once in any twelve-month period for
each Qualifying Tenant.
(d) As a condition to occupancy in the Project from and after
the close of the Escrow in the case of each renewal of an existing
rental agreement, each prospective Qualifying Tenant shall be
required to sign and deliver to the Borrower a "Qualifying Tenant
Income Certification", substantially in the form attached hereto as
Exhibit "E", in which said individual certifies that he/she has an
income that is no more than fifty percent (50%) of Median Income or
sixty percent (60%) of Median Income, as applicable for the unit.
In addition, such person shall be required to provide whatever
SBEO/0001/DOC/4l06-3
10/11/00 950 jmw
8
other information, documents or certifications are deemed necessary
by the Agency to substantiate the Qualifying Tenant Income
Certification.
(e) The form of lease to be utilized by the Borrower in
renting any unit in the Project shall provide for termination of
the lease and consent by such person to immediate eviction for
failure to qualify as a Qualifying Tenant as a result of any
material misrepresentation made by such person with respect to
Qualifying Tenant Income Certification.
(f) Each Qualifying Tenant Income Certification shall be
maintained on file at the Project with respect to each tenant who
resides in a unit of the Project or resided therein during the
immediately preceding calendar year, and the Borrower shall
promptly file copies thereof with the Agency upon request by the
Agency.
(g) The Borrower shall not, in the operation and use of the
proj ect, discriminate against any person or group of persons
because of race, color, creed, national origin, ancestry, age, sex,
sexual orientation or disability.
(h) The Borrower shall not discriminate against tenants using
Section 8 Certificates or vouchers or equivalent rent subsidies.
8. Rehabilitation of Project. The Borrower covenants and
agrees that it shall rehabilitate the Project in accordance with
the Budget Development/Scope of Work attached to this Agreement as
Exhibit "F" (the "Rehabilitation Work"). The Borrower further
covenants and agrees that the Rehabilitation Work shall be
completed wi thin twelve (12) months following the close of the
Escrow or such later date as permitted under the FHA Agreement.
9. Maintenance and Manacrement of Prolect.
(a) The Borrower shall be responsible for all maintenance,
repair and management functions performed in connection with the
Project, including without limitation maintaining the Property
clear of rubbish or debris, selection of tenants, recertification
of income, evictions, collection of rents, routine and
extraordinary repairs and replacement of capital items. The
Borrower shall maintain the units in the Project and the common
areas in a safe and sanitary manner in accordance with local
health, building and housing codes.
(b) The Borrower may contract with a management agent for the
performance of the services or duties set forth in (a) above.
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However, such an arrangement shall not relieve the Borrower of
responsibility for performance of those services and duties.
(c) The Borrower agrees to make all reasonable efforts to (i)
keep the uni ts in the proj ect in good repair and available for
occupancy and (ii) keep the Project fully rented and occupied.
10. Events of Default.
(a) By Aaencv. The following shall constitute a default by
the Agency: failure to fund the Loan as provided in Section 1 of
this Agreement.
(b) Bv Borrower. Each of the following shall constitute a
default by the Borrower:
(i) failure by the Borrower to comply with the provisions of
Section 8 hereof, including failure to complete the
Rehabilitation Work by the date indicated.
(ii) failure by the Borrower to perform or a delay in
performance or a failure to comply with any term or
provision of the FHA Agreement and such failure or delay
or non-compliance is not corrected within the period of
time set forth in the FHA Agreement.
(iii) failure by the Borrower to perform or a delay in
performing or a failure to comply with any term or
provision of this Agreement and such failure or delay or
noncompliance is not corrected within thirty (30) days of
notice thereof by the Agency.
(iv)
failure by the Borrower to perform or a delay in
performing or a failure to comply with any term or
provision of the Deed of Trust and such failure or delay
or noncompliance is not corrected within thirty (30) days
of notice thereof by the Agency.
11.
Agency Remedies Sub4ect to FHA Aareement.
(a)
released
Note and
relief.
Upon a default by the Agency, (i) the Borrower shall be
from any further obligation under this Agreement or the
(ii) the Borrower may seek appropriate legal or equitable
(b) Upon a default by the Borrower, the Agency may, at its
option, (i) declare all sums due under the Note immediately due and
payable; (ii) institute suit for the foreclosure of the Deed of
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II
Trust or deliver to the trustee under the Deed of Trust a written
declaration of default by Borrower and of election to cause the
Property to be sold, all as provided in the Deed of Trust; (iii)
institute any proceeding at law or in equity to enforce the
obligations and covenants of the Borrower under this Agreement, the
Note and the Deed of Trust.
(c) In any action brought under this Agreement, the
prevailing party shall be entitled to reimbursement from the other
party of its costs and expenses (including reasonable attorney's
fees) in bringing such action. Additionally, the Agency shall be
entitled to any costs, including reasonable attorney's fees,
incurred in collecting amounts due the Agency under the Note.
(d) Notwithstanding any other provision of this Agreement, or
any related instrument executed by the Borrower and delivered to
the Agency upon close of the Escrow as provided in Section 5
hereof, the Loan and this Agreement shall automatically terminate
if the Secretary acquires title to the Property by a deed in lieu
of foreclosure under the FHA Agreement.
12. Assianment. The Agency shall be entitled to assign its
rights and obligations under this Agreement upon consent by the
Borrower to such assignment, which consent shall not unreasonably
be withheld. The Borrower shall not be entitled to, and shall not,
assign its rights and obligations under this Agreement.
13. Termination of Aareement. This Agreement shall terminate
upon the payment in full by the Borrower of all amounts due under
the Note.
14. Notices. Notices shall be presented in person or by
certified or registered United States mail, return receipt
requested, postage prepaid, or by overnight deli very made by a
nationally recognized delivery service to the address noted below.
Notice presented by United States mail shall be deemed effective
the second business day after deposit with the United States Postal
Service. This Section shall not prevent giving notice by personal
service or telephonically verified fax transmission, which shall be
deemed effective upon actual receipt of such personal service or
telephonic verification. Either party may change their address for
receipt of written notice by so notifying the other party in
writing.
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TO THE AGENCY:
TO THE BORROWER:
with a copy to:
1'1
Redevelopment Agency of the
City of San Bernardino
201 North "En Street, Suite 301
San Bernardino, California 92401
Attn: Maggie Pacheco
Telephone: (909) 663-1044
Facsimile: (909) 888-9413
A. F. Evans Company Inc.
100 Bush Street, Suite 925
San Francisco, California 94194
Attn: Jack Robinson
Telephone: (415) 591-2210
Facsimile: (415) 393-5251
Levy, Levy & Levy
900 Larkspur Landing Circle,
275
Larkspur, California 94939
Attn: Mark Levy, Esq.
Telephone:
Facsimile: (415) 461-4994
Suite
15. Governina Law. This Agreement shall be governed by the
laws of the State of California.
16. Entire Aareement. This Agreement constitutes the entire
agreement between the parties and may not be amended without the
prior written consent of the parties hereto. This Agreement
supersedes all prior negotiation, discussions and previous
agreements between the parties concerning the subject matter
herein. The parties intend this Agreement to be the final
expression of their agreement with respect to the terms herein and
a complete and exclusive statement of such terms. No modification,
amendment or waiver of any term herein shall be binding unless
executed in writing by the parties hereto.
17. Amendment. This Agreement may be amended as deemed
necessary by written instruments duly approved and executed by the
parties hereto. Any such amendments or modifications shall be
valid, binding and legally enforceable only if in written form and
executed by the parties hereto and only after the approval thereof
by official action of the Agency; provided however, that the
Executive Director of the Agency in consultation with legal counsel
for the Agency, is authorized to make non-substantive revisions and
changes to the text of any instrument attached hereto as an
exhibit, prior to the close of the Escrow, in order to accommodate
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the final form of the security documents under the FHA Agreement,
and the delivery of the Bonds in support of the ~roject.
18. Severability. Each and every section of this Agreement
shall be construed as a separate and independent covenant and
agreement. If any term or provision of this Agreement or the
application thereof shall be declared invalid or unenforceable, the
remainder of this Agreement, or the application of such term or
provision to circumstances other than those to which it is invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the
extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above. This Agreement may
be executed in counterparts and when fully executed each
counterpart shall be deemed to be part of one (1) original
Agreement.
AGENCY
Redevelopment Agency of the
City of San Bernardino
By:
Title:
(SEAL)
ATTEST:
Secretary
Approved as to Form:
By:
Agency Special Counsel
BORROWER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
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1'1
ZXII:IBI'l' nA"
LEGAL DESCRIP'l'ION
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EXBIBI'r "B"
$250,000.00 PROMISSORY HO'rE
16
1'1
PROMXSSORY NO'rB PAYABLE TO A PUBLIC AGENCY
SECURED BY A SOBORDINATE DEED OF TRUST
(Pioneer Park P~aza Affordab~e E~der~y Rent~ Housing:
FHA Project No. 143-11047-PM-PUR/CON)
Original Principal
Amount of
Promissory Note:
$250,000.00
Holder of
Promissory
Note:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, CA 92401
Attn: Development Director
Date:
November , 2000
[TO BE CONFIRMED
ESCROW HOLDER]
BY
Rate of Interest:
3% per annum (fixed)
Maturity
Date:
November , 2035
[TO BE CONFIRMED BY
ESCROW HOLDER AS THE 35TH
ANNIVERSARY OF THE DATE
OF THE PROMISSORY NOTE]
FOR VALUE RECEIVED, AFE-Pioneer Associates, L.P., a California
limited partnership (the "Maker") promises to pay to Redevelopment
Agency of the City of San Bernardino (the "Agency") or its
successor or assign, the sum of Two Hundred Fifty Thousand Dollars
($250,000.00), together with interest thereon as set forth herein.
1. This Promissory Note (the "Note") is made and delivered
by the Maker pursuant to and in implementation of the Loan
Agreement by and between the Agency and the Maker, dated as of
October 16, 2000 (the "Loan Agreement"). A copy of the Loan
Agreement is on file with the Agency and is incorporated herein by
reference. This Promissory Note evidences the indebtedness of the
Maker to the Agency under the terms and conditions of the Loan
Agreement. Unless definitions of terms have been expressly set out
at length herein, each term shall have the same definition as set
forth in the Loan Agreement.
2. Payments of principal and interest in the amount of
Eleven Thousand Five Hundred Forty Six Dollars ($11,546.00) (each,
a " scheduled debt service payment") shall be due annually on
November of each year until the maturity date set forth above,
commencing November , 2001 and through and including November ,
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I
2035 (each, a "payment date"). Prior to the maturity date of this
Promissory Note, and for 50 long as the United States Secretary of
Housing and Urban Development (the "Secretary") has a security
interest in the Project under that certain instrument entitled
"Regulatory Agreement for Multifamily Housing Projects (Project No.
143-11047-PM-PUR/CON)" dated as of , 2000 (the "FHA
Agreement"), by and between the Maker and the Secretary, payments
of principal and interest shall be made by the Maker solely from
"Surplus Cash", as this term is defined in the second paragraph of
this Section 2. If Surplus Cash in an amount sufficient to make a
scheduled debt service payment in full is not available on a
payment date, the portion of such scheduled debt service payment
not paid (the "deficiency debt service amount") shall be carried
forward to the next succeeding payment date for payment. On such
next succeeding payment date, the balance of the deficiency debt
service amount as carried forward shall be paid first, and the
scheduled debt service payment second. In the event that on the
maturity date of this Promissory Note there remains any unpaid
balance of deficiency debt service amounts which cannot then be
paid from Surplus Cash, the Agency shall automatically extend the
maturity date of this Promissory Note to the next November _
following the maturity date and annually thereafter, until such
time as either Surplus Cash is available to pay the remaining
balance of this Promissory Note in full, or until such time as the
Maker shall, whether from Surplus Cash or from other monies of the
Maker or from a combination thereof, pay the remaining balance of
the deficiency debt service amounts then due.
The words "Surplus Cash" mean and refer to any cash of the
Maker remaining on any payment date after:
(A) the payment of:
(i) all sums due or currently due to be paid by the
Maker under the terms of any mortgage or note
insured or held by the Secretary under the FHA
Agreement;
(ii) all amounts required to be deposited in the reserve
fund for the project described in the FHA Agreement
for replacement;
(iii) all obligations of the project described in the FHA
Agreement other than the mortgage insured by the
Secretary unless funds for payment are set aside or
deferment of payment has been approved by the
Secretary; and
(B) the segregation of:
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(i) an amount equal to the aggregate of all special
funds required to be maintained for the project
described in the FHA Agreement; and
(ii) all tenant security deposits for the project
described in the FHA Agreement then held by the
Maker.
3. This Promissory Note shall bear interest on its
outstanding principal balance from its date, at the rate of three
percent (3%) per annum.
4. This Promissory Note is secured by a deed of trust, of
even date herewith (the "Deed of Trust"). The Deed of Trust is
subordinate to the security interest of the Secretary in the
property subject to the FHA Agreement (the "Property"). The
obligation of the Maker to pay the Agency the amounts when due
under this Promissory Note is assignable by the Maker to its
transferee in the Property upon thirty (30) days prior written
notice to the Agency in which the Maker and the assignee each
certify to the Agency that as part of such sale, lease, or transfer
of the Property, the assignee of the Maker shall also assume the
obligations of the Maker under the note insured or held by the
Secretary in accordance with the FHA Agreement.
The Deed of Trust contains the following provisions:
"THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS
DEFINED BELOW.
A "special event of acceleration" shall occur when there is a
conveyance without the consent in writing of the Lender, of
any right, title or interest in the Property to any person
whether such sale, refinancing or transfer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Secretary in the
Property is released and reconveyed to the Trustor by the
Secretary.
Initials of Trustor"
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5. A failure to pay any sum provided for in this Promissory
Note when due, or a material breach of Loan Agreement or the Deed
of Trust, shall constitute a breach hereof and shall entitle the
Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Promissory
Note and the Deed of Trust.
All payments due under this Promissory Note shall be made in
lawful money of the United States at the principal office of the
Agency, 201 North "E" Street, Suite 301, San Bernardino, California
92401, or at such other place as may from time to time be
designated by the Agency in writing.
In no event shall the interest payable hereunder exceed the
maximum amount of interest permitted under the usury laws of the
State of California.
If suit is instituted by the Agency to recover on this
Promissory Note, the Maker agrees to pay all costs of such
collection including reasonable attorney's fees and court costs.
DEMAND, protest and notice of demand and protest are hereby
waived and the Maker hereby waives, to the extent authorized by
law, any and all homestead and other exemption rights which
otherwise would apply to the debt evidenced by this Promissory
Note.
IN WITNESS WHEREOF, this Promissory Note has been duly
executed by the Maker, as of its date.
MAKER
AFE-Pioneer
California
Associates, L.P.,
limited partnership
a
By: A.F.Evans Company, Inc., a
California corporation, its general
Partner
By:
Name:
Title:
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BXBIBI'l' "c"
A&d;a\;:L (StlBOBDINAD) DEED 01' TKOS'l', SBCtIRI'l'Y AGlU!lEMEN'l',
ASSIGNMBN'l' 01' lUm'l'S AND I'IX'l'tJRJ: FILING
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III
III'
"
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
Attention: Director of Housing and
Community Development
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING
(Pioneer Park Plaza Affordable Elderly Citizen
Rental Housing Project)
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING (the "Deed of Trust") is dated as of October 16,
2000, among AFE-Pioneer Associates, L.P., a California limited
partnership (the "Trustor"), whose address is 100 Bush Street,
Suite 925, San Francisco, California 94194 and the Redevelopment
Agency of the City of San Bernardino (referred to herein as the
"LenderH or "Beneficiary"), whose address is 201 North "E" Street,
Suite 301, San Bernardino, California 92401; and
, a corporation (the "TrusteeH),
whose address is
California
THE RIGHTS AND REMEDIES OF BENEFICIARY SET FORTH HEREIN SHALL
BE SUBJECT AND SUBORDINATE TO THE RIGHTS OF THE HOLDERS OF BONDS
ISSUED BY THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY FOR THE PURPOSE OF PROVIDING FINANCING FOR, AMONG OTHER
THINGS, THE ACQUISITION OF THE PROPERTY DESCRIBED BELOW.
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary,
all of Trustor's right, title, and interest in and to the
following described real property, located at 560 North "F"
Street, San Bernardino, California and more particularly
described below, together with all existing or subsequently
erected or affixed buildings, improvements and fixtures, all
easements, rights of way, and appurtenances and all other
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"
rights, royalties, and profits relating to the real property,
including and without limitation all minerals, oil, gas,
geothermal and similar matters.
SEE EXHIBIT "A" LEGAL DESCRIPTION OF THE REAL PROPERTY
ATTACHED HERETO
Trustor presently assigns to the Lender all of Trustor's
right, title and interest in and to all present and future
leases of the Property and all Rents from such real property.
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. All references to
dollar amounts shall mean amounts in lawful money of the
United States of America:
Beneficiary. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust, Security Agreement, Assignment of Rents and Fixture
Filing among Trustor, Lender, and Trustee.
Improvements. The word "Improvements" means and includes
without limitation all existing improvements on the Property.
Indebtedness. The word "Indebtedness" means all principal and
interest payable under the Note and any amounts expended or
advanced by Lender to discharge obligations of the Trustor or
expenses incurred by Trustee or Lender to enforce obligations
of Trustor under the Note and this Deed of Trust, together
with interest on such amounts. This Deed of Trust secures, in
addi tion to the amounts specified in the Note any future
advances, together with all interest thereon, which future
advances the Lender may in its sole and absolute discretion
make so long as Trustor complies with all the terms and
conditions of the Note or the Loan Agreement.
Lender. The word "Lender" means Redevelopment Agency of the
City of San Bernardino.
Loan Agreement. The words "Loan Agreement" refer to that
certain Loan Agreement dated as of October 16, 2000, by and
between the Trustor and the Lender. A copy of the Loan
Agreement is on file with the Lender. Under the Loan
Agreement, the Trustor covenants that through June 30, 2034,
one-hundred-percent (100%) of the units in the Project shall
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III
at all time be occupied or held vacant available for rental by
individuals who are at least sixty two (62) years old and have
an income that is no more than fifty percent (50%) of median
income as determined by HUD for the San Bernardino-Riverside
PMSA area and that the total charges for rent, utilities and
related services for each unit in the Project shall not exceed
thirty percent (30%) of fifty percent (50%) of median income
all as more fully set forth in the Regulatory Agreement of
even date herewith, by and between the Trustor and the Lender.
Note. The word "Note" means the Promissory Note Secured by
Deed of Trust of even date herewith, in the principal amount
of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) from
Trustor to the Lender, together with all renewals, extensions,
modifications, refinancing, and substitutions for the Note.
Personal Property. The words "Personal Property" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the real property described in Exhibit
"A" together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such
property, and together with all proceeds (including without
limitation all insurance proceeds and refunds of premiums)
from any sale or other disposition of such real property or
the Personal Property.
Project. The word "Project" means Pioneer Park Plaza Senior
Housing Complex, a 16l-unit apartment project.
Property. The word "Property" means collectively the real
property more particularly described in Exhibit "A", and the
Personal Property, and the rights described above in the
"Conveyance and Grant" section of the Deed of Trust.
Rents. The word "Rents" means all present and future rents,
revenues, income, issues, royalties, profits, and other
benefits derived from the Property.
Trustee. The word "Trustee" means
substitute or successor trustees.
, and any
Trustor. The word "Trustor" means AFE-Pioneer Associates, a
California limited partnership.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE
SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN
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TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE
OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER THE PROMISSORY
NOTE, THIS DEED OF TRUST AND THE LOAN AGREEMENT. THE NOTE AND
THIS DEED OF TRUST ARE GIVEN AND ACCEPTED ON THE FOLLOWING
TERMS:
3.1 PAYMENT AND PERFO~CE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Note, this Deed of Trust, and the Loan Agreement.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property shall be
governed by the following provisions:
Possession and Use. Until the occurrence of an Event of
Default as set forth below, Trustor may remain in possession
and control of the Property.
Duty to Maintain. Trustor shall maintain the Property. The
Trustor may construct any improvement or structure on the
Property at any time, without further notice to the Lender;
provided, however that the Trustor shall have first obtained
all necessary permits and approvals of such construction or
improvement from local regulatory agencies with jurisdiction.
Hazardous Substances. The terms "hazardous wastes,"
"hazardous substance," "disposal," "release," and "threatened
release," as used in this Deed of Trust, shall have the same
meanings as set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended,
42 V.S.C. Section 9601, tl~. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("SARA"), the Hazardous Materials Transportation Act. 49
V.S.C. Section 1801, ~ ~., the Resource Conservation and
Recovery Act, 49 V.S.C. Section 6901, ~ ~., Chapters 6.5
through 7.7 of Division 20 of the California Health and Safety
Code, Section 25100, ~ ~., or other applicable state or
Federal laws, rules, or regulations adopted pursuant to any of
the foregoing. Trustor represents and warrants to Lender that
the Trustor shall not use, generate, manufacture, store,
treat, dispose of, or release any hazardous waste or substance
on, under, or about the Property. Trustor authorizes Lender
and its agents to enter upon the Property to make such
inspections and tests and Lender may deed appropriate to
determine compliance with this section of the Deed of Trust.
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Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Trustor
or to any other person.
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all reasonable
times to attend to Lender's interests and to inspect the
Property for purposes of Trustor's compliance with the terms
and conditions of this Deed of Trust.
Compli.ance wi.th Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations,
now or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Property. Trustor
may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in
Lender's sole opinion, Lender's interests in the Property are
not jeopardized. Lender may require Trustor to post adequate
security or a surety bond, reasonably satisfactory to Lender,
to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Property. Trustor shall do all other acts, in
addition to those acts set forth above in this section, which
from the character and use of the Property are reasonably
necessary to protect and preserve the Property.
3.3 DUE ON SALE OR TRANSFER OF THE PROPERTY.
THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS
DEFINED BELOW.
A .special event of acceleration" shall occur when there is a
conveyance without the consent in writing of the Lender, of
any right, title or interest in the Property to any person
whether such sale, refinancing or trans fer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Secretary in the
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III'
Property is released and reconveyed to the Trustor by the
Secretary.
Initials of Trustor"
3.4 TAXES AND LIENS. The following provisions relating to the
taxes and liens on the Property are part of this Deed of
Trust:
Payment of Taxes and Property-Re~ated Charges. Trustor shall
pay when due (and in all events at least ten (10) days prior
to delinquency) all taxes, special taxes, assessments, charges
(including water and sewer), fines and impositions levied
against or on account of the Property, and shall pay when due
all claims for work done on or for services rendered or
material furnished to the Property. Trustor shall maintain
the Property free of all liens having priority over or equal
to the interest of Lender under this Deed of Trust, except for
the lien of property taxes and assessments not due, and the
lien in favor of the holders of bonds issued by the California
Statewide Communities Development Authority for the purpose of
providing financing for the acquisition of the Property and
rehabilitation of the Project.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in
the Property is not jeopardized. If a lien arises or is filed
as a result of nonpayment, Trustor shall within fifteen (15)
days after the lien arises or, if a lien is filed, wi thin
fifteen (15) days after Trustor has notices of the filing,
secure the discharge of the lien, or if requested by Lender,
deposit with Lender cash or other security satisfactory to
Lender in an mount sufficient to discharge the lien plus any
costs and attorneys' fees or other charges that could accrue
as a result of a foreclosure or sale under the lien. In any
contest, Trustor shall defend itself and Lender and shall
satisfy any adverse judgment before enforcement against the
Property. Trustor shall name Lender as an additional obligee
under any surety bond furnished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
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3.5 EXPENDrTORES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or
proceeding is commenced that would materially affect Lender's
interests in the Property, Lender on Trustor's behalf may, but
shall not be required to, take any action that Lender deems
appropriate. Any amount that Lender expends in 50 doing will
bear interest at a rate of interest per annum of eight percent
(8%) from the date incurred or paid by Lender to the date of
repayment by Trustor. All such expenses, with interest
thereon will, at Lender's option: (al be payable on demand,
or (b) be treated as a balloon payment which will be due and
payable at the Note's maturity. This Deed of Trust also will
secure payment of these amounts. The rights provided for in
this paragraph shall be in addition to any other rights or any
remedies to which Lender may be entitled on account of the
default. Any such action by Lender shall not be construed as
curing the default so as to bar Lender from any remedy that it
otherwise would have had.
3.6 WARRANTY; DEFENSE OF TITLE. The following provisions relating
to ownership of the Property are a part of this Deed of Trust:
Title. Trustor warrants that Trustor has the full right,
power, and authority to execute and deliver this Deed of Trust
to Lender. Upon request by Lender, Trustor shall execute such
documents in addition to this Deed of Trust and take whatever
other action is requested by Lender to perfect and continue
Lender's lien and security interest on the Property.
Defense of Title. Trustor warrants and will forever defend
its title to the Property against the claims of all persons
subject to the matters disclosed in the policy of title
insurance of even date herewith, issued in favor of the
Trustor pursuant to the Loan Agreement. In the event any
action or proceeding is commenced that questions Trustor's
title or the interest of Trustee or Lender under this Deed of
Trust, Trustor shall defend the action at Trustor's expense.
Trustor may be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and
to be represented in the proceeding by counsel of Lender's own
choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to
time to permit such participation.
Compliance with Laws.
Trustor's use of the
Trustor warrants that the Property and
Property complies with all existing
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applicable laws, ordinances, and regulations of governmental
authorities.
3.7 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Application of Net Proceeds. If all or any part of the
Property is condemned by eminent domain proceedings or by an
proceeding or purchase in lieu of condemnation, Lender may at
its election require that all or any portion of the net
proceeds of the award be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds of
the award shall mean the award after payment of all reasonable
costs, expenses, and attorneys' fees, Trustee or Lender in
connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed,
Trustor shall promptly notify Lender in writing, and Trustor
shall promptly take such steps as may be necessary to defend
the action and obtain the award. Trustor may be the nominal
party in such proceeding, but Lender shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to Lender such instruments as
may be requested by it from time to time to permit such
participation.
3 . 8 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed
of Trust:
Current Taxes, Fees and Charges. Trustor shall reimburse
Lender for all taxes, as described below, together with all
expenses incurred in recording, perfecting or continuing this
Deed of Trust, including without limitation all taxes, fees,
documentary stamps, and other charges for recording or
registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed of
Trust or upon all or any part of the Indebtedness secured by
this Deed of Trust; (b) a specific tax on Trustor which
Trustor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Deed of Trust; (c)
a tax on this type of Deed of Trust chargeable against the
Lender or the holder of the Note; and (d) a specific tax on
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all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or
other security satisfactory to Lender.
3 . 9 SUBORDINATION OF LENDER DEED OF TRUST TO SECURITY INTEREST OF
THE SENIOR LENDER UNDER THE FHA AGREEMENT
[TO CONFORM TO FHA AGREEMENT]
3.10 FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following
provisions relating to further assurances and attorney-in-fact
are a part of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled, or rerecorded, as the case may be,
at such times and in such offices and places as Lender may
deem appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations
of Trustor under the Note, this Deed of Trust, and (b) the
liens and security interests created by this Deed of Trust as
first and prior liens on the Property, whether now owned or
hereafter acquired by Trustor. Unless prohibited by law or
agreed to the contrary by Lender in writing, Trustor shall
reimburse Lender for all costs and expenses incurred in
connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
and in the name of Trustor and at Trustor's expense. For such
purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
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executing, delivering, filing, recording, and doing all other
sole
the
things as may be necessary or desirable, in Lender's
opinion, to accomplish the matters referred to in
preceding paragraph.
3.11 RIGHT TO COLLECT RENTS. Trustor reserves the right, prior to
any default in payment of any indebtedness or performance of
any obligation secured hereby, to collect all such rents,
royalties, issues and profits, as but not before they become
due. Upon any such default, Trustor's right to collect such
moneys shall cease, not only as to amounts accruing
thereafter, but also as to amounts then accrued and unpaid.
3.12 SECURITY AGREEMENT. This instrument shall constitute a
security agreement to the extent any of the property
constitutes fixtures, and Beneficiary shall have all of the
rights of a secured party under the Uniform Commercial Code as
amended from time to time. The mailing addresses of Trustor
(debtor) and Beneficiary (secured party), from which
information concerning the security interest granted by this
Deed of Trust may be obtained (each as required by the Uniform
Commercial Code), are as stated on the first page of this Deed
of Trust.
4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays the Note
and all amounts as may become due under this Deed of Trust, or
if on the maturity date of the Note there is no Event of
Default, Lender shall execute and deliver to Trustee a request
for full reconveyance of this Deed of Trust and shall. Lender
may charge Trustor a reasonable reconveyance fee at the time
of reconveyance.
5.0 DEFAULT. Each of the following, at the option of Lender,
shall constitute an event of default ("Event of Default")
under this Deed of Trust:
Defaul.t on Payments Due Under the Note. Failure of Trustor to
make any payment when due under the Note.
Compl.iance Defaul.t.
obligation, covenant
Trust or the Note.
Failure to comply with any other term,
or condition contained in this Deed of
Breaches. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed
of Trust, the Note or the Loan Agreement is, or at the time
made or furnished was, false in any material respect.
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l:nso~v.ncy. The insolvency of Trustor, appointment of a
receiver for any part of Trustor's property, any assignment
for the benefit of creditors, the commencement of any
proceeding under any bankruptcy or insolvency laws by or
against Trustor, or the dissolution or termination of
Trustor's existence as a going business (if Trustor is a
business) .
Forec~osure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the
Property. However, this subsection shall not apply in the
event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the
foreclosure, provided that Trustor gives Lender written notice
of such claim and furnishes reserves or a surety bond for the
claim satisfactory to Lender.
5. I Rl:GBTS AND REMEDIES UPON EVENT OF DEFAULT. Upon the
occurrence of any Event of Default and at any time thereafter,
Trustee or Lender, at its option, may exercise anyone or more
the following rights and remedies, in addition to any other
rights or remedies provided by law:
Forec~osure by Sale. Upon an Event of Default under this Deed
of Trust, Beneficiary may declare the entire indebtedness
secured by this Deed of Trust immediately due and payable by
delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and of
election to cause to be sold the Property, which notice
Trustee shall cause to be filed for record. Beneficiary also
shall deposit with Trustee this Deed of Trust, the Note, other
documents requested by Trustee, and all documents evidencing
expenditures secured hereby. After the lapse of such time may
then be required by law following the recordation of the
notice of default, and notice of sale having been given as
then required by law. Trustee, without demand on Trustor,
shall sell the Property at the time and place fixed by it in
the notice of sale, either as a whole or in separate parcels,
and in such order as it may determine, at public auction to
the highest bidder for cash in lawful money of the United
States, payable at time of sale. Trustee may postpone sale of
all or any portion of the Property by public announcement at
such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time
filed by the preceding postponement in accordance with
applicable law. Trustee shall deliver to such purchaser its
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deed conveying the Property so sold, but without any covenant
or warranty, express or implied. The recitals in such deed of
any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor, Trustee
or Beneficiary may purchase at such sale. After deducting all
costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale.
Trustee shall apply the proceeds of sale to payment of all
sums expended under the terms hereof, not then repaid, with
accrued interest at the amount allowed by law in effect at the
da te hereof; all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled
thereto.
Judicial Foreclosure. With respect to all or any part of the
Property, Lender shall have the right in lieu of foreclosure
by power of sale to foreclose by judicial foreclosure in
accordance with and to the full extent provided by California
law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Property and
collect the Rents, including amounts past due and unpaid, and
apply the net proceeds, over and above Lender's costs, against
the indebtedness. In furtherance of this right, Lender may
require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents
are collected by Lender, then Trustor irrevocably designates
Lender as Trustor's attorney-in-fact to endorse instruments
recei ved in payment thereof in the name of Trustor and to
negotiate the same and collect the proceeds. Payments by
tenants or other users to Lender in response to Lender's
demand shall satisfy the obligations for which the payments
are made, whether or not any property grounds for the demand
existed. Lender may exercise its rights under this
subparagraph either in person, by agent, or through a
receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or any part of
the Property, with the power to protect and preserve the
Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply the
proceeds, over and above the cost of the receivership against
the indebtedness. The receiver may serve without bond if
permitted by law. Lender's right to the appointment of a
receiver shall exist whether or not the apparent value of the
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Property exceeds the indebtedness by a substantial amount.
Employment by Lender shall not disqualify a person from
serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of
the Property after the Property is sold as provided above or
Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a
tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (a) pay a
reasonable rental for the use of the Property, or (b) vacate
the Property immediately upon the demand of Lender.
Other Remedies. Trustee or Lender shall have any other right
or remedy provided in this Deed of Trust, the Note, or the
Loan Agreement or by law.
Notice of Sa~e. Lender shall give Trustor reasonable notice
of the time and place of any public sale of the Personal
Property or of the time after which any private sale or other
intended disposition of the Personal Property is to be made.
Reasonable notice shall mean notice given at lease five (5)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Property.
Sa~e of the Property. To the extent permitted by applicable
law, Trustor hereby waives any and all rights to have the
Property marshaled. In exercising its rights and remedies,
the Trustee or Lender shall be free to sell all or any part of
the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any public
sale on all or any portion of the Property.
Waiver: Election of Remedies. A waiver by any party of a
breach of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's rights
otherwise to demand strict compliance with that provision or
any other provision. Election by Lender to pursue any remedy
provided in this Deed of Trust or the Note or provided by law
shall not exclude pursuit of any other remedy, and an election
to make expenditures or to take action to perform an
obligation of Trustor under this Deed of Trust after failure
of Trustor to perform shall not affect Lender's right to
declare a default and to exercise any of its remedies.
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Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adj udge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all
reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a part
of the indebtedness payable on demand and shall bear interest
at a rate of interest per annum of eight percent (8%)
commencing on the date of expenditure until repaid. Expenses
covered by this paragraph include, without limitation, however
subject to any limits under applicable law, Lender's
attorneys' fees whether or not there is a lawsuit, including
attorneys' fees for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals
and any anticipated post-j udgment collection services, the
cost of searching records, obtaining title reports (including
foreclosure reports), surveyors' reports, appraisal fees,
ti tle insurance, and fees for the Trustee, to the extent
permitted by applicable law. Trustor also will pay any court
costs, in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
6.0 POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions
relating to the powers and obligations of Trustee are part of
this Deed of Trust:
Powers of Trustee. In addition to all powers of Trustee
arising as a matter of law, Trustee shall have the power to
take other actions with respect to the Property upon the
written request of Lender and Trustor.
Obligations to Notify. Trustee shall not be obligated to
notify any other party of a pending sale under any other trust
deed or lien, or of any action or proceeding in which Trustor,
Lender, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee.
Trustee. Trustee shall meet all qualifications required for
Trustee under applicable law. In addition to the rights and
remedies set forth above, with respect to all or any part of
the Property, the Trustee shall have the right to foreclose by
notice and sale, and Lender shall have the right to foreclose
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'Ill
by judicial foreclosure, in either case in accordance with and
to the full extent provided by applicable law.
Successor Trustee. Lender, at Lender's option, may from time
to time appoint a successor Trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of San Bernardino
County, California. The instrument shall contain, in addition
to all other matters required by state law, the names of the
original Lender, Trustee, and Trustor the book and page where
this Deed of Trust is recorded, and the name and address of
the successor trustee, and the instrument shall be executed
and acknowledged by Lender or its successors in interest. The
successor trustee, without conveyance of the Property, shall
succeed to all the title, power, and duties conferred upon the
Trustee in this Deed of Trust and by applicable law. This
procedure for substitution of trustee shall govern to the
exclusion of all other provisions for substitution.
7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective when
actually delivered or, if mailed, shall be deemed effective
when deposited in the United States mail first class,
registered mail, postage prepaid, directed to the addresses
shown near the beginning of this Deed of Trust. Any party may
change its address for notices under this Deed of Trust by
giving formal written notice to the other parties, specifying
that the purpose of this notice is to change the party's
address. All copies of notices of foreclosure from the holder
of any lien which has priority over this Deed of Trust shall
be sent to Lender's address, as shown near the beginning of
this Deed of Trust. For Notice purposes, Trustor agrees to
keep Lender and Trustee informed at all times of Trustor's
current address. Each Trustor requests that copies of any
notices of default and sale be directed to Trustor's address
shown near the beginning of this Deed of Trust.
8.0 STATEMENT OF OBLIGATION. Lender may collect a fee, in an
mount not to exceed the statutory maximum, for furnishing the
statement of obligation as provided by Section 2943 of the
Civil Code of California.
9.0 MISCELLANEOUS PROVISIONS. The following miscellaneous
provisions are a part of this Deed of Trust:
Amendments. This Deed of Trust constitutes the entire
understanding and agreement of the parties as to the matters
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'III
set forth in this Deed of Trust. No alteration of or
amendment to this Deed of Trust shall be effective unless
given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Acceptance by Trustee. Trustee accepts this Trust when this
Deed of Trust, duly executed and acknowledged, is made a
public record as provided by law.
Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California.
This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of California.
Caption Headinqs. Caption headings in this Deed of Trust are
for convenience purposes only and are not to be used to
interpret or define the provisions of this Deed of Trust.
Merqer. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or
estate in the Property at any time held by or for the benefit
of Lender in any capacity, without the written consent of
Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable
as to any person or circumstance, such finding shall not
render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending
provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be
stricken and all other provisions of this Deed of Trust in all
other respects shall remain valid and enforceable.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust unless such waiver
is in writing and signed by Lender. No delay or omission on
the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by any
party of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's right
otherwise to demand strict compliance with that provision or
any other provision. No prior waiver by Lender, nor any
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course of dealing between Lender and Trustor, shall constitute
a waiver of any of Lender's rights or any of Trustor's
obligations as to any future transactions. Whenever consent
by Lender is required in this Deed of Trust, the granting of
such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent
is required.
THE TRUSTOR ACXNOWLEDGES HAVING READ ALL THE PROVISIONS OF
THIS DEED OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND
THE TERMS OF THE PROMISSORY NOTE SECURED BY THIS DEED OF
TRUST.
TRUSTOR
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
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BX!nBJ:~ "D"
RBGOLATORY AGRBEMBN'J!
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.~,
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
)
)
Redevelopment Agency of the }
City of San Bernardino )
201 North "E" Street, )
Suite 301 )
San Bernardino, CA 92401 )
Attn: Director of Housing and )
Community Development )
(Space Above Line Reserved For Use By Recorder)
(Exempt from Recording Fees Per Govt. Code Sec. 6103)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
ilEGULATORY AGilEEMENT AND COVENANTS
Pioneer Park Plaza Affordable Elderlv Citizen Housina Pro;ect
(FHA Agreement No. 143-11047-PM-PUR/CON)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS (the "Regulatory Agreement") is
made and entered into as of October 16, 2000 by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency") and AFE-Pioneer Associates,
L.P., a California limited partnership (the "Borrower") and relates
to the facts set forth in the following Recitals.
-- RECITALS
A. The Borrower proposes to acquire Pioneer Park Plaza
Affordable Elderly Rental Housing Project, a 161-unit apartment
project (the "Project") located at 560 North "F" Street, San
Bernardino, California (the "Property"), from Pioneer Park Plaza,
a California limited partnership, pursuant to that certain
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999 (the "Purchase Agreement").
A legal description of the Property is attached hereto as Exhibit
"A" and incorporated herein by this reference.
B. The Agency and the Borrower have entered into that
certain Loan Agreement dated as of October 16, 2000 (the "Loan
Agreement") pursuant to which the Agency will loan to the Borrower
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Two Hundred Fifty Thousand Dollars ($250,000.00) to assist the
Borrower in consummating the transactions contemplated by the
Purchase Agreement, subject to certain conditions, including the
terms and conditions of this Regulatory Agreement.
C. The terms of the Loan Agreement require that certain
covenants and affordability restrictions remain in full force and
effect for a term of fifty five (55) years following the date of
recordation of this Regulatory Agreement (the "Term") in order to
ensure that:
(i) ten percent (10%) of the units in the Project (exclusive
of the two (2) bedroom on-site manager's unit), for a
subtotal of at least sixteen 916) units, shall at all
times be occupied or reserved for occupancy by elderly
persons who have a household income which is not more
than fifty percent (50%) of median income, adjusted for
family size, as determined by HUD for the San Bernardino-
Riverside PMSA area ("Median Income"); and
(ii) ninety percent (90%) of the units in the Project
(exclusive of the two (2) bedroom on-site manager's
unit), for a subtotal of at least one hundred forty five
(145) units, shall at all times be occupied or reserved
for occupancy by elderly persons who have a qualified
household income which is not more than sixty percent
(60%) of Median Income adjusted for family size; and
(iii) each elderly person, or elderly person household which
qualifies for occupancy in the Proj ect under either
subparagraph (i) or (ii) above, (each a "Qualifying
Tenant") shall pay no more as rent than an "Affordable
Rent" as defined below.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
UNDERTAKINGS SET FORTH HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE BORROWER AND THE AGENCY DO HEREBY COVENANT AND
AGREE FOR THEMSELVES, THEIR SUCCESSORS AND ASSIGNS AS FOLLOWS:
Section 1. Definitions of Certain Terms. As used in this
Regulatory Agreement, the following words and terms shall have the
meaning as provided in the Recitals or in this Section 1 unless the
specific context of usage of a particular word or term may
otherwise require:
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Affordable Rant.
The words "Affordable Rent" mean:
(i) for Qualifying Tenants whose income is not more than
fifty percent (50%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of fifty
percent (50%) of Median Income, adjusted for family size;
or
(ii) for Qualifying Tenants whose income is not more than
sixty percent (60%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of sixty
percent (60%) of Median Income, adjusted for family size.
Borrower. The word "Borrower" means AFE-Pioneer Associates,
L.P., a California limited partnership, and its successors and
assigns.
FHA Agreement. The words "FHA Agreement" mean and refer to
that certain agreement entitled "Regulatory Agreement for
Multifamily Housing Project (Project No. 143-11047-PM-
PUR/CON)" dated as of , 2000, by and between the
Borrower and the Secretary of the United States Department of
Housing and Urban Development.
Median Income. The words "Median Income" mean median income as
determined by the Department of Housing and Urban Development
for the San Bernardino-Riverside PMSA area.
Project. The word "Project" means and refers to that certain
161-unit multifamily rental dwelling unit apartment project
located at 560 North "F" Street, San Bernardino, California,
and commonly known as Pioneer Park Plaza Senior Housing
Complex. In addition to the 161 multifamily rental dwelling
units which the Borrower shall rent or reserve for occupancy
by Qualifying Tenants the Project also includes one (1) unit
with two (2) bedrooms for use by the Borrower's on-site
manager for the Project.
Purchase Agreement. The words "Purchase Agreement" mean the
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999 by and between the
Borrower and Pioneer Park Plaza, a California limited
partnership, the present owner of the Project.
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QuaJ.ifyinq Tenant. The words "Qualifying Tenant" mean the
tenant of any unit within the Project who shall be at least
sixty two (62) years old and who shall have an income that
does not exceed the Qualifying Tenant Income as provided in
the FHA Agreement. From and after the time when the FHA
Agreement is no longer in effect and until the end of the Term
of this Regulatory Agreement, the words "Qualifying Tenant"
mean the senior citizen household of any unit within the
Project in which the senior citizen household shall be
composed of at least one (1) member who is sixty two (62)
years of age and whose other members, if any, satisfy the
provisions of California Civil Code Section 51.3, as may be
amended from time to time, and whose combined household income
does not exceed Qualifying Tenant Income.
Qualifyinq Tenant Income.
Income" mean:
The words "Qualifying Tenant
(i) in the case of Qualifying Tenants who shall occupy at
lease sixteen (16) units in the Project, a household
income which is not more than fifty percent (50%) of
Median Income, adjusted for family size; and
(ii) in the case of Qualifying Tenants who shall occupy at
least one hundred forty five (145) units in the Project,
a household income which is not more than sixty percent
(60%) of Median Income, adjusted for family size.
Regulatory Aqreement. The words "Regulatory Agreement" mean
these Redevelopment Agency of the City of San Bernardino
Regulatory Agreement and Covenants by and between the Borrower
and the Agency pertaining to the Project.
Term. The word "Term" means the period of time beginning
on the date of the date of recordation of this Regulatory
Agreement and ending on the fifty-fifth (55th) anniversary
thereafter.
The titles and headings of the sections of this Regulatory
Agreement have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way
modify or restrict the meaning any of the terms or provisions
hereof.
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Ip II
Section 2. Aclcnowle..nt of the
Ackno,,~ednM_"t of Subordinati.on of th. Aaenev.
Borro_r
and
(a) The Borrower hereby acknowledges that this Regulatory
Agreement imposes certain restrictions on the use and occupancy of
the Project during the Term of this Regulatory Agreement. The
Borrower acknowledges and understands that the restrictions shall
be applicable to the Project for the Term hereof, commencing on the
date of recordation of this Regulatory Agreement.
Dated:
Initials of
Borrower
(b) Concurrently upon the execution and recordation of this
Regulatory Agreement the Borrower shall obtain certain purchase
money mortgage financing for the acquisition of the Property from
Berkshire Mortgage Finance Bethesda Limited Partnership, a
Massachusetts limited partnership (the "Senior Lender") subject to
the provisions of the FHA Agreement. The Borrower has provided the
Agency with a true and correct copy of the FHA Agreement and the
loan agreement by and between the Senior Lender and the Borrower.
As a condition to providing its mortgage loan to the Borrower
under the related provisions of the FHA Agreement the Senior Lender
and the Secretary of the United States Department of Housing and
Urban Development require the Agency to agree that the provisions
of this Regulatory Agreement shall be junior and subordinate to the
security interest of the Senior Lender in the Property.
The Agency hereby acknowledges and agrees that the provisions
of this Regulatory Agreement are subordinate and junior to the
security interest of the Senior Lender in the Property. No breach
or default by the Borrower of any provision of this Regulatory
Agreement, nor the exercise by the Agency of any remedy it may have
against the Borrower in the event of such a breach or default shall
affect the security interest of the Senior Lender in the Property.
The Agency further acknowledges and agrees that if at any time
during the period when the Senior Lender has a security interest in
the Property, and either the Senior Lender or the Secretary of the
United State Department of Housing and Urban Development under the
terms of the FHA Agreement, may acquire title in the Property by a
deed in lieu of foreclosure, then in such event this Regulatory
Agreement shall automatically terminate and be of no further force
of effect.
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Section 3. Covenant of Borrower to Rent to Oua1ifving
T-"3"t:S: Covenant: of Borrower t.o Charae Affor~3r"le Rent:: Cov&nant.s
Reaardina Maintenance of Records.
(a) During the Term, the Borrower covenants that one hundred
percent (100%) of the units in the Project (exclusive of the two
(2) bedroom on-site manager's unit), for a total of 161 units,
shall at all times be occupied or held vacant available for rental
by Qualifying Tenants as follows:
(i) not less than sixteen (16) units shall be occupied or
reserved for occupancy by Qualifying Tenants whose income
shall not exceed fifty percent (50%) of Median Income,
adjusted for family size; and
(ii) not less than one hundred and forty five (145) units
shall be occupied or reserved for occupancy by Qualifying
Tenants whose income does not exceed sixty percent (60%)
of Median Income, adjusted for family size.
Determination of Qualifying Tenant Income shall be made by the
Borrower at the time of initial occupancy of a unit; upon each
renewal of a Qualifying Tenant's lease, recertification of
Qualifying Tenant Income shall be made. The Borrower shall obtain
and complete prior to initial occupancy and thereafter maintain on
file income certifications from each Qualifying Tenant renting any
of the units in the Property. The Borrower shall make a good faith
effort to verify that the income provided by an applicant (or
occupying Qualifying Tenant household) in an income certification
is accurate by taking one or more of the following steps as a part
of the verification process: (1) obtain an income tax return for
the most recent tax year; (2) conduct a credit agency or similar
search; (3) obtain an income verification form from the applicant's
current employer; (4) obtain an income verification form from the
United States Social Security Administration and/or the California
Department of Social Services if the applicant receives assistance
from either of such agencies; or (5) if the applicant is unemployed
and has no such tax return, obtain another form of independent
verification. On the anniversary of the occupancy of such unit the
Borrower shall recertify the household income of the Qualifying
Tenant household occupying the each unit. Copies of tenant income
certification shall be available to the Agency upon request. For
purposes of this Section 3(a), the Borrower may conclusively rely
upon the evidence of the age of the occupant(s) of the unit as
presented in a valid California Driver's License, other form of
identification issued by the State cr federal government which
includes a date of birth.
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(b) During the Term, the Borrower covenants that it shall not
charge in excess of Affordable Rent for any unit in the Project.
The Borrower shall increase rents based on changes in Median Income
only and no more than once in any twelve-month period.
(c) During the Term, records shall be established and
maintained by the Borrower relating to the use and occupancy of the
Project for affordable elderly person rental housing use purposes,
as authorized herein. The Borrower shall be responsible for
establishing and maintaining such records commencing on the date of
recordation of this Regulatory Agreement, and the Borrower shall
provide the Agency with copies of such records within thirty (30)
days of written request by the Agency.
(d) During the Term, the Borrower and all Qualifying Tenants
shall permit the Agency to conduct inspections of the Project from
time-to-time for purposes of verifying compliance with this
Regulatory Agreement upon thirty (30) days prior written notice to
the Borrower.
(e) Commencing on the June 30 next following the date of
recordation of this Regulatory Agreement and on each June 30
thereafter during the Term, the Borrower shall submit a report to
the Agency, in a form approved by the Agency. The annual report
shall include for each unit in the Project, the rent and the income
and family size of the Qualifying Tenant household occupying the
unit. The report shall also state the date the tenancy commenced
for each unit and such other information as the Agency may be
required by law to obtain; provided, however, that the Agency shall
take reasonable steps to maintain the confidential nature of the
information contained therein relating to any unit. The Borrower
shall provide any additional information reasonably requested by
the Agency, including without limitation such Project-related
income and expense accounting information. The Agency shall have
the right to examine and make copies of all books, records or other
documents of Borrower which pertain to any unit; provided, however,
that the Agency shall take reasonable steps to maintain the
confidential nature of the information contained therein. The
Borrower shall maintain complete, accurate and current records
pertaining to the units and the Project, and shall permit any duly
authorized representative of the Agency (during business hours and
upon not less than seventy-two (72) hours notice) to inspect
records, including records pertaining to income and household size
of Qualifying Tenants; provided however, that the Agency shall take
reasonable steps to maintain the confidential nature of the
information contained therein relating to any household.
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Section 4. Covenant of the Borrower With ReSD.ct to the
Renta~ of Units in th. Project. The Borrower for itself, its
successors and assigns hereby covenants and agrees that, in
connection with the rental of units in the Project to Qualifying
Tenants during the Term, it shall comply with the following
requirements:
(a) The lease between the Borrower and the Qualifying Tenant
shall be for not less than one year, unless by mutual agreement
between the Borrower and the Qualifying Tenant.
(b) The lease shall not contain any of the following
provisions:
(i) Agreement by the Qualifying Tenant to be sued, to admit
guilt or to a judgment in favor of the Borrower in a
lawsuit brought in connection with the lease;
(ii) Agreement by the Qualifying Tenant that the Borrower may
take, hold or sell personal property of household members
without notice to the Qualifying Tenant and a court
decision on the rights of the parties, other than an
agreement by the tenant concerning disposition of
personal property remaining the housing unit after the
Qualifying Tenant has moved out of the unit;
(iii) Agreement by the Qualifying Tenant not to hold the
Borrower or its agents legally responsible for any action
or failure to act, whether intentional or negligent;
(iv) Agreement by the Qualifying Tenant that the Borrower may
institute a lawsuit without notice to the tenant;
(v) Agreement by the Qualifying Tenant that the Borrower may
evict the Qualifying Tenant without instituting a civil
court proceeding in which the Qualifying Tenant has the
opportuni ty to present a defense, or before a court
decision on the rights of the parties;
(vi) Agreement by the Qualifying Tenant to waive any right to
a trial by jury;
(vii) Agreement by the Qualifying Tenant to waive the
Qualifying Tenant's right to appeal, or to otherwise
challenge in court a court decision in connection with
the lease;
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!Ill!
(viii) Agreement by the Qualifying Tenant to pay attorney's fees
or other legal costs even if the Qualifying Tenant wins
in a court proceeding by the Borrower against the
Qualifying Tenant; provided, however, the Qualifying
Tenant may be obligated to pay costs if the tenant loses.
(c) The Borrower shall not terminate the tenancy or refuse to
renew the lease of a Qualifying Tenant except for serious or
repeated violation of the terms and conditions of the lease; for
violation of applicable Federal, State, or local law; or for other
good cause. The Borrower shall, in connection with a termination
of a tenancy or a refusal to renew the lease, serve written notice
upon the Qualifying Tenant specifying the grounds for the action at
least thirty (30) days before the termination of the tenancy.
(d) The Borrower shall adopt written tenant selection
policies and criteria that:
(i) Are consistent with the purpose of providing housing for
individuals who are at least sixty two (62) years old and
have an income that is no more than the Qualifying
Income;
(ii) Are reasonably related to program eligibility and the
applicants' ability to perform the obligations of the
lease;
(iii) Give reasonable consideration to the housing needs of
individuals who occupy substandard housing (including
individuals that are homeless or living in a shelter for
homeless individuals); individuals that are paying more
than fifty (50) percent of their annual income for rent;
or individuals that are involuntarily displaced;
(i v) Provide for the selection of tenants from
waiting list in the chronological order
application, insofar as is practicable; and
a written
of their
(v) Give prompt written notification to any rejected
applicant of the grounds for any rejection.
(e) Except as may otherwise be required by the rental
requirements of the FHA Agreement, all of the units in the Project
shall be available for occupancy on a continuous basis to
Qualifying Tenants. The Borrower shall not give preference to any
particular class or group of persons ~n renting the units. There
shall be no discrimination against or segregation of any person or
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'Ii I'
group of persons, on account of race, color, creed, religion, sex,
sexual orientation, age, marital status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of any unit. Neither the Borrower nor any
person claiming under or through the Borrower, shall establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use,
or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of any Unit or in connection with the employment of persons
for the operation and management of any unit. All deeds, leases or
contracts made or entered into by owner as to the units or the
Property or portion thereof, shall contain covenants prohibiting
discrimination as prescribed by this Regulatory Agreement. The
Borrower shall include a statement in all advertisements, notices
and signs for the availability of units for rent to the effect that
owner is an Equal Housing Opportunity Provider.
Section 5.
the Pro;ect.
Rehabi1itation of the Project and Management of
(a) The Borrower hereby reaffirms its covenant and agreement
as set forth in the Loan Agreement to complete the rehabilitation
of the Project in accordance with the Budget Development/Scope of
Work attached as Exhibit -F" to the Loan Agreement (the
-Rehabilitation Work") within the period of time set forth under
the FHA Agreement.
(b) The Borrower shall be responsible for management of the
Project, including, without limitation, the selection of Qualifying
Tenants, certification and recertification of household size, and
income and the age of the head of household of all units,
evictions, collection of rents and deposits, maintenance,
landscaping, routine and extraordinary repairs, replacement of
capi tal items, and security. The Agency shall have no
responsibility for the management or operation of the Property or
the Project. The Project shall at all times be managed by an
experienced management agent (the "Management Agent") reasonably
acceptable to the Agency, with demonstrated ability to operate
senior citizen residential rental facilities similar to the Project
in a manner that will provide decent, safe, and sanitary housing.
For the purposes hereof, if the Borrower directly performs the
functions of the Management Agent by its employees or by means of
a service contract with an entity which is a managing member of the
Borrower, such a Management Agent shall be deemed approved by the
Agency. If the Management Agent is an entity or person other than
the Borrower, its employees or an entity owned or controlled by the
Borrower, the Borrower shall submit for the Agency's approval the
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identity of any proposed Management Agent, together with additional
information relevant to the background, experience and financial
condition of any proposed Management Agent as reasonably requested
by the Agency. If the proposed Management Agent meets the standard
for a qualified Management Agent set forth above, the Agency shall
approve the proposed Management Agent by notifying the Borrower in
writing. Unless the proposed Management Agent is disapproved by
the Agency within thirty (30) days, which disapproval shall state
with reasonable specificity the basis for disapproval, it shall be
deemed approved. The Borrower is hereby approved by the Agency as
the Management Agent for the Project. Any Management Agent
approved by HUD during the term of the FHA Agreement shall be
deemed approved by the Agency.
(c) The Borrower shall cause to have in full force and effect
during the Term hereof insurance coverage as follows:
(i) If any building or improvements on the Property shall be
damaged or destroyed by an insurable cause, the Borrower
shall, at its own cost and expense, diligently repair or
restore the Project consistent with the original plans
and specifications for the Project. Such work or repair
shall be commenced within One Hundred Twenty (120) days
after the damage or loss occurs and shall be completed
wi thin one year thereafter. All insurance proceeds
collected for such damage or destruction shall be applied
to the cost of such repairs or restoration and, if such
insurance proceeds shall be insufficient for such
purpose, the Borrower shall make up the deficience;
(ii) a policy of comprehensive general liability insurance
written on a per occurrence basis in an amount not less
than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.00) per currency, ONE
MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(iii) a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for the Borrower against any loss, claim or
damage arising from any injuries or occupational diseases
occurring to any worker employed by or any persons
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~1 r 1
retained by the Borrower in the course of carrying out
the activities in this Regulatory Agreement.
(iv) a policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less
than either (i) bodily 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.
All of the above policies of insurance shall be primary
insurance and shall name the City of San Bernardino and the Agency,
and their officers, employees, and agents as additional insureds.
The insurer shall waive all rights of subrogation and contribution
it may have against the City of San Bernardino and/or the Agency
and their officers, employees and agents and their respective
insurers. All of said policies of insurance shall provide that said
insurance may not be amended or canceled without providing thirty
(30) days prior written notice by registered mail to Agency. In the
event any of said policies of insurance are canceled, the Borrower
shall, prior to the cancellation date, submit new evidence of
insurance in conformance with this Section to the Executive
Director. No operation of the proj ect shall commence until the
Borrower has provided Agency with certificates of insurance or
appropriate insurance binders evidencing the above insurance
coverages, and said certificates of insurance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be
satisfactory only if issued by companies qualified to do business
in California, rated at least "A(vii)" or better in the most recent
edition of Bests Insurance Rating Guide or an equivalent rating in
The Key Rating Guide or in the Federal Register unless such
requirements are modified or waived by the Executive Director of
the Agency due to unique circumstances.
Compliance by the Borrower with the insurance requirements of
the FHA Agreement shall be deemed to meet the foregoing
requirements during the period that the FHA Agreement is in effect
so long as the Agency, City and their officers, employees, and
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r"-1T1I..
agents as additional insureds on all said policies as evidenced by
certificates of insurance issued to the City and the Agency.
The Borrower agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which the
Borrower may be held responsible for the payment of damages to any
persons or property resulting from the Borrower's activities or the
activities of any person or persons for which the Borrower is
otherwise responsible.
Section 6. Maintenance of the Project. The Borrower, for
itself, its successors and assigns, hereby covenants and agrees
that:
(a) The exterior areas of the Project which are subject to
public view (e.g.: all improvements, paving, walkways, landscaping,
and ornamentation) shall be maintained in good repair and a neat,
clean and orderly condition, ordinary wear and tear excepted. In
the event that at any time during the Term, there is an occurrence
of an adverse condition on any area of the Project which is subject
to public view in contravention of the general maintenance standard
described above, (a "Maintenance Deficiency") then the Agency shall
notify the Borrower in writing of the Maintenance Deficiency and
give the Borrower thirty (30) days from the date of such notice to
cure the Maintenance Deficiency as identified in the notice. The
words "Maintenance Deficiency" include without limitation the
following inadequate or non-confirming property maintenance
conditions and/or breaches of residential property use
restrictions:
failure to properly maintain the windows, structural elements,
and painted exterior surface areas of the dwelling units in a
clean and presentable manner;
failure to keep the common areas of the property free of
accumulated debris, appliances, inoperable motor vehicles or
motor vehicle parts, or free of storage of lumber, building
materials or equipment not regularly in use on the property;
failure to regularly mow lawn areas or permit grasses planted
height, or failure
in a reasonable
in lawn areas to exceed six inches (6") in
to otherwise maintain the landscaping
condition free of wed and debris;
parking of any commercial motor vehicle in excess of 7,000
pounds gross weight anywhere on the property, or the parking
of motor vehicles, boats, camper shells, trailers,
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11111
recreational vehicles and the like in any side yard or on any
other parts of the property which are not covered by a paved
and impermeable surface;
the use of garage areas on the property for purposes other
than the parking of motor vehicles and the storage of personal
possessions and mechanical equipment of persons residing in
the Project.
In the event the Borrower fails to cure or commence to cure
the Maintenance Deficiency within the time allowed, the Agency may
thereafter conduct a public hearing following transmittal of
written notice thereof to the Borrower ten (10) days prior to the
scheduled date of such public hearing in order to verify whether a
Maintenance Deficiency exists and whether the Borrower has failed
to comply with the provision of this Section 6 (a). If, upon the
conclusion of a public hearing, the Agency makes a finding that a
Maintenance Deficiency exists and that there appears to be non-
compliance with the general maintenance standard, as described
above, thereafter the Agency shall have the right to enter the
Project (exterior areas only) and perform all acts necessary to
cure the Maintenance Deficiency, or to take other action at law or
equity the Agency may then have to accomplish the abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the
abatement of a Maintenance Deficiency as authorized by this Section
6(a) shall become a lien on the Property. If the amount of the
lien is not paid within thirty (30) days after written demand for
payment by the Agency to the Borrower, the Agency shall have the
right to enforce the lien in the manner as provided in Section
6 (cl .
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Property shall be removed by
the Borrower from any exterior surface of a structure or
improvement on the Property by either painting over the evidence of
such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed
with solvents, detergents or water as appropriate. In the event
that graffiti is placed on the Property (exterior areas only) and
such graffiti is visible from an adj acent or contiguous public
right-of-way and thereafter such graffiti is not removed within 72
hours following the time of its application; then in such event and
without notice to the Borrower, the Agency shall have the right to
enter the Property and remove the graffiti. Notwithstanding any
provision of Section 6(a) to the contrary, any sum expended by the
Agency for the removal of graffiti from t~e Property as authorized
by this Section 6 (b) shall become a lien on the proj ect. If the
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!III'
amount of the lien is not paid within thirty (30) days after
written demand for payment by the Agency to the Borrower, the
Agency shall have the right to enforce its lien in the manner as
provided in Section 6(c).
(c) The parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 6
expressly include the power to establish and enforce a lien or
other encumbrance against the Property in the manner provided under
Civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the Project to the maintenance
standard required under Section 6(a) or Section 6(b), including
attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such
action. In any legal proceeding for enforcing such a lien against
the Property, the prevailing path shall be entitled to recover its
attorneys' fees and costs of suit. The provisions of this Section
6 shall be a covenant running with the land for the Term and shall
be enforceable by the Agency in its discretion, cumulative with any
other rights or powers granted by the Agency under applicable law.
Nothing in the foregoing provisions of this Section 6 shall be
deemed to preclude the Borrower from making any al tera tions,
addi tions, or other changes to any structure or improvement or
landscaping on the Property, provided that such changes comply with
the zoning and development regulations of the City and other
applicable law.
Section 7. Covenants to Run With the Land. The Borrower
and the Agency hereby declare their specific intent that the
covenants, reservations and restrictions set forth herein are part
of a plan for the promotion and preservation of affordable housing
within the territorial jurisdiction of the Agency and that each
shall be deemed covenants running with the land and shall pass to
and be binding upon the Property and each successor-in-interest of
the Borrower in the Property for the Term. The Borrower hereby
expressly assumes the duty and obligation to perform each of the
covenants and to honor each of the reservations and restrictions
set forth in this Regulatory Agreement. Each and every contract,
deed or other instrument hereafter executed covering or conveying
the Property or any interest therein shall conclusively be held to
have been executed, delivered and accepted subject to such
covenants, reservations, and restrictions, regardless of whether
such covenants, reservations and restrictions are set forth in such
contract, deed or other instrument.
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'III
Section 8. Burden and Benefit. The Agency and the
Borrower hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the land
in that the Borrower's legal interest in the Property is affected
by the affordable dwelling use and occupancy covenants hereunder.
The Agency and the Borrower hereby further declare their
understanding and intent that the benefit of such covenants touch
and concern the land by enhancing and increasing the enjoyment and
use of the Project by the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the affordable
housing goals and objectives of the Agency and in order to make the
Property available for acquisition by the Borrower.
Section 9.
~.
(a) The provisions of this Regulatory Agreement shall apply
to the Property for a term of fifty five (55) years following the
date of recordation of this Regulatory Agreement.
(b) Any provision or section of this Regulatory Agreement may
be terminated upon written agreement by the Agency and the Borrower
if the Agency in its reasonable discretion determines that such a
termination will not adversely affect the affordable housing goals
of the Agency.
Section 10.
Breach and Default and Enforcement.
(a) Failure or delay by the Borrower to honor or perform any
material term or provision of this Regulatory Agreement shall
constitute a breach under this Agreement; provided however, that if
the Borrower commences to cure, correct or remedy the alleged
breach within thirty (30) calendar days after the date of written
notice specifying such breach and shall diligently complete such
cure, correction or remedy, the Borrower shall not be deemed to be
in default hereunder.
The Agency shall give the Borrower written notice of breach
specifying the alleged breach which if uncured by the Borrower
within thirty (30) calendar days, shall be deemed to be an event of
default. Delay in giving such notice shall not constitute a waiver
of any breach or event of default nor shall it change the time of
breach or event of default; provided, however, the Agency shall not
exercise any remedy for an event of default hereunder without first
delivering the written notice of breach as specified in this
Section 10.
SBE0/0001/DOC/4111-2
10/11/00 1145 jrnw
16
I
'III'
Except with respect to rights and remedies expressly declared
to be exclusive in this Regulatory Agreement, the rights and
remedies of the Agency are cumulative with any other right or power
of the Agency or the City or other applicable law, and the exercise
of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other
right or remedy for the same breach or event of default.
In the event that a breach of the Borrower may remain incurred
for more than thirty (30) calendar days following written notice,
as provided above, an event of default shall be deemed to have
occurred. In addition to the remedial provisions of Section 5 as
related to a Maintenance Deficiency at the Project, upon the
occurrence of any event of default the Agency shall be entitled to
seek any appropriate remedy or damages by initiating legal
proceedings as follows:
(i) by mandamus or other suit, action or proceeding at law or
in equity, to require the Borrower to perform its
obligations and covenants hereunder, or enjoin any acts
or things which may be unlawful or in violation of the
rights of the Agency; or
(ii) by other action at law or in equity as necessary or
convenient to enforce the obligations, covenants and
agreements of the Borrower to the Agency.
(b) Except as set forth in the next sentence, no third party
shall have any right or power to enforce any provision of this
Regulatory Agreement on behalf of the Agency or to compel the
Agency to enforce any provision of this Regulatory Agreement
against the Borrower or the Project.
Section 11. Governinq Law. This Regulatory Agreement shall
be governed by the laws of the State of California.
Section 12. Amendment. This Regulatory Agreement may be
amended after the Delivery Date only by a written instrument
executed by the Borrower and by the Agency.
Section 13. Attorney's Fees. In the event that the Agency
brings an action to enforce any condition or covenant,
representation or warranty in this Regulatory Agreement or
otherwise arising out of this Regulatory Agreement, the prevailing
party in such action shall be entitled to recover from the other
party reasonable attorneys' fees to be fixed by the court in which
a judgment is entered, as well as the costs of such suit. For the
S8EO/0001/DOC/4lll-2
10/11/00 1145 jrnw
17
11111
purposes of this Section 13, the words "reasonable attorneys' fees"
in the case of the Agency include the salaries, costs and overhead
of the lawyers employed in the Office of the City Attorney of the
City of San Bernardino.
Section 14. Severability. If any provision of this
Regulatory Agreement shall be declared invalid, inoperative or
unenforceable by a final judgment or decree of a court of competent
jurisdiction such invalidity or unenforceability of such provision
shall not affect the remaining parts of this Regulatory Agreement
which are hereby declared by the parties to be severable from any
other part which is found by a court to be invalid or
unenforceable.
Section 15. Time is of the Essence. For each provision of
this Regulatory Agreement which states a specific amount of time
within which the requirements thereof are to be satisfied, time
shall be deemed to be of the essence.
Section 16. Notice. Any notice required to be given under
this Regulatory Agreement shall be given by the Agency or by the
Borrower, as applicable, by personal delivery or by First Class
United States mail at the addresses specified below or at such
other address as may be specified in writing by the parties hereto:
If to the Agency:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Attn: Director of Housing and
Community Development
Phone: (909) 384-5081
If to the
Borrower:
A. F. Evans Company, Inc.
100 Bush Street, Suite 925
San Francisco, California 94194
Attn: Jack Robertson
Phone: (415) 461-4900
Notice shall be deemed given five (5) calendar days after the
date of mailing to the party, or, if personally delivered, when
received by the Director of Housing and Community Development of
the Agency or the Borrower, as applicable.
Section 17. Priority of FHA Aareement. During the period
of time when the FHA Agreement is in effect with respect to the
Project, compliance by the Borrower with the requirements of the
SBEO/0001/DOC/4111-2
10/11/00 1145 jrnw
18
11111
FHA Agreement shall be deemed compliance by the Borrower with
requirements of this Regulatory Agreement and in the event of a
conflict between any such provision of this Regulatory Agreement
and the FHA Agreement, the requirements of the FHA Agreement shall
control.
IN WITNESS WHEREOF, the Borrower and the Agency have caused
this Regulatory Agreement to be signed, acknowledged and attested
on their behalf by duly authorized representatives in counterpart
original copies which shall upon execution by all of the parties be
deemed to be one original document.
BORROWER
AFE-Pioneer Associates, L. P., a
California limited partnership
By: A. F.
California
partner
Evans Company, Inc., a
corporation, its general
Date:
By:
Name:
Title:
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated:
By:
Executive Director
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
Agency Special Counsel
SBEO/0001/DOC/4111-2
10/11/00 1145 jrnw
19
SBEO/0001/DOC/4111-2
10/11/00 1145 jrnw
'1111
EXHIBIT "A"
Legal Description of the Property
20
'1111
EXHrBIT UZ"
Qua].ifyinq Tenant IncOllle CeJ:tifj,cat:i.on
SBEO/0001/DOC/4106-3
10/11/00 950 jmw
19
!IIII
EXHIBIT "E"
QUALIFYING TENANT INCOME CERTIFICATION
Pioneer Park Plaza Affordable Elderly Rental Housing Project
(FHA Agreement No. 143-11047-PM-PUR/CON)
TO: Redevelopment Agency of the City of San Bernardino
The undersigned hereby warrants and represents to the
Redevelopment Agency of the City of San Bernardino (the "Agency")
that as of the date of this Certification each of the following is
true with respect to me and my occupancy of rental dwelling unit
no. at the Pioneer Park Plaza Affordable Elderly Rental
Housing Project:
(1) I am an "elderly person" -- I am at least 62 years of age
as of the date of this Certificate and I have provided
true and correct written evidence of this fact to the
landlord, AFE-Pioneer Park Associates ("Landlord");
(2) As part of my preparation of this Certification, I have
provided true and correct written evidence of the annual
income of all persons who will reside in my unit to the
Landlord and based upon such information, the Landlord
has confirmed to me that my household income does not
exceed % of "Median Income" and;
(3) I hereby authorize the Landlord to provide copies of the
information described in (1) and (2) above, to the Agency
and I further agree to provide such supplemental
information relating to items (1) and (2) above, as the
Agency may reasonably request upon thirty (30) days
written notice from the Agency;
(4) My 0 occupancy/ 0 renewal of my existing lease [check
one box, as applicable] of the rental unit shall begin on
[date] ;
(5 )
The
$
rent
which
per
I shall pay for
month and this
the rental
rental sum
unit is
includes
Date:
By:
Name:
Address (Unit No.
SBEO/0001/DOC/4195
10/11/00 1015 jrnw
1
SBEO/0001/DOC/4l06-3
10/11/00 950 jrnw
I' ill II
EDIBI'l! "1'''
BeDGE'l! DBVELOPMEN'l!/SCOPE 01' WORK
20
OCT. 3. 2000
1:52PM
B~lllIot Developmont I Seope of Work
PIDnaor Park Plaza ApoIrtm'nlll
Sin "moflll~D, CallfDmlo
"Ot " """",,,
,.,., , . , .,
::' ::'.;'1:..:,::i.: ,,', ,,, """.,'"
COncme ..II utIIIr '" I'. Canvll nee of .~rflICI walllr
M halllc vamonlova~ nr w11h tI1lmOllln 101.5' aboVe F.P.
h'I~. eve,,",nt Ichin. I<ocom cI beee mataliol al1ll ro loco.
As .111.. aod b~m . at ~ncl I drtve I.n.. Ihrou h ..
As Iulllle slU ...llIIandra rtcln lot.
e<lnIdod Cllrbln '" .Ir .lealocl8d lo..donelhrough elle.
Partcl ellIllellt In
CDncrelil bella'" Iocem.n~ ID ",Yont vehicle drive nolnodon.
nee I ",bOlIllln ID 8' .oulh.m lot !Dr drain. ..
Concrara bum r lIIll s.
IrrllArPRl1CIDDt...b..:, ,n ,,, ': j~,,, ",.. ,.1,
"'MIll W. " ...." ",..."
,rmmnl: ..,
m I co~tnlll.r ......m.nt
Main IIna ra Irs, back1law raVlnlO, ra airs and cOiiiiGiiOr
I'B sirs UI1ii..,s"t to .I&GBSliiment 1"8 an.
l' .... ro ho.d ,a Iocem.nt (Singl. 1'1..,)
l' '" 1oWn. 'nld., head", lacemont (Slnglo Rls.
I<cta a u s haad In ",lion
\.aleralllna bmsl< re 01, 3/4'dlomaler P.V.C.
Vacuum bm.,,"rs far hasa bibs ere ulrad
Valvo bOX rotnlfitling: 10' round wilh lid
Area drain fdler fabric Iocement Rnd flu.hln
WaSllm BI ..ss sad 1mB radon 01 balll .IIIas
318'" Docam aead gronllo ground cavo,
OaClllll a..d ranlle lid In board
10' x 10' ElavalBd 12' landn bad. al mam.lln allla.. Plant wllh color.
lsVDI onD ne trimming !Dr slle
IrDQ1:1ar'll!rlgatlon 1.t;lln...f;lIptnDI~I'II.:Trlmmlng. .
C.S,I.l!IQQO..Ca
. ..n, ",I ",.,
Sidawulk nl1llin ID elimln.te trI h.zard'
Rsmava .nd ra la.. fallld caSlin laco sld.wallCli. (3.5" w 12500 .s.i.
Prenure Wishing of exit en~osure fletwork und ra-cast 1T8aC:&
l~alIl.1p, llDne,""':' :: '
,;48DO "'.I.nl: .. "..,,,,,
.,.
:,::',:::: I::"
'I" ,.
Raise slum ~laC/< erima"', wen. lD S'O' to ",vent
unwelcome cum" over nEltretion.
Wcilil:torll1l11onlY:,:: , ,:.::":::",,
0.5.1; ~OQQ "'01a11,1::0 omlntal" ran "
-:
Re lice re-caet b'Bed! on stllll stair sh1 err;
S t weldl of slalr cleats. h.nd",II.. guol'CI"'i1o ond ba.. la!Os
S at waidl of amomentall..n rimoler fance.
Add omomental iron fonce baC/< of sld.walk. Bulldl "lI.' IG street
Ca art trim ra .Ir
ITotiIl,fpf M.,&IIll;.,l QrnllMnhil'lrcm : .
" .: :~, ,~" ,": ~.~ . ~"
1013/00
,,"u
751.1,
Nale Rcabla
400..f.
Add 8D I.f.
A rolmalO 53.000 1 . ft.
roImata 30 I.f.
160 IDIaI ellIlIs + 5
NPl. Iicablo
raxlm.tol 90 1.1. to cull.1I
Not a Ilcaole
.,..'",
....." ,,> .".,
... "",,, ,II
::::::.
NO.101
I iii:
P.3
EXHIBIT F
,"" Unll
$1.275.00
$0.00
$600.00
930.40
,710.00
5200.00
$860.30
$0.00
S6,S8D.00
50.00
."",,,..,"
,..".,..""
"""... ..~
..",.''''''
51M7UQ I
Unknown
Unknown
Unknown
Unknown
UnIcnawn
16lOUlI
Unknown
Not A llcabl.
Not Ilca~le
Not licobl.
Nol nCllblo
, Lum Gum
Not licable
"" "",." "I'
$3DO.oO
$0.00
$4.62
54.62
518.56
$42.50
$8.26
521.80
525.00
50.20
48.30
$o.OB
$2.750.00
300.00
$0.00
$123.76
52.750.00
$0.00
" . > .
',": ,:,:, ,::0:', '.'.", 1 .. -: ~,173.T51
n.Ulrl' on
801.1.
Not A IlcablD
Not Ilcabl.
I\uum on':
, , : ;; :~ '
" ,,:,
", ,. ~ :" ~ :~ ~ ! -: :: : '
'n I: 1lI1":'
I ""'QIl
SS.20
55.00
0.25
$496.00
$0.00
$0.00
::': ::. ,~; :: , :
:: :$Mia.OQ I
700 1.1. ItWO w .s)
onlulr.'on"Mlum on::unll ,..,", II III
513.750.00
om<urllllpn I :M"umgll~n :
Not A llcabla
Not llcable
1 Lum lium
2001.1. wllh dlsmn golO.
Not A llcablo
1,,'1
.'1>''''
::;'i:::;::.:::;
:,..:::-.
513.750.00
'. '. .. I :, ':'::~1~,7~
n all.:.' ," "".",,, Valu on.' .",
I .' ,.
5500.00
527.50 .J.I.
500.00
56,500.00
1 .::, ,:.,:. :$S;QOQ,DO ,I
Page 1 of 3
1111
OCT. 3.2000
1:~4""M
.: Q 1l~"'J1or. nl hIS .: ..:. ,,,,.
Mona~ 0 . ~N on.:'", nlll
SOD s . It
1 Lum sum
l\S$um Uve b.sis
As5um UVI bills
NDtl llcablo
8.1
52.0DD.00
$475.00
38.64
$D,94
$<I.ll65.DO
.DOO.DO
75 ODO.OO
$5182.40
$0.00
SIUCCO lItchin _ludlull.mlc worl<.
61UCCO c:nlck fill re Ir
FUll _rlor bundln re inting; GlUCCO and Wh8ro 0 Ilcsble. woad.
CIl ort alnUn
wrou ht Iron rlml1Sr flnce end 001 fonco... .Im
Iroto1,~,""lI!lllll1or'!ilnlllhP""I:: :,,"'::'.::." ::.:;.:..:, .: :: ..'"
",'i""
.,.,. ..,
...,."" ,,,'"
:'::;"::.:.!.:,:." ..."".1.",,"
,':" '" ",'n''''''''''''''
::::'
I'
" .".
. .
, :$85,2/17 All I
;$,l.ilOPPP 5 o,*IUeo., ...::::'. :::':.:: ".:~.:::, ,:'" : "
I",Amloni'
1 loum .um.
1 Lum .um.
1 ~um .um.
oat :
, "
"Il
$' .850.00
$6.500.00
$<I.SOO.OD
Mar\<llU flag. and banno..., with o"'s.
Monument 81 n It rinei II Intranco.
BU Id and unit number Idantificatign Ie uos.
$1.960.
58.5DO.0
$<I.5DO.DD
IEliIlfii. flllil' ..,. ",..,......
.a, paR'" ," ! """"''''1.
""" ."
. "
., '..,'
........_---...~
.' <,' . :'"",,,,' ',:.:.::'
"..., " ...', .
--.. .,....'.. ~..-......
,...,.."" .. ..,' I r"'" .... '.1.a50'~ I
.. """', ~"" ,~.. ~~:': ,: '~':::.::""" JlI"" .....
C~SJ.:1Il1QO':PU Ilhlna, . ., " .. . ,..:!,":~~'''''-''""'"7:'-,,'
'."""""11 ,"" lir""url"on'l oIQumallQn: .:: . : ro;nRlIoJl.l11.rUnll:: rIlll1Y~IlI1:"'--
F,V.C. Vartical Blinds 480 locoUon. Iolal IWG. $65.00 $31.2DO.OD
P .V.C. HorIZontal Bllnda Not llceble 50.00
P.V.C. HorizDnI8l Blind. NO~ ncoble $1l.00
CIlllln.lan I wItI1solicl blocking. 'For Ineroasod C.F.M. 01 air. Not '<':cebl. AVG. 595.00 50.00
caillngll fixture'; Al.~ BEDftOOMS 160 Iot.l ~nlto. 535.00 $5.8DD.00
Ceilino I'oht fllClil...; 1'0' ftuoroscant ,,",,0. 1S0 lOlal units. $50.00 lIiIl.DDD.DD
B'llhroom oxI1a~otfan. 80 C.F.M. A.o~me 30% ro1ro!1l1lno. 5110.00 S6.280.0D
TOb surround retrofl\llno. Asoume 1 Dill ...Irofllttno 54DS.DD lIiIl.480.00
Mixlno valve Ill'Im lor ahower ond tub. Asluma 10% retrofitUng 5152.95 $2.447.35
Bathroom vanllY cablnlt with cultUred marbla lOo. As.ume 16% retrofllllno' 79.DO $8.8Elli.00
Dresaino area venllV cablnOl wllh cultul8d marblo NOlA llcabl. 79.DO $0.00
eoriiiilO18 klthcen cabinet door and drawer loee relrollUlno As.umo 5% rotrofiltlno $900.00 U.20D.OO
Bathroom venUv well mount milTIll' Ass.mo 10% 1811tJ11ltlno $58.DO 5926.00
Dl8sslno a.... vanltv wall moum mirror. Not AlHlllceb'" $58.00 $0.00
Bar Iamo wall mount r.du..... (38'1 160 10111 unilli. $32.00 $5.120.00
T~b chTD ...oolr. Asluma 15% 01 tola' unilo $36.00 5840.00
3D' duclod 1I0va hood relrOllllln.. .. 18010181 unti. $82.00 iI!l.920.00
CounlOrIO ...s.rilci . kitd.an. Assuma 15% or tolal unit; 5145.00 $3.480.00
Counte "'olacomont. kIlchon. .. I\S$U,"" 10% of loto' Jnits $~.OO 55.200.00
CounllrlOo ....urfecfon. bathroom. AlBum. ~ l.,~~ ::1lt12' Jnlts 568.00 51.63.2.00
Counlonon l8olacemont bathroam. Assume 10% or tolll unill; ~.OD $1.264.00
Coonl8r1Oo re..rilel", dresslno are.. Not Aoolleablo $88.00 SD.DO
Counl8rtOD reolacomam. dro..lno aroa. Not AoDllceolo 17S.00 50.00
4' da"" mounl8d lavalDrv Iaucet. Allume 15% 01 toto I unils 547.00 $1.128.D0
e" deck mounted kitchen mixer faucet. Assume 1 5% or lolal unito $66.00 $1,550.00
l,av"""" and Orol.ln ArBa links. wItI1 now drein. wa.ta and .uool" linos. l\S$umo 16'.. of lotB' unito $82,00 $1.1l68.0D
Kitchen sink. with now drain. wa.te and su I llnal. A..umo 15% of total units $132.00 53.168.00
Inl8o...lIoo ol.......r savor'" dovlcss for taucets. showartJBads end toilol.. NoIV./mell. 59.0DD.DD SS ODO,DO
3D' Hollow co... 518b door;. wllh'Da..ao.IOC...I.l1Iu.h oanol\ Assume 15% of towl unltG 565.00 11.512.00
24" Hollow cora Blab doors. with oaS5llg. lce...t. Nol ADoPcabla 561.00 50.00
36" Solid core Drlmarv entrance door Blab. with deadbolt. n,l, and clD6ure. A..ume 5% ollDlal units. 5336.00 52.Sea.00
Wardrobe door retrofltling. AssUllIe15% ollotsl unit. 511300 52.712.00
CGn>otihg for unl!5:
1 Badroom /1 Blth '15Dl 471 s".I~ 153 ..v. x 160'''- 511.25 $95.400.00
2 B.droom / 1 B.th 10\ SD.DD
VliWiforunlls:
1 Bodroom /1 Bath 11601 70 llfl. f~ (6 s.v. x 160\ "" 512.00 515.360.00
2 Bedroom / , Bath 10\
SUb.trall ronalr, . - ..
"_. .. -. Allowar.:e 58.800.00
lIancos for unllS:
14.4 c.f. G.E. Modo' TBX,45 r.1liOOraror. Assume 70 % Dr tgtal units 5585.67 543.161.44
G.E. MODI: go. rang.. AIBurne 70 % gf total unitt 5315.00 $55.2BO.00
1013/00
Poge 2 of3
I
~
OCT. 3.2131313
1:55PM
NO. 1131
1111
P.5
WhIn"".1 Model DUBOODWGX dlshw..her NDII""llcable. 1&201.49 + Inslanellon. ~.oo
12 sau.ra loot vi"'" landln' II orimeN ennnell doo' Nole..llcabl. $12.00 .00
DlW/III~ IhlDllgh to lUlu... (Holes) Allowance $50.00 .e, unit. $8.0DO.00
InteriorPelnllntl:
1 B.d"""" /1 Both Assume 80 III 0110181 unlIB 5335.00 542.880.00
2 Bodroom /1 Blth &385.00 50.00
Nole: MilCllleneous eloc:tr1Cl1llnd plumbing trim, and VlriDUS moil1l8nanca
",Iated items ers exdud.d lrom \his caslchool.
IIlIlllDmm,"d_~ lla/I1ll: G ",. :s373.8Il.4-aO]
M
ra Ion"..".:'''' ""."" .:.... Un eN ..
, 0> ".
"" '...,M
k. 't::.':' ':"
Assum Dve basis 0120 180 C.S.F.
1 Lum cum
511.25
511.50
$1.50
$8 ,000.00
532.187.50
58.234.00
30,240.00
$2.000.00
I!rDtlilfAt."l;IMI Qanltrbdlon :,'i::"::": },', :,': :,,,:, : '; :,:::: , . '
"::.:!,'! ::: :..:'::,::,,:,'::.:.':, I
.'
:-::
, .: :J":,:: . . : 51Cf.871"~
C.ll.h~5 o '''Ium~lng .nd"M.GhonIRII :"'''''' :,. ' ... ..
M....Ul'llaDn ~. ::.:: :; .,;..::': ,':::: Unll R"l~ ' .. ., VolulllIM::: .....:..:'
Fi8iilacomont of \hIllUgh 11'1. wall ai, condlDonina uniIB: A..um. 40 % 0I1llla1 5705.00 546,120.00
Ae....m.1ll of air condlDonina un~ o.oratlon. , 160 IDcoUon. Olus 3 addlnDnal $30.00 $4,89000
Boll.' Infrlll1IUClUro u Ind "'.01, , 4lOll1l. 53.750.00 515.000.00
Nolel CHEiCK WITH A.Q.M.D. FOR OTllER REQUIREMENTS UNKNOWN UNKNOWN UNKNOWN
ReDI.eomtlnl 01 aC Oa wall hoIll81l1 ASsumo 16% Df lolal 5365.00 58.760.00
Assessmont of gal DIck wall hoallrs 160 loceIlons Illlal 530.00 $4 800.00
Troall118nt or domo.Oc wall' sYcl8m 1 Lumo .um. $2.250.00 $2.250.00
Plumbl re.al, allowance for 7 idlnOllod nroblom unno. 1 Lum lum. $3.150.00 53.150.00
EIOYBIo, A.D.A. un.radlnn and rilD.irs. 4_IIDcanono. $19,000.00 576.000.00
Illllallon volvo fo' domosllc walll' service I eeeh building. 2 1olllloce000s '5 000.00 55,000.00
..P.ulOplng.nd MIC '" l"':""'::: ::,:',,:1'::': :', '
.,,""',;..:..: :'::,':":I!'!'::": :.::;;':"',;:,:.:.; ':':.t:~ "".,",,, .:.,,:;',;, 1 lit7Q.OD
UI: ,~I 011.....
.,.nlur on:..:::',:.:'."....,:,"... "I lISl:,
160101a110ceUons
18 IlllallaC3ticn.
16010la1lacallons
50 IotelloCllllans
50 lotallacatigne
:~, :.': ':.- V
21.00
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Page 3 of 3
EXHIBIT "G"
SUBORDINATION AGREEMBN'.r FOR AGENCY DEED OF 'l!llOST
SBE010001/DOC/4106-3
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Redevelopment Aqency of the
City of San Bernardino
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RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
(Space above for Recorder's Use)
REDEVELOPMENT AGENCY Of THE CITY Of SAN BERNARDINO
pioneer Pa=k Plaza Affordable
Elderly Rental Hous~ng Project
(:HA Agreement Project No. l43-1l047-PM-PUR!CON)
LOAN SUBORDINATION AGREE~ENT
THIS LOAN SUBORDINATION AGREEMENT made this _ day of
, 2000, by and between the Redevelopment Agency of the City
of San Bernardino, (hereinafter somet~mes referred to as
"Beneficiary") and AZE-Pioneer Asscc~aces, L.?, a Ca:ifor~~a
limited partnership, (hereinafter referred to as "Trustor," or
"Bor=ower") .
-- WITNESSETH
WHEREAS, the Beneficia=y and the Eorr~wer have entered into
that certain agreement entitled "Loan Agreement (Pioneer Park Plaza
Affordable Elderly Rental Housing Project)" dated as of October 16,
2000 (the "Agency Loan Agreement") whereby the Beneficiary has
provided the Borrower with a loan of funds (the "Agency Loan") in
the original principal amount of Two Hundred and fifty Thousand
Dolla=s ($250,000.00) as authorized '..mde= Health and Safety Code
Section 33334.2 for the purpose of assisting the Beneficiary to
ac:::;u~re the lands and improvements located at San
Berna=dino, California (the "Property") f~r the operation thereon
of an affordable rental housing facility reserved for occupancy and
use by elderly persons, all as more f~lly set forth in the Agency
Loan Agreement.
tlHE:REil.S, a legal description of ~.." Property is attache::
hereto as Exhibit "A".
SBEO/OQ01/OOC/4185-1
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:1111
WHEREAS, the Agency Loan is evidenced by a promissory note of
even date herewith in favor of the Beneficiary and payable by the
Borrower (the "Agency Note"), and the Agency Note is secured by a
deed of trust of even date herewith affecting the Property (the
"Agency Deed of Trust") as executed by the Borrower and delivered
to the Beneficiary, and certain elderly persons affordable rental
housing covenants of the Borrower in favor of the Beneficiary which
arise under the Agency Loan Agreement are evidenced by the Agency
Regulatory Agreement, of even date herewith, by and between the
Beneficiary and the Borrower;
WHEREAS, Berkshire Mortgage Finance Bethesda Limited
Partnership, a Massachusetts limited partnership (the "Superior
Lender") has agreed to make a loan to the Borrower in an original.
principal amount not to exceed $4,400,000.00 (the "Superior Loan")
which loan is for the purpose of acquiring and rehabilitating the
Property, and said Superior Loan '..ill be insured by the U. S.
Department of Housing and Ur;,an Devel09men;: ("HUD") aceing by and
through the Federal Housing Adrninistn;:ion ("F:!A") under the terms
anc. conditions of that certain instrument entitled "Regulatory
il.greement for Multifamily Housing Projects" dated as of
2000, by and bet-..een the Beneficiary and HUD (the "FHil. il.greemen;:") ;
WHEREAS, the said Superior Loan is evic.enced by a certain Deed
of Trust Note dated November __, 2000, and is secured by a Deed of
Tr;].s-:, dat:ed November 2eOO, f::::m 3c==o'tJe:: in ra-rc= 0': t:-.2:
Superior Lender; and
WHEREAS, the Borrower and Beneficiary are desirous of having
the Agency Regulatory Agreement, the Agency Deed of Trust, the
Agency Note and other relevant Agency Loan documents as set forth
under the FHA Agreement, securing and benefiting the Beneficiary
subordinated to the said Superior Loan, i;:s Deed of Trust,
Fi~a~cing Agreement, the FHA Ag~eement and any othe= relevant loa~
document required by the Superior Lender or HUD.
NOW, THEREFORE, in consideration of the premises and as an
i~ducement to the Supe=ior Lender to make t~e Supe=ior Loan to the
Borrower, the Borrower and the Beneficiary jointly and severally
hereby acknowledge and agree that the lien of the Agency Deed of
Trust in the Property, and the covenants in favor of Agency in the
Property as arise under the Regulatory Agreement and other related
documen;:s affecting the Property by and between the Borrower and
the Beneficiary, are subordinate and subject: to the lien, operation
and effect of the Superior Lender in the Property, including
w~~~cuc limitation the Deed of T::ust executed by t~e 3ene:icia=y ;~
favor of the Superior Lender on even date herewith.
S3EC/OOC1/DCC/'185-1
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IIIII
It is hereby understood and agreed between the Beneficiary and
the Borrower that:
1. The aI:love recitals are incorporated herein and made a
part of this Subordination Agreement.
Z. The Superior Lender would not provide the Superior Loan
to the Borrower unless this Subordination Agreement of
the Beneficiary and the Borrower is duly executed by
authorized principals or representatives of each of the
parties hereto and filed for record against the Property.
3. Any change in the amount of the Superior Loan must have
prior written approval of the Beneficiary.
4. The Superior Lender, and any successor or ass~gn, sha~~
give the Beneficiary written notice of any default or
event of default contemporaneously with the giving 0:
notice to the Borrower. It is hereby understood and
agreed that the Benefic~ary, may, in its sole discretion
(but without obligation to do so) elect to cure any
default of the Borrower.
5. Beneficiary shall provide the Superior Lender or its
successor or assign written notice of any default or
event of default contemporaneously with the giving of any
default notice to the Borrower.
6. This Subordination Agreement is executed in two (2)
counterparts, each counterpart being an original.
SBeO/0001/OOC/41BS-l
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III II
IN WITNESS WHEREOF, the parties hereto have executed this
Subordination Aqreement as of the date first set forth atlove.
BENEFICIARY
Redevelopment Agency of the City of
San Bernardino
By:
Judith Valles, Chairperson of the
Community Development Commission
of the City of San Bernardino, its
governing board
By:
Agency Secretary
BORROWER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
partner
By:
Name:
Title:
saEO/0001/OOC/41BS-l
10/9/00 330 jmw
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n~ I :
100 Bush Street, Ste. 925
San Francisco, CA 94104
Main I 415.393.5250
Facsimile 1415.393.5251
Direct 1415.591.2211
E-Maillmlim@sf.afevans.com
www.afevans.com
TRANSMITTAL
DATE: December 6, 2001
TO: Maggie Pacheco, San Bernardino Redevelopment Agency
FROM: Marianne Lim '/h. .L-:.-
SUBJECT: Pioneer Park Plaza - San Bernardino
Enclosed please find copies of the following documents for the above referenced project:
. Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing
. Promissory Note Payable to a Public Agency Secured by a Subordinate Deed of Trust
. Redevelopment Agency of the City of San Bernardino Regulatory Agreement and Covenants
. Loan Subordination Agreement
. Regulatory Agreement and Declaration of Restrictive Covenants
I just went ahead and copied the whole document. It was easier than picking out the signature
pages.
Let me know if you need anything else.
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R.....rded Ln OrUcLal _u.. county of
San BernardLno. Larry Walker, Recorder
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
Doc No. 20000419006
4:44pm 11/15/00
fflrican Htle B ~ ~I~
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E' Street
Suite 301
San Bernardino, California 92401
Attention: .Director of Housing anc
Community Development
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Space Above This Line is
For Recorder1s Use Only
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING
(Pioneer Park Plaza Affordable Elderly Citizen
Rental Housing Project)
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING (the 'Deed of Trust") is dated as of November
15, 2000, among AFE-Pioneer Associates, L.P., a California
limited partnership (the "Trustor"), whose address is 100 Bush
Street, Suite 925, San Francisco, California 94104 and the
Redevelopment Agency of the City of San Bernardino (referred to
herein as the "Lender" or "Beneficiary"), whose address is 201
North "E' Street, Suite 301, San Bernardino, California 92401;
and First American Title Insurance Company, a California
corporation (the "Trustee'), whose address is 1850 Mt. Diablo
Boulevard, Suite 300, Walnut Creek, California 94596.
THE RIGHTS AND REMEDIES OF BENEFICIARY SET FORTH HEREIN WITH
RESPECT TO THE PROPERTY DESCRIBED BELOW, SHALL BE SUBJECT AND
SUBORDINATE TO THE RIGHT OF THE SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (the .Secretary") AND
ITS ASSIGNS UNDER THE FHA AGREEMENT BY AND BETWEEN THE SECRETARY
AND THE TRUSTOR AND SHALL BE FURTHER SUBORDINATE TO THE RIGHTS OF
BERKSHIRE MORTGAGE FINANCE BETHESDA LIMITED PARTNERSHIP, A
MASSACHUSETTS LIMITED PARTNERSHIP, 4550 MONTGOMERY AVENUE, #1150,
BETHESDA, MARYLAND 20814 (the "Senior Lender") UNDER THE FHA
DOCUMENTS.
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in
trust, with power of sale, for the benefit of Lender as
SBEO/0001/DOC/<110-<
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Description: 2000.419006
Page 1 of 21
Comment:
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Beneficiary, all of Trustor's right, title, and interest in
and to the following described real property, located at 560
North 'F' Street, San Bernardino, California and more
particularly described below, together with all existing or
subsequently erected or affixed buildings, improvements and
fixtures, all easements, rights of way, and appurtenances
and all other rights, royalties, and profits relating to the
real property, including and without limitation all
minerals, oil, gas, geothermal and similar matters.
SEE EXHIBIT "A' LEGAL DESCRIPTION OF THE REAL PROPERTY
ATTACHED HERETO
Trustor presently assigns
right, title and interest
leases of the Property
property.
to the Lender all of Trustor's
in and to"all present and future
and al.l Rents from such real
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. All references to
dollar amounts shall mean amounts in lawful money of the
United States of America:
Beneficiary. The word 'Beneficiary' means the Redevelopment
Agency of the City of San Bernardino.
Deed of Trust. The words 'Deed of Trust' mean this Deed of
Trust, Security Agreement, Assignment of Rents and Fixture
Filing among Trustor, Lender, and Trustee.
FHA AgreeDIsnt. The words 'FHA Agreement" mean and refer to
the instrument entitled 'Regulatory Agreement for
Multifamily Housing Projects (project No. 143-11047-PM-
PUR/CON)' by and between the Trustor and the Secretary. A
copy of the FHA Agreement is on file with the Beneficiary as
a public record.
FHA Documents. The words "FHA Documents' mean and refer to
the mortgage loan documentation evidencing the mortgage loan
of the Senior Lender to the Trustor, in an original
principal amount of $4,377,500.00. A copy of the FHA
Documents are on file with the Beneficiary as a public
record.
:Improvements. The word
without limitation all
Property.
"Improvements. means and
existing improvements
includes
on the
SBEO/0001/DOC/4110-4
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Comment:
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Indebtedness. The word "Indebtedness" means all principal
and interest payable under the Note and any amounts expended
or advanced by Lender to discharge obligations of the
Trustor or expenses incurred by Trustee or Lender to enforce
obligations of Trustor under the Note and this Deed of
Trust, together with interest on such amounts. This Deed of
Trust secures, in addition to the amounts specified in the
Note any future advances, together with all interest
thereon, which future advances the Lender may in its sole
and absolute discretion make so long as Trustor complies
with all the terms and conditions of the Note or the Loan
Agreement.
Lender. The word "Lender" means Redevelopment Agency of the
City of San Bernardino.
Loan Agreement. The words "Loan Agreement" refer to that
certain Loan Agreement dated as of October 16, 2000, by and
between the Trustor and the Lender. A copy of the Loan
Agreement is on file with the Lender. Under the Loan
Agreement, the Trustor covenants that through the fifty-
fifth (55th) anniversary of the date of recordation of the
affordable senior citizen rental housing project Regulatory
Agreement by and between the Trustor and the Beneficiary,
one-hundred-percent (100%) of the units in the Project shall
at all time be occupied or held vacant available for rental
by individuals who are at least sixty two (62) years old and
who: (i) with respect to ten percent (10%) of the units in
the Project have an income adjusted for family size that is
no more than fifty percent (50%) of median income as
determined by HUD for the San Bernardino-Riverside PMSA area
("Median Income") and that the total charges for rent,
utilities and related services for each such unit in the
Project shall not exceed thirty percent (30%) of fifty
percent (50%) of Median Income; or (ii) with respect to
ninety percent (90%) of the units in the Project have an
income adjusted for family size that is no more than sixty
percent (60%) of Median Income and that the total charges
for rent utilities and related services for each such unit
in the Project shall not exceed thirty percent (30%) of
sixty percent (60%) of Median Income all as more fully set
forth in the Regulatory Agreement of even date herewith, by
and between the Trustor and the Lender. A copy of the
Regulatory Agreement is on file as a public record of the
Beneficiary.
SBEO/0001/00c/4110'4
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Comment:
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Note. The word 'Note' means the Promissory Note Secured by
Deed of Trust of even date herewith, in the principal amount
of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) from
Trustor to the Lender, together with all renewals,
extensions, modifications, refinancing, and substitutions
for the Note.
Personal Property. The words 'Personal Property' means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the real property described in
Exhibit 'A" together with all accessions, parts, and
additions to, all replacements of, and all substitutions
for, any of such property, and together with all proceeds
(including without limitation all insurance proceeds and
refunds of premiums) from any sale or other disposition of
such real property or the Personal Property.
Project. The word 'Project' means Pioneer Park Plaza senior
Housing Complex, a 161-unit apartment project.
Property. The word 'Property' means collectively the real
property more particularly described in Exhibit 'A', and the
Personal Property, and the rights described above in the
'Conveyance and Grant" section of the Deed of Trust.
Rents. The word 'Rents' means all present and future rents,
revenues, income, issues, royalties, profits, and other
benefits derived from the Property.
Trustee . The word 'Trustee' means First American Title
Insurance Company, and any substitute or successor trustees.
Trustor. The word 'Trustor' means AFE-Pioneer Associates,
L.P., a California limited partnership.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND
THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS
GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2)
PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER THE
PROMISSORY NOTE, THIS DEED OF TRUST AND THE LOAN AGREEMENT.
THE NOTE AND THIS DEED OF TRUST ARE GIVEN AND ACCEPTED ON
THE FOLLOWING TERMS:
3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in
this Deed of Trust, Trustor shall pay to Lender all amounts
secured by this Deed of Trust as they become due, and shall
SBEO/0001/00c/4110-4
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Comment:
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'111
strictly and in a timely manner perform all of Trustor's
obligations under the Note, this Deed of Trust. and the
Loan Agreement.
3.2 POSSBSSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property shall be
governed by the following provisions:
Possession and Use. Until the occurrence of an Event of
Default as set forth below, Trustor may remain in
possession and control of the Property.
Duty to Maintain. Trustor shall maintain the Property. The
Trustor may construct any improvement or structure on the
Property at any time, without further notice to the Lender;
provided, however that the Trustor shall have first obtained
all necessary permits and approvals of such construction or
improvement from local regulatory agencies with
jurisdiction.
Hazardous Substances. The terms "hazardous wastes, .
"hazardous substance," "disposal," "release," and "threatened
release," as used in this Deed of Trust, shall have the same
meanings as set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("SARA"), the Hazardous Materials
Transportation Act. 49 U.S.C. Section 1801, et seq.. the
Resource Conservation and Recovery Act, 49 U.S.C. Section
6901, et seq., Chapters 6.5 through 7.7 of Division 20 of
the California Health and Safety Code, Section 25100, et
seq., or other applicable state or Federal laws, rules, or
regulations adopted pursuant to any of the foregoing.
Trustor represents and warrants to Lender that the Trustor
shall not use, generate, manufacture, store, treat, dispose
of, or release any hazardous waste or substance on, under,
or about the Property. Trustor authorizes Lender and its
agents to enter upon the Property to make such inspections
and tests and Lender may deed appropriate to determine
compliance with this section of the Deed of Trust. Any
inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Trustor
or to any other person.
SBEO/0001/DOC/.,,0-.
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Comment:
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all
reasonable times to attend to Lender's interests and to
inspect the Property for pUrPOses of Trustor's compliance
with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations,
now or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Property. Trustor
may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has
notified Lender in writing prior to doing so and so long as,
in Lender's sole opinion, Lender's interests in the Property
are not jeopardized. Lender may require Trustor to post
adequate security or a surety bond, reasonably satisfactory
to Lender, to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor
leave unattended the Property. Trustor shall do all other
acts, in addition to those acts set forth above in this
section, which from the character and use of the Property
are reasonably necessary to protect and preserve the
Property.
3 . 3 DUE ON SALE OR TRANSFER OF THE PROPERTY.
THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM
IS DEFINED BELOW.
A "special event of acceleration' shall occur when there is
a conveyance without the consent in writing of the Lender,
of any right, title or interest in the Property to any
person whether such sale, refinancing or transfer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Senior Lender or
its assigns, including the Secretary, in the Property is
released and reconveyed to the Trustor by the Secretary.
Any such conveyance which is permitted under the FHA
SBEO/0001/ooc/."0-<
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I~ I
Documents ,of the Senior Lender or the FHA Agreement shall
not be deemed to be a special event of acceleration.
Initials
Trustor"
3.4 TAXES AND LIENS. The following provisions relating to the
taxes and liens on the Property are part of this Deed of
Trust:
Payment of Taxes and Property-Related Charges. Trustor
shall pay when due (and in all events at least ten (10) days
prior to delinquency) all taxes, special taxes, assessments,
charges (including water and sewer), fines and imPOsitions
levied against or on account of the Property, and shall pay
when due all claims for work done on or for services
rendered or material furnished to the Property. Trustor
shall maintain the Property free of all liens having
priority over or equal to the interest of Lender under this
Deed of Trust, except for the lien of property taxes and
assessments not due, and the lien in favor of the Senior
Lender under the FHA Documents for the purpose of providing
financing for the acquisition of the Property and
rehabilitation of the Project.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in
the Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Trustor shall within
fifteen (lS) days after the lien arises or, if a lien is
filed, within fifteen (15) days after Trustor has notices of
the filing, secure the discharge of the lien, or if
requested by Lender, deposit with Lender cash or other
security satisfactory to Lender in an mount sufficient to
discharge the lien plus any costs and attorneys' fees or
other charges that could accrue as a result of a foreclosure
or sale under the lien. In any contest, Trustor shall
defend itself and Lender and shall satisfy any adverse
judgment before enforcement against the Property. Trustor
shall name Lender as an additional obligee under any surety
bond furnished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
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official to deliver to Lender at any time a written
statement of the taxes and assessments against the Property.
3.5 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or
proceeding is commenced that would materially affect
Lender's interests in the Property, Lender on Trustor's
behalf may, but shall not be required to, take any action
that Lender deems appropriate. Any amount that Lender
expends in so doing will bear interest at a rate of interest
per annum of eight percent (8%) from the date incurred or
paid by Lender to the date of repayment by Trustor. All
such expenses, with interest thereon will, at Lender's
option: (a) be payable on demand, or (b) be treated as a
balloon payment which will be due and payable at the Note's
maturity. This Deed of Trust also will secure payment of
these amounts. The rights provided for in this paragraph
shall be in addition to any other rights or any remedies to
which Lender may be entitled on account of the default. Any
such action by Lender shall not be construed as curing the
default so as to bar Lender from any remedy that it
otherwise would have had.
3.6
WARRANTY I DEFENSE OF
relating to ownership
Deed of Trust:
TITLE. The following provisions
of the Property are a part of this
Title. Trustor warrants that Trustor has the full right,
power, and authority to execute and deliver this Deed of
Trust to Lender. Upon request by Lender. Trustor shall
execute such documents in addition to this Deed of Trust and
take whatever other action is requested by Lender to perfect
and continue Lender's I ien and securi ty interest on the
Property.
Defense of Title. Trustor warrants and will forever defend
its title to the Property against the claims of all persons
subject to the matters disclosed in the policy of title
insurance of even date herewith, issued in favor of the
Trustor pursuant to the Loan Agreement. In the event any
action or proceeding is commenced that questions Trustor's
title or the interest of Trustee or Lender under this Deed
of Trust, Trustor shall defend the action at Trustor's
expense. Trustor may be the nominal party in such
proceeding, but Lender shall be entitled to participate in
the proceeding and to be represented in the proceeding by
counsel of Lender's own choice, and Trustor will deliver, or
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cause to be delivered, to Lender such instruments as Lender
may request from time to time to permit such participation.
Compliance with Laws. Trustor warrants that the Property
and Trustor's use of the Property complies with all existing
applicable laws, ordinances, and regulations of governmental
authorities.
3.7 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Application of Net Proceeds. If all or any part of the
Property is condemned by eminent domain proceedings or by an
proceeding or purchase in lieu of condemnation, Lender may
at its election require that all' or any portion of the net
proceeds of the award be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds of
the award shall mean the award after payment of all
reasonable costs, expenses, and attorneys' fees, Trustee or
Lender in connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed,
Trustor shall promptly notify Lender in writing, and Trustor
shall promptly take such steps as may be necessary to defend
the action and obtain the award. Trustor may be the nominal
party in such proceeding, but Lender shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to Lender such instruments
as may be requested by it from time to time to permit such
participation.
3.8 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed
of Trust:
Current Taxes, Fees and Charges. Trustor shall .reimburse
Lender for all taxes, as described below, together with all
expenses incurred in recording, perfecting or continuing
this Deed of Trust, including without limitation all taxes,
fees, documentary stamps, and other charges for recording or
registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed
of Trust or upon all or any part of the Indebtedness secured
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by this Deed of Trust; (b) a specific tax on Trustor which
Trustor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Deed of Trust; {c}
a tax on this type of Deed of Trust chargeable against the
Lender or the holder of the Note; and (d) a specific tax on
all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies
is enacted subsequent to the date of this Deed of Trust,
this event shall have the same effect as an Event of Default
(as defined below), and Lender may exercise any or all of
its available remedies for an Event of Default as provided
below unless Trustor either {a} pays the tax before it
becomes delinquent, or {b} contests the tax as provided
above in the Taxes and Liens section and deposits with
Lender cash or other security satisfactory to Lender.
3.9 SUBORDINATION OF LENDER DEED OF TRUST TO THE $4,377,500.00
SECURITY INTEREST OF THE SENIOR LENDER UNDER THE FHA
DOCUMENTS. During the period of time when the FHA Agreement
and the FHA Documents, including the deed of trust of the
Senior Lender, are in effect with respect to the Property,
this Deed of Trust shall be subordinate to such FHA
Agreement, the FHA Documents and the deed of trust of the
Senior Lender, and all renewals and extensions thereof. No
provision of this Deed of Trust shall be construed to
restrict or adversely affect the duties and obligations of
the Trustor under the FHA Agreement, the FHA Documents and
the deed of trust of the Senior Lender, nor adversely affect
the rights of the Senior Lender under its deed of trust or
the Secretary under the FHA Agreement or FHA Documents.
3 . 10 FURTHER ASSURANCES I ATTORNEY - IN - FACT .
provisions relating to further assurances
fact are a part of this Deed of Trust:
The following
and attorney-in-
Further Assurances. At any time, and from time to time,
upon request of Lender, Trustor will make, execute and
deliver, or will cause to be made, executed or delivered, to
Lender or to Lender's designee, and when requested by
Lender, cause to be filed, recorded, refiled, or rerecorded,
as the case may be, at such times and in such offices and
places as Lender may deem appropriate, any and all such
mortgages, deeds of trust, security deeds, security
agreements, financing statements, continuation statements,
instruments of further assurance, certificates, and other
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documents as may, in the sole opinion of Lender, be
necessary or desirable in order to effectuate, complete,
perfect, continue, or preserve (al the obligations of
Trustor under the Note, this Deed of Trust, and (b) the
liens and security interests created by this Deed of Trust
as first and prior liens on the Property, whether now owned
or hereafter acquired by Trustor. Unless prohibited by law
or agreed to the contrary by Lender in writing, Trustor
shall reimburse Lender for all costs and expenses incurred
in connection with the matters referred to in this
paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
and in the name of Trustor and at Trustor's expense. For
such purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all
other things as may be necessary or desirable, in Lender's
sole opinion, to accomplish the matters referred to in the
preceding paragraph.
3.11 RIGHT TO COLLECT RENTS. Trustor reserves the right, prior
to any default in payment of any indebtedness or performance
of any obligation secured hereby, to collect all such rents,
royalties, issues and profits, as but not before they become
due. Upon any such default, Trustor's right to collect such
moneys shall cease, not only as to amounts accruing
thereafter, but also as to amounts then accrued and unpaid.
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3.12 SECURITY AGREBMBNT. This instrument shall constitute a
security agreement to the extent any of the property
constitutes fixtures, and Beneficiary shall have all of the
rights of a secured party under the Uniform Commercial Code
as amended from time to time. The mail ing addresses of
Trustor (debtor) and Beneficiary (secured party), from which
information concerning the security interest granted by this
Deed of Trust may be obtained (each as required by the
Uniform Commercial Code), are as stated on the first page of
this Deed of Trust.
4.0 FULL PERPORMANCE AND RECONVEYANCE. If Trustor pays the Note
and all amounts as may become due under this Deed of Trust,
or if on the maturity date of the Note there is no Event of
Default, Lender shall execute and deliver to Trustee a
request for full reconveyance of this Deed of Trust and
shall. Lender may charge Trustor a reasonable reconveyance
fee at the time of reconveyance.
5.0 BREACH AND EVENT OF DEFAULT. Each of the following, at the
option of Lender, shall constitute a breach, and following
applicable notice from the Lender, shall be an 'Event of
Default' under this Deed of Trust:
Default on Payments Due Under the Note. Failure of Trustor
to make any payment when due under the Note following thirty
(30) days written notice to pay from the Lender.
Compliance Default. Failure to comply with any other term,
obligation, covenant or condition contained in this Deed of
Trust or the Note following thirty (30) days written notice
to cure such compliance default from Lender.
Breaches. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this
Deed of Trust, the Note or the Loan Agreement is, or at the
time made or furnished was, false in any material respect
shall be an Event of Default upon written notice from the
Lender.
Insolvency. The insolvency of Trustor, appointment of a
receiver for any part of Trustor's property, any assignment
for the benefit of creditors, the commencement of any
proceeding under any bankruptcy or insolvency laws by or
against Trustor if not dismissed within sixty (60) days of
any such proceedings, or the dissolution or termination of
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Trustor's existence as a going business (if Trustor is a
business) .
Foreclosure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the
Property upon thirty (30) days written notice of such breach
from the Lender. However, this subsection shall not apply
in the event of a good faith dispute by Trustor as to the
validity or reasonableness of the claim which is the basis
of the foreclosure, provided that Trustor gives Lender
written notice of such claim and furnishes reserves or a
surety bond for the claim satisfactory to Lender within
thirty (30) days following notice from the Lender.
5.1 RIGHTS AND REMEDIES UPON EVENT OF DEFAULT. Upon the
occurrence of any Event of Default and at any time
thereafter, Trustee or Lender, at its option, may exercise
anyone or more the following rights and remedies, in
addition to any other rights or remedies provided by law
subject to the provisions of Section 11 (b) of the Loan
Agreement as relate to the conditions upon the Lender's
exercise of rights and remedies under the terms of the FHA
Documents:
Foreclosure by Sale. Upon an Event of Default under this
Deed of Trust, Beneficiary may declare the entire
indebtedness secured by this Deed of Trust immediately due
and payable by delivery to Trustee of written declaration of
default and demand for sale and of written notice of default
and of election to cause to be sold the Property, which
notice Trustee shall cause to be filed for record.
Beneficiary also shall deposit with Trustee this Deed of
Trust, the Note, other documents requested by Trustee, and
all documents evidencing expenditures secured hereby. After
the lapse of such time may then be required by law following
the recordation of the notice of default, and notice of sale
having been given as then required by law. Trustee, without
demand on Trustor, shall sell the Property at the time and
place fixed by it in the notice of sale, either as a whole
or in separate parcels, and in such order as it may
determine, at public auction to the highest bidder for cash
in lawful money of the United States, payable at time of
sale. Trustee may postpone sale of all or any portion of
the Property by public announcement at such time and place
of sale, and from time to time thereafter may postpone such
sale by public announcement at the time filed by the
preceding postponement in accordance with applicable law.
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Trustee shall deliver to such purchaser its deed conveying
the Property so sold, but without any covenant or warranty,
express or implied. The recitals in such deed of any
matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor,
Trustee or Beneficiary may purchase at such sale. After
deducting all costs, fees and expenses of Trustee and of
this Trust, including cost of evidence of title in
connection with sale. Trustee shall apply the proceeds of
sale to payment of all sums expended under the terms hereof,
not then repaid, with accrued interest at the amount allowed
by law in effect at the date hereof; all other sums then
secured hereby; and the remainder, if any, to the person or
persons legally entitled thereto.
Judicial Foreclosure. With respect to all or
the Property, Lender shall have the right
foreclosure by power of sale to foreclose
foreclosure in accordance with and to the
provided by California law.
any part of
in lieu of
by judicial
full extent
Collect Rents. Lender shall have the right, without notice
to Trustor, to take possession of and manage the Property
and collect the Rents, including amounts past due and
unpaid, and apply the net proceeds, over and above Lender's
costs, against the indebtedness. In furtherance of this
right, Lender may require any tenant or other user of the
Property to make payments of rent or use fees directly to
Lender. If the Rents are collected by Lender, then Trustor
irrevocably designates Lender as Trustor's attorney-in-fact
to endorse instruments received in payment thereof in the
name of Trustor and to negotiate the same and collect the
proceeds. Payments by tenants or other users to Lender in
response to Lender's demand shall satisfy the obligations
for which the payments are made, whether or not any property
grounds for the demand existed. Lender may exercise its
rights under this subparagraph either in person, by agent,
or through a receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or any part of
the Property, with the power to protect and preserve the
Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply
the proceeds, over and above the cost of the receivership
against the indebtedness. The receiver may serve without
bond if permitted by law. Lender's right to the appointment
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of a receiver shall exist whether or not the apparent value
of the Property exceeds the indebtedness by a substantial
amount. Employment by Lender shall not disqualify a person
from serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of
the Property after the Property is sold as provided above or
Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a
tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (al pay a
reasonable rental for the use of the Property, or (b) vacate
the Property immediately upon the demand of Lender.
Other Remedies. Trustee or Lender shall have any other
right or remedy provided in this Deed of Trust, the Note. or
the Loan Agreement or by law.
Notice of Sale. Lender shall give Trustor reasonable notice
of the time and place of any public sale of the Personal
Property or of the time after which any private sale or
other intended disposition of the Personal Property is to be
made. Reasonable notice shall mean notice given at lease
five (5) days before the time of the sale or disposition.
Any sale of Personal Property may be made in conjunction
with any sale of the Property.
Sale of the Property. To the extent permitted by applicable
law, Trustor hereby waives any and all rights to have the
Property marshaled. In exercising its rights and remedies.
the Trustee or Lender shall be free to sell all or any part
of the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any
public sale on all or any portion of the Property.
Waiver: Blection of Remedies. A waiver by any party of a
breach of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's rights
otherwise to demand strict compliance with that provision or
any other provision. Election by Lender to pursue any
remedy provided in this Deed of Trust or the Note or
provided by law shall not exclude pursuit of any other
remedy, and an election to make expenditures or. to take
action to perform an obligation of Trustor under this Deed
of Trust after failure of Trustor to perform shall not
affect Lender's right to declare a default and to exercise
any of its remedies.
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Attorneys' Foes I Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court
may adjudge reasonable as attorneys' fees at trial and on
any appeal. Whether or not any court action is involved,
all reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a
part of the indebtedness payable on demand and shall bear
interest at a rate of interest per annum of eight percent
(8%) commencing on the date of expenditure until repaid.
Expenses covered by this paragraph include, without
limitation, however subject to any limits under applicable
law, Lender's attorneys' fees whether or not there is a
lawsuit, including attorneys' fees for bankruptcy
proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals and any anticipated
post-judgment collection services, the cost of searching
records, obtaining title reports (including foreclosure
reports) , surveyors' reports, appraisal fees, title
insurance, and fees for the Trustee, to the extent permitted
by applicable law. Trustor also will pay any court costs,
in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
6.0 POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions
relating to the powers and obligations of Trustee are part
of this Deed of Trust:
Powers of Trustee. In addition to all powers of Trustee
arising as a matter of law, Trustee shall have the power to
take other actions with respect to the Property upon the
written request of Lender and Trustor.
Obligations to Notify. Trustee shall not be obligated to
notify any other party of a pending sale under any other
trust deed or lien, or of any action or proceeding in which
Trustor, Lender, or Trustee shall be a party, unless the
action or proceeding is brought by Trustee.
Trustee. Trustee shall meet all qualifications required for
Trustee under applicable law. In addition to the rights and
remedies set forth above, with respect to all or any part of
the Property, the Trustee shall have the right to foreclose
by notice and sale, and Lender shall have the right to
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foreclose
accordance
applicable
by judicial foreclosure,
with and to the full
law.
in either case
extent provided
in
by
Successor Trustee. Lender, at Lender's option, may from
time to time appoint a successor Trustee to any Trustee
appointed hereunder by an instrument executed and
acknowledged by Lender and recorded in the office of the
recorder of San Bernardino County, California. The
instrument shall contain, in addition to all other matters
required by state law, the names of the original Lender,
Trustee, and Trustor the book and page where this Deed of
Trust is recorded, and the name and address of the successor
trustee, and the instrument shall be executed and
acknowledged by Lender or its successors in interest. The
successor trustee, without conveyance of the PrQPerty, shall
succeed to all the title, power, and duties conferred upon
the Trustee in this Deed of Trust and by applicable law.
This procedure for substitution of trustee shall govern to
the exclusion of all other provisions for substitution.
7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective
when actually delivered or, if mailed, shall be deemed
effective when deposited in the United States mail first
class, registered mail, postage prepaid, directed to the
addresses shown near the beginning of this Deed of Trust.
Any party may change its address for notices under this Deed
of Trust by giving formal written notice to the other
parties, specifying that the purpose of this notice is to
change the party's address. All copies of notices of
foreclosure from the holder of any lien which has priority
over this Deed of Trust shall be sent to Lender's address,
as shown near the beginning of this Deed of Trust. For
Notice purposes, Trustor agrees to keep Lender and Trustee
informed at all times of Trustor I s current address. Each
Trustor requests that copies of any notices of default and
sale be directed to Trustor's address shown near the
beginning of this Deed of Trust.
8.0 STATEMENT OF OBLIGATION. Lender may collect a fee, in an
mount not to exceed the statutory maximum, for furnishing
the statement of obligation as provided by Section 2943 of
the Civil Code of California.
9.0 MISCELLANEOUS PROVISIONS. The following miscellaneous
provisions are a part of this Deed of Trust:
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Amendments. This Deed of Trust constitutes the entire
understanding and agreement of the parties as to the matters
set forth in this Deed of Trust. This Deed of Trust may be
amended as deemed necessary by written instrument duly
approved by the Secretary and the Senior Lender, and the
parties to this Deed of Trust. Any such amendment or
modification shall be valid, binding and legally enforceable
only if in written form and executed by the parties hereto
in recordable form and only after the approval thereof by
official action of the Lender, the Senior Lender and the
Secretary.
Acceptance by Trustee. Trustee accepts this Trust when this
Deed of Trust, duly exscuted and acknowledged, is made a
public record as provided by law.
Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California.
This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of California.
Caption Headings.
are for convenience
interpret or define
Caption headings in this Deed of Trust
purposes only and are not to be used to
the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or
estate in the Property at any time held by or for the
benefit of Lender in any capacity, without the written
consent of Lender.
Severability. If a court of competent jurisdiction finds
any provision of this Deed of Trust to be invalid or
unenforceable as to any person or circumstance, such finding
shall not render that provision invalid or unenforceable as
to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to
be within the limits of enforceability or validity; however,
if the offending provision cannot be so modified, it shall
be stricken and all other provisions of this Deed of Trust
in all other respects shall remain valid and enforceable.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
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Waivers and Conaents. Lender shall not be deemed to have
waived any rights under this Deed of Trust unless such
waiver is in writing and signed by Lender. No delay or
omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A
waiver by any party of a provision of this Deed of Trust
shall not constitute a waiver of or prejudice the party's
right otherwise to demand strict compliance with that
provision or any other provision. No prior waiver by
Lender, nor any course of dealing between Lender and
Trustor, shall constitute a waiver of any of Lender's rights
or any of Trustor's obligations as to any future
transactions. Whenever consent by Lender is required in
this Deed of Trust, the granting of such consent by Lender
in any instance shall not constitute continuing consent to
subsequent instances where such consent is required.
THE TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF
THIS DEED OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND
THE TERMS OF THE PROMISSORY NOTE SECURED BY THIS DEED OF
TRUST.
TRUSTOR
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc.,
~~"
By'
Na~e: WI ...,_. 'Ii ~
Title: SA. V. P.
a
general
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
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'I~ I
EXHmIT A
PARCEL NO.1; (APN: 134-061-27)
LOTS 3 AND 4, BLOCK 38, CITY OF SAN BERNARDINO, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SANBERNARDINO,STATE OF CALIFORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF MAPS. PAGE 1, RECORDS OF SAID COUNTY.
PARCEL NO.2: (APN: 134-061-26)
LOTS 7 AND 8, BLOCK 38. CITY OF SAN BERNARDINO, 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.
.
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s'\
.....~
~
AMER.l
C
-1
"'b
STAlE OF CALIFORNIA
COUNTY OF /....... A)l/'~ae>
fss.
}
On~MlL IS'I?""" , before me, S~ J"""eo; e.,,~
personally appeared lAhUJAI'oI 1". Mc..CVJaE
, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person<,g) whose name(ll} is/_
subscribed to the within instrument and acknowledged to me thaI he/she/lhey exacuted the same
in his/llarJIlleir authorized capacity(le6), and that by hi~efAAeirsignature(S) on the instrument the
person{8'J or the entity upon behalf of which the person~ acted, executed the instrument.
WITNESS my hand and official seal.
...... ~;--
l.----~==-t
\ _ ....,..,-CCIIIon*'
IDS AIV'IM cc.ny
_ _ _ ~~~_~~~i
(T'Ne area foe..... ncMIW Hal)
TiUe of Document ~ ,,~'n..$I" I ~v..\~ AIq~. A'!>l~""" of'- ~ fn'b "'.....uU" F ,,"I~
Date of Document ~ (.. I U>OO No. of Pages I 'R
Other signatures not acknowledged />1.....,..
3008 (''''') (Goner..)
FQt American nae InsUl1WlC8 Company
. ,
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U I:
PROMISSORY NOTE PAYABLE TO A PUBLIC AGENCY
SECURED BY A SUBORDINATE DEED OF TRUST
(Pioneer Park Plaza Affordable Elderly Rental Housing:
FHA Project No. 143-11047-PM-PUR/CON)
Original Principal
Amount of
Promissory Note:
$250,000.00
Holder of
Promissory
Note:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, CA 92401
Attn: Development
Director
Date:
November 15, 2000
Rate of Interest:
3% per annum (fixed)
Maturity
Date:
November 15, 2035
FOR VALUE RECEIVED, AFE-Pioneer Associates, L.P., a California
limited partnership (the "Maker") promises to pay to Redevelopment
Agency of the City of San Bernardino (the "Agency") or its
successor or assign, the sum of Two Hundred Fifty Thousand Dollars
($250,000.00), together with interest thereon as set forth herein.
1. This Promissory Note (the "Note") is made and delivered
by the Maker pursuant to and in implementation of the Loan
Agreement by and between the Agency and the Maker, dated as of
October 16, 2000 (the "Loan Agreement"). A copy of the Loan
Agreement is on file with the Agency and is incorporated herein by
reference. This Promissory Note evidences the indebtedness of the
Maker to the Agency under the terms and conditions of the Loan
Agreement. Unless definitions of terms have been expressly set out
at length herein, each term shall have the same definition as set
forth in the Loan Agreement.
2 . Payments of principal and interest in the amount of
Eleven Thousand Five Hundred Forty Six Dollars ($11,546.00) (each,
a " scheduled debt service payment") shall be due annually on
November 15 of each year until the maturity date set forth above,
commencing November 15, 2001 and through and including November 15,
2035 (each, a "payment date"). Prior to the maturity date of this
Promissory Note, and for so long as the United States Secretary of
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Housing and Urban Development (the "Secretary") has a security
interest in the Project under that certain instrument entitled
"Regulatory Agreement for Multifamily Housing Projects (Project No.
143-11047-PM-PUR/CON)" dated as of November 1, 2000 (the "FHA
Agreement"), by and between the Maker and the Secretary, payments
of principal and interest shall be made by the Maker solely from
"Surplus Cash", as this term is defined in the second paragraph of
this Section 2. If Surplus Cash in an amount sufficient to make a
scheduled debt service payment in full is not available on a
payment date, the portion of such scheduled debt service payment
not paid (the "deficiency debt service amount") shall be carried
forward to the next succeeding payment date for payment. On such
next succeeding payment date, 'the balance of the def iciency debt
service amount as carried forward shall be paid first, and the
scheduled debt service payment second. On the maturity date of
this Promissory Note, any unpaid balance of deficiency debt service
amounts, accrued and unpaid current interest and the remaining
principal balance of this Promissory Note shall be paid in full.
The words "Surplus Cash" mean and refer to any cash of the
Maker remaining on any payment date after:
(A) the payment of:
(i)
all sums due or
Maker under the
insured or held
Documents;
currently due to be paid by the
terms of any mortgage or note
by the Secretary under the FHA
(ii) all amounts required to be deposited by the Maker in
the reserve funds for the Project as required under
the FHA Agreement and in the "Replacement Reserve",
and the "Transition Reserve", as these reserve funds
for the Project are defined in the First Amended
and Restated Agreement of Limited Partnership by
and among A. F . Evans Company, Inc., a California
corporation, SLP, Inc., a Massachusetts
corporation, Lend Lease Pioneer Park Plaza, LLC, a
Delaware limited liability company;
(iii) all obligations of the Project other than the
mortgage insured by the Secretary unless funds for
payment are set aside or deferment of payment has
been approved by the Secretary; and
(B) the segregation of:
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(i) an amount equal to the aggregate of all special
funds required to be maintained for the proj ect
under the FHA Agreement and the FHA Documents; and
(ii) all tenant security deposits for the Project then
held by the'Maker.
3, This Promissory Note shall bear interest on its
outstanding principal balance from its date, at the rate of three
percent (3%) per annum,
4, This Promissory Note is secured by a deed,of trust, of
even date herewith (the "Deed of Trust"). The Deed of Trust is
subordinate to the security interest of the Secretary in the
Property subject to the FHA Agreement and the FHA Documents. The
obligation of the Maker to pay the Agency the amounts when due
under this Promissory Note is assignable by the Maker to its
transferee in the Property upon thirty (30) days prior written
notice to the Agency in which the Maker and the assignee each
certify to the Agency that as part of such sale, lease, or transfer
of the Property, the assignee of the Maker shall also assume the
obligations of the Maker under the note insured or held by the
Secretary in accordance with the FHA Documents and the FHA
Agreement,
The Deed of Trust contains the following provisions:
"THE LENDER MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE
OCCURRENCE OF A SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS
DEFINED BELOW,
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A "special event of acceleration" shall occur when there is a
conveyance without the consent in writing of the Lender, of
any right, title or interest in the Property to any person
whether such sale, refinancing or transfer is legal
beneficial, or equitable, whether voluntary or involuntary,
whether by sale, deed, installment sale contract, land
contract, lease option contract, or by sale, assignment, or
transfer of any beneficial interest of the Trustor in the
Property to any land trust, and when as part of such
conveyance, the security interest of the Senior Lender, or its
assigns, including the Secretary, in the Property is released
and reconveyed to the Trustor by the Senior Lender, or its
assigns, including the Secretary. Any such conveyance which
is permitted under the FHA Documents of the Senior Lender or
the FHA Agreement shall not be deemed to be a special event of
acceleration.
5. A failure to pay any sum provided for in this Promissory
Note when due, or a material breach of the Loan Agreement or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Promissory
Note and the Deed of Trust.
Except as set forth in the next sentence of this paragraph,
upon the failure to pay any sum provided for in this Promissory
Note when due, or a material breach of the Loan Agreement or the
Deed of Trust, no partner of the Maker (or in the case of an
assignee of the Maker - no affiliate, member, partner, shareholder
or subsidiary of such assignee) shall have personal liability for
payment of the principal or interest then due under this Promissory
Note. The sole recourse of the Agency to recover any such sum
shall be to the Property subject to the Deed of Trust, except in
the event of: (A) fraud by the Maker (or its assignee), (B) any
material misrepresentation made by the Maker of the Agency under
the Loan Agreement, (C) misappropriation by the Maker (or its
assignee) of any rents, security deposits, tax collection amounts,
security deposits, or insurance or condemnation awards, (D)
commission of bad faith waste by the Maker (or its assignee) or (E)
the presence of "Hazardous Substances" on the Property, as this term
is defined in the Deed of Trust.
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All payments due under this Promissory Note shall be made in
lawful money of the United States at the principal office of the
Agency, 201 North "E" Street, Suite 301, San Bernardino, California
92401, or at such other place as may from time to time be
designated by the Agency in writing.
In no event shall the interest payable hereunder exceed the
maximum amount of interest permitted under the usury laws of the
State of California.
If suit is instituted by the Agency to recover on this
Promissory Note, the Maker agrees to pay all costs of such
collection including reasonable attorney's fees and court costs.
DEMAND, protest and notice of demand and protest are hereby
waived and the Maker hereby waives, to the extent authorized by
law, any and all homestead and other exemption rights which
otherwise would apply to the debt evidenced by this Promissory
Note.
IN WITNESS WHEREOF, this Promissory Note has been duly
executed by the Maker, as of its date.
MAKER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F.Evans Company, Inc., a
California corporation, its general
Partner
BY:~~
Name:
Title:
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Rooorded in O"icial Racor~. county 0'
San e.rnardino. Larry Walker. Rooorder
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Doc No. 20000419007
4:44pm 11/15/00
flerican HUe B ~ m
)
)
)
Redevelopment Agency of the )
City of San Bernardino )
201 North "E" Street, )
Suite 301 I
San Bernardino, CA 92401 )
Attn: Director of Housing and)
Community Development ) 5 ~
;)9 7c.,- ? 7 mY! ~ ....d t. I S'/Y I crra I tullIA. I 01 ClID
(Space Above Line Reserved For Dse By Recorder)
(Exempt from Recording Fees Per Govt. Code Sec. 6103)
Wy
lU:DBVZ:t.OPMENT AGlmCY OF TIlE ern OF SAN BBRNlUIDINO
aBGtlLATORY AGRBli:MENT AND COVENANTS
Pioneer Park ~laza AfforA.~l. Elderlv Citizen Bousina ~ro;ect
(FHA Agreement No. 14J-II047-PM-POR/CON)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS (the "Regulatory Agreement") is
made and entered into as of October 16, 2000 by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency") and AFE-Pioneer Associates,
L.P., a California limited partnership (the "Borrower") and relates
to the facts set forth in the following Recitals.
-- RECITALS --
A. The Borrower proposes to acquire Pioneer Parle Plaza
Affordable Elderly Rental Housing Project, a IG1-unit apartment
project (the "Project") located at 560 North "F" Street, San
Bernardino, California (the "Property"), from Pioneer Parle Plaza,
a California limited partnership, pursuant to that certain
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999, and the related assignment
and assumption agreement subsequently executed by the Borrower (the
"Purchase Agreement"). A legal description of the Property is
attached hereto as Exhibit "A" and incorporated herein by this
reference.
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B. The Agency and the Borrower have entered into that
certain Loan Agreement dated as of October 16, 2000 (the "Loan
Agreement") pursuant to which the Agency will loan to the Borrower
Two Hundred Fifty Thousand Dollars ($250,000.00) to assist the
Borrower in conswmnating the transactions contemplated by the
Purchase Agreement, subject to certain conditions, including the
terms and conditions of this Regulatory Agreement.
C. The terms of the Loan Agreement require that certain
covenants and affordability restrictions remain in full force and
effect for a term of fifty five (55) years following the date of
recordation of this Regulatory Agreement (the "Term") in order to
ensure that:
(i) ten percent (10%) of the units in the Project (exclusive
of the two (2) bedroom on-site manager's unit), for a
subtotal of at least sixteen (16) units, shall at all
times be occupied or reserved for occupancy by elderly
persons who have a household income which is not more
than fifty percent (50%) of median income, adjusted for
family size, as determined by HUD for the San Bernardino-
Riverside PM SA area ("Median Income"); and
Iii) ninety percent (90%) of the units in the Project
(exclusive of the two (2) bedroom on-site manager's
unit), for a subtotal of at least one hundred forty four
(144) units, shall at all times be occupied or reserved
for occupancy by elderly persons who have a qualified
household income which is not more than sixty percent
(60%) of Median Income adjusted for family size; and
(iii) each elderly person, or elderly person household which
qualifies for occupancy in the Project under either
subparagraph (i) or (ii) above, (each a "Qualifying
Tenant") shall pay no more as rent than an "Affordable
Rent" as defined below.
NOW, 'rBEREl!'ORE, IN CONSIDElIATION OF 'rHE MtJ'.rtJAL COVENAN'rS AND
UNDIilll.TAlCINGS SE'r l!'OR1'H HEREIN AND I'OR StiCH OTHER GOOD AND VALtlABLE
CONSIDERATION 'rHE RECEIPT AND StJFFICIENCY OF WIIICH IS HEREBY
ACKNOWIoEDGIi:n, THE BOlUWWEll AND THE AGENCY DO HEREBY COVENllN'r AND
AGREE l!'OR THEMSELVES, THEIR StlCCESSORS AND ASSIGNS AS ll'OLLOWS:
Section 1. Definitions of Certain Te""'s. As used in this
Regulatory Agreement, the following words and terms shall have the
meaning as provided in the Recitals or in this Section 1 unless the
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specific context of usage of a particular word or term may
otherwise require:
U:fordable Rent.
The words "Affordable Rent" mean:
(i) for Qualifying Tenants whose income is not more than
fifty percent (50%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of fifty
percent (50%) of Median Income, adjusted for family size;
or
(ii) for Qualifying Tenants whose income is not more than
sixty percent (60%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed thirty percent (30%) of sixty
percent (60%) of Median Income, adjusted for family size.
Borrower. The word "Borrower" means AFE-Pioneer Associates,
L.P., a California limited partnership, and its successors and
assigns.
FHA Aqr........nt. The words "FHA Agreement" mean and refer to
that certain agreement entitled "Regulatory Agreement for
Multifamily Housing Projects (Project No. l43-ll047-PM-
PUR/CON)" by and between the Borrower and the Secretary of the
United States Department of Housing and Urban Development (the
"Secretary") which the Borrower and the Secretary have
executed contemporaneously with this Regulatory Agreement.
FHA Doouments. The words "FHA Documents" mean and refer to
the mortgage loan documents identified in Section l3(a) of the
FHA Agreement, including without limitation the mortgage note
to be delivered by the Borrower to Berkshire Mortgage Finance
Limited Partnership, a Massachusetts limited partnership
subject to the provisions of the FHA Agreement.
Kedi.an Inoome. The words "Median Income" mean median income as
determined by the Department of Housing and Urban Development
for the San Bernardino-Riverside PMSA area.
Projeot. The word "Project" means and refers to that certain
l6l-unit multifamily rental dwelling unit apartment project
located at 560 North "F" Street, San Bernardino, California,
and commonly known as Pioneer Park Plaza Senior Housing
Complex. In addition to the 160 multifamily rental dwelling
units which the Borrower shall rent or reserve for occupancy
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by Qualifying Tenants the Project also includes one (1) unit
with two (2) bedrooms for use by the Borrower's on-site
manager for the Project.
Parch... Aq:.ement. The words ~Purchase Agreement" mean the
Agreement of Purchase and Sale of Real Property and Escrow
Instructions dated December 21, 1999, and the related
assignment and assumption agreement subsequently executed by
the Borrower, by and between A.F. Evans Development, Inc., (an
affiliate entity to the Borrowerl and Pioneer Park Plaza, a
California limited partnership, the present owner of the
Project.
QuaJ.ifying Tenant. The words ~Qualifying Tenant" mean the
tenant of any unit within the Project who shall be at least
sixty two (62) years old and who shall have an income that
does not exceed the Qualifying Tenant Income as provided in
the FHA Agreement. From and after the time when the FHA
Agreement is no longer in effect and until the end of the Term
of this Regulatory Agreement, the words "Qualifying Tenant"
mean the senior citizen household of any unit within the
Project in which the senior citizen household shall be
composed of at least one (1) member who is sixty two (62)
years of. age and whose other members, if any, satisfy the
provisions of California Civil Code Section 51.3, as may be
amended from time to time, and whose combined household income
does not exceed Qualifying Tenant Income. Notwithstanding any
other provision of this Regulatory Agreement to the contrary,
all adult individuals with "disabilities" as this term is
defined in Civil Code Section 54 (b), who are in lawful
possession of a unit in the Project as of the date of
recordation of this Regulatory Agreement, shall be deemed to
be a Qualifying Tenant.
QuaJ.ifying Tenant Income.
Income" mean:
The words "Qualifying Tenant
(i) in the case of Qualifying Tenants who shall occupy at
least sixteen (16) units in the Project, a household
income which is not more than fifty percent (50%) of
Median Income, adjusted for family size; and
(ii) in the case of Qualifying Tenants who shall occupy at
least one hundred forty four (144) units in the Project,
a household income which is not more than sixty percent
(60%) of Median Income, adjusted for family size.
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a.qw.atory A9X.-t:. The words ~Regulatory Agreement" mean
~his Redevelopment Agency of the City of San Bernardino
Regulatory Agreement and Covenants by and between the Borrower
and the Agency pertaining to the Project.
Ter.m. The word "Term" means the period of time beginning
on the date of the date of recordation of thi~ Regulatory
Agreement and ending on the fifty-fifth (55th) anniversary
thereafter.
The titles and headings of the sections of this Regulatory
Agreement have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way
modify or restrict the meaning any of the terms or provisions
hereof.
Sect:ion 2. Acknowledament of the
Acmow1etfl'ftftent of Saborrl;nation of 'the Acrenev.
Borrow.r and
(a) The Borrower hereby acknowledges that this Regulatory
Agreement imposes certain restrictions on the use and occupancy of
the Project during the Term of this Regulatory Agreement. The
Borrower acknowledges and understands that the restrictions shall
be applicable to the Project for the Term hereof, commencing on the
date of recordation of this Regulatory Agreement.
Dated:
ll-!LI-?-ODO
ItJ-mc-
Initials of
Borrower
(b) Concurrently upon the execution and recordation of this
Regulatory Agreement the Borrower shall obtain certain purchase
money mortgage financing for the acquisition of the Property from
Berkshire Mortgage Finance Bethesda Limited Partnership, a
Massachusetts limited partnership (the "Senior Lender") subject to
the provisions of the FHA Agreement and the FHA Documents. The
Borrower has provided the Agency with a true and correct copy of
the FHA Agreement and the FHA Documents.
As a condition to providing its mortgage loan to the Borrower
under the FHA Documents and the related provisions of the FHA
Agreement, the Senior Lender and the Secretary of the United States
Department of Housing and Urban Development require the Agency to
agree that the provisions of this Regulatory Agreement shall be
junior and subordinate to the security interest of the Senior
Lender in the Property.
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The Agency hereby acknowledges and agrees that the provisions
of this Regulatory Agreement are subordinate and junior to the
security interest of the Senior Lender in the Property. No breach
or default by the Borrower of any provision of this Regulatory
Agreement, nor the exercise by the Agency of any remedy it may have
against the Borrower in the event of such a breach or default shall
affect the security interest of the Senior Lender in the Property.
The Agency further acknowledges and agrees that if at any time
during the period when the Senior Lender has a security interest in
the Property, and either the Senior Lender or the Secretary of the
United States Department of Housing and Urban Development or their
designees under the terms of the FHA Documents and the FHA
Agreement, as applicable, may acquire title in the Property by
foreclosure, a deed in lieu of foreclosure or comparable conversion
of the FHA Documents, then in such event this Regulatory Agreement
shall automatically terminate and be of no further force of effect.
Section 3. Covenant of Borro_r to Rent to Oualifvina
Tenants: Covenant. of Borrower to Cha.rae Affor"'-"'-l. Rent:: Covenants
Reaardina Haint:enanc:. of beards.
(a) During the Term, the Borrower covenants that one hundred
percent (100%) of the units in the Project (exclusive of the two
(2) bedroom on-site manager's unit), for a total of 160 units,
shall at all times be occupied or held vacant available for rental
by Qualifying Tenants as follows:
(i) not less than sixteen (16) units shall be occupied or
reserved for occupancy by Qualifying Tenants whose income
shall not exceed fifty percent (50%) of Median Income,
adjusted for family size; and
(ii) not less than one hundred and forty four (144) units
shall be occupied or reserved for occupancy by Qualifying
Tenants whose income does not exceed sixty percent (60%)
of Median Income, adjusted for family size.
Determination of Qualifying Tenant Income shall be made by the
Borrower at the time of initial occupancy of a unit; upon each
renewal of a Qualifying Tenant's lease, recertification of
Qualifying Tenant Income shall be made. The Borrower shall obtain
and complete prior to initial occupancy and thereafter maintain on
file income certifications from each Qualifying Tenant renting any
of the units in the Property. The Borrower shall make a good faith
effort to verify that the income provided by an applicant (or
occupying Qualifying Tenant household) in an income certification
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is accurate by taking one or more of the following steps as a part
of the verification process: (1) obtain an income tax return for
the most recent tax year; (2) conduct a credit agency or similar
search; (3) obtain an income verification form from the applicant's
current employer: (4) obtain an income verification form from the
United States Social Security Administration and/or the California
Department of Social Services if the applicant receives assistance
from either of such agencies; or (5) if the applicant is unemployed
and has no such tax return, obtain another form of independent
verification. On the anniversary of the occupancy of such unit the
Borrower shall recertify the household income of the Qualifying
Tenant household occupying the each unit. Copies of tenant income
certification shall be available to the Agency upon request. For
purposes of this Section 3(a), the Borrower may conclusively rely
upon the evidence of the age of the occupant(s) of the unit as
presented in a valid California Driver's License, other form of
identification issued by the State or federal government which
includes a date of birth.
(b) During the Term, the Borrower covenants that it shall not
charge in excess of Affordable Rent for any unit in the Project.
The Borrower shall increase rents based on changes in Median Income
only and no more than once in any twelve-month period:
(c) During the Term, records shall be established and
maintained by the Borrower relating to the use and occupancy of the
Project for affordable elderly person rental housing use purposes,
as authorized herein. The Borrower shall be responsible for
establishing and maintaining such records commencing on the date of
recordation of this Regulatory Agreement, and the Borrower shall
provide the Agency with copies of such records within thirty (30)
days of written request by the Agency.
(d) During the Term, the Borrower and all Qualifying Tenants
shall permit the Agency to conduct inspections of the Project from
time-to-time for purposes of verifying compliance with this
Regulatory Agreement upon thirty (30) days prior written notice to
the Borrower.
(e) Commencing on the June 30 next following the date of
recordation of this Regulatory Agreement and on each June 30
thereafter during the Term, the Borrower shall submit a report to
the Agency, in a form approved by the Agency. The annual report
shall include for each unit in the Project, the rent and the income
and family size of the Qualifying Tenant household occupying the
unit. The report shall also state the date the tenancy commenced
for each unit and such other information as the Agency may be
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required by law to obtain~ provided, however, t~. t the Agency shall
take reasonable steps to maintain the confiden ial nature of the
information contained therein relating to any nit. The Borrower
shall provide any additional information reasonably requested by
the Agency, including without limitation such Project-related
income and expense accounting information. The Agency shall have
the right to examine and make copies of all books, records or other
documents of Borrower which pertain to any unit; provided, however,
that the Agency shall take reasonable steps to maintain the
confidential nature of the information contained therein. The
Borrower shall maintain complete, accurate and current records
pertaining to the units and the Project, and shall permit any duly
authorized representative of the Agency (during business hours and
upon not less than seventy-two (72) hours notice) to inspect
records, including records pertaining to income and household size
of Qualifying Tenants; provided however, that the Agency shall take
reasonable steps to maintain the confidential nature of the
information contained therein relating to any household.
~
Section 4.
Rental of Units
successors and
connection with
Tenants during
requirements:
Covenan~ of the Borrower Wi~h R.s~.ct to the
in the Pz:o;eot. The Borrower for itself, its
assigns hereby covenants and agrees that, in
the rental of units in the Project to Qualifying
the Term, it shall comply with the following
(a) The lease between the Borrower and the Qualifying Tenant
shall be for not less than one year, unless by mutual agreement
between the Borrower and the Qualifying Tenant but in such a case
for not less than six (6) months as required by applicable
provisions of the Internal Revenue Code.
(b) The lease shall not contain any of the following
provisions:
(i) Agreement by the Qualifying Tenant to be sued, to admit
guilt or to a judgment in favor of the Borrower in a
lawsuit brought in connection with the lease;
(ii) Agreement by the Qualifying Tenant that the Borrower may
take, hold or sell personal property of household members
without notice to the Qualifying Tenant and a court
decision on the rights of the parties, other than an
agreement by the tenant concerning disposition of
personal property remaining the housing unit after the
Qualifying Tenant has moved out of the unit;
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(iil) Agreement by the Qualifying Tenant not. to hold the
Borrower or its agents legally responsible for any action
or failure to act, whether intentional or negligent;
(iv) Agreement by the Qualifying Tenant that the Borrower may
institute a lawsuit without notice to the tenant;
(v) Agreement by the Qualifying Tenant that the Borrower may
evict the Qualifying Tenant without instituting a civil
court proceeding in which the Qualifying Tenant has the
opportunity to present a defense, or before a court
decision on the rights of the parties;
(vi) Agreement by the Qualifying Tenant to waive any right to
a trial by jury;
(vii) Agreement by the Qualifying Tenant to waive the
Qualifying Tenant's right to appeal. or to otherwise
challenge in court a court decision in connection with
the lease;
(viii) Agreement by the Qualifying Tenant to pay attorney's fees
or other legal costs even if the Qualifying Tenant wins
in a court proceeding by the Borrower against the
Qualifying Ten~nt; provided, however, the Qualifying
Tenant may be obligated to pay costs if the tenant loses.
(c) The Borrower shall not terminate the tenancy or refuse to
renew the lease of a Qualifying Tenant except for serious or
repeated violation of the terms and conditions of the lease; for
violation of applicable Federal, State, or local law; or for other
good cause. The Borrower shall, in connection with a termination
of a tenancy or a refusal to renew the lease, serve written notice
upon the Qualifying Tenant specifying the grounds for the action at
least thirty (30) days before the termination of the tenancy.
(d) The Borrower shall adopt written tenant selection
policies and criteria that:
(i) Are consistent with the purpose of providing housing for
individuals who are at least sixty two (62) years old and
have an income that is no more than the Qualifying Tenant
Income;
(iil Are reasonably related to program eligibility and the
applicants' ability to perform the obligations of the
lease;
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(iii) Give reasonable consideration to the housing needs of
individuals who occupy substandard housing (including
individuals that are homeless or living in a shelter for
homeless individuals); individuals that are paying more
than fifty (50) percent of their annual income for rent;
or individuals that are involuntarily displaced;
(iv)
Provide for the selection of tenants from
waiting list in the chronological order
application, insofar as is practicable; and
a written
of their
(v)
Give prompt written notification to any
applicant of the grounds for any rejection.
rejected
Ie) Except as may otherwise be required by the rental
requirements of the FHA Agreement, all of the units in the Project
shall be available for occupancy on a continuous basis to
Qualifying Tenants. The Borrower shall not give preference to any
particular class or group of persons in renting the units. There
shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex,
sexual orientation, age, marital status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of any unit. Neither the Borrower nor any
person claiming under or through the Borrower, shall establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use,
or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of any Unit or in connection with the employment of persons
for the operation and management of.any unit. All deeds, leases or
contracts made or entered into by owner as to the units or the
Property or portion thereof, shall contain covenants prohibiting
discrimination as prescribed by this Regulatory Agreement. The
Borrower shall include a statement in all advertisements, notices
and signs for the availability of units for rent to the effect that
owner is an Equal Housing Opportunity Provider.
Seceion 5.
the Pro;ece.
Rehabilitaeion of the Pro;ec:e and Manaaemene of
(a) The Borrower hereby reaffirms its covenant and agreement
as set forth in the Loan Agreement to complete the rehabilitation
of the Project in accordance with the Budget Development/Scope of
Work attached as Exhibit UF" to the Loan Agreement (the
"Rehabilitation Work") within the period of time set forth under
the FHA Agreement.
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(b) The Borrower shall be responsible for management of the
Project, including, without limitation, the selection of Qualifying
Tenants, certification and recertification of household size, and
income and the age of the head of household of all units,
evictions, collection of rents and deposits, maintenance,
landscaping, routine and extraordinary repairs, replacement of
capital items, and security. The Agency shall have no
responsibility for the management or operation of the Property or
the Project. The Project shall at all times be managed by an
experienced management agent (the "Management Agent") reasonably
acceptable to the Agency, with demonstrated ability to operate
senior citizen residential rental facilities similar to the Project
in a manner that will provide decent, safe, and sanitary housing.
For the purposes hereof, if the Borrower directly performs the
functions of the Management Agent by its employees'or by means of
a service contract with an entity which is a managing member of the
Borrower, such a Management Agent shall be deemed approved by the
Agency. If the Management Agent is an entity or person other than
the Borrower, its employees or an entity owned or controlled by the
Borrower, the Borrower shall submit for the Agency's approval the
identity of any proposed Management Agent, together with additional
information relevant to the background, experience and financial
condition of any proposed Management Agent as reasonably requested
by the Agency. If the proposed Management Agent meets the standard
for a qualified Management Agent set forth above, the Agency shall
approve the proposed Management Agent by notifying the Borrower in
writing. Unless the proposed Management Agent is disapproved by
the Agency within thirty (3D) days, which disapproval shall state
with reasonable specificity the basis for disapproval, it shall be
deemed approved. The Borrower is hereby approved by the Agency as
the Management Agent for the Project. Any Management Agent
approved by HUD during the term of the ,FHA Agreement shall be
deemed approved by the Agency.
(c) The Borrower shall cause to have in full force and effect
during the Term hereof insurance coverage as follows:
(i) If any building or improvements on the Property shall be
damaged or destroyed by an insurable cause, the Borrower
shall, at its own cost and expense, diligently repair or
restore the Project consistent with the original plans
and specifications for the Project. Such work or repair
shall be commenced within One Hundred Twenty (120) days
after the damage or loss occurs and shall be completed
within 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
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insurance proceeds shall be insufficient for such
purpose, the Borrower shall make up the deficience;
(ii) a policy of compuhensive 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 ($1,000,000.001 or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.001 per currency, ONE
MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(iiil a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for the Borrower against any loss, claim or
damage arising from any injuries or occupational diseases
occurring to any worker employed by or any persons
retained by the Borrower in the course of carrying out
the activities in this Regulatory Agreement.
(iv) a policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less
than either (i) bodily 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 (iil combined single limit liability of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy
shall include coverage for owned, non-owned, leased and
hired vehicles.
All of the above policies of insurance shall be primary
insurance and shall name the City of San Bernardino and the Agency,
and their officers, employees, and agents as additional insureds.
The insurer shall waive all rights of subrogation and contribution
it may have against the City of San Bernardino and/or the Agency
and their officers, employees and agents and their respective
insurers. All of said policies of insurance shall provide that said
insurance may not be amended or canceled without providing thirty
(30) days prior written notice by registered mail to Agency. In the
event any of said policies of insurance are canceled, the Borrower
shall, prior to the cancellation date, submit new evidence of
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insurance in conformance with this Section to the Executive
Director. No operation of the Project shall commence until the
Borrower has provided Agency with certificates of insurance or
appropriate insurance binders evidencing the above insurance
coverages, and said certificates of insurance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be
satisfactory only if issued by companies qualified to do business
in California, rated at least "A(vii)" or better in the most recent
edition of Bests Insurance Rating Guide Or an equivalent rating in
The Key Rating Guide or in the Federal Register unless such
requirements are modified or waived by the Executive Director of
the Agency due to unique circumstances.
Compliance by the Borrower with the insurance requirements of
the FHA Agreement shall be deemed to meet the foregoing
requirements during the period that the FHA Agreement is in effect
so l?ng as the Agency, City and their officers, employees, and
agents as additional insureds on all said policies as evidenced by
certificates of insurance issued to the City and the Agency.
The Borrower agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which the
Borrower may be held responsible for the payment of damages to any
persons or property resulting from the Borrower's activities or the
activities of any person or persons for which the Borrower is
otherwise responsible.
Section 6. Maintenance of the Proiect. The Borrower, for
itself, its successors and assigns, hereby covenants and agrees
that:
(a) The exterior areas of the Project which are subject to
public view (e.g.: all improvements, paving, walkways, landscaping,
and ornamentation) shall be maintained in good repair and a neat,
clean and orderly condition, ordinary wear and tear excepted. In
the event that at any time during the Term, there is an occurrence
of an adverse condition on any area of the Project which is subject
to public view in contravention of the general maintenance standard
described above, (a "Maintenance Deficiency") then the Agency shall
notify the Borrower in writing of the Maintenance Deficiency and
give the Borrower thirty (30) days from the date of such notice to
cure the Maintenance Deficiency as identified in the notice. The
words "Maintenance Deficiency" include without limitation the
following inadequate or non-confirming property maintenance
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conditions and/or breaches of
restrictions:
residential property use
failure to properly mainta.l..n the windows, structural elements,
and painted exterior surface areas of the dwelling units in a
clean and presentable manner;
failure to keep the common areas of the property free of
accumulated debris, appliances, inoperable motor vehicles or
motor vehicle parts, or free of storage of lumber, building
materials or equipment not regularly in use on the property;
failure to regularly mow lawn areas or permit grasses planted
in lawn areas to exceed six inches (6") in height, or failure
to otherwise maintain the landscaping in a reasonable
condition free of wed and debris;
parking of any commercial motor vehicle in excess of 7,000
pounds gross 'Weight anywhere on the property, or the parking
of motor vehicles, boats, camper shells, trailers,
recreational vehicles and the like in any side yard or on any
other parts of the property which are not covered by a paved
and impermeable surface;
the use of garage areas on the property for purposes other
than the parking of motor vehicles and the storage of personal
possessions and mechanical equipment of persons residing in
the Project.
In the event the Borrower fails to cure or commence to cure
the Maintenance Deficiency within the time allowed, the Agency may
thereafter conduct a public hearing following transmittal of
written notice thereof to the Borrower ten (10) days prior to the
scheduled date of such public hearing in order to verify whether a
Maintenance Deficiency exists and whether the Borrower has failed
to comply with the provision of this Section 6(a). If, upon the.
conclusion of a public hearing, the Agency makes a finding that a
Maintenance Deficiency exists and that there appears to be non-
compliance with the general maintenance standard, as described
above, thereafter the Agency shall have the right to enter the
Project (exterior areas only) and perform all acts necessary to
cure the Maintenance Deficiency, or to take other action at law or
equity the Agency may then have to accomplish the abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the
abatement of a Maintenance Deficiency as authorized by this Section
6{a) shall become a lien on the Property. If the amount of the
lien is not paid within thirty (30) days after written demand for
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payment by the Agency to the Borrower, the-Agency shall have the
right to enforce the lien in the manner as provided in Section
6(c). .
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Property shall be removed by
the Borrower from any exterior surface of a structure or
improvement on the Property by either painting over the evidence of
such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed
with solvents, detergents or water as appropriate. In the event
that graffiti is placed on the Property (exterior areas only) and
such graffiti is visible from an adjacent or contiguous public
right-of-way and thereafter such graffiti is not removed within 72
hours following the time of its application; then in such event and
without notice to the Borrower, the Agency shall have the right to
enter the Property and remove the graffiti. Notwithstanding any
provision of Section 6(a) to the contrary, any sum expended.by the
Agency for the removal of graffiti from the Property as authorized
by this Section 6(b) shall become a lien on the Project. If the
amount of the lien is not paid within thirty (30) days after
written demand for payment by the Agency to the Borrower, the
Agency shall have the right to enforce its lien in the manner as
provided in Section 6(c).
(c) Subject to the lien of the Senior Lender under the FHA
Documents, the parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 6
expressly include the power to establish and enforce a lien or
other encumbrance against the Property in the manner provided under
Civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the Project to the maintenance
standard required under Section 6(a) or Section 6(b), including
attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such
action. In any legal proceeding for enforcing such a lien against
the Property, the prevailing path shall be entitled to recover its
attorneys' fees and costs of suit. The provisions of this Section
6 shall be a covenant running with the land for the Term and shall
be enforceable by the Agency in its discretion, cumulative with any
other rights or powers granted by the Agency under applicable law.
Nothing in the foregoing provisions of this Section 6 shall be
deemed to preclude the Borrower from making any alterations,
additions, or other changes to any structure or improvement or
landscaping on the Property, provided that such changes comply with
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the zoning and development regulations of the City
applicable law.
and other
SecUon ,. Co...-nant:. too Run Wit:h t:he Land. The Borrower
and the Agency hereby declare their specific intent that the
covenants, reservations and restrictions set forth herein are part
of a plan for the promotion and preservation of affordable housing
within the territorial jurisdiction of the Agency and that each
shall be deemed covenants running with the land and shall pass to
and be binding upon the Property and each successor-in-interest of
the Borrower in the Property for the Term. The Borrower hereby
expressly assumes the duty and obligation to perform each of the
covenants and to honor each of the reservations and restrictions
~:~df~~t~t~~rt~~:t~~~~~~t~~~e~i~:~m:~;~~~a~~~~i~~e~~ ~~~;~;~~~
the Property or any interest therein shall conclusively be held to
have been executed, delivered and accepted subject to such
covenants, reservations, and restrictions, regardless of whether
such covenants, reservations and restrictions are set forth in such
contract, deed or other instrument.
Sect:ion B. Burden and aenefit. The Agency 'iind the
Borrower hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the land
in that the Borrower's legal interest in the Property is affected
by the affordable dwelling use and occupancy covenants hereunder.
The Agency and the Borrower hereby further declare their
understanding and intent that the benefit of such covenants touch
and concern the land by enhancing and increasing the enjoyment and
use of the Project by the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the affordable
housing goals and objectives of the Agency and in order to make the
Property available for acquisition by the Borrower.
Section 9.
'rerm.
(a) The provisions of this Regulatory Agreement shall apply
to the Property for a term of fifty five (55) years following the
date of recordation of this Regulatory Agreement.
(b) Any provision or section of this Regulatory Agreement may
be terminated upon written agreement by the Agency and the Borrower
if the Agency in its reasonable discretion determines that such a
termination will not adversely affect the affordable housing goals
of the Agency.
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Sec1:ion 10.
Breaoh and De~aul1: and J:~oro---ft1:.
(al Failure or delay by the Borrower to honor or perform any
material term or provision of this Regulatory Agreement shall
constitute a breach under this Agreement; p;Qvided however, that if
the Borrower commences to cure, correct or remedy the alleged
breach within thirty (30) calendar days after the date of written
notice specifying such breach and shall diligently complete such
cure, correction or remedy, the Borrower shall not be deemed to be
in default hereunder.
The Agency shall give the Borrower written notice of breach
specifying the alleged breach which if uncured by the Borrower
within thirty (301 calendar days, shall be deemed to be an event of
default. Delay in giving such notice shall not constitute a waiver
of any breach or event of default nor shall it change the time of
breach or event of default; provided, however, the Agency shall not
exercise any remedy for an event of default hereunder without first
delivering the written notice of breach as specified in this
Section 10.
Except with respect to rights and remedies expressly declared
to be exclusive in this Regulatory Agreement, the rights and
remedies of the Agency are cumulative with any other right or power
of the Agency or the City or other applicable law, and the exercise
of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other
right or remedy for the same breach or event of default.
.~
-"'"
In the event that a breach of the Borrower may remain incurred
for more than thirty (30) calendar days following written notice,
as provided above, an event of default shall be deemed to have
occurred. In addition to the remedial provisions of Section 5 as
related to a Maintenance Deficiency at the Project, upon the
occurrence of any event of default the Agency shall be entitled to
seek any appropriate remedy or damages by initiating legal
proceedings as follows:
(i) by mandamus or other suit, action or proceeding at law or
in equity, to require the Borrower to perform its
obligations and covenants hereunder, or enjoin any acts
or things which may be unlawful or in violation of the
rights of the Agency; or
(ii) by other action at law or in equity as necessary or
convenient to enforce the obligations, covenants and
agreements of the Borrower to the Agency.
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(b) Except as set forth in the next sentence, no third party
shall have any right or power to enforce any provision of this
Regulatory Agreement on behalf of the Agency or to compel the
Agency to enforce any provision of this Regulatory Agreement
against the Borrower or the Project.
Section 11. Go"e=ina LAw. This Regulatory Agreement shall
be governed by the laws of the State of California.
Section 12. aMan~a~e. This Regulatory Agreement may be
amended after the Delivery Date only by a written instrument
executed by the Borrower and by the Agency.
Seceion 13. Aeeo=ev's Fees. In the event that the Agency
brings an action to enforce any condition or covenant,
representation or warranty in this Regulatory Agreement or
otherwise arising out of this Regulatory Agreement, the prevailing
party in such action shall be entitled to recover from the other
party reasonable attorneys' fees to be fixed by the court in which
a judgment is entered, as well as the costs of such suit. For the
purposes of this Section 13, the words ~reasonable attorneys' fees"
in the case of the Agency include the salaries, costs and overhead
of the lawyers employed in the Office of the City Attorney of the
City of San Bernardino.
Section 14. Se"erabiliev. If any provision of this
Regulatory Agreement shall be declared invalid, inopera ti ve or
unenforceable by a final judgment or decree of a court of competent
jurisdiction such invalidity or unenforceability of such provision
shall not affect the remaining parts of this Regulatory Agreement
which are hereby declared by the parties to be severable from any
other part which is found by a court to be invalid or
unenforceable.
Seceion 15. T.~a is of ehe Essence. For each provision of
. - 'f this Regulatory Agreement which states a specific amount of time
within which the requirements thereof are to be satisfied, time
shall be deemed to be of the essence.
Seceion 16. Notice. Any notice required to be given under
this Regulatory Agreement shall be given by the Agency or by the
Borrower, as applicable, by personal delivery or by First Class
United States mail at the addresses specified below or at such
other address as may be specified in writing by the parties hereto:
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Comment:
If to the Agency:
Redevelopment Agency of the
City of San Bernardino
201 North ~EN Street, Suite 301
.San Bernardino, California 92401
Attn: Director of Housing and
Community Development
Phone: (909) 663-1044
If to the
Borrower:
A. F. Evans Company, Inc.
100 Bush Street, Suite 925
San Francisco, California 94104
Attn: Jack Robertson
Phone: (415) 393-5250
If to the
Senior Lender:
Berkshire Mortgage Fin~nce Bethesda
Limited Partnership
4550 Montgomery Avenue
Suite 1150
Bethesda, Maryland 20814
Attn: Catherine Pharis
Phone: (301) 341-4840
Notice shall be deemed given five (5) calendar days after the
date of mailing to the party, or, if personally delivered, when
received by the Director of Housing and Community Development of
the Agency, the Borrower or the Senior Lender, as applicable.
Section 17.
Documents.
Prioritv of FHA Aareement and the FHA
(a) During the period of time when the FHA Agreement and/or
the FHA Documents are in effect with respect to the Project,
compliance by the Borrower with the requirements of the FHA
Agreement and the applicable FHA Documents shall be deemed
compliance by the Borrower with requirements of this Regulatory
Agreement.
(b) To the extent that there is any conflict, inconsistency
or ambiguity between or among this Regulatory Agreement and any
applicable provision of the FHA Agreement or FHA Documents or the
HUD statutory, regulatory or administrative requirements or any of
the other documents which have been or are required by HUD or GNMA
to be executed by the Borrower, the HUD mortgage insurance, Section
8 and HUD and GNMA statutory, regulatory and administrative
requirements and the terms of the FHA Agreement and FHA Documents
will be deemed to be controlling and any such ambiguity or
inconsistency will be resolved 1n favor of, and pursuant to the HUD
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mortgage insurance, Section 8, and HUD and GNMA statutory,
regulatory and administrative requirements and the terms of the FHA
Agreement and the FHA Documents. In addition, it is understolld and
agreed that any default under this Regulatory Agreement shall not
constitute a default under the FHA Agreement and FHA Documents
(c) This Regulatory Agreement shall not be construed to
restrict or adversely affect the duties and obligations of the
Borrower and/or the Sehior Lender under the contract of Mortgage
Insurance issued by HUD with respect to the FHA Documents.
(d) This Regulatory Agreement may be amended as deemed
necessary by written instrument duly approved by the Secretary and
the Senior Lender and the parties to this Agreement and executed by
the parties hereto. Any such amendment or modification shall be
valid, binding and legally enforceable only if in written form and
executed by the parties hereto and only after the approval thereof
by official action of the Agency, the Senior Lender and the
Secretary.
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Comment:
IN WITNESS WHEREOF, the Borrower and the Agency have caused
this Regulatory Agreement to be signed, acknowledged and attested
on their behalf by duly authorized representatives in counterpart
original copies which shall upon execution by all of the parties be
deemed to be one original document.
BORROWER
AFE-Pioneer Associates, L. P., a
California limited partnership
Date:
J /-/1.{ ~O()
By: A. F. Evans Company, Inc., a
C;~~PO~~ion~ts general
By: /T/J?'#z.-
NamE!":
Title:
AGENCY
Dated:~~~t?
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
\
" .l'~ \.- '.1"-)0<....-
-Agency Special Counsel
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Comment:
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On November 14, 2000 before me, SteDhanie Jefferson. Notary
Public, personally appeared Gary Van Osdel , personally known to me (ef
Ilreved la me aA the !:lasis af selisfeatery e'lideAee) to be the personf.!) whose name(s)
islere subscribed to the within instrument and acknowledged to me that he/shelthey
executed the same in his/herJtheir authorized capacity~, and that by hisJher/lheir
signaturef.!) on the instrument the personf.!), or the entity upon behalf of which the
personf.!) acted, executed the instrument.
WITNESS my hand and official seal,
Je---~~:~=-J
~ NoIOIy NlIc - C~A..l. ~
f MV~~"rc~t
- - - - - - - -
Signature
(Seal)
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Description: 2000.419007
Page 22 of 24
Comment:
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CALIFORNIA ALL.pURPOSE ACKNOWLEDGMENT
.~
^'.
State of California
} ss.
County of A os (}nt/elLs
(/
On1JoVt?J1.btr/At" ctooo ,before me. /lwt !;&:mc/, 4h~ij ~J~r,
om. Name M'olSl\le 01 0IIiaIr te"'t.i*- eo.. Nowt Pvblk"\
personally appeared 1tI~D-m 1tJe ttvrt.
Hamll{a) 01 sv-ta)
o ~"'onally known to me
[jj' proved to me on the basis of satisfactory
evidence
.fWlLAHlMClNYlOWlD
~ . .....
...,MIl:.C ..
"__ClMIr
~-..l.t ......
to be the psrson{et whose nams(eT isiet'lt
subscribed to the within instrument and
acknowledged to msthat helslle.'tl,1l)' executed
the sams in his/herltfteir authorized
capaclty!leel. and that by hiS/llar.",gj,
signature{tij on the instrument tl:f~ porsan(a), ~r
the sntity upon behalf of which ths psrson~
acted, executed the instrument
PI&lc8 NlIWy SuI Aalow
WIr:J~~y ~cial seal.
SigrwUe 01 Notary Public
OPTIONAL
Though the information below Is noI required bylaw, It mey prove I18luatNe to persons relying Ort the document
and could prevent fntuduIenl rvmoval fUld reattachment of this form to another document.
Descrfpllon of Attached ~ocum.:!.
Tille or Type of Document lid tJ::J
Document Date:
fJo.h771141.C l'.Wld t'OJ/V>>o-?ds
Number of Pages:
Signer(s) Other Than Named Above:
Capaclty(lss) Clalmlld by Slgnsr
Slgnefs Name: AhU~ "Jj1d':lnY',
o Individual
o Corporate Officer - TIlIe(s):
ifPartner-O Umited (l(General
o Attorney In Fact
o Trustee
o Guardian or Conservator
o other.
S<gner Is Representing: .4. r. I!VIYJ1,s ~'//1'1. C .
Topatlhl..lr'aherll
01ell11~"""'~.t35CIo.".w.~P.o.""'~.0IIlIwcdI.(:A11113-2C1r2._iareh:IIIoy.oog
Pwod.Hi:l.5llCl7 "-dIr:CIlI"""1~
. ;.1'!.
1',,1.:':'1'1
. .IJ" -'''i.itl
Order: 0
Description: 2000.419007
Page 23 of 24
Comment:
I'
EXHIBIT 'A'
PARCEL NO.1: (APN: 134-061-27)
LOTS 3 AND 4, BLOCK 38, CITY OF SAN BERNARDINO, 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.
PARCEL NO. 2: (APN: 134-061-26)
LOTS 7 AND 8, BLOCK 38, CITY OF SAN BERNARDINO, 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.
\. I "~,::,,:!'
.I!", J"i.'lt.:1
Order: 0
Description: 2000.419007
Page 24 of 24
Comment:
I
R.co~dtd 1" 0((1c1.1 Recordo. Countv of
s.n "rna~d1no. Lar~V Wal kr. Recordo~
RECORDING REQUESTED BY:
Doc No. 20000419008
4:44pm 11/15/00
~rican ntle ~ ~ m
Redevelopment Agency of the
City of San Bernardino
WHEN RECORDED MAIL TO:
FArGO
;29,7~) 7 Jlm l::--
5 8.QL ~
.0. n LII SI' Clr.ca 11U.U TAlI DA DIll DAM
(Space above for Recorder's Use)
REDEVELOPMENT AGENCY Of THE CITY Of SAN BERNARDINO
Pioneer Park Plaza Affordable
Elderly Rental Housing Project
(FHA Agreement Project No. 143-11047-PM-PUR/CON)
LOAN SUBORDINATION AGREEMENT
THIS LOAN SUBORDINATION AGREEMENT made this ~ day of
AYbv~16er, 2000, by and between the Redevelopment Agency of the City
of San Bernardino, (hereinafter sometimes referred to as
"Beneficiary") and AFE-Pioneer Associates, L. P. , a California
limited partnership, (hereinafter referred to as "Trustor," or
"Borrower") .
-- WITNESSETH
WHEREAS, the Beneficiary and the BOrrower have entered into
that certain agreement entitled "Loan Agreement (Pioneer Park Plaza
Affordable Elderly Rental Housing Project)" dated as of October 16,
2000 (the "Agency Loan Agreement") whereby the Beneficiary has
provided the Borrower with a loan of funds (the "Agency Loan") in
the original principal amount of Two Hundred and Fifty Thousand
Dollars ($250,000.00) as authorized under Healch and Safety Code
Section 33334.2 for the purpose of assisting the Beneficiary to
acquire the lands and improvements located at 55'~ ~br1l. (IS' San
Bernardino, California (the "Property") for the operation thereon
of an affordable rental housing facility reserved for occupancy and
use by elderly persons, all as more fully set forth in the Agency
Loan Agreement.
WHEREAS, a legal description of the Property is attached
hereto as Exhibit "A".
SB&O/OOOlJDOCJ418S-1
10/9/00 JJO jfIW
1
'~.. \ " ':1
.~... .I" ,"'1(,:1
)rder: 0
Description: 2000.419008
Page 10(8
Comment:
p
WHEREAS, the Agency Loan is evidenced by a promissory note of
even date herewith in favor of the Beneficiary and payable by the
Borrower (the "Agency NoteH), and the Agency Note is secured by a
deed of trust of even date herewith affecting the Property (the
"Agency Deed of TrustH) as executed by the Borrower and delivered
to the Beneficiary, and certain elderly persons affordable rental
housing covenants of the Borrower in favor of the Beneficiary which
arise under the Agency Loan Agreement are evidenced by the Agency
Regulatory Agreement, of even date herewith, by and between the
Beneficiary and the Borrower;
WHEREAS, Berkshire Mortgage Finance Bethesda Limited
Partnership, a Massachusetts limited partnership (the "Superior
LenderH) has agreed to make a loan to the Borrower in an original
principal amount not to exceed $4,400,000.00 (tt.e "Superior LoanH)
which loan is for the purpose of acquiring and rehabilitating the
Property, and said Superior Loan will be insured by the U.S.
Department of Housing and Urban Development ("HUDH) acting by and
through the Federal Housing Administration ("FHAH) under the terms
and conditions of that certain instrument entitled "Regulatory
Agreement for Multifamily Housing Projects" dated as of~v~/,
2000, by and between the Beneficiary and HUD (the "FHA AgreementH);
WHEREAS, the said Superior Loan is evidenced by a certain Deed
of Trust Note dated November I, 2000, and is secured by a Deed of
Trust, dated November L, 2000, from Borrower in favor of the
Superior Lender; and
WHEREAS, the Borrower and Beneficiary are desirous of having
the Agency Regulatory Agreement, the Agency Deed of Trust, the
Agency Note and other relevant Agency Loan documents as set forth
under the FHA Agreement, securing and benefiting the Beneficiary
subordinated to the said Superior Loan, its Deed of Trust,
Financing Agreement, the FHA Agreement and any other relevant loan
document required by the Superior Lender or HUD.
NOW, THEREFORE, in consideration of the premises and as an
inducement to the Superior Lender to make the Superior Loan to the
Borrower, the Borrower and the Beneficiary jointly and severally
hereby acknowledge and agree that the lien of the Agency Deed of
Trust in the Property, and the covenants in favor of Agency in the
Property as arise under the Regulatory Agreement and other related
documents affecting the Property by and between the Borrower and
the Beneficiary, are subordinate and subject to the lien, operation
and effect of the Superior Lender in the Property, including
without limitation the Deed of Trust executed by the Beneficiary in
favor of the Superior Lender on even date herewith.
SBEO/OOOl/DOC/418S-1
10/9/00 330 jmw
2
I... I,:',',
.rl", .I".-'}t,:1
Order: 0
Description: 2000.419008
Page2of8
Comment:
...
It is hereby understood and agreed between the Beneficiary and
the Borrower that:
1. The above recitals are incorporated herein and made a
part of this Subordination Agreement.
2. The Superior Lender would not provide the Superior Loan
to the Borrower unless this Subordination Agreement of
the Beneficiary and the Borrower is duly executed by
authorized principals or representatives of each of the
parties hereto and filed for record against the Property.
3. Any change in the amount of the Superior Loan must have
prior written approval of the Beneficiary.
4. The Superior Lender, and any successor or assign, shall
give the Beneficiary written notice of any default or
event of default contemporaneously with the giving of
notice to the Borrower. It is hereby understood and
agreed that the Beneficiary, may, in its sole discretion
(but without obligation to do so) elect to cure any
default of the Borrower.
5. Beneficiary shall provide the Superior Lender or its
successor or assign written notice of any default or
event of default contemporaneously with the giving of any
default notice to the Borrower.
6. This Subordination Agreement is executed in two (2)
counterparts, each counterpart being an original.
Sato/oOOl/OOC/4185_1
10/9/00 330 jlllW
3
; II.;
-"llI"1I
r!~1 .I~i ,-if I
Jrder: 0
Description: 2000.419008
Page 3 of8
Comment:
I:
~
['
IN WITNESS WHEREOF, the parties hereto have executed this
Subordination Agreement as of the date first set forth above.
BENEFICIARY
Redevelopment Ag~ncy of the City of
San Bern ino"
By:
By:
BORROWER
AFE-Pioneer Associates, L.P., a
California limited partnership
By: A.F. Evans Company, Inc., a
California corporation, its general
pa~tneY'J .1__ ~
By: Vl#1/f ff.h/Pt--
Name"': r
Title:
SBEO/0001/DOC/418S-1
1019/00 330 jmw
4
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.~'" .H."~')
Order: 0
Descnpffon:2000.419008
Page 4 ot8
Comment:
r;"
STATE OF CAliFORNIA
COUNTY OF SAN BERNARDINO
On November 14. 2000 before me, SteDhanie Jefferson. Notarv
Public. personally appeared Judith Valles, personally known to me ler prevea te
me eR tAa Beeis af eat/sfaCler}' e...iEfcRee) to be the person(st whose name(st islafe
subscribed to the within Instrument and acknowledged to me that he/sAe/lhey executed
the same in hls/ller/thelr authorized capacity(ies}, and that by hielflerltlleir signature(st
on the instrument tha parson(st, or the entity upon behalf of which the person(st acted,
executed the instrument.
WITNESS my hand and official seal.
it STB'HANIE JEffERSON
- Co",,~,'l25C561
I Noby NlIc - CclIIIlma
j---~~~~~f
Signatur
(Seal)
. .
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,~~I .t.. ,'~',I
Jrder: 0
Descnpilon:2000.419008
Page 5 of 8
Comment:
I"
STATE OF CALIFORNIA }
COUNTY OF SAN BERNARDINO }
On November 14. 2000 before me, SteDhanie Jefferson. Notary
Public. personally appeared Gary Van Osdel . personally known to me (ef
Ilre'/ee! te me eR tile aeGis at satlsfaetsl'f eYldeRee) to be the person~ whose nam~
islare subscribed to the within Instrument and acknowledged to me that heJslleJllley
executed the same in his/ller.'their authorized capaclty~. and that by his/llerltheir
slgnature(s) on the instrument the perso~. or the entity upon behalf of which the
person~ acted, executed the instrument.
WITNESS my hand and official seal.
r - - - ~ ~; ;5: I
SJ1!IHNlIE .lu__ .oN
. co...'- ~.!.~
1 flatlIlY ",**. CuL(""
San "',_dIIoo Clll.ody f
MYCcmn.~Feb25.2lXl4
. . - .
Signatu
(Seal)
. ,
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f!""",..;,t.:1
Order: 0
Description: 2000.419008
Page 6 0'8
Comment:
r
I
I'
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Celifornia
} 55.
County of ,{oS th1t;e!es
(./
On ?10Vt4rl~f:'IJ'f ~foreme, /avt ZoJ:;!J~(:!?!!~~tu; ,
personally appeared tAtltCvrn 111e ttwt., ,
~.JoIS9*1'"J
o P-8rsonally known to me
uiProVed to me on the basis of satisfactory
evidence
fa IlAII. NIItlCINI'_AAMO
c... . ......
'-'1IMl.- II .
-:-~~~....
10 be tile p~ whose namelel islefe
subscribed to the within instrument end
acknowledged to me that helGllef_'l.,. executed
the same in hls.'~8fJtAai. authorized
capecl~, and that by his/RerAlleir
signaturl$l on the instrument the p"RleR(el, er
the entity upon beha~ of which the person{ol
acted, executed the instrument.
PlaoI NoWy SNI Above
WI~ my hend and official seal.
~~ xa t)
Signab.lnJ of Nary Public
OPTIONAL
Though the In!omIatlon below 1$ If<< required by law. it may prove valuable to peISOI1S relying on the document
Bod could prevent freudulent removel and reattachment of this ronn 10 another document.
Description of Attached Document
lille or Type of Document: .l.0A.v J'Vt!tJ,(O/HA-//OA! AUUA-1J;A/T
Document Date:
Number 01 Pageo:
Slgner(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name: M;ftPm. 91'lcCllll"e
o Individual
o Corporate Officer -lllleJo):
g' Partner - 0 Um~ed IB'General
o Allomey in Fact
o Trustee
o GUardian or Conse<vator
o other.
SlgnarIs Repre.enling: A.r. {V'tJ?1S t!Pny;an'hlA/c..
V
DlIlOllNldDnllNWlry"-ooiMiDnoD$OOo "-"P.o."I4Cl2.~CANIa.24GI'_~."
""""Ho.MOt "-dar:CIIlT"ffM1~..u7
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',.I;ll"lt
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Order: 0
Description: 2000.419008
Page 7 of 8
Comment:
r
1
EXHIBIT 'A'
PARCEL NO.1: (APN: 134-061-27)
LOTS 3 AND 4, BLOCK 38, CITY OF SAN BERNARDINO, 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.
PARCEL NO.2: (APN: 134-061-26)
LOTS 7 AND 8, BLOCK 38, CITY OF SAN BERNARDINO, 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.
'j ....;:
',. \ .'11
.I!", "..;.;.to)
Order: 0
Description: 2000.419008
Page 8 ot8
Comment:
[1'
~ded in Offici.! ftecord*, County of
hn a.rnudino, Lorry Il.llk.r, R.cor~r
RECORDING REQUESTED BY:
Doc No. 20000419005
4:44pm 11/15/00
American ritle 8 a ~l~
WHEN RECORDED IlliTURN TO:
Orrick, Herrington & Sutcliffe LLP
400 Sansome Streel
San Francisco, CA 94111
Attention: Ana Marie del Rio, Esq,
~{611 ~J)'\I?
.__ IT UI
REGULATORY AGREEMENT AND
DECLARA nON OF RESTRICTIVE COVENANTS
By and Among
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTIIORJTY
and
WELLS FARGO BANK. NATIONAL ASSOCIATION,
as Trustee
and
AFE-PIONEERASSOCIATES, L.P"
. California limited partnership
Dated as of November 1,2000
Relating to
CAL!FOR."IlA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
MUL TIFAMIL Y HOUSING REVENUE BONDS. SERIES 2000 T
(GNMA COLLATERALIZED - PIONEER PARK PLAZA APARTMENTS PROJEer)
DOCSSFI:41.f684b
i0929.27S AD!
.........---1.___.
, ,
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.1!....H.''l-t.)
Order: 0
Description: 2000.419005
Page 1 of 35
Comment:
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
SCl.:tlon 6.
St:CfllHl 7.
Section 8.
Sc:clion 4.).
Setllon 10.
Socllon 11.
S.ction 12.
Seclion 13.
S.ction 14.
Section IS.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Seclion 26.
Section 27.
Seclion 28.
EXHIBIT A
EXHIBIT B
EXHIBIT C-I
EXHIBIT C-2
IXX:s.'iFl:-I7%S-I.lJ
40'J~.175.<\C>t
F
TABLE OF CONTENTS
Page
Detinitions and Interpretation......... ................ ..... ........... ........................... ..................1
Representations. Covenants and Warranties of the Owner..........................................4
Qualified Residential Rental Project...........................................................................4
Low Income TenanlS; Reporting Requirements..........................................................5
Tux-Exempt Status of Bonds........ ................................. .............. ....................... .........6
^ddilional Requirements oflhe Housing Law............................................................7
Additional ReqUirements orlhe Issuer ........................................................................8
Mod itication of C'ovenants ......... .............................. ............. ........ ........... ............... ....9
Indemnification; Other Payments ..............................................................................10
Consideration .................. ............ ..................... ......... ........... .............. ......... ...............1 0
Reliance ........................................ ................ .............................................. ...............1 0
Sale or Transfer of the Project...................................................................................l0
1'.00..........................................................................................................................11
Covenants to Run With the Land...............................................................................l2
Burden and Benefit ......................................................... ....... ......................... ....... ....12
Uniformity; Common Plan ........................................................................................12
Default; Enforcement ................................................................ ................ ................13
The Trustee ..................................................................................... ......... ............ ......14
Recording and Filing .............. .................................... .................... ...... ... ..................14
Payment of Fees........ ............................................................ ................... ....... ...........15
Governing Law........................................ .................. ........... ................................. ....15
Amendments; Waivers .............................................. ............ ........ ......... ............... ....15
Notices ................. ..................... ............... ........................................ ..........................15
S.verability ............................... ................. ......................... .................... ...................16
Multiple Counterparts .......... ...................... ........................... ................ ................... ..16
Limitation on Liability ..... .......................... ............... ......................... ................... .....16
Third-Party Ben.ficiary .............. ................. .............. ....... .......... ............ ............. ......16
Subordination.... .......................... ................. .................. ........... ..................... ........... .16
DESCRIPTION OF REAL PROPERTY ............................................................... A-I
FORM OF INCOME CERTIFICATION ................................................................B-I
FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE......C-I
FORM OF CERTIFICATE OF CDLAC PROGRAM COMPLIANCE............. C-2-1
Order: 0
i "'1'.;
~., I ,tt" '.,
,II~ .H,'~.:I
Description: 2000.419005
Comment:
Page 2 of 35
I'
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (as supplemented and amended from time to time, this "Regulatory Agreement") is made
and entered into as of November 1,2000, by and among the CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY, a joint exercise of powers authority duly organized
and existing under the laws of the State of California (together with any successor to its rights, duties and
obligations, the "Issuer"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America (together with any
successor in such capacity, the "Trustee"), in ils capacity as Trustee under the Indenture (as hereinafter
defined), and AFE-PJONEER ASSOCIATES, L,P" a California limited partnership (together with any
successor to its rights. duties and obligations hereunder and as owner of the Project identified herein, the
"Owner").
WITNESSETH:
WHEREAS, pursuant to Chapter 5 of Title I of Division 1 of the California Government
Code (the "Act") and in compliance with Chapter 1 of Part 5 of Division 31 of the California Health and
Safety Code (the "Housing Law"), the Issuer proposes to issue its Multifamily Housing Mortgage
Revenue Bonds, Series 2000T (GNMA Collateralized - Pioneer Park Plaza Apartments Project) (the
"Bonds") under a Trust Iodenture, dated as of November 1,2000 (the "Indenture"), between the Issuer
and the Trustee;
WHEREAS, the proceeds of the Bonds will be used to fund a loan to the Owner pursuant
to the Financing Agreement, dated as of November 1,2000, among the Issuer, the Owner, the Trustee and
Berkshire Mortgage Finance Bethesda Limrted Partnership, as lender (the "Lender") (as supplemented
and amended from time to time, the "Financing Agreement"). to provide financing for the acquisition and
rehabilitation of the multifamily rental housing project known as Pioneer Park Plaza Apartments, located
on the real property site described in Exhibit A hereto (as further described herein, the "Project");
WHEREAS, in order to assure the Issuer and the owners of the Bonds that interest on the
Bonds will be excluded trom gross income for federal income tax purposes under Section 103 of the
Internal Revenue Code of 1986 (the "Code"), and to satisfy the public purposes for which the Bonds are
authorized to be issued under the Act and the Housing Law, and to satisfy the purposes of the Issuer in
determining to issue the Bonds, certain limits on the occupancy of units in the Project need to be
established and certain other requirements need to be met;
NOW, THEREFORE, in consideration oflhe issuance of the Bonds by the Issuer and the
mutual covenants and undertakings set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Issuer, the Trustee and the Owner hereby
agree as follows:
Section I. Definitions and Interoretstion. Unless the context otherwise requires, the
capitalized terms used herein shall have the respeetive meanings assigned to them in the recitals hereto, in
this Section I or in Section 1.0 I of the Iodenture.
"Adjusted Income" means the adjusted income of a penon (together with the adjusted
income of all persons who intend to reside with such person in one residential unit) as calculated in the
manner prescribed in Regulations Section 1.161(k)-3(b )(3) in effect as of the Closing Date.
IXCi$Fl:.7468~.1I
.(QQ~-~7~ AD1
l~., I. ,.,,'!'
.441 .I~ .it.)
Order: 0
Description: 2000.419005
Page 3 of 35
Comment:
Order: 0
,II
"Administrator" means any adminisU'ator or program monitor appointed by the Issuer to
administer this Regulatory Agreement, and any successor administrator appointcd by the Issuer. The
initial Administrator shall be Urban Futures, Incorporated.
"Area" means the San Bernardino County, California Metropolitan Statistical Area.
"CD LAC" means the California Debt Limit Allocation Conunittee or its successors.
"Certificate of Continuiog Program Compliance" means the Certificate to be filed by the
Owner with the Administrator, on behalf of the Issuer and the Trustee pursuant to Section 4(e) hereof,
which shall be substantially in the form attached as Exhibit C hereto or in such other comparable form as
may be provided by the Issuer to the Owner.
"City" means the City of San Bernardino, California.
"Closing Date" means the date the Bonds arc issued and delivered to the initial purchaser
thereof.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
"Income Certification" means a Verification of Income and an Occupancy Certificate in
the form attached as Exhibit B hereto or in such other comparable form as approved by Bond Counsel and
provided by the Issuer or the Administrator to the Owner.
"Low Income Tenant" means any tenant (i) wbose Adjusted Income does not exceed
limits determined in a manner consistent with determinations oflow income families under Section 8 of
the Housing Act, provided that the percentage of median gross income that qualifies as tow income
hereunder shall be sixty peroent (60%) of median gross income for the Area, with adjustments for famity
size; and (ii) who otherwise qualify as low income households as defmed by Section 50079.5 of the
California Health and Safety Code (as in effect on the Closing Date). If all the occupants of a unit arc
students (as defined under Section 151(e)(4) of the Code), no one of whom is entitled to file a joint return
under Section 6013 of the Code, such occupants shall not qualifY 'as Low Income Tenants. The
determination of a tenant's status as a Low Income Tenant shall be made by tbe Owner upon initial
occupancy of a unit in the Project by such Tenant, on tbe basis of an Income Certification executed by the
Tenant.
"Low Income Units" means the units in the Project required to be rented, or held
available for occupancy by, Low Income Tenants pursuant to Sections 4(a) and 6(a) oftbis Regulatory
Agreement.
"Project" means the 161-unit multifamily rental bousing development, tocated on the real
property site described in Exhibit A hercto, consisting oftoose facilities, including reat property,
structures. buildings, fixnues or equipment situated thereon, as it may at any time exist, the acquisition
and rehabilitation of which facilities is to be financed, in whole or in part, from the proceeds of the sale of
the Bonds or the proceeds of any payment by the Owner pursuant to the Financing Agreement, and any
real property, structures, buildings, fIXtures or equipment aoquired in substitution for, as a renewal or
replacement of, or a modification or improvement to, all or any part of the facilities described in the
Financing Agreement.
OCX:SSP1:'t7168i.b
40929-275 AD1
2
I '.,<:
,I.,t',-;II.
.,,~ .h,.it-,I
Description: 2000.419005
Page 4 of 35
Comment:
I:
"Qualified Project Period" means the period beginning on the later of the Closing Dale or
the first day on which at least I 0"10 of the units in the Project an: first occupied, and ending on the later of
the following:
(A) the date which is fifteen (IS) years after the date on which at least fitly
percent (50%) of the units in the Project are first occupied;
(B) the first date on which no private activity bonds with respect to the
Project are Outslanding;
(C) lhe date on which any assistance provided with respect to the Project
under Section 8 of the Housing Act terminates; or
(D) such later date as set forth on Section 7 of this Regulatory Agreement.
"RDA Regulatory Agt=llent" means the Redevelopment Agency of the City of San
Bernardino Regulatory Agreement and Covenants, dated as of October 16,2000, between the Owner and
the Redevelopment Agency of the City of San Bernardino.
"Regulations" means the Income Tax Regulations of the Department of the Treasury
applicable under the Code from time to time.
"Regulatory Agreement" means this Regulatory Agt=llent and Declaration of
Restrictive Covenants, as it may be supplemented and amended from time to time.
"Tax-Exempt" means with respect to interest on any obligations of a state or local
government, including the Bonds, that such interest is excluded from gross income for federal income tax
purposes; provided, however, that such interest may be includable as an item of tax preference nr
otherwise includable directly or indirectly for purposes of calculating other tax liabilities, including any
alternative minimum tax or environmental tax, under the Code.
"Veri!ication ofIncome" means a Verification ofIncome in the form attached as
Exhibit B hereto or in such other comparable form as approved by Bond Counsel and provided by the
Issuer or the Administrator to the Owner.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of any gender shall be construed to include each other gender when appropriate and words of the
singular number shall be construed to include the plural numher, and viae versa, when appropriate. This
Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the
purposes set forth herein and to sustain the validity hereof, ,
The titles and headings of the sections of this Regulatory Agreement have been inserted
for convenience of reference only, and are not to be considered a part hereofand shall not in any way
modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing
this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent
shall arise.
The parties to this Regulatory Agreement scknowledge that each party and their
respective counsel have participated in the drafting and revision of this Regulatory Agreement.
Accordingly, the parties agree that any rule of construction to the effect that ambiguities are to be
lXX"..sSf 1:~7468".6
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Description: 2000.419005
Page 5 of 35
Comment:
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resolved against the drdlling party shall nOI apply in the interpretalion of lhis Regulatory Agreement or
any supplement or exhibit hereto.
Section 2.
Reuresentalions. Covenants and Warranties of the Owner.
(a) The Owner hereby incorporates herein, as if set forth in full herein, each of the
representations. covenants and warranties of the Owner contained in the Tax Certificate and the Financing
Agreement relating to the Project.
(b)
within the City.
The Owner hereby represents and warrants that the Project is located entirely
(c) The Owner acknowledges, represents and warrants that it understands the nature
and structure ofthe transactions contemplated by this Regulatory Agreement; that it is familiar with the
provisions of all of the documents and instruments relating to the Bonds to which it is a party or of which
it is a beneficiary; that it understands the financial and legal risks inherent in such transactions; and that it
has not relied On the Issuer for any guidance or expertise in analyzing the fmancial or other consequences
of such financing transaclions or otherwise relied on the Issuer in any manner except to issue the Bonds in
order to provide funds to assist the Owner in acquiring and rehabilitating the Project.
Section 3. Oualified Residential Rental Proiect. The Owner hereby acknowledges
and agrees that the Project is to be owned, managed and operated as a "residential rental project" (within
lhe meaning of Section 142(d) of the Code) lor a terrn equal to the Qualified Project Period. To that end,
and for the term of this Regulatory Agreement, the Owner hereby represents, covenants, warrants and
agrees as follows:
(a) The Project will be acquired and operated for the purpose of providing
multifamily residential rental property. The Owner will own, manage and operate the Project as a project
to provide multifamily residential rental property comprised of a building or structure or several
interrelated buildings or structures, together with any functionally related and subordinate facilities, and
no other facilities, in accordance with Section 142(d) of the Code, Section 1.I03-8(b) of the Regulations
and the provisions of the Act, and in accordance with such requirements as may be imposed thereby on
the Project from time 10 time.
(b) All of the dwelling units in the Project will be similarly constructed units, and
each dwelling unit in the Project will contain complete separate and distinct facilities for living, sleeping,
eating, cooking and sanitation for a single person or a family, including a sleeping area, hathing and
sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink.
(c) None oflhe dwelling units in the Project will at any time be utilized on a
transient basis or rented for a period ofJess than 30 consecutive days. or will ever be used as a hotel,
motel. dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium,
rest home or trailer court or park.
(d) No part of the Project will at any time during the Qualified Project Period be
owned by a cooperative housing corporation, nor shall the Owner take any steps in connection with a
conversion to such ownership or use, and the Owner will not talcc any steps in connection with a
conversion of the Project to condominium ownership during the Qualified Project Period (except that the
Owner may obtain final map apptoval and the Final Subdivision Public Report from the California
Department of Real Estate and may file a condominium plan with the City).
ocx:s.sPJ:47-46Si.6
4CH29.:!7S ADI
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Description: 2000.419005
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( e) All of the dwelling units in the Project (except for not more tban two units set
aside for resident manager or other administrative use) will be available for rental during the Qualified
Project Period on a continuous basis to members of the general public, on a first-<:omc, first-served basis
to qualified tenants, and the Owner will not give preference 10 any particular class or group in renting the
dwelling unils in the Project, except to the extent that dwelling units arc required to be leased or rented to
Low Income Tenanls or under the terms ofthe FHA Regulatory Agreement or, to Ihe exlent permitted by
law, the RDA Regulatory Agreement.
(I) The Project consists of a parcel or parcels that arc contiguous except for the
interposition of a road. street or slream. and all oflhe facililies of the Project comprise a single
geographically and functionally inteb'l1lted project for residential rental property, as evidenced by the
ownership. management. accounting and operation of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner; provided,
however, that if the Project contains five or more dwelling units, this provision shall not be coilStrUCd to
prohibit occupancy of not more than two dwelling units by two or mOre resident managers or maintenance
personnel any of whom may be the Owner.
Section 4. Low Income Tenants: Reoortin. Reouiremenls. Pursuant to the
requirements of the Code, the Owner berebyrepresents, wammts and covenants as follows:
(a) During the Qualified Project Period, no less than 40% of the total number of
completed lUlits in the Project shall al all times be rented to and occupied by Low Income Tenants. For
the purposes of this paragraph (a), a vacant lUlit that was most recently occupied by a Low Income Tenant
is treated as rented and occupied by a Low Income Tenant until reoccupied, other than for a temporary
period of not more than 31 days, at which time the character of such unit shall be redetermined.
(b) No tenant qualiJying as a Low Income Tenant upon initial occupancy shall be
denied continued occupancy of a unit in the Project because, after admission, such tcnanCs Adjusted
Income increases to exceed the qualifying limit for Low Income Tenants. However, should a Low
Income Tenant's Adjusted (ncome. as of the most recent determination thereof, exceed one hundred forty
percent (140%) of the applicable income limit for a Low Income Tenant of the same family size, the next
available unit of comparable or smaller size must be renled to (or held vacant and available for immediate
occupancy by) a Low (ncome Tenant. Until such next available unit is rented, the former Low Income
Tenant who has ceased to qualify as such sball be deemed to continue to be a Low Income Tenant for
purposes of the 40% requirement of Section 4{a) hereof.
(c) For the Qualified Project Period, the Owner will obtain, complete and maintain
on file Income Certifications for eacb Low Income Tenant, including (i) an Income Certification dated
immediately prior to the initial occupancy of such Low Income Tenant in the Project, and (Ii) thereafter,
an annual Income Certification with respect to each Low Income Tenant, within thirty days before or after
the anniversary of such tenant's initial occupancy ofa unit in the Project. The Owner will provide such
additional information as may be required in the future by the Code, the State or the Issuer, as the same
may be amended from time to time, or in such other form and manner as may be required by applicable
rules, rulings, policies, procedures, Regulations or other official statements now or bereafter promulgated.
proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to Tax-
Exempt obligations. A copy of the most recent Income Certifications for Low Income Tenants
commencing or continuing occupalion of a Low Income Unit shall be artached to each report to be filed
with the Issuer pursuant to paragraph (e) of this Section 4.
IXX:::SSfJ:ot74tl$...e"
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Description: 2000.419005
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The Owner shall make a good faith effort to verify that the income information provided
by an applicant in a Verification oflncome is accurate by taking one or more of the following steps as a
part of the verification process: (I) obtain a pay stub tor the most recent pay period, (2) obtain an income
tax return for the most recent tax year, (3) obtain a credit report or conduct a similar type credit search,
(4) obtain an income verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social Services if the
apphcant receives assistance from either of such agencies, or (6) if the applicant is unemployed and does
not have an income tax return, obtain another form of independent verification reasonably acceptable to
the Issuer.
(d) The Owner will maintain complete and accurate records pertaining to the Low
Income Units, and wilt permit any duly authorized representative of the Issuer, the Trustee, the
Department of the Treasury or the Internal Revenue Service to inspect the books and records of the
Owner pertaining to the Project, including those records pertaining to the occupancy of the Low Income
Units.
(e) The Owner wilt prepare and submit to the Administrator, on behalf of the Issner,
and the Trustee, no later than the tenth day of each month (commencing January 10,2001), until the end
of the Quahfied Project Period, a Certificate of Continuing Program Compliance executed by the Owner.
Dunng the Qualified Project period, the Owner shall submit a completed Internal Revenue Code Form
8703 or such other annual cenification as required by the Code with respect to the Project, to the
Secretary of the Treasury on or before March 31 of each year (or such other date at may be required by
the Code).
(I) For the Qualified Project Period, all tenant leases or rental agreements shall be
subordinate to this Regulatory Agreement and the Mortgage. All leases pertaining to Low Income Units
shall contain clauses, among others, wherein each tenant who occupies a Low Income Unit: (i) certifies
the accuracy of the statements made in the Verification of Iocome; (ii) agrees that the family income and
other eligibihry requirements shall be deemed substantial and material obligations of the tenancy of such
tenant, that such tenant will comply promptly with all requests for information with respect thereto from
the Owner, the Trustee, the Issuer or the Administrator, on behalf of the Issuer, and that the failure to
provide accurate information in the Verification of Income or refusal to comply with a request for
information with respect thereto shall be deemed a violation ofa substantial obligation of the tenancy of
such tenant; (iii) acknowledges that the Owner bas relied on the Verification of Income and supporting
information supplied by the Low Income Tenant io determining qualification for occupancy of the Low
Income Unit, and that any material misstatement in such certification (whether or not intentional) will be
cause for immediate termination of such lease or rental agreement; and (iv) agrees that the tenant's
income is subject to annual certification in accordance with Section 4(c) and that if upon any such
certification such tenant's Adjusted Income exceeds the applicable income limit under Section 4(bl, such
tenant may cease to qualify as a Low Income Tenant and such tenant's rent may be subject to increase.
Section S. Tax-Exemot Stan,s of Bonds. The Owner and the Issuer, as applicable,
each hereby represents. wammts and agrees as follows:
(al The Owner and the Issuer will not knowingly take or permit, or omit to take or
cau.e to be taken, as is appropriate, any action that would adversely affect the Tax-Exempt nature of the
interest on the Bonds and, if either of them should take or permit, or omit to take or cause to betaken, any
such action, it will take all lawful actions necessary to rescind or correct such actions or omissions
promptly upon obtaining knowledge thereof.
DOCSSFl:474684.6
40919-27S ADi
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Description: 2000.419005
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(b) The Owner and the Issuer will file of record such documents and take such other
steps as are necessary, in the written opinion of Bond Counsel filed with the Issuer and the Trustee (with a
copy to the Owner), in order to insure that the requirements and restrictions of this Regulatory Agreement
will be binding upon all owners of the Project, including, but not limited to, the execution and recordation
of this Regulatory Agreement in the real property records of the County of San Bernardino.
Section 6. Additional Reouirements of the Housin2 Law. In addition to the
requirements set forth above, the Owner hereby agrees that it shall comply with each of the requirements
of Section 52080 of the Housing Law, including the following:
(aj Not less than 40% of the total number of units in the Project shall be available for
occupancy on a priority basis to Low Income Tenants. The units made available to meet this requirement
shan be of comparable quality and offer a range of sizes and numbers of bedrooms comparable to the
units that are available to other tenants in the Project.
(b) The rental payments for the Low Income Units paid by the tenants thereof
(excluding any supplemental rental assistance from the State, the federal govmunent or any other public
agency to those tenants or on behalf of those units) shall not exceed 30"10 ofan amoWlt equal to 60"10 of
the median adjusted gross income for the Area.
(e) The Owner shall accept as tenants, on the same basis as all other prospective
tenants, low-income persons who are recipients of federal certificates or vouchm for rent subsidies
pursuant to the existing program under Section 8 of the Housing Act. The Owner shall not permit any
selection criteria to be applied to Section 8 certificate or voucher holders that is more burdensome than
the criteria applied to all other prospective tenants.
(d) The units reserved for occupancy as required by subsection (a) of this Section
shall remain available on a priority basis for occupancy at all times on and after the Closing Date and
continuing through the Qualified Project Period.
(e) During the three (3) years prior to the expiration of the Qualified Project Period,
the Owner shall continue to make available to eligible households Low Income Units that have been
vacated to the same extent that nonreserved units are made available to noneligible households.
(I) Following the expiration or termination of the Qualified Project Period, except in
the event of foreclosure and redemption of the Bonds, deed in lieu of foreclosure, eminent domain, or
action of a federal agency preventing enforcement, units reserved for occupancy as required by subsection
(a) of this Section shall remain available to any eligible tenant occupying a reserved unit at the date of
such expiration or termination, at tbe rent determined by subsection (b) of this Section, W1til the earliest of
(I) the household's income exceeds 140% of the maximum eligible income specified above, (2) the
household voluntarily moves or is evicted for good cause (as defined in the Housing Law), (3) 30 years
after the date of the commencement of the Qualified Project Period, or (4) the Owner pays the relocation
assistance and benefits to households as provided in Section 7264(b) of the California Government Code.
(g) The covenants and conditions of this Regulatory Agreement shall be binding
upon successors in interest of the Owner.
(h) This Regulatory Agreement shall be recorded in the office of the county recorder
of the County of San Bernardino, California, and shsl\ be recorded in the grantor-grantee index to the
names of the Owner as grantor and to the name of the Issuer as grantee.
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Description: 2000.419005
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Section 7. Additional Reauirements of the Issuer. In addition to the requirements
set forth above and to the ex.tent not prohibited thereby, the Owner hereby agrees to comply with each of
the requirements of the Issuer set forth in this Section 7, as follows:
(a) The Owner will pay the Issuer Fees and all other amounts required to be paid to
the Issuer under Section 3.8 of the Financing Agreement, and will indemnify the Issuer as provided in
Section 9 of this Regulatory Agreement.
(b) All tenant lists, applications and waiting lists relating to the Project shall at all
times be kept separate and identifiable from any other business of the Owner and shall be maintained as
required by the Issuer, in a reasonable condition for proper audit and subject to examination during
business hours by representatives of the Issuer upon reasonable advance notice to the Owner.
(c) The Owner shall submit to the Administrator, on behalf of the Issuer, (i) not later
than August I of each year, a statistical report with respect to the Project in the form provided by the
Administrator, setting forth the information called for therein, as required by Section 8855.5 of the
California Government Code, and (ii) within fifteen days after receipt of a wrinen request, any other
information or completed forms requested by the Issuer or the Administrator in order to comply with
reporting requirements of the Internal Revenue Service or the Slllte, including without limitation any
additional information necessary for the Issuer to file the annual report requIred said Section 8855.5.
(d) The Owner acknowledges that the Issuer has appointed the Administrator to
administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions
and requirements hereof. The Owner shall comply with any reasonable request made by the
Administrator or the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer,
any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project
and the books and records with respect thereto available for inspection by the Administrator as an agent
oflhe Issuer. The fees and expenses of the Administrator shall be paid by the Issuer.
(e) For purposes of Section 6(b), the base rents shal1 be adjuSted for household size,
to the eKtent permitted by law, and in making such adjuslrnents it shal1 be assumed that one person wil1
occupy a studio unit, two persons will occupy a one-bedroom unit, three persons wil1 occupy a two-
bedroom unit, four persons will occupy a three-bedroom unit, and five persons wil1 occupy a four-
bedroom Wlit.
(f) The Owner aha)) comply with the conditions set forth in Exhibit A to CDLAC
Resolution No. 00-153 relating to the Project and adopted on September 12,2000 (the "CDLAC
Conditions''), as they may be modified or amended from time to time, which conditions are incorporated
herein by reference and made a part hereof. The Owner will prepare and submit to CDLAC, not later
than each anniversary of the Closing Date, until the end of the Qualified Project Period, a Certificate of
Continuing Program Compliance, in substantially the form attached hereto as Exhibit C-2, executed by an
authorized representative of the Owner. The Issuer and the Administrator shall have no obligation to
monitor the Owner's compliance with the CnLAC Conditions.
(g) EKcept as otherwise provided in Section 13 of this Regulatory Agreement,
pursuant to the CDLAC Conditions this Regulatory Agreement shall terminate on the date 55 years after
the Closing Date.
Any of the foregoing requirements of the Issuer (except (0 and (g) above, which may be
cKpressly waived by CDLAC) may be eKpressly waived by the Issuer, in ita sole discretion, in writing,
but (i) no waiver by the Issuer ofany requirement of this Section 7 shall, or aha)) be deemed to, extend to
DOC:SSPl:i7168i.6
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Description: 2000.419005
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Comment:
p
or affect any other provision of this Regulatory Agreement except to the extent the Issuer and the Trustee
have received an opinion of Bond Counsel to the effect that any such provision is not required by the
Housing Law and may be waived without adversely affecting the exclusion from gross income of interest
on the Bonds for federal income tax pllIpOses; and (ii) any requirement of this Section 7 shall be void and
of no force and effect ifthe Issuer and the Trustee receive a written opinion of Bond Counsel to the effect
that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt
or to the effect that compliance with such requirement would be in conflict with the Housing Law or any
other state Or federal law.
Section 8.
hereby agree as follows:
Modilication of Covenants. The Owner, the Trus1ee and the Issuer
(a) To the extent any amendments to the Act, the Housing Law, the Regulations or
the Codc shall, in the wrlllen opinion of Bond Counsel filed with the Issuer, the Trustee and the Owner,
retroactIvely impose requirements upon the ownership or operation of the Project more restrictive than
those imposed by this Regulatory Agreemen~ and if such requirements are applicable to the Project, the
Ilonds, this Regulatory Agreement shall be deemed to be automatically amended to impose such
additional or more restrictive requirements.
(b) To the extent that the Act, the Housing Law, the Regulations or the Code, or any
amendments thereto, shall, in the written opinion of Bond Counsel filed with the Issuer, the Trustee and
the Owner), impose requirements upon the ownership or operation of the Project less restrictive than
imposed by this Regulatory Agreement, this Regulatory Agreement may be amended or modified to
provide such less reslrictive requirements but only by written amendment signed by the Issuer, at its sole
discretion, the Trus1eC and the Owner, and only upon receipt by the Issuer and the Trustee of the written
opinion of Bond Counsel to the effect that such amendment will not affect the status of interest on the
Bonds or violate the requirements ofthe Housing Law, and otherwise in accordance with Section 22
hereof.
(c) The Owner, the Issuer and, if applicable, the Trustee, shall execute, deliver and,
if applicable, file of record any and all docwnenls and instruments necessary to effectuate the intent of
this Section 8, and each of the Owner and the Issuer hereby appoints the Trustee as its lrue and lawful
anorney-in-faclto execute, deliver and, if applicable, file of record on behalf of the Owner or the Issuer,
as is applicable. any such document or instrument (in such form as may be approved in writing by Bond
Counsel) if either the Owner or the Issuer defaults in the performance of its obligations under this
subsection (c); provided, however, that unless directed in writing by the Issuer or the Owner, the Trustee
shall take no action under this subsection without first notifying the Owner or the Issuer, or both of them,
as is applicable, and without first providing the Owner or the Issuer, or both, as is applicable, an
opportunity to comply with the requirements of this Section g. Nothing in this subsection (c) shall be
conSlrued to allow the Trustee to execute an amendment to this Regulatory Agreement on behalf of the
Issuer.
Section 9. Indemnification: Other Pavments. The Owner hereby covenants and
agrees that it shall indemnify and hold harmless the Issuer, the Lender and the Trustee and their respective
officers, members, directors, officials, employees, program participants and agents as set forth in the
Financing Agreement. In addition thereto, the Owner will pay upon demand all of the fees and expenses
paid or incurred by the Trustee, the wder and/or the Issuer in enforcing the provisions hereof, as more
fully set forth in Section 4.7 of the Financing Agreement.
The provisions of this Section 9 shall survive the term of the Bonds and this Regulatory
Agreement; provided, however, the provisions of this Section shall, in the case of the Trustee, survive the
(XX:SSJ'I:0474684.b
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Description: 2000.419005
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term of this Regulatory Agreement or the resignation or removal of the Trustee, but only as to claims
arismg from events occurring during the tenn arthis Regulamry Agreement or the Trustee's tenure as
Trustee under the )ndenture, and shall, in the case of the Issuer, survive the term of this Agreement, but
only as to claims arising from events occurring during the lenn of this Regulatory Agreement.
Section 10. C.onsideration. The [ssuer has agreed to issue the Bonds to provide funds
to lend to the Owner to finance the Project, all for the purpose, among others. of inducing the Owner to
acquire and operate the Project. In consideration of the issuance of the Bonds by the Issuer, the Owner
has entered into this Regulatory Agreement and has agreed to restricttbe uses to which this Project can be
put on the terms and conditions set forth herein.
Section 11. Reliance. The Issuer and the Owner hereby recognize and agree that the
representations and covenants set forth herein may be relied upon by all persons interested in the legality
and validity of the Bonds, in the exemption from California personal income taxation of interest on the
Bonds and in the status of the interest on the. Bonds. In performing their duties and obligations hereunder,
the Issuer, the Administrator and the Trustee may rely upon statements and certificates of the Low
Income Tenants, and upon audits of the books and records of the Owner pertaining to the Project. In
add ition, the Issuer and the Trustee may consult with counsel, and tbe opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken or suffered by the Issuer or
the Trustee hereunder in good faith and in conformity with such opinion. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the Trustee shall not
be required to conduct any investigation into or review of the operations or records of the Owner and may
rely solely on any written notice or certificate delivered to the Trustee by the Owner or the Issuer with
respect to the occurrence or absence of a default.
Section 12. Sale or Trdnsfer of the Proiect. For the Qualified Project Period, the
Owner shall not sell, transfer or otherwise dispose of the Project, in whole or in part, without the prior
written consent of the Issuer, whicb consent shall not be unreasonably withbeld or delayed if the
following conditions are satisfied: (A) the receipt by the Issuer of evidence acceptable to the Issuer that
(I) the Owner shall not be in default hereunder or under the Financing Agreement, if in effect (which may
be evidenced by a Certificate of Continuing Program Compliance), or the purchaser or assignee
undertakes to cure any defaults of the Owner to the reasonable satisfaction of the Issuer; (2) the continued
operation of the Project shall comply with the provisions of this Regulatory Agreement; (3) either (a) the
purchaser or assignee or its properly manager has at least three yea",- experience in the ownership,
operation and management of similar size rental housing projects, and at least one year's experience in
the ownership, operation and management oftenlal housing projects containing below-market-rate units,
without any record of material violations of discrimination reslrictions or other state or federal laws or
regulations or local governmental requirements applicable to such projects, or (b) the purchaser or
assignee agrees to retain a property management fmn with the experience and record described in
subclause (a) above, or (c) the transferring Owner or its management company will continue to manage
the Project, or another management company reasonably acceplable to the Issuer will manage, for at least
one year following such transfer and, if applicable, during such period the transferring Owner or its
management company will provide training to the transferee and its manager in the responsibilities
relating to the Low Income Units; and (4) the person or entity that is to acquire the Project does not have
pending against it. and does not have a history of significant and material building code violations or
complaints concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any
of its projects as identitied by any local, state or federal regulatory agencies; (B) the execution by the
purchaser or assignee of any document reasonably requested by the Issuer or the Trustee with respect to
the assumption ofthe Owner's obligations under this Regulatory Agreement and the Financing
Agreement (if then in effect), including without limitation an instrument of assumption hereof and
thereof, and delivery to the Issuer of an opinion of such purchaser or assignee's counsel to the effect that
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each such document and this Regulatory Agreement are valid, binding and enforceable obligations of
such purchaser or assignee, subject to bankruptcy and other standard limitations affecting creditor's
rights; (C) receipt by the Issuer and the Trustee of an opinion of Bond Counsel to the effect that any sucb
sale, transfer or other disposition will not adversely affect the status of interest on the Bonds; and
(D) receipt by the Issuer and Trustee of all fees and/or expenses then currently due and payable to the
Issuer and Trustee by the Owner. The foregoing notwithstanding, the Project may he transferred to the
Lender, or its designee, pursuant to a foreclosure, exercise of power of sale or deed in lieu of foreclosure
or comparable conversion under the Mortgage without the consent of the Issuer or compliance with the
provisions of this Section 12. It is hereby expressly stipulated and agreed that any sale, transfer or other
dispoSItion of the Project in violation of this Section 12 shall be null, void and without effect, shall cause
a reversion of title to the Owner, and shall be indTcetive to relieve the Owner of its obligations under this
Regulatory Aboreement. The wrillen consent of the Issuer to any transfer oflhe Project shall constitute
conclusive evidence that the transfer is not in violation of this Section 12. Nothing in this Section shall
affect any provision of any oflhe Mortgage Loan Documents or of any other document or instrument
between the Owner and any other party that requires the Owner to satisfy certain conditions or obtain the
prior wrillen consent of such other party in order to sell, transfer or otherwise dispose of the Project.
Upon any sale or other transfer that complies with this Regulatory Agreement, the Owner shall be fully
released from its obligations hereunder to the extent sucb obligations have been fully assumed in writing
by the transferee of the Project.
For the Qualified Project Period, the Owner shall not: (I) encumber any of the Project or
grant commercial leases of any part thereof, or permit the conveyance, transfer or encumbrance of sny
part of the Project, except for (A) Permitted Encumbrances (as defined in the Mortgage Agreement) upon
rceeipt by the Owner snd the -Trustee of sn opinion of Bond Counsel to the effect that such action will not
adversely affect the status of interest on the Bonds (provided that such opinion will not be required with
respect to any encumbrance, lease or transfer relating to a commercial operstion or ancillary facility that
will be available for tenant use and is customary to the operation of multifamily housing developments
similar to the Project), or (B) a sale, transfer or other disposition of the Project in accordance with the
tenos of this Regulatory Agreemen~ (2) demolish any part of the Project or substantially subtract from
any real or personal property of the Project, except to the extent that what is demolished or removed is
replaced with comparable property or such demolition or removal is otherwise permitted by the Financing
Agreement or the Mortgage; or (3) penoit the use of the dwelling accommodations of the Project for any
purpose except rental residences.
Section 13. Imn. This Regulatory Agreement and all and several of the terms
hereoF shall become effective upon its execution and delivery, and shall remain in full force and effect for
the period provided herein and shallterrninate as to any provision not olberwise provided with a specific
tenoination date and shall tenoinate in its entirety at the end of the Qualified Project Period, it being
expressly agreed and understood that the provisions hereof are intended to survive lbe retirement of the
Bonds and discharge of the Indenture and the Financing Agreement.
The terms of this Regulatory Agreement to the contrary notwithstanding, the
requirements ofthi. Regulatory Agreement shaU terminate and be ofno further force and effect in the
event of involuntary noncompliance with lbe provisions of this Regulatory Agreement caused by fire,
seizure, requisition, change in a federal law or an action of a fedetal agency after the Closing Date that
prevents the Issuer and the Trustee from enforcing such provisions, or condemnation, foreclosure,
exercise of power of sale, transfer of tille by deed in lieu of foreclosure, or a similar event, !1Yl !1I!Ix if,
within 8 reasonable period, either the Bonds are retired or amounts received as a consequence of such
event are used to provide a project that meets the requirements hereof; provided. however. that the
preceding provisions of this sentence shall cease to apply snd the restrictions contained herein shall be
reinstated if, al any time subsequent to the tenomation of such provisions as the result of the foreclosure,
OCX:SSP1:-l7468".b
~1~1.17.'AllI
11
"I"" 1''';1'
",,,,'!t.:1
Order: 0
Description: 2000.419005
Page 13 0'35
Comment:
.~
exercise of power of sale. or the delivery of a deed in lieu of foreclosure or a similar event, the Owner or
ony related person (wIthin the meaning of Section 1.103-10(e) of the Regulalions) obtains an ownership
IlllereSl In the Project for federal income tax purposes. The Owner hereby agrees that, following any
furcl:losure. exercise of power of sale, trans,ler of title by deed in lieu of foreclosure or similar event.
neither the Owner nor any such related person as described above will obtain an ownership interest in the
Project for federal tax purposes. Notwithstanding any other provision of this Regulatory Agreemen~ this
Regulatory Agreement may be tenninated upon agreemenl by the Issuer, the Trustee and the Owner upon
receipt by the Issuer and the Trustee of an opinion of Bond Counsel to the effect that such termination
will nol adversely affect lhe exclusion from gross income of interest on the Bonds for federal income tax
purposes. Upon the lennination of the tenns of this Regulatory Agreement, the parties hereto agree to
execute, deliver and record appropriate instruments of release and discharge of the terms hereof;
provided, however, that the execution and delivery of such instruments shall not he necessary or a
prerequisite to the lennination of this Regulatory Agreement in accordance with its tenns.
Section 14. Covenants to Run With the Land. Notwithstanding Section 1461 ofthe
California Civil Code, the Owner hereby subjects the Project to the covenants, reservations and
restrictions set forth in this Regulatory Agreement. The Issuer and the Owner hereby declare their
express inlent that the covenants, reservalions and restrictions set forth herein shall he deemed covenants
running with the land and shall pass to and be binding upon the Owner's successors in title to the Project;
provided. however, that on the termination of this Regulatory Agreement said covenants, reservations and
restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or
conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered
and accepted subject to such covenants, reservations and restrictions. regardless of whether such
covenants, reservations and restrictions are sel forth in such contract, deed or other instrnments. No
brooch of default under this Regulatory Agreement shall defeal, render invalid or otherwise impair the
lien of a deed of trust or similar encumbrance upon the Project given in good faith and for value.
Section 15. Burden and Benefit. The Issuer and the Owner hereby declare their
understanding and intent that the burdens of the covenants set forth herein touch and concern the land in
thaI the Owner's legal interest in the Project is rendered less valuable thereby. The Issuer and the Owner
hereby further declare their understanding and intent that the benefits of such covenants touch and
concern the land by enhancing and increasing the enjoyment and use of the Project by Low Income
Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the
public purposes for which the Bonds were issued.
Section 16. Unifonnitv: Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a Common plan for the
use of the site on which the Project is located.
Section 17. Default. Enforcement. If the Owner defaults in the performance or
observance of any covenant, agreement or obligation of the Owner set forth in this Regulatory
Agreement, and if such default remains uncured for a period of 60 days after notice thereof shall have
been given by the Issuer or the Trustee to the Owner, or for a period of 60 days from the date the Owner
should, with reasonable diligence, have discovered such defaul~ then the Issuer or the Trustee (as directed
by the Issuer, subject to the provisions of the Indenture) acting on its own behalf or on behalf of the
Issuer, shall declare an "Event of Default" to have occurred hereunder; provided, however, that if the
default is of such a nalure that it cannot be correcled within 60 days, such default shall not constitute an
Event uf Default hereunder so long as (i) the Owner institutes correclive action within said 60 days and
diligently pursues such action unlil the default is corrected, and (Ii) in the opinion of Bond Counsel. the
failure to cure said default within 60 days will not adversely affectlhe status of interest on the Bonds.
The Issuer and the Trustee shall have the right to enforce the obligations of the Owner under this
DOC:SSPl:47"684.6
40929.175 ADt
12
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Order: 0
Description: 2000.419005
Page 14 of 35
Comment:
I'
Regulatory Agreement within shorter periods oftime than are otherwise provided herein if necessary to
insure compliance with the Housing Law or the Code.
Following the declaration of an Event of Default hereunder, the Issuer or the Trustee, at
the direction of the Issuer, subject to the provisions of the Indenture, may take anyone or more of the
following steps, in addition to all other remedies provided by law or equity:
(i) by mandamus or other sui~ action or proceeding at law or in equity, including
injunctive relief, require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things that may be unlawful or in violation of the rights of the Issuer or the Trustee hereunder;
(ii) have access to and inspect, examine and make copies of all of the books and
records of the Owner pertaining to the Project;
(ii i) take such other action at law or in equity as may appear necessary or desirable to
enforce the obligations. covenants and agreements of tile Owner hereunder; and
(iv)
provided therein.
declare a default under the Financing Agreement and proceed with any remedies
The Owner hereby agrees that specific enforcement of the Owner's agreements contained
herein is the only means by which the Issuer may fully obtain the benefits of sucb agreement made by the
Owner herein, and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any Event of Default by the Owner hereunder.
The Trustee shall have the right, in accordance with this Section and the provisions of the
Indenture, without the consent or approval of the Issuer, to exercise any or aU of the rights or remedies of
the Issuer hereunder; provided that prior to taking any sucb action the Trustee shall give the Issuer wrirten
notice of its intended action. After the Indenture has been discharged, the Issuer may act on its own
behalf to declare an "Event of Default" to have occurred and to take anyone or more of the steps
specified herein to the same extent and with the same effect as if taken by the Trustee.
Promptly upon determining that a violation or this Regulatory Agreement has occurred,
Ihe Issuer or the Trustee shall, by written notice, inform the Lender and the Owner that such violation has
occurred, the nature of the violation and that the violation has been cured or has not been cured, but is
curable within a reasonable period of time, or is incurable. The Trustee shall not be deemed to have
knowledge of any default hereunder unless the Trustee shall have been specifically notified in writing of
such default by the Issoer, the Administrator or by the owners oCat least 25% of the aggregate principal
amount of Bonds outstanding.
All reasonable fees. costs and expenses of the Trustee and the Issuer incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner; provided, however, that
in the event that any action arising hereunder with the Owner and the Trustee as adversaries, the
prevailing party, if any, shall be entitled to recover legal fees and costs from the other party.
Section 18. The Trustee. The Trustee shall act as specifically provided herein and in
the Indenture and may exercise such additional powers as ore reasonably incidental hereto and thereto.
The Trustee shall have no duty to act with respect to enforeement of the Owner's performance hereunder
as described in Section 17 unless it shall have knowledge of any such default as provided in Section 17.
The Trustee may act as the agent of and on behalf of the Issuer, and any act required to be performed by
the Issuer as herein provided shall be deemed taken if such act is performed by the Trustee. In connection
lX.X:SSt;1 ''''~68'H
"~~'.:!ls:\Dl
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1'..I.:i:',',
.!!~ .H."lt.)
Order: 0
Description: 2000.419005
Page 15 o( 35
Comment:
I'
with any such performance, the Trustee is acting solely as Trustee under the Indenture and not in its
individual capacity, and, except as expressly provided herein, all provisions of the Indenture relating to
the rights, privileges. powers and protections orthe Trustee, including without limitation those set forth in
Article VI thereor, shall apply with equal force and erfec! to all actions taken (or omitted to be taken) by
the Trustee in connection with this Agreement. Neither the Trustee nor any of its officers, directors or
employees shall be liable lor any action taken or omitted to be taken by it hereunder or in connection
herewith except for its or their own negligence or willful misconduct.
The Issuer shall be (or shall cause the Administnllor to be) responsible for the monitoring
orthe Owner's compliance with the terms of this Regulatory Agreement. The Trustee shall not be
responsible for such monitoring.
After the date on which no Bonds remain Outstanding, as provided in the Indenture, the
Trustee shall no longer have any duties or responsibilities under this Regulatory Agreement and all
references to the Trustee in this Regulatory Agreement shall be deemed references to the Issuer.
Section 19. Recordin!! and Filin!!. (a) The Owner shall cause this Regulatory
Agreement and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of San Bernardino, California, and in such other places as the Issuer or the
Trustee may reasonably request. The Owner shall pay all fees and charges incurred in connection with
any such recording.
(b) The Owner and the Issuer will file of record such other documents and take such
other steps as are reasonably necessary, in the opinion of Bond Counsel filed with the Issuer and the
Truslee. in order to insure that the requirements and restrictions of this Regulatory Agreement will be
binding upon all owners oflhe Project.
(c) The Owner hereby covenants to include orrcterence the requirements and
rc:strictions contained in this Regulatory Agreement in any documents transferring any interest in the
Project to another person to the end that such transferee has notice of, and is bound by, such restrictions,
and, except in the case of a foreclosure, exercise of the power of sale or comparable involuntary
conversion of the Mortgage, whereby the Trustee becomes the owner of the Project, to obtain the
agreement from any transferee to abide by all requirements and restrictions of this Regulatory A&recment.
Section 20. Pavment of Fees. Notwithstanding any prepayment of the Loan and
notwithstanding a discharge of the Indenture, the Owner shall continue to pay (or, to the extent allowed
under the Code, may prepay the present value at such time of) the Issuer Fee and expenses as provided in
the Financing Agreement, unless such prepayment is made in connection with a refunding of the Bonds.
Section 21. Govemine Law. This Regulatory Agreement shall be governed by the
laws of the State of California.
Section 22. Amendments: Waivers. (a) Except as provided in Section 8(a) hereof,
this Regulatory Agreement may be amended only by a written instrument executed by the parties hereto
or lheir successors in title, and duly recorded in the real property records of the County of San
Bernardino, California, and only upon receipt by the Issuer and the Trustee of(i) an opinion of Bond
Counsel to the enect that such amendment will not adversely affect the status of interest on the Bonds and
is not contrary to the provisions of the Housing Law. and (ii) the written consent aCthe Lender.
(b) Notwithstanding anything to the contnlry contained herein, the Issuer, the Trustee
and the Owner hereby agree to amend this Regulatory Agreement to the extent required, in the opinion of
DOCSSfl:"7.f684.6
4O'J29.275ADl
14
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Order: 0
Description: 2000.419005
Page 16 of 35
Comment:
I'
Bond Counsel, in order that interest on the Bonds remain Tax-Exempt. The parties requesting such
amendment shall notify the other parties to this Regulatory Agreement and the Lender of the proposed
amendment, with a copy of such proposed amendment to Bond Counsel and a request that Bond Counsel
render to the Issuer an opinion as to the effect of such proposed amendment upon the Tax-Exempt status
of interest on the Bonds. This provision shall not be subject to any provision of any other agreement
requiring any party hereto to obtain the consent of any other person in order to amend this Regulatory
Agreement.
(c) Any waiver of, or consent to, any condition under this Regulatory Agreement must be
expressly made in writing.
Section 23. Notices. Any notice required 10 be given hereunder shall be made in
writing and shall be given by personal delivery, overnight delivery, certified or registered mail, postage
prepaid, return receipt requested, or by tc:lecopy, in each case at the respective addresses specified in the
Indenture, or at such other addresses as may be specified in writing by the parties hereto. Unless
otherwise specified by Ihe Administrator, the address of the Administrator is:
Urban Futures, Incorporated
3111 N. Tustin Avenue, Suite 230
Orange, California 92665
(714) 283-9334 (telephone)
(714) 283-9319 (facsimile)
The Issuer, the Administrator, the Trustee, the Lender and the Owner may, by notice
given hereunder, designate any further or different addresses to which subsequent notices, certificates or
olher communications shall be sent. Notice shall be deemed given on the date evidenced by the postal or
courier receipt or other written evidence of delivery or electronic transmission; provided that any telecopy
or other electronic transmission received by any party after 4:00 p.m., local time of the receiving party, as
evidenced by the time shown on such transmission, shall be deemed to have been received the following
Business Day.
A copy of each notice sent by or to the Owner shall also be sent to the manager of the
Project at the address of the manager provided by the Owner to the Administrator; but such copies shall
not constitute nOlice to the Owner, nor shall any failure to send such copies constitute a breach of this
Regulatory Agreement or a failure of or defect in notice to the Owner.
Section 24. Severabilitv. Ifany provision of this Regulatory Agreement shall be
invalid, illegal or unen/oreeable, the validity, legality and enforceability oftbe remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 25. Multiole Counterearts. This Regulatory Agreement may be
simultaneously executed in multiple counterparts, all of which shall constitute one and the same
instrument, and each of which shall be deemed to be an original.
Section 26. Limitation on Liabilitv. Notwithstanding lite foregoing or any other
provision or obligation 10 the contrary eontained in this Regulatory Agreement, (i) the liability of the
Owner and its partner under this Regulatory Agreement to any person or entity, including, but not limited
to, lite Trustee or the Issuer and their successors and assigns, is limited to the Owner's interest in the Trust
Estale, or any rights of the Owner under any guarantees relating to the Project, and such persons and
entities shall look exclusively thereto, Or to such other security as may from time to time be given for the
payment of obligations arising out of this Regulatory Agreement or any other agreement securing the
DOC.c;..'\FI:;7i68U
.k19~J...!75ADI
15
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Order: 0
Description: 2000.419005
Page 170'35
Comment:
I'
'.
obligations of the Owner under this Regulatory Agreement; and (ii) from and after the date of this
Regulatory Agreement. no deficiency or other personal judgment, nor any order or decree of specific
performance (other than pertaining to this Regulatory Agreement, any agreement pertaining to any Project
or any other agreement securing the Owner's obligal1ons under this Regulatory Agreement), shall be
rendered againslthe Owner, the assets of the Owner (other than the Owner's interest in the Project,this
Rc:gulatory Agreement, amounts held in the funds and accounts created under the Indenture, any rights of
lhe Owner under lhe Indenture or any other documents relating to the Bonds or any rights of the Owner
under any guarantees relating to the Project), its partners, members, successors, transferees or assigns and
each their respective officers, directors, employees, partners, agents, heirs and personal representatives, as
the case may be, in any action or proceeding arising out of this Regulatory Agreement and the Indenture
or any agreemenl securing the obligations of the Owner under this Regulatory Agreement, or any
judgment. order or decree rendered pursuant to any such action or proceeding, except to the extent
provided in the Financing Agreement.
Section 27. Third-Partv Beneficiarv, The City and CDLAC are intended to be and
shall each be a third-party beneficiary of this Regulatory Agreement. The City shall have the right (but
not the obligation) to enforce, separately or jointly with the Issuer and/or the Trustee or to cause the Issuer
or the Trustee to enforce, the tenos of this Regulatory Agreement and to pursue an action for specific
performance or other available remedy at law or in equity in accordance with Section 17 hereof, provided
lhat any such action or remedy shall not materially adversely affect the interests and rights of the
Bondholders. In the event that the Project is transferred to tlle Issuer or the Trustee pursuant to a
foreclosure or similar type of conversion. the Issuer agrees to cause the Project to be operated. to the
extent permitted by law, with the RDA Regulatory Agreement. CDLAC shall have the right (but not the
obligalion) to enforce the CDLAC Conditions and to pursue an action for specific performance or other
available remedy at law or in equity in accordance with Section 17 hereof, provided that any such action
or remedy shall not materially adversely affect the interests and rights of the Bondholders.
Section 28. Subordination. Notwithstanding any provisions of this Regulatory
Agreement 10 Ihe contrary, the parties hereto acknowledge and agree that all of their respective rights and
powers hereunder are subordinate and subject to the lien of lhe Mortgage and the FHA Regulatory
Agreement, together with any and all amounts from time to time secured thereby, and interest thereon,
and to all the terms and provisions of the other Mortgage Loan Documents. Further, notwithstanding
anything to the contrary contained herein, any party seeking to enforce this Regulatory Agreement or to
collect upon any claim or obligation against the Owner arising hereunder, including the parties hereto, do
not now have and will not laler assert any claim against the Project, the insured loan proceeds, any reserve
or deposit made with HUD, the Lender, or any other person or entity in connection with the Mortgage
Loan, or against the rents or other income from the Project, except to the extent of available "surplus
cash" (as defined in the FHA Regulatory Agreement). The obligations of the Owner hereunder, under
any applicable administrative requirements and the terms of the Mortgage Loan Documents will be
deemed to be controlling and any conflict, ambiguity or ineonsistency will be resolved in favor of, and
pursuant to, the HUD mortgage insurance program requirements, and the HUD statutory, regulatory and
administrative requirements and the terms of said HUD loan documents. For purposes hereof, the
reference to HUD's statutory, regulatory or administrative requirements shall be deemed to include, but
shall not be limited to, any statutory, regulatory or administrative requirements pertaining to Section 8 of
lhe Housing ACI or the National Housing Act, as may be applicable. In addition, it is tutdcrstood and
agreed that any default under this Regulatory Agreement shall not constitulC a default under the Mortgage
Loan Documents.
I'XXSSFl:474684.6
40929.175 ADt
16
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Order: 0
Description: 2000.419005
Page 18 of 35
Comment:
In consideration of OOD's agreement to insure the Mortgage Loan and in reliance of
HUD upon the promises of the Owner, the Trustee and the Issuer to comply therewith, HUD has reaerved
the right 10 require the Issuer 10 remove or void the restrictions, if any, that exceed the requirements of the
Code upon a determination by HUD that the restrictions are threatening the financial viability of the
Project (Le., impairing the Owner's ability to sustain a level of income sufficient to meet all fmancial
obligations of the Project, including debt service costs, HUD-required escrows, and Project operating
expenses). In the absence of the Issuer's compliance with a HUD request that it remove or void any
restrictions, the Issuer expressly recognizes the power ofOOD to take the appropriate action 10
unilaterally remove or void any restriction, and that HUD shall not have to look any further than this
Regulatory Agreement for the power to remove or void it such restrictions.
[Remainder of page intentionally left blank.]
lX>CSSFJ:i7i6804.b
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17
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Order: 0
Description: 2000.419005
Page 19 of 35
Comment:
11.
IN WITNESS WHEREOF, the Issuer, the Trustee and the Owner have executed this
Regulatory Agreement by duly authorized representatives, all as of the date first above written.
OOCSSFl~7%8'.'
o40929-27.5ADJ
; "11.>
',. I -1'''0
~~r .H;ltl
Order: 0
Description: 2000.419005
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
By
-4~~
Member
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By
Authorized Officer
AFE-PIONEER ASSOCIATES, W., a CaIifonrialimit~
partnership
By: A. F. Evans Company,lnc., a California corporation
Its: General Partner
By:
Senior Vice President
17
Page 20 of 35
Comment:
'II
IN WITNESS WHEREOF, the Issuer, the Trustee and the Owner have executed this
Regulatory Agreement by duly authorized representatives, all as of the date first above wriUen.
D<XSSFb1716S1.4
.i091'-175 ADl
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
By
Member
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By
~
Authorized Officer
AFE-PIONEER ASSOCIATES, L.P ~ a California limited
partnership
By: A. F. Evans Company, Inc., a California corporation
Its: General Partner
BY:~~
Senior Vice President
17
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Order: 0
Description: 2000.419005
Page 21 of 35
Comment:
1'-
'II'
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
~
Stale 01 (;A.-kfYIUA-
County of {,.u. Pr.Of/A5UJ
On
II Ita /PO
, . 011..
before me, lnarl,t./1IU-- I-/p." ).11J~n/ .R<0I/~
t4e""t wid ~lIIIt CII OIl,,*, l."-,~"""'Ooe. ~.,PWlc1
Wdf/,M?I r. Hi' tit, ~
~tJlS9-1'.
~personaJly known 10 me - OR -0 proved to me on the basis of satisfaClOl)' evidence to be the person(s)
whose name(s} Islare subscribed to the within Instrument
and acknowledged to me that helshe/they executed the
same in hisn1er/their authorized capacity(_l. and that by
his/her/their signalure(s} on lIle instrument the person(s).
or the entity upon behaff of which the person(s) acted.
executed the instrument.
personally appeared
J--------------
e MARt'-llNE UM J
- CommIabn*I~
) Notay NlIc .- CaIfarla f
San rn:>1Cb.... CculIr -
_ _My~~~l~~f
WITNESS my hand and official seal.
/It-
'.
~
....... .. ....,. NIiC
OPTIONAL
Though ItwJ lnfotmrion _Is not reqv/redbylsw, 'may"".. _., _ ~...1tWJ doaJtn<<rt IIlIdCOCl/d".."""
__.nd..._ofltlisfonnto.__
Description of Attached Document
l1tle <<Type of Document ,~l<k/II"'7 kjru-nu.,f anA (;Ia/A.m/I'".,,! R.a-1ri&hvt!- tllI""~
Document Date: lJov""",IK/ I. tooo Number of Pages:
,
Signer(s) Other Than Named Above:
Capaclty(ies) Claimed by Slgner(s)
Signer's Name: Wi/'''bftl 1". Ht. {,./UY<,.
o Individual
I'l!I Cocporate Officer
TrtIe(s}: ~ r l!.'u. F'ru:Jh,d-
o Partner - 0 Umlted 0 General
o Attorney-In-Fact
o TIUStee
o Guanflan or Con8ervator
o Other: TapClf__
iol:'!"1I1Ih' (" tlr.t
'," .
Signar's Name:
o llldividual
o Corpofate OIfic8r
11Ue(a):
o Pal1ner - D L/mlted 0 General
D AIIomey-ln-Fact
o TIU8lee
o GuaIdan or Con8ervator
o Other: TapClf__
\1'':.'>-l1 'iIIJ':,"tl,'..T
cr ;; ~.,..;?
SIgner Is Representlllg:
kf; ~t<n' ~"'fM1.1nb.
11:1'6 - p,trJf.J<.r lrY-all,4tl',. I-< P-
.
SIgner Ia RepnIaenllng:
.""'.............,..........................NL..,...~....CA~
-.....-
......CII1II4'tM t "1m .,.
. I',
l~., I ;:';1
~, ,I" ;~,
Order: 0
Description: 2000.419005
Page 22 of 35
Comment:
I'
"
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) 55,
COUNTY OF LOS ANGELES )
On November 14. 2000 , before me, Paul Toland. Notary Public .
.... Name_TlIedOlftoerle.g_.JIne Doe. ~ P!JbIol;-1
personally appeared Iober t S'dl1licler
rwn.oISlgn.-(s)
o personally known to me - OR - IE proved to me on the basis of satisfactory evidence to be the
person{&} whose name{&} islafa subscribed to the within
instrument and acknowledged to me that hell;Reithey
executed the same in his/Rer/their authorized capacity~
and that by hislherltheir signature{&} on the instrument UIa
peRiBR(s), Br the entity upon behalf of which the person{&}
acted. executed the instrument.
MIl. NlIllOHY 1OWl/)
. Q.'I.~ -:HI'I2II78U WITNESS my hand and official seal.
NoIaY PUblIc. CaIIarfa _
I.aI A/9II8S Ccu\tf 4 J ()~~
1IttCCmn. &pI'llS !Il18. 2Xl4
Slgnalure of NolaIy PuClic
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
Regulatory Agreement
TIUe(.) . TlUe or Type of Document
0 partner(.) 0 Limited
0 General
0 Attorney-in-Fact Ntnber of Pages
I!I Trustee(.)
0 Guardian/Conservator
0 Other:
Date d Document
Signer is Representing:
Name of P.....(.) or EnIlty(1es)
tJea.s hrqo 6i1'n.t.
11 tvlt"m'V. tlssou'a.Cl-'crn Slgner(s) Other Than Named Above
IXX.'SLA 1 :354596.1
1-32051'11
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'" I :l"H
.~'" h.'-U':'
Order: 0
Description: 2000.419005
Page 23 0'35
Comment:
"
"
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of dn l ,3;;1 (1'\0--/
Counfyof ~ f A-rq2 ~) " ,
On \t~oIThf\"\ ~) before me, '~\= \ L.Qh-r.o I \'6h r- ,'\)jh\ I( . ,
~, (\ ~-'rAeOlOfl":;JI..o,.......Oae.~,
personally appeared \ \('" (\'(~ \ II f\\ n) 1') , ,
NownI(.)01 SiQNrt.)
(ipersonally known to me -OR -0 proved 10 me on the basis 01 salisfacto'Y evidence to be the person(s)
whose name(s) isfare subscribed to lhe within instrument
and acknowledged to me that helshelthey executed the
same in hisllterltheir authorized capacity(HlS), and that by
hislller/lheir signature(s) on the instrument the person(s),
or the ent~y upon behaU of which the person(s) acted,
executed \he instrument.
~ @ KElU OSBORNE ~
in Comm.' 118B036 Ul
./ NO',uy IIlIUC.CAIJONllA _
SicfMlWO COVIll' ...
~ u,c.n.o.&,ir,,""',15,lllOl I
WITNESS my hand and official seal.
~\JL Qbuo
\ crI.....,.rwrc
OPTIONAL
Thoug/IItltJ__lslI<I/lW/fJItedbylllw, .....ypawe...-ro_IIII)01g...",.__couId_
_____otlhisfomtro__
Description of Attached Document
11tle <<Type 01 Document:
Document Date:
Number 01 Pages:
Slgner(s) OlherThan Named Above:
Capaclty(ies} Claimed by Signer(s)
Signer's Name:
OlndMdual
o Corporate Officer
11tIe(s):
o PaI1ner - 0 Umned 0 General
o Attomey-In-Fact
o Trustee
o Gualdlan<< Conservator
o Other. .......--
Signer's Name:
o individual
o Colpcqle OlflCer
TltIe(s):
o Plutnel'-O Umited 0 General
o AIIomey-ln-Fact
o Trust..
o GuatdIan or ear-vator
o Other. .......-_
,H;",HTlll:.,I'[;;'>tll'H
or , ~,'.rrj
SIgner Is R8jll'essntlng:
SIgner Is Repusenllng:
.,... ...........,.,.....................M ..1'II4.ClIMtiIl...CA......
.......-
......ClIt ..,. t _ IN tID'
'j .. "1'.;-
',.111"11
.11... .H.';t.)
Order: 0
DescnpHon:2000,419005
Page 24 of 35
Comment:
II
ExHIBIT . A'
DESCRIPTION OF REAL PROPERTY
pARCEL NO.1: (APN: 134-061-27)
LOTS 3 AND 4, BLOCK 38. CITY OF SAN BERNARDINO, 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,
p~RCEL NO.2; (APN: 134-061-26)
LOTS 7 AND 8, BLOCK 38, CITY OF sAN BERNARDINO. IN THE 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,
I OECLA~~ u:'::-;~:_, ~~:- ; -.,
fORfvO.^,~! f:: .. ..:.' --'.';. ~', -.~:.. .......-
OIUGmAl ATi"-'. . v'~' . .~. ....\
....'~h.... J. .. ,.f'lL ..
SlflHID: . ~~I.' "J
!..L.{;:..S. ijt.V
OAlC: '71;;:;/' -vi)
.PlAa:. . f d/H / "
./9.. t{/{t:Jl-l.-U:;: (~4-
. .-.... .,...,
. :,. "I~, :=
I,' \ :"'1
t ~I J,.j ,'it!
Order: 0
Description: 2000.419005
Page 25 of 35
Comment:
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
PARCE.. NO.1: (APN: U4-C6l-27)
I..OlS 3l\ND 4. BLOCI< 38, ClTf OF SAN 1lERNABDINo, IN JHF. em OF $A.'! BERNARDINO,
COUN'N OF SI\N IlERNARDINO, SlATE OF CAIJroR.~-\ AS PER PLAT RECORDF.D IN BOOK
7 OF MAPs, PAGE{S) 1, RECORDSOFSAID COtlNIY.
PARCEL NO. 2: (APN: 134-061-26)
LOLS 7 AND 8. BLOCK 38, 011' Of SAN 8llRNAkDIN0, IN tHE CIIY OF SAN llERNARDlNO,
COUNrY OF SAN BERNARDINO, SlATE 01' OOJl'ORNlA..IIS I'ER PlJ\.T RECORDED IN IlOOK
701' MAPS, PAGE(S} 1, RECORDS OF SAlD COUNI'Y.
J:XJCSSFl:4'4614.6
40929.215 AD!
A-I
'I II:
" I 'II
, rl{l h.'itl
Order: 0
Description: 2000.419005
Page 26 of 35
Comment:
F"
EXHIBIT B
FORM OF INCOME CERTlFICA nON
VERIFICATION Of INCOME
RE:
Pioneer Park Plaza Apartments
560 North f Street
San Bernardino, CA
Apartment Number:
.' . ,. initial Occupancy Date:
UWe, the undersigned, being first duly sworn, state that I/we have read and answered fully, and
truthfully each of the following questions for all persons who are to occupy the unit in the above apartment
development for which application is made, all of whom are listed below:
I. 2. 3. 4. i 5.
Name of Relationship to Social Seeurity i Place of
,
Members H cad of Age Number , Employment
!
of the Household Household
Head of Household ,
Spouse
6. The anticipated income of all the above persons during the l2-month period beginning
this date, including income described in (a) below, but excluding all income described in (b) below, is
S
(a) The amount set forth above includes all of the fonowin~ income (unless such income is
described in Ib) below):
(i) all wages and salaries. over-time pay, commissions, fees, tips and bonuses before
payroll deductions;
ocx::s..'iFI:47<66(l4.6
4()l)!9.V5 ADI
B-1
-- .-..-------
',' "I",
I~., I .:i:';1
.~'" .H,,)t,)
Order: 0
Description: 2000.419005
Page27of35
Comment:
(ii) net income from the operation of a business or profession or from the renlal of real or
personal property (without deducting expenditures for business expansion or amortization of capila]
indebtedness or any allowance for depreciation of capital assets);
(iii) interest and dividends (include all income from assets as set forth in item 7(b) below);
(iv) the full amount of periodic payments received from social security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits and other similar types of
periodic receipts;
(v) payments in lieu of earnings, such as unemployment and disability compensation,
workmen's compensation and severance pay;
(VI) the maximum amount of public assistance available to the above persons;
(vii) periodic and determinable allowances, such as alimony and child support payments
and regular contributions and gifts receIved from persons not residing in the dwelling;
(viii) aU regular pay, special pay and allowances of a member of the Anned Forces
(whether or not living in the dwelling) who is the head of the household or spouse; and
(ix) any earned income tax credit to the extent it exceeds income tax liability.
(b) The foUowine income is excluded from the amount set forth above:
(i) casual, sporadic or irregular gifts;
(ii) amounts which are specifically for or in reimbursement of medical expenses;
(iii) lump sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and worker's compensation), capital gains and
settlement for personal or property losses;
(iv) amounts of educational scholarships paid directly to a student or an educational
institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees,
books and equipment, but in either case only to the extent used for such purposes;
(v) hazardous duty to a member of the household in the armed forces who is away from
home and exposed to hostile fire;
(vi) relocation payments under Title n of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970;
(vii) income from employment of children (including foster children) under the age of 18
years;
(viii) foster child care payments;
(ix) the value of coupon allotments under the Food Stamp Act of 1977;
(x) payments to volunteers under the Domestic Volunteer Service Act of 1973;
()()CSSf 1:47~".6
WJ1".~l5ADI B.2
. . "11'-
l~., I .:/':1
. ,r! ~I J,'j ."!4.)
Order: 0
Description: 2000.419005
Page 28 of 35
Comment:
I. 'II
II
{xi} payments received under the Alaska Native Claims Settlement Act;
{xii} income derived from ccrtain submarginal land of the United States that is held in trust
for certain Indian tribes;
(xiii) payments on allowances made under the Department of Health and Human Services'
[.ow-Income Home Energy Assistanc~ Program;
(xiv) payments received from the Job Partnership Training Act;
(xv) income derived from the disposition of funds of the Grand River Band of Onawa
Indians; and
(xvi) . the first S2llOO of per capita shares received from judgment funds awarded by the
Indian Claims Commission or the Court of Claims or from ftmds held in bust for an Indian tribe by the
Secretary of Interior.
7. If any of the persons described in colwnn 1 above (or any person whose income or
contributions were included in item 6) has any savings, stocks, bonds, equity in real property or other form of
capital investment (excluding interests in Indian trusllands), provide:
{a}
the total value of all such assets owned by all such persons: $
,and
(b) the amount of income expected to be derived from such assets in the l2-month period
commencing this date: $
8. (a) Will all of the persons listed in column] above be or have they been full-time
students during jive calendar months of this calendar year at an educational institution (other than a
correspondence school) with regular faculty and students?
Yes
No
(b) (Complete only if the answer to Question 8(a) is "Yes"). Is any such person (other than
nonresident aliens) married and eligible to file a joint federal income tax return?
Yes
No
rXX:SSFI:'i7.fbIH.b
~iJtl~.~7S..\DI
B-3
~ .. ~I<'
~ \ ,,"
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Order: 0
Description: 2000.419005
Page 29 of 35
Comment:
p
We acknowledge that all of the foregoing infonnation is relevant to the status under federal
income tax law of the interest on bonds issued to fmance the acquisition and rehabilitation of the apartment
building for which application is being made. We consent to the disclosure of such information to the issuer of
such bonds, the holders of such bonds, any lnIsree acting on their behalf and any authorized agent of the Treasury
Department or Internal Revenue Service.
We declare under penalty of pCljury that the foregoing is true and correct.
Date:
Head of Household
Spouse
()()CSSF1:4lo16SU
40'1~.175.'\J)1
8-4
,
I, l/,t,
, . ~~ .I" .-'tt,:1
Order: 0
Description: 2000.419005
Page 30 of 35
Comment:
III
FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(!\) Enter amount enl~red for entire household from 6 above: $
(8) If the amount entered in 7(a} above is greater than $5,000. enter:
(i) the product ofth. amount entered in 7(a) above
multiplied by the current passbook savings rate
as determined by !IUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) (if less than $0, enter SO): S
(C) TOTAL ELlGffiLE INCOME (line I(A) plus line I(BXiii)): $
II. Qualification as individuals or a family of low Income:
(A) Is the amount entered in line I(C) less than 60% of median gross income for the Area?
Yes
No
(B) (i)
If line !l(A) is "No," then the household does not quality as individuals or a family of
low Income; go to item III.
(ii)
If line !leA) above is "Yes" and 8(a) above is "No," then the household qualifies as
individuals or a family of low Income; go to item Ill.
(iii)
If line II(A) above is "Yes" and 8(b) above is "Yes," then the household qualifies as
individuals or a family of Low Income; go to item m.
(iv)
If neither (ii) nor (iii) is applicable, then the household does not quality as individuals or a
family of Low Income.
III. (Check one)
The household does Il21 quality as individuals or a family of low Income.
The household qualifies as individuals or a family of low Income.
IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
NOTE TO PROJECT OWNER: A vacanl unit previously occupied by individual& or a flll1\ily of low Income, may be treated as occupied
by indi\ooiduals or 01 family of Low Income until reoccupied, other than for a period of31 consecutive days or less. al which time the chan.cter
of the unit shall be redetermined.
DOCSSFI:41"68<1.6
40919.175 ADt
B-S
'.., I ,.,.'t'
r!ll.I".)t':1
Order: 0
Description: 2000.419005
Page 31 of 35
Comment:
fi'
EXHIBIT C-l
FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
CERTIFICATE OF CONTINUING PROGRAM COMPUANCE
Witnesseth that on this _ day of . 2000, the underiigned, having borrowed certain
funds from the CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUffiORlTY (the "Issuer")
for the purpose of financing a multifamily rental housing development (the "Project"), does hereby certify that:
1. During the preceding month (i) such Project was continually in compliance with the
RegulalOry Agreement executed in connection with such loan from the Issuer, (ii) _ % of the units in the Project
were occupied by Low Income Tenants (minimum of 4OOtIo).
See forth below are the names of Low Income Tenants who commenced or terminated occupancy
dllrlng the preceding month.
Commenced Occuoancv
Terminated Occuoancv
I.
I.
2.
2.
3.
3.
The units occupied by Low Income Tenants are of similar size and quality to other units and are
dispersed throughout the Project. Attached is a separate sheet listing the number of each lUlit and indicating which
units are occupied by Low Income Tenants, the size, the number of bedrooms of such units and the number of Low
Income Tenants who commenced occupancy of units dwing the preceding month.
2. Select appropriate certification: [No unremedied default has occurred under this Regulatory
Agreement, the Financing Agreement or the Mortgage.] [A default has OCCUlTed under the . The
nature of the default and the measures being taken to remedy such default are as follows:
.J
3. The representations set forth herein are true and correct to the best of the undersigned's
knowledge and belief.
Date:
Owner
rxx::s.CiFl:-474b8-l.6
400~-~7S A.DI
C-I-I
, "1""
1,.. 1:;\','
fl{l .I~i ,..It.)
Order: 0
Description: 2000.419005
Page 32 of 35
Comment:
Order: 0
BOND PROGRAM REPORT
Property:
Location:
TOd"y's Date:
Submitted by:
lotalll Units:
TOlal Units Occupied:
Total Habitable/Livable Units:
(Rehabilitation Projects Only)
Total New Rentals (Occupied)
Current MontblQuarter:
Total Lower Income
Units Occnpied:
New Lower Income Rentals
Current Month/Quarter:
% Of Lower Income Units Occupied to Total Unlts:
II Of Units Held vacant and available for Rent to Lower Income Tenants:
PLEASE LIST ALL BOND PROGRAM UNITS BELOW IN NUMERIC OR ALPHABETIC ORDER:
(Indicate "V" ifvacantl
Gross Annual
Tenant Household
l:nil No. of No. of Monthly Income (all Dale of
No. Tenant's Last Name(s) Occ. Bedrm Rent" sources) Certification
"If tenant(s) are on an Assisted Rental Program such as Section 8, only lIst tenanl portion of rent
~SFI;-47.J611".6
~J'):!"'.::!7~^DI
C-I.2
. 1" "It.;:
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. .~~ .H..-:.t.:,
Description: 2000.419005
Page 33 of 35
Comment:
f!!'
-.
Gross Annual
Household
Unit No. of No. of Tenaat lacome Date of Last
No. Tenant's Last Name(s) Occ. Bedrm Moathly Real (all sources) Certificate
ocx::ssFl:474684.6
40929.27SADl
C-I-3
. "II'.
I!,. I ':;-";1'
.rhr J~i...!t.)
Order: 0
Description: 2000.419005
Page 34 of 35
Comment:
II;
~
EXHIBITC-2
FORM OF CERTIFICATE OF CDLAC PROGRAM COMPLIANCE
CERTIFlCA TE OF CDlAC PROGRAM COMPLIANCE
Witnesseth thut on this day of ,20 ,the undersigned, having borrowed
ce.1am funds from the California Statewide Communities Development Authority (the "Issuer") for the
purpose of linancing a multitamily rental housing development (the "Project") located in San Bernardino,
Califomia, does hereby certify that:
I. [The Owner is in compliance with the CDLAC Conditions (as defined in the
Regulatory Agreement relating to the Project).] [The Owner is not in compliance with Condition No. _
of the CDlAC Conditions. The following measures are being taken to remedy such noncompliance
.J
2. The representations set forth herein are true and correct to the best of the undersigned's
knowledge and belief.
Date:
Owner
()(-)(,"SSfl:47468H
"()')~').~7S AOI
C-2-1
, ,!
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. I! ~I .I" .-}t:!
Order: 0
Description: 2000.419005
Page 35 of 35
Comment:
\".,.1.1 I vr ':>.1'1...1, .DJ.j~.1,n..1.'-.LJ.I..1.''\J
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 21,2001
TO:
Lisa Gomez, Staff Assistant
FROM:
Michelle Taylor, Senior Secretary
RE:
Follow-up - Resolution CDC/2000-37 - Pioneer Park Plaza Senior Housing
Complex
Our office has not received the signed documents referenced above. If the documents have been
signed, please forward them to the City Clerk's Office; otherwise, please advise me of their
status.
If you have any questions, please call me at ext. 3206.
... .
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 10"\ (,..,---f:::X)
Vote: Ayes 2-<0 Nays
Change to motion to amend original documents:
Item#~
fl Abstain
Reso. # On Attachments: --==-
Contract term:
Resolution #
.-9-
CCC IGcxtn - 3 'I
Absent II
NullNoid After: \ 2-\k-..()O
Date Sent to Mayor: IC).- \ ~ -ex) Date Returned from Mayor:
Date of Clerk's Signature: ICYLo-oo Reso. Log Updated:
iO~cp
./
Date of Mayor's Signature: \ C {i -0 a
Seal Impressed: /
Date Memo Sent to Department for Signature:
See Attached: ~ Date Returned:
Date Letter Sent to Outside Party for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: =- Date Returned:
See Attached: -=-
See Attached:
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk (circle I): PUBLISH, POST, RECORD W/COUNTY Date:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITV 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.
- See Attacheer:--
Ves / No
- -
Ves No ./
-
Ves - No ./
Ves - No :j_
Ves - No
By~
By 4- '--
By 4- '--
By I- '--
By V--
/
Water
Dev. Services EDA / Finance
Others:
Code Compliance
Police
Public Services
Notes:
MIS
BEFORE FILING REVIEW FORM TO ENSURE ANY NOT A TIONS MADE HERE ARE TRANSFFRRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: tf1\ Date: 17-1 16/7\ I
=-+,