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HomeMy WebLinkAbout1987-271 RESOLUTION NO. 87 -2 71 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AN URBAN DEVELOPMENT ACTION GRANT AGREEMENT IN CONNECTION WITH A PROPOSED SUPERMARKET TO BE DEVELOPED AT BASELINE AND MEDICAL CENTER DRIVE LOCATED IN THE NORTHWEST REDEVELOPMENT PROJECT AREA. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is authorized and directed to execute an Urban Development Action Grant Agreement (the "Agreement"), a copy of which is attached hereto as Exhibit "1", in connection with the proposed supermarket at Baseline and Medical Center Drive located in the Northwest Redevelopment Project Area, as well as any supplementary documents required under the terms of or necessary to effectuate the Agreement. SECTION 2. The Mayor of San Bernardino is authorized to act as the City's official representative in connection with the execution of the Agreement and in all matters necessarily arising or pertinent to the execution of the Agreement. SECTION 3. This Resolution shall take effect immediately upon adoption. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at an ad i ourned re9ular meeting thereof, held on the 7th day of Anql1Rt , 1987, by the following vote, to wit: AYES: Council Members Estrada, Reilly, Flores, Maudsley, Minor, Pope-Ludlam, Miller NAYS: None ABSENT: None ~/#d./~~ "ti ty Clerk day of The foregoing resolution is hereby approved this Auaust , 1987. /~d i~~H San Bernardino Approved as to form and legal content: -.- c .. \ ,_37 ltUTEIl STATES II:PARTMENT OF HOUSING AND LRRAN II:VELOPMENT ASSISTANT SECRETARY FOR CO~~lNITY PLANNING AND II:VF.LOPMENT Office of lrban Il:!ve1opment Action Grants U 0 ^ G GRANT AGREEMENT lrhan Il:!ve1opment Action Grant Uhder Section 119 of the Housing and COOltlunity (leve10pment Act of 1974 (Public Law 93-383, as Amended) ,~. -- --------- Name of Recipient: C2 UOAG Grant Number: San Bernadino, California (Westside Shopping Center) B-87-AA-06-0620 Address of Recipient: Honorah1e Evlyn Wilcox Mayor of San Bernadino San Bernadino, California 92418 Preliminary Approval Date: April 9, 1987 ~176/CI82 :J Amount of Grant: $1,848,100 ---- UDAG OFFICE USE ONLY C183 Reviewer: Cohen C520 Draft Typist: Anthony C180 Ob1 igation Date JJJ , I J987 ..JU.; I 1 l:itH C510 Draft Attorney: Bradshaw C202 First LBC Due Date: DECJ_LL987 C203 LRC Code S (Single) X M (Mu1 tip1 e) =--= C177 HUD Sign Date -DnA SYSTEMS lEE ONlY C181 NwDber of Transactions: 1-_______ C198 Construction Jobs: 103 C196 Retained Jobs: ~_____ CIQ1 Lo/Mod New Permanent Johs:.J!L C190 New Permanent Jobs: 248 C192 CETA Oua1 ified New Permanent Johs:....2,L C193 Minority New Perm Jobs:~ C174 Private Investment: $5,054,100 C172 Other Public Investment: $3,325,000 Commencement Date Capital Equipment Other Activity Completion Date C458 10/01/87 C468 03/01 /89 C478 I / C488 / / land Acquisition Construction C452 --LJ.._ C462 05/01 /88 C472 / / C482 / / ,. ~) evA(-b(t I . . . . t. ~ & . .. . INTR>WC'1ORY Preamble ~ita1s II< 'mBLE OF a:M"EN'l5 UDAG GRANT AGREEMENi' ARTICLE I - GENERAL PIVVISICR> Sectioo 1.01 Section 1.02 Sectioo 1.03 OJntents of 1lgreement Exhibi ts Incorporated General D!f ini tioos ARTICLE II - Al<<XJNT AND AtJIH)RIZED t5ES OF GRANT FtMS Sectioo 2.01 SectiCll 2.02 Sectioo 2.03 SectiCll 2.04 Grant Assistance Provided Authorized Uses of Grant Furx:)s Adj ustnents to Grant Fln:Js Recipient · s Use of Program Incane ARl1:a.t III - DISWRSD1ENT OF GRANT FUNJl) SectiCll 3.01 Section 3.02 SectiCll 3.03 letter of Credit Procedures Incurring Costs for Project Activities Authorization by the Secretary for the Recipient to Iraw Grant Fmds SectiCll 4.01 ARTICLE IV - CXXotPUANCE WI'lH FEDERAL RJLES AND UDAG REGlJIA'l'ICR> Sectioo 4.02 Delegation and Acceptance of RespJnSibi1ities Ulder Federal Rules Cbnp1iance with UDr\G Regulatioos ARTICLE V - REPRESENrATICJi5, WARRANTIES AND SPEX:IFIC cmJ:G\'l'ICJiS Section 5.01 SectiCll 5.02 Sectioo 5.03 Sectim 5.04 Sectioo 5.05 lecipient · s Iepresentations am Warranties Obligation to Catp1ete Recipient Activities As Scheduled Qll igation to Achieve Projected Jobs <l:>ligation to Cure Title Defects t-btificatioo and Actioo t.lXln D!fault ARl'ICLE VI - I~PEX:'TIOO AND REVIEW Sectioo 6.01 Section 6.'02 SectiCll 6.03 Sectioo 6.04 Illty to ftJaintain, and Rights to Inspect and Copy, Books, Recoms and nx:uments Site Visits DJration of Inspection Rights le~rts AR'l'ICLE VII - ~UL'IS AND REMEDIES Sectioo 7.01 D!faults SectiCll 7.02 Ienedies t4XJn Default ARTICLE VIII - CERI'IFICATIOOS BY REcrPIENT SectiCll 8.01 Section 8.02 Sectioo 8.03 Revised 6/81 Certifications t4XJn Draw of rums Certificatioo After Canpletioo of All Recipient Activities Certificatioo After Canpletioo of All Nal-Recipient Activities - i .!!9! 1 1 ~ 2 2 2 ~ 3 4 4 4 ~ 4 5 6 ~ 7 7 ~ 7 8 8 9 9 ~ 9 9 9 9 ~ 10 10 ~ 10 II II 'IMLl: Of' entrOIlS - Cootinued ARl'ICLE. IX - 'lIURL PAR'l~ CC>m'RAC'J.' REUJIRDtatlS Section 9.01 Sectioo 9.02 Section 9.03 Sectim 9.04 Section 9.05 Sectioo 9.06 Section 9.07 Sectioo 9.08 Section 9.09 Sectial 9.10 Section 9.11 Sectioo 9.12 Section 9.13 5ectirn 9.14 .Escrow of Program Incane Program Incane AWlied to Costs Program Incane for 'l'itle I Activities Assurance of Governmental Afprovals Canpletion of J:>roject Assurances of Projected Jobs ~.a.i.ntaining Jecords aD:l Right to Inspect Access to f'roject k> Assignment or Succession Secretary Approval of Amerdnents Lisclaimer of Relationships Limitation of Recipient Liability fer Project Activities - Oonflict of Interest Froject Signs ARTICLL X - [VIDENI'IARi MATERIALS Section 10.01 Section 10.02 Section 10.03 Sectioo 10.04 Section 10.05 Sectioo 10.06 Section 10.07 Section 1().08 Section 10.09 Section 10.10 Calluitments of Participating Parties - General Form of Documentary Lvidenoe - General Opinions of Jecipient' s COlmsel Evidence of Contracts - FoI:m Evidence of Loan Carmitments - fom tv ideoce of IDans - Form t.viaence of Liquid Assets - 100m t.v ide'oce of 1'inances Satisfact<;ty to (.ounsel - foorrn Anti-Speculation ~visions - Sale of Real Property I.vidence of 'Ii tie to Real ProIX!rty - }b11n ARlICU: XI - ftJ:SCWANI.OLS Section 11.01 Section 11.02 Section 11.03 Sectioo 11.04 Section 11. OS Sectioo 11.06 Section 11.07 Sectioo 11.08 Section 11.09 Section 11.10 Section 11.11 Sectioo 11.12 Section 1l.13 Section 11.14 Section 11.15 EXBIBIT A EXlaBIT 1; EXHIEIT C BXHIBI'l' D EXhIBIT E EXHIBIT F Revised 6/81 N:>tices Assigmtent Successors Bound lemedies t-bt Impaired Cumulative Remedies Severability I:i1tire Agreement EXecution in Counterparts 'Iable of Contents: 'I'i ties am feadiD3s Amendment of this Grant Agreement Cisclai.mer of Ie1ationships Governirg law ~ ver by Secretary Effective Date 'leI1llination of Grant Agreement SCHEIlILE OF W::IU'lS SlJPPLE:f"lENl'AAY PH:>VISICH; IESCRIPiIOO OF RECIPImT ACTIVITIES DESCRIPTION OF N:>N-P-OCIPIENT AC'J:IVI'l'IES HnJEC'l: Bt.t:a:T - SlJl+1ARY OF PK)IQ)U) EXPmDI'1tIR!S REQUIRED EVINN1'IARY ~'l'ERIAI.S IK>JECT PE.RFO~E SCHEIXJLE ii . ~ II II II 12 12 12 12 12 12 13 13 13 13 13 13 14 14 14 14 15 15 16 16 16 17 17 17 17 17 17 18 18 18 18 18 18 18 18 19 PREAMBLE 'It'.IS CRANT AGRED'iEJ~T is made and entered into by and between n1 SECRL"IMY OF fDUSlOO AND URBAN DEVEIDPMENT, acting by am through tre Assistant Secretary for Catmunity Planning am I2velqJnEmt, as representative of the tbited States of America, am the REX:IPlfNl'. RtCI'l'ALS 1liE RU:IPIENl' has awlied to the Secretary for grant assistance under the UD\G Program to umertake activities which are oonsistent with the lXOVisions of Section 119 of the Act and the tJDAG Iegulations: and ~ S~\', in reliance UIX>n the representatioos set forth in the Aa>licatioo, has aR;>tOV'ed the award of grant funds to the Recipient, to be expended by the Aecipient in ccnfOI1tlity with the requirements and provisions of this Crant Agreement: IN cnElDERATIC1'4 of the mutual pranises and covenants caltained in this Grant Agreement, the Secretary and the Recipient agree as follows: I.evised 6/81 1 ,. \. ,",' -- ARTICLE I GUlJ:.RAL PIVVISIOtS Section 1.01 Caltents of Agreement 'Ibis agreement shall calsist of this Grant Agreement am the Awlicatioo, as may, fIan time to tiJre, be amended. Section 1.02 Exhibits IncotpOrated All exhibits which are referred to in this Grant Agreement and are attached hereto are incorporated herein am mcrje a part hereof. Section 1.03 General Definitions Lnless specifically provided otherwise or the caltext otherwise requires, when used in this Grant Agreer.lent: (1) "Act" means the &:>using am C:atmlIlity Developrent Act of 1974, 1Ub. L. k>. 93-383, as amended. (2) "AR>lication" means the AfPlication For Federal Assistance, arx3 such other subnittals, as are specified in txhibit A ot this Gr~t Agr~t. (3) "Iefault" means any default set forth in sutsection (a) of Section 7.01 of this Grant Agreement. (4) "Eligible Costs" means costs for the activities specified in Exhibits E and C of this Grant Agreer.tent for which grant fums are budgeted r as specified in Exhibit L of this Crant Agreement, provided that such costs (i) are not incurred in coonection with any activity which, under 24 C.F.R. Part 570, as may be fran time to time amended, are ineligible umer the DTAG Program, and (ii) confonn to the requirements of Attadunent B to Federal f.'Slagement Circular 74-4 (COst Principles Awlicable to Grants arx3 Caltracts with State am local. Covernment), as may be from time to time amended. . Fbr p,lrposes of detennining the conformity of costs to said Attachment E, allca;ts set forth in Section C thereof except for "prearrangement costs" and "prqosal oosts" (which are eligible only to the extent authorized in Section 570.454 of 24. C.F.P.. Part 570) may be considered eligible without prior approval of the 5ecretary . (5) "fnvironrnental Comitions" means the cxn3itions irrpJSed by law, particularly 24 C. F. R. Part 58, and the provisions of this Grant Agreement which prohibit or limit the carrnitrnent am use of grant funds until certain procedural requirements have been canpleted. ( {>) "Dw ironrnental Iequirements" means the requirements described in 24 C.F".R. Part 58. . (7) "Dwironmental Studies" means all eligible activities necessary to produce an "environmental document", as that tenn is defined at Section 1508.10 of 40 C.F.F. Part 1506, or to CXlTIply with the requirements of 24 C.F.R. Part 58. (8) ""rant FUOOs" means t.hcse fums to be provided by bUD to Recipient p.lrsuant to the terms of this Grant Agreement, as specified in Exhibit A of this Crant Agreement. (9) "HJD" means the lhited States Department of Housing arD tJz:ban Develcpnent. (10) "letter of Credit" means the letter of credit to be issued or amended by the Department of the 'lreasury pursuant to Sectim 3.01 of this Grant Agreement. Reviled 6/81 2 I . , ___,..-I ., I ' (11) .ton-Recipient Activities. means tlDse activities of the Project to be carried oot by Participatilli3 Parties, other than the Iecipient or an agent or agency of the Iecipient, which activities are described in Lxhibit C of this Crant Agreement. " (12) .Ierticipating Ierty. means any persal, finu, car:poration or entity identifiea as such in EXhibit A of this Grant Agreement. Identificatial as a .ParticipatiB'.:] Party" signifies that the Secretary, in selecting the RecifJient for the award of this grant, relied in material part ur:on a representation that the party so identified will canplete a s~cified portion of the Project or a specific activity necessary for the CCJi~letion of the Project. (13) "Program Incane" means the lCAG percentage of: (i) any incane earned by Iecipient, or an agent or Clgerx::y of Iecipient, fran the disposition of real or personal property acquired in wrole or in part with grant f\n3s: (ii) the reFayrnent pt'OCeE!ds (including principal and interest) of any loan made in whole or in lart with grant funds: (iii) any other revenues defined as program incane in 24 C.J:'.R. Part 570, Subpart J, and (iv) any incane ftan an activity where it is specifically declared in Exhibit A of this Grant Agreement that the incane fran such activity shall be deemed to be Program Incane. 'lhe "lJtAG percentage" means an aroount CXli'puted by applyiB'.:] the percentage of participation of grant funds in the total cost of acquisitioo of property, in the total ancunt of a loan, or in the total cost of an activity, to the incane ftan the dispositioo of such property, the total repayment proceeds of such 10Cl'l, or the inoane ftan such acti vi ty. (14) "Rx:kets of foverty Project" means a Project aR>roveO based on an awlication subnitted and approved pursuant to Section 119(b) (2) of the Act. (15) "Project" means the activities described in the Awlicatioo am in EXhibits f, C are D of this Grant Agreement which are to be carried oot to meet the objectives of the tDAG Ftogram. (16) "recipient" neans the local governmental entity receiving grant furXls ~rsuant to this ~rant Agreement, as roore particularly identified al the cover page of this Grant Agreement. (17) .lecipient Activities" means tix>se activities of the Project to be carried oot by the F2cipient, or an agen~ or agerx::y of the F.ecipient, which activities are described in Lxhibit r: of this Grant Agreement. (18) .Secretary. means the Secretary of IDUSing am Urban tevelopnent cr any other official of UJlI to wtx:Jn the Secretary has delegated authority to act with respect to matters coveted by this Grant Agreement. (19) .tL.:AC Program" means the Urban IevE:lcptent Actioo Grant Program established by IIDI: pursuant to Section 119 of the Act. (20) .trAG Iegulations" 'means the regulations set forth in 24 C.F.R. l'art 570, Suq:art G, as the same may, fran time to tine, be amendee. ARTICLE II N'!)t1l1 Al>4r AU'1WRIZ~r. l5IS OF CJWrJ: FrnIE Section 2.01 <..rant Assistance Provided In ooosi.deration of the varioos oLligaticns undertaken by the Fecipient plrsuant to this Grant ~reement, am in ooosideratioo of the obl igatioos to be undertaken by Participatin;, farties, as represented by the Jecipient in the Awlicatioo, the Secretary agrees, subject to the terms am ocnditioos set forth herein, to provide the Recipient with grant funds in the aroount specified in IXhibit A of this ~'rant Agreemeht. Revised 6/81, 3 aiL ~._- Section 2.02 Authorized Uses of Grant funds '!he grant funds provided to the Iecipient pursuant to this Grant J.greement mall be used only for the specific purposes described in Exhibits Is and C of this Grant J.greement and in the arrounts budgeted in Exhibit D of this Grant Agreement, subject to the project anenanents provisioos of the lJD.f\G Iegulations. Sectioo 2.03 Adjust:IrEnts to Grant FUrrls 'lhe anount of grant funds which the Secretary has agreed to provide to the Recipient under this Grant Agreement has been detemired by the Secretary in reliance upon the oost estimates of the Recipient with respect to the activities set forth in the AWlication and the investment ccmnit:IrEnts of Participating Parties. '!be Secretary reserves the right to reduce the grant anount (i) to ca1form to any revision to which the Recipient and the Secretary may agree with respect to Exhibits B, C or D of this Grant Agreement, (ii) if the actual costs for activities are lower than those set forth in Exhibits E, CorD of this Grant J.greement, or (iii) if the investnent by participating Parties is less than the am:>unts ,specified in Exhibits 5, C, C or E of this Grant Agreement. Section 2. 04 ~cipient · s Use of Program Incone (a) In order to provide funds to assure c:anpletion of the 1ecipient kti vi ties, the Secretary shall have the right to require all Program Incane received by the lecipient, or by any Participating Party, prior to the c:anpletion of all 1ecipient Activities, to be deposited in escrow umer arrangements ag>roved by the Secretary. '!he Secretary may exercise said right either by specifying such requirement in Exhibit A of this Grant J.greement or by separate written instructions to the Recipient delivered at any time prior to the CCJTq)letion of all lecipient 1lctivities and the draw of grant funds to pay costs irx=urred for such activities. (b) Unless otherwise specifically stated in Exhibit A of this Crant Jlgreement, all Program Incane which is received by the lecipient or any Farticipatill3 Party, prior to CCJTq)letion of all lecipient Activities shall t:e used prior to, and in place of, any draw under the letter of Credit to the extent adequate to pay costs so incurred. (c) Unless otherwise specifically stated in Exhibit A of this Grant J.greement: or in the close-out agreement between the lecipient am Ht.JC, all Program Incane received by the Recipient, or any participating Party, after the canpletion of all Recipient Activities shall be used by the ~cipient, or the Participating Party subject to theawroval of the Recipient, for ccmnunity or ec:x:>nanic dE!\ieloplSlt activities eligible for assistance under Title I of the Act. (d) Fbr l\Xkets of PoI/erty Projects, all Program Incane received by the Recipient, or any Participating Party, after the canpletion of all lecipient Activities shall be used only for activities which directly benefit low- and ~erate-incane residents of the pocket. AR1'ICLE III DISEURSrz.1ENT OF GPJ.t-lT FwtS Section 3.01 letter of Credit Procedures (a) Pranptly after the Secretary has received fran the ~ipient not Jess than three (3) fully executed ccpies of this Grant J.greement and has ag>roVed evidentiary materials required by Exhibit E of this (""rant Agreement that woold allow a drawCbwn of grant funds pursuant to the teIlTlS of Exhibit F of this Grant Agreement, the secretary shall cause a letter of Credi t to be issued to the lecipient by the Department of the Treasury, or shall cause the tetter of Credit previously issued to the Recipient by the Department of the '1reasury with respect to the Ccmnunity kevised 6/81 4 DeveIoplent Block Grant Program under Title I of the Act to be increased, in accordance With procedures established by the Department of the Treasury, in an amount not to exceed the amount of grant funds referenced in Section 2.01 and specified in Exhibit A of this Grant Agreement. (b) 'Dle authorization to use the Letter of Credit and to pay costs out of grant funds shall be governed by the provisions of this Grant Agreement and shall be subject to all oonditions precedent to the Recipient's draw of grant funds which are specified in this Grant Agreement. The Recipient shall not draw upon the Letter of Credit until the Secretary has authorized the Recipient to draw pursuant to Section 3.03 of this Grant Agreement. (c) 'Dle Recipient is authorized to draw grant funds against the Letter of Credit only in acoordance with the provisions of this Grant Agreement and the procedures established by the Secretary and the Department of the Treasury. No payment by the Department of the Treasury of an inproper or unauthorized draw to the Recipient shall oonstitute a waiver of the right of the Secretary to challenge the validity of such draw, to enforce all rights and remedies set forth in this Grant Agreement, or take oorrective or remedial administrative action pursuant to the urw; Regulations, which action may include, without limitation, suspension or termination of the Recipient's funding under this Grant Agreement. (d) 'Dle disposition of any grant funds that remain available under the Letter of Credit following canpletion of the Project, or the termination of this Grant Agreement by the Secretary, or its termination for any cause, shall be in accordance wi th close-out procedures then in effect or established by the Secretary, and the Recipient shall not have any rights to such grant funds. Section 3.02 Incurring Costs for Project Activities (a) The use of grant funds is oonditioned upon the Recipient incurring costs to be paid in acoordance with this Grant Agreement or as otherwise awroved by the .Secretary in writing. The incurring of costs to be paid out of grant funds shall be governed by the following: (1) Except for the cost of awlication preparation for small cities as specified in the UDAG regulations, no costs incurreq prior to the preliminary apprC?Val date may be paid out of grant funds. (2) After the preliminary approval date, eligible administrative costs, including but not limited to costs of Envirorvnental Studies, and costs incurred by Participating Parties, other than the Recipient, its agent or agency, for any activity not to be paid for in whole or in part with grant funds, may be incurred before or after the effective date of this Grant Ayreement, as defined in Section 11.14 below, and the satisfaction of environmental ooncH tions. (3) Except as permitted by 24 C.F.R. part 58, no other costs to be paid out of grant funds may be incurred by the Recipient or any Partici- pating Party until all Envirornental Conditions of 24 C.F.R. Part 58 have been fully satisfied and the Secretary has issued the envirorJnental releases required by 24 C.F.R. Part 58. (4) After the Recipient has satisfied all of the Environmental Conditions and the Secretary has issued the required envirornental releases, then at any time after the Preliminary Approval Date for this Project, the Recipient and the Participating Party may incur eligible costs to be paid out of grant funds. - 5 Revised 6/81 J (b) 1\le authorization to incur oosts in subsection (a) above is not an authariZatial to reirrburse those oosts and does not nean or inply that such costs will be reiJrbursed out of grant furx:ls. '!he Recipient an:1 Participating Parties may voluntarily, at their own risk, and upon their own credit and expense, incur costs as authorized in subsection (a) above, but their authority to reirrburse or to be reircDursed out of grant furx:ls shall be governed by the provisions of this Grant Agreatent applicable to the payrrent of costs and the release of furxis by the Secretary. (c) Neither the Recipient nor any Pa..Yi:icipating Party shall incur any costs in oannection with any activitj to be paid for, in whole or in part, with grant funds, even though such costs will not be rei.nt>ursed out of grant funds, unless such costs could be incurred pursuant to subsection (a) of this Section 3.02 if such costs were to be paid out of grant funds. (d) Prior to the issuance by the secretary of the envi.rall'lental releases required by 24 C.F. R. Part 58, the Recipient I1V1y not use any funds, including local funds, to take any action with respect to the Project where such action might have an adverse environrrental effect, would limit choices ancng carpeting alternatives, or might alter the enviramental p-cemises on which the pending clearance is based in suc.~ a fashion that the validity of the conclusions to be reached w:>uld be affected. section 3.03 Authorization by the secretary for the lecipient to Draw Grant Funds (a) No oosts may be paid out of grant funds prior to the issuance by the secretaz"} of the environrrental releases required by 24 C.F.R. Part 58, a written approval by the secretary of required evidentiary materials as specified in Exhibits E and F of this Grant Agreerrent, and written authorization fran the secretary to draw grant funds u.rxler ~ lett.er of Credit. . (b) All certifications and other materials required by this Grant Agreenent to be su1:xni tted to the secretary as c:xmdi tions precedent to the Recipient's authority to pay oosts out of grant funds shall be sutmitted by the Recipient prior to any draw of grant fun::is under the letter of Credit. (c) Unless Exhibit E or F of this Grant Ay.ce.::f\l8lht -authorizes the phasing or staging of the Recipient's draw of grant funds, then upon a finding by the secretary that the Recipient has sub'nitted, in a tinely manner and in acceptable fonn and content, all of the evidenti.cuy mater~ specified in ExhibitE of this Grant Agreement and upon approval by the Secretary of said evidentiary materials; and if no default has occurred, as defined in subsection (a) of Sect.ial 7.01 of this Grant Agreerrent, the Secretary shall prarptly issue to the Recipient a written authorization to draw grant funds uOOer the Ui!tter of Credit for the purposes authorized by this Grant Agreement. (d) If Exhibit E or F of this Grant Agreenent authorizes the phasing or staging of the 1e:ipient' s draw of grant furrls, then upon a finding by the secretary that the Recipient has su1:mitted, in a timely manner and in acceptable fom and content, all of the evidenti.cuy materials specified in Exhibit E of this Grant Agreertent to be sul:mi.tted to and accepted by the secretary for any particular phase or stage of the draw of grant funds; and upon approval by the secretary of said evidentiary materials; and if no default has occurred, as defined in subsection (a) of section 7.01 of this Grant Agreenent, the secretary shall prarpUy issue to the Recipient a written authorization to draw grant funds under the I.etter of credit in ac::cordanoe with any requirenents or authorizati.a1s described in Exhibit E or F respecting the particular phase or stage of the draw of grant. funds. (e) Prior to the Recipient's payrrent of any oosts with grant funds, and prior to the Recipient's drawing of any grant funds under the Ui!tter of Credit, the Recipient shall not have been served by the Secretary with 8rtj notice suspending the Recipient's authority to draw grant funds under the Ui!tter of Credit, oor be in breach of the Recipient's obligation to report a default, pursuant to subsection (a) of Section 5.05 of this Grant Agreerrent. Revised 6/81 6 . . ARl'ICLE IV CXH>LIANCE WITH FEDERAL RULES AND UW; REnJlATI~S Sectia1 4.01 Delegatioo and Acceptance of ~spansibilities under Federal Rules By its executi.al of this Grant AgreeIrent, the Recipient represents and warrants that it has the legal capacity to assurre the respa1Sibilities for oatpliance with all applicable Federal rules and agrees and undertakes to assurre and carry oot all such responsibilities in acoordanoe with all the rEGUirenents which are or nay be established pursuant thereto. Secti.al 4.02 CCrrpliance with tJt\AG Regulatioos 'D1e Recipient shall axrply with the tJt\AG regulations, incltding the certificat.i.als specified therein. ARl'ICLE V REPRESENrATICNS, WARRANTIES, AND SPEX::IFIC OBLIGATICNS Sectioo 5.01 Recipient' s ~presentations and Warranties '!he Recipient has, by and through CXXlSUl.tations anmg all appropriate rnerrbers of the Recipient's cpveming body and its officers, examined into each of the follCMi.ng and by its execution of this Grant Agreement the Recipient does, upal information and belief, represent and warrant to the Secretary that: (1) '!he Recipient is duly organized and validly existing under the laws of the jurisdiction of which the Recipient is a part, and has all requisite power and authority to enter into this Grant AgreeIrent. (2) A Rsolution, nt>tioo, order or ordinance has been duly adopted, passed or enacted as an official act of the Recipient's cpveming body, authorizing the execution and delivery of this Grant Agree;lteht by the Recipient and authorizing and directing the persal executing this Grant Agreement to do so for and (Xl behalf of the Recipient. (3) '!bis Grant AgreeIrent has been executed and delivered by the Recipient, in such manner and fom as to axrply with all applicable laws to nake this Grant Agreenent the valid and legally binding act and agreerrent of the le::ipient. (4) Except as set forth in Exhibit A of this Grant Agree!\e1&t, there is no action, proceeding, or investigation 'fOIl perxUng, nor any basis therefor, known or believed to exist by the Recipient, which (i) questicns the validity of this Grant Agreement, or any action taken or to be taken under it, or (ii) is likely to result in any material adverse change in the authorities, properties, assets, liabilities, or conditions (financial or othe1:wi.se) of the Recipient which ~ materially and substantially iItpair the Recipient's ability to perform any of the obligations iIfiX)Sed upal the Recipient by this Grant Agreerent. (5) '.the representations, statements, and other matters CXIltained in the Application were true and axrplete in all material respects as of the date of filing. Except as set forth in Exhibit A of this Grant Agreenent, the Recipient is aware of no event which would require any anendment to the Application (other than an anendment which has been filed with and approved by the Secretary) in order to make such representations, statenents, and other matters true and carplete in all naterial respects and not misleading in any material respect. '!he Recipient is aware of no event or other fact which should have been, and has not been, reported in the Application as material infcmtBt.i.a1. (6) '!he Recipient has obtained, or has reasonable assurances that it will cbt:a:in, all Federal, State and local goverment approvals and reviews required by law to be obtained by the Recipient for the Project; and all Participating Parties have obtained, or the Recipient has reasonable assurances that such Participating Parties will obtain, all such awrovals and reviews required by law to be cbtained by the Participating Parties for the Project. Revised 6/81 7 I . (7) Insofar as the capacity of the Recipient to carry out any obligation under this Grant Agreement is concerned, (i) the Recipient is not in material violation of its Charter, or any mortgage, indenture, agreement, instrument, judgment, decree, order, statute, rule or regulation and (ii) the execution and performance of this Grant Agreement will not result in any such violation. (8) Except for approved eligible administrative and personnel costs, no JIIe!1t)er, officer, or employee of the Recipient, or its designees, or agents, no consultant, no member of the governing body of the Recipient or the locality in which the program is situated, and no other public official of the Recipient or such locality or localities, who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decisionmaking process or gain insider information with regard to the project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project or in any activity, or benefit therefran, which is part of this Project at any time during or after such person' s tenure. This provision shall be in addition to the require- ments in Attachments 0 of G1B Circular A-I02 and A-lID. " (However, upon written request of the Recipient, the Secretary may agree in writing to waive a conflict otherwise prohibited by this ~ision whenever there has been full public disclosure of the conflict of interest, and the Secretary determines that undue hardShip will result either to the Recipient or the person affected by applying the ~ibition and that the granting of a waiver is in the public interest. No such request for a waiver shall be made by Recipient which would, in any way, penni t a violation of State or local law or any charter provision of the Recipient.) Section 5.02 Obligation to Complete Recipient Activities as Scheduled (a) The Recipient shall use its best efforts to assure the completion of the Recipient Activities described in Exhibit B of this Grant Agreement within the time periods specified in Exhibit F of this Grant Agreement. (b) The Recipient agrees that the foregoing undertaking and assurance means that Recipient shall, to the maximlDll extent pennitted by law, use and apply all of its governmental and proprietary powers for such canpletion, including but not limited to those powers governing taxes, other revenues, credit, eminent danain and appropriations, if necessary, for the purpose of providing any shortfall between funds available under this grant and funds necessary to complete all of the Recipient Activities described in Exhibit B of this Grant Agreement. Section 5.03 Obligation to Achieve Proiected Jobs (a) In selecting the Recipient for this grant, the Secretary considered certain representations by the Recipient to the Secretary that this grant is expected to create a spec;.fic number of permanent new job opportunities, including a specific number of new permanent job opportunities for minorities, CETA-eligible persons, and persons who, at the time of their employment, will be persons of low- or JlDderate-incane within the meaning of Section 570.3 of 24 C.F.R. Part 570, as may be fran time to time amended. (b) The Recipient acknowledges its representations in the Application pertaining to the creation of jobs and obligates itself to use its best efforts to create, or cause to be created, the nunDers and kinds of jobs wi thin a specified time period as specified in Exhibit A of this Grant Agreement as being expected to be created through this grant. (c) For Pockets of Poverty Projects, Recipient shall ensure that at least 75 percent of all permanent jobs initially resulting from the Project are ~ided to low- and JlDderate-incane persons and that at least 51 percent of all permanent jobs initially resulting from the Project are provided to low- and moderate-incane residents fran the pocket. Recipient shall continuously use best efforts to ensure that at least 75 percent of all permanent jobs resulting fran the Project are provided to 10lllt- and no:3erate-incane persons and that at least 51 percent of all permanent jobs resulting fran the Project are provided to low- and moderate-inoane residents fran the Pocket. (d) The Recipient obligates itself to use all powers available to 8 Revised 6/81 .-- { , Recipient to enforce the undertakings or assurances of Participating Parties respecting the creation of jobs which are specified in Exhibit A of this Grant Agreement. Section 5.04 Obligation to Cure Title Defects (a) 'fhe Recipient shall use its best efforts to pranptly cure, or cause to be cured, any defect in the · i. t ~ e to any rea' pr~rt:' ~ssary to the ccmpletion of Recipient Activities, where such defect will or may have a material adverse effect on the use of such real property for the Project. (b) The Recipient agrees that the foregoing obligation means that the Recipient shall, to the maximum extent permitted by law, use and apply all of its goverrmental and prcprietary p:JWers, including but not limited to those pclI'WIers governing taxes, other revenues, credit, eminent danain and appropria- tions, if necessary, for the purpose of assuring the availability of all real pr-~rty, free and clear of adverse and inhibiting title defects, which is necessary to complete Recipient Activities. Section 5.05 tlotification and Action Upon Default (a) 'Ibe Recipient shall pranptly give written notice to the Secretary upon the discovery by the Recipient of any default involving any Participating Party, as defined in Section 7.01 of this Grant Agreement. (b) Pranptly upon the discovery of any default involving any Participating Party, the Recipient shall vi9o~sly pursue, to the fullest extent possible, all remedies available to Recipient to rellOVe or cure such default, or to seek redress or relief fran its effects, includirll;3 reimbursement for any grant funds expended on the Project, and to prevent or mitigate any adverse effects on the Project. Recipient shall keep the Secretary fully informed as to the status of such actions. ARI'ICLE VI niSPECl'IOO AND REVI&J Section 6.01 D.Jty to Maintain, and Riqhts to Inspect and Copy, Books, Reoords and O::>cuments (a) The Recipient shall keep and maintain such books, records and other documents as shall be required under rules and regulations now or hereafter applicable to grants made under the UIY\G Program, and as may be reasonably necessary to reflect and disclose fully the amount and disposition of the grant funds, the total oost of the activities paid for, in whole or in part, with grant funds, and the amount and nature of all investments related to such activities which are supplied or to be supplied by other sources. (b) All such books, records and other documents shall be available at the offices of the Recipient (except that books, records and other documents of a Participating Party which are subject to this Section 6.01 may be maintained at the offices' of such Participating Party) for inspection, copying, audit and examination at all reasonable times by any duly authorized representative of the Secretary or the Canptroller General of the United States. Section 6.02 Site Visits Any duly authorized representative of the Secretary shall, at all reasonable times, have access to all portions of the Project. Section 6.03 D.Jration of Inspection Riqhts The rights of access and inspection provided in this Article VI shall oontinu~ until the ccmpletion of all close-out procedures respecting this grant,vand until the final settlement and conclusion of all issues arising out of this grant. Section 6.04 Reports The Recipient shall pranptly furnish to the Secretary all reports required to be filed in accordance with any directives of the Secretary or any statute, rule or regulation of HUn. Recipient shall provide to the HUn Area and Central Offices an annual report on the use of Program Incane as long as sud- funds are generated by the Project. 9 Revised 6/81 \ ARrICLE VII DEFAULTS AHD REMEDIES Section 7.01 Defaults A default shall consist of any use of grant funds far any purpose other than as authorized in Exhibi ts B, C and D of this Grant Agreement, or any breach of any covenant, agreement, provision, or warranty of (1) the Recipient made in this Grant Agreement, (ii) the Recipient made in any agreement entered into between the Recipient and any Participating Party relating to the Project, (iii) any Participating Party made in any agreement specified in Exhibit E of this Grant Agreement, or, (iv) the performance schedule specified in Exhibit F of this Grant Agreement. Section 7.02 Remedies tYpon Default (a) Upon occurrence of any default as described in Section 7.01, the Secretary may suspend the Recipient's authority to draw any Grant Funds under the Letter of Credit at any time by notice to the Recipient. If a default is not cured within thirty (30) consecutive days fran notice of such default by the Secretary to the Recipient, the Secretary may continue such suspension or by delivery of notice terminate this Grant Agreement. In the event of a termination, the Recipient's authority to draw grant funds under the Letter of Credit shall have terminated at the date of the notice of termination and the Recipient shall have no right, title or interest in or to any grant funds remaining under the Letter of Credi t. (b) In addition to any other rights or remedies, if a default consists of the Recipient's failure to submit the evidentiary materials described in Exhibit E of this Grant Agreement by the date specified in Exhibit F of this Grant Agreement, the Secretary shall have the right to terminate this Grant Agreement and the award of grant funds to which this Grant Agreement relates by delivery of written notice to the Recipient. Upon such termination, all obliga- tions of the Secretary pursuant to this Grant Agreement and such award shall cease and the Recipient shall neither have nor retain any rights whatsoever with respect to the grant funds provided under this Grant Agreement. (c) If a default occurs, the Secretary may at any time or fran time to time proceed to protect and enforce all rights available, to the Secretary under this Grant Agreement by suit in equity, action at law, or by any other appt'q)riate proceedings, whether for specific performance of any covenant or agreement contained in this Grant Agreement, or damages, or other relief, or proceed to take any action authorized or permitted under applicable law or regulations, including the recapture of any expended grant funds fran any payments received by Recipient as a result of the default of any Participating Party. (d)' 'n1e rights and remedies available to the Secretary in the event of a suspension or termination of this Grant Agreement shall survive such suspension or termination. ' ARl'ICLE VIII CERl'IFlCATlOOS BY RECIPIENr Section 8.01 Certifications Upon Draw of Funds Execution by the Recipient of each request for a draw of grant funds under the Letter of Credit shall constitute a certification that: (1) All of the representations and warranties of the Recipient as set forth in Section 5.01 of this Grant Agreement continue to be valid, true, and in full force and effect. (2) The Recipient is in compliance with all of the Recipient's obligations specified in this Grant Agreement which, by their teI11lS or intent, are applicable at the time of the draw of grant funds. 10 Revised 6/81 -;- (3) All roodi tions precedent to the Recipient' s authority to draw the grant funds shall have been satisfied, in acrordance with Sectioo 3.03 of this Grant Agreement. (4) 'l'he grant funds to L.C Jrawn will. be u..c:;(.-(l .Lor UiYJ.ule Custs actually incurred in accordance with the provisioos of Lxhibits B, C am D to this Crant Agreement. , ~5) ,All Program Incane which has been received by the Recipient or by a l'artlclpahD;J l'arty has been deposited or used in accordance with the vrovisions of ~ction 2.04 of this Grant Agreenent. section 8.02 Certificatioo After carpletion of all Recipient Acti vi ties Within thirty (3CJ) days after the canpletion of all Recipient Activities, the Recipient shall submit to the Secretary a written certification, executed by the dlief executive officer of the Recipient, stating that all Recipient Activities, have been canpleted consistent with the tenns of this Grant kJreement, and specifying the date of canpletion and the cast for each Recipient Activity. Section 8.03 tertif ication After Conpletion of All fobn-Recipient Activities Within thirty (30) days after the canpletion of all IOO-Recipient Activities, the Recipient shall submit to the Secretary a written certificatioo, executed by the dlief executive officer of the Recipient, stating that all Non- Pecipient Activities, have been canpleted consistent with the tenns of this Grant hJreerrent, and specifying the date of canpletion and the cast for each Non-Recipient Activity. 'lhe certification shall have attached to ita statement from each Participating l'arty that the information in the certification with respect to the fm-Recipient llctivities carried out by that Participating farty is canplete ana oorrect. AR'ilCIL IX '.a.bIRD PARl:~ WllWC"J.' Rl.QUIRf}~rJ.S Section 9.01 Escrow of Program Incone 'lhe Recipient shall include in all contracts with Farticipating Parties involving activities to be paid for with grant funds, a provision that, upon instruction by the Secretary, all Program Incane received by the Participating Party, prior to the oanpletion of all !ecipient .Activities, shall be deposited in escrow under arrangements approved by the Secretary, in order to provide funds to assure the completion of the Recipient .Activities. Sectioo 9.02 Program Incate AWlied to COsts unless Exhibit A of this Crant Agreement authorizes or requires ott.erwise, the ~cipient shall include in all contracts with Participating I8rties involving activities to be paid for with grant funds, a provision that all Program Incane received by the Participating Party, prior to the canpletion of all Recipient .Activities, shall be transmitted to the Recipient for payment of oosts incurred for Recipient Activities. Section 9.03 Program Inoone for Title I Activities Unless Exhibit A to this Crant Agreement authorizes or requires otherwise, the Recipient shall inclucE in all contracts with Participating Parties involving activities to be paid for with grant funds, a provision that all Program Incate received by the Participating !Jarty after the canpletion of all k!cipient Activities shall, at the q>tion of the Iecipient, either be transmitted to the Recipient, or used by the Participating Party with Recipient awroval, for comnunity and eoonanic develc.pnent activities which would be eligible for assistance Wlder 'l'itle I of the Act, unless otherwise provided in the close-out agreement between Fecipient and Hm. Revised 6/81 11 Section 9.04 Assurance of lovernrrental AI:Provals ~he Recipient shall include in all contracts with Participating Parties a warranty that the rEcipient and each Participating Party has obtaiJ:ed, or has reasonable assurance that it will obtain, all Federal, State and local goverrunental awrovals am reviews required by law to be obtained by the Recipient or Participati~ Party for the Project. lVly such approvals or reviews which have rot been obtained shall be specified in the contract. Section 9.05 Carpletion of Project ~he Recipient shall cause to 1.e inclucEd in all contracts with I-articipati~ Parties a representation on the part of each Participati~ Party that the Participating Kirty acJrnowledges that the Secretary, in selecting the I~cipient for the award of this grant, relied in material part upon the assured cxlffipletion of the Froject and that the Participating Party assures the Recipient that such activities will be canpleted by the I-articipatin; Party. SP.ction 9.06 Assurances of Projected Jobs (a) 'j,ile f<ecipient shall either include in all appropriate contracts with Participating ~arties, or shall secure in the most legally binding and enforceable forr,l for such assurance available under the laws of lecipient' s State, written assurances fran each Participating Party that such Participating Party ~ill use its best efforts to create or cause to be Cl"eated, within a time specified in txhibit A of this Grant Agreemen~, a specified murDer of new peIT.lanent job owortunities, including a specified number of new pelmanent job CRX'rtunities for minorities, CE'"lA-eligible persons, and ~rsc;>ns who, at the tiIre of their E!ilpJ.oyment, will be persons of low-and noderate-incane. (1.>) 1-'Or Pockets ot Foverty rrojects, lecipient shall also includ assurances necessary to canply with SectiCJl 5.03(c) of this Grant Agreement. All assurances shall (i) state that in order to assist. and enable the Recipient to report to the Secretary, as the Secretary may require, the assurin; Partici- , pating Party agrees to report to the Recipient, as the Recipient may fran time to cime require, on the numbers and kirx:1sof such jabs created or caused to be created and filled, and (ii) contain such other provisions as may be required by the Recipient to enable the Recipient to canply with any reporting require- ments of the Secretary and to cause the assurances to be legally binding and enforceable to the maximum extent pemitted by the awlicable law. Section 9.07 f.:Iaintaining Iecords and Right to Inspect 'rile Recipient shall include in all contracts with l'articipating l'arties receiving grant funds provisions requiring that (i) each such Partici- pati~ l'arty keet' and maintain books, records and other c.Jocuments relatil-.;J directly to the receipt and disbursement of such grant fUJ"l(]s: and (ii) any duly authorized representative of the secretary or Canptroller ceneral of the tJni ted States shall, at all reasonable tines, have access to and the right to inspect, copy, audit, and examine all such books, records and other documents 01 SUdl Farticipating ferty until the oanpletion of all close-out procedures respectilY:l this grant and the final settlement and conclusion of all issues ar ising out of this grant. Section 9.08 Access to Project 'lhe Recipient shall include in all contracts with Participating Parties a provision that each Participati~ Party agrees that any duly autOOl'ized representati ve of the Secretary shall, at all reasonable times, have access to any portion of the Project in which such Participating Party is involved until th€ canpletion of all close-out procedures respecting this grant. Sectioo 9.09 No Assignment or Succession 'Ihe Recipient shall include in all contracts with Participating Parties receiving grant furx:1s an ackmwledgement and agreement by the Parti- cipating Party that I'D transfer of grant funds by the Recipient to the Parti- cipati~ Party shall be or be deemed an assigrwnent of grant furds, and that such ReviSEd 6/81 12 ~ . Participlting Party ahall neither succeed to any rights, benefits or advantages of the Recipient under this Grant Agreement, nor attain any rights, privileges, authori ties or interests in or under this Grant Agreement. Section 9.10 Secretary AR:1roval of Amendments 'l11e Recipient shall include, or cause to be included, in all contracts which are required to be sutJni tted to and awroved by the Secretary in accordance wi th Exhibi t E of this Grant Agreement a provision that during the term of this Grant Agreement such contract shall not be amended in any material respect, after such awroval and acceptance, without the prior written approval of the Secretary. "Material" shall be defined as anything which cancels or reduces any developnental, construction, job creating, or financial obligation of any Participating Party by IIDre than ten (10%) percent, changes the sites or character of any developnent acti vi ty, or increases any time for performance by a party by IIDre than thirty (30) days. Section 9.11 Disclaimer of Relationships 'l11e Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, an acknowledgement that nothing contained in this Grant Agreement, or in the contract between the parties,.nor any act of the Secretary, the Recipient, or any of the parties, shall be deemed or construed by any of the parties, or by the third persons, to create any relationship of third-party beneficiary, principal and agent, limited or general partnerShip, or joint venture, or of any association or relationShip involving the Secretary. Section 9.12 Limitation of Recipient Liability for Project Activities Unless otherwise specified in Exhibit A of this Grant Agreement, the Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, an acknowledgement that the Recipient shall not be liable to any Participating Party, or to any party except BUD, for canpletion of, or the failure to canplete, any activities which are a part of the Project, except those specified in Exhibit B of this Grant Agreement. Section 9.13 Conflict of Interest The Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, a conflict of interest provision consistent with Section 5.01(8) of this Grant Agreement. Section 9.14 Project Signs The Recipient shall include in all contracts with Participating Parties, and in all contracts with any party involving the use of grant funds, a project sign pr'O\1ision consistent with any criteria which may be established by the Secretary. ARl'ICLE X EVIDEm'IAF<< MATERIALS Section 10.01 Commitments of Participating Parties - General (a) In selecting the Recipient for the award of this grant, the Secretary has relied, in material part, upon the representations of the Recipient and Participating Parties that the Recipient and the Participating Parties (i) will carry out certain activities connected with the ProjectJ (ii) will canplete those activities; (iii) have, or will have, the financial capability to assure the carrying out of the activities to their canpletion; and (iv) will invest, or cause to be invested, a specific value amount in the Project. '!be Secretary has also relied upon the Recipient and Participating Parties' representatioos that such Participating Parties will, prior to any use of grant funds for- the Project, enter into legally binding agreements evidencing the cxmnitments which were so relied upon by the Secretary. 13 Revised 6/81 IL- _._..~"'"---~ t' (b) Evidentiary materials to be suanitted to and approved by the Secretary as specified in Exhibit E of this Grant Agreement shall include: (i) a canplete index describing the material suanittech (ii) the legally binding am enforceable ocmnitment of the Participating Party, in unequivocal terms, to undertake and complete specified activities connected with the Project, am to expend on the Project a specified minimum axrount of funds or other fom of investmPnt ~ am (iii) clear and convincing proof that the Participating Party has on hand, or will have available to it, any finances or other things of value necessary to carry out the pranises of canpleting the activities and making the specified investment. (c) Evidentiary materials which have been suanitted to and approved by the Secretary shall not be amended in any material respect without prior written approval of the Secretary. Section 10.02 Form of Ibcumentary Evidence - General All documentary evidence of ccmnitments subnitted to the Secretary for awroval shall be in the form of either (i) a duplicate original, or (ii) a photC):Jraphic ex>py of the fully executed original, of the doc\Dents. " Section 10.03 Opinions of Recipient's Counsel (a) Whenever, in Exhibit E to this Grant Agreement or otherwise, the opinion of an attorney is required as part of any evidentiary material to be sut:rni tted to the Secretary, the opinion shall be in writing and shall be that of counsel for the Recipient, unless otherwise specified. (b) In the formulation or rendering of an opinion, Recipient's counsel may rely upon the certification of other persons, or the written statements or opirions of other counsel ~ provided, a copy of each such certi- fication, statement, or opinion is attached to the opinion of Recipient's counsel. (c) If, in the formulation and rendering of an opinion, the Recipient's counsel predicates the opinion upon "information and belief," Llen in all such cases the opinion of Recipient's counsel shall contain, or have attached thereto, a statement or description of all of the informa- tion upon which the belief of counsel is predicated. Section 10.04 Evidence of Contracts - Form (a) Evidence of contractual carmi tments sut:rni tted to the Secretary shall be in the form specified in Section 10.02 above~ shall include all of the documents evidencing the contractual cammitment~ and shall have attached the opinion of Recipient's counsel made in accordance with Section 10.03 above. (b) '!he opinion of Recipient's counsel shall certify that the documents oanply with Section 10.02 above, that Recipient's counsel has examined into the authority of all parties to the documents, and of all persons executing the documents on behalf of the parties, and that said parties and persons were authorized to enter into and execute the documents. (c) The opinion of Recipient's counsel shall state that the doC\:IIIents constitute a valid and legally enforceable contract under the laws of the Recipient's State and that the documents conform to the provisions of this Grant Agreement, except as to any particul~rs specified in the opinion. Section 10.05 Evidence of IDan Camlitments - Form (a) Evidence of loan carmi tments fran private lending institutions shall be in the fom specified at Section 10.02 above~ shall include all of the documents evidencing the loan ccmni tment, an acceptance by the borrower, the purposes of the loan, the authorized use of loan funds, and all other terms and conditions of the loan camlitment, the acceptance, and the loam and shall have attached the opinion of Recipient's counsel, made in accordance with Section 10.03. 14 Revised 6/81 ,( .. I ' _J a...- (b) A loan ccnnitr.ent nay specify contingencies or conditions which must be satisfied before the closing of the 10m, or the disbursement of loan funds, but the cx:mnitment shall be an irrevocable ccmnitrrent, enforceaLle b~_ ~ the borrower uI=-on satistaction of all contingenciefi or conditions.' ( c) 'iile cpinion of feciplent I 5 counsel shall rertity that the documents cailply with f'ection 10.02: that l~cipient's counsel has examined into the authority of all parties to the loan CXJ11ilitJrent and the acceptance, and of all persons executing the loan carrnitment and acceptance on lJehalt of the parties: and that said parties and persons were authorized to mak.e the loan CDiI':litnaent an.i acceptanCE. (d) 'ihe cpinion of Recipient' s counsel shall state that, subject only to such cont~encies and conditions as are expressea in the documents, the lending institution is irrevocably CXElllitted to loan, arKJ the wrrower to accept u{:.Ol'l the tems and corxUtioos specified, the principal arrount specified in the loan cx:mnitment: and that the loan oamd.tnent, and the acceptance, and all of the tetrns am corx:Utions of the loan cxmnitJient, anc.i the loan, are lawful and enforceable under the laws of the recipient I s State: ana that the docunents confom to the provisiCl'lS of this (rant Agreement, except in any particulars specified in the opinion. (e) If, urxler the terms of the loan ccmnit:nent, the making of the loan is contingent upon the hawening of any condition precedent, then the approval of the OCI1I!Iitrnent by the Secretary as the evidence required under this trant Agreement may be corx:3itioned by the Secretary upon the subnittal and acceptance of further evidence that such contingencies have been satisfiec], or that the contingencies have been otherwise renoved, or that the loan has closed. (t) ~here evidence of a loan CUlrnitment is required to be suullitted to the Secretary uncJer this "rant ~reeIl'ent, evidence of the actual closing of the loan shall l:.e accept.cble, in lieu of the foregoing, provided such evidence CCIT1l--lies ~ith Section 10.(J6. Section 10.0(, I.vidence of loans - FornI (a) Lvidence of a loan having been r.lade or closed shall be in t.t\(;: feD.1 specified at Section l(J.02: shall be 00 the letterhead of the lcnaing institutioo: shall state the princi}.al anount of the loan, itb purposes (interim or permanent), and the authorized uses of loan funds: shall describe or identify the security for the loan: shall state the term of the loan: shall identify all parties to the loan: shall be executed by an authorized officer of the lending institutioo: and shall have attached an opinion of Recipient's counsel made in accordance with Section 10.03, certifying that the docunents oallply with Sectioo 10.02, and that the officer of the lending institution was authorized to execute the docunents. (b) Evidence of a loan having been maje or closed may also be sul.Jnitted in the fom of copies of recorded notes, deeds, bonds, indentures and other documents which oarnply with Section 10.02 and which contain sufficient evidence, includiD:) evidence 0 f recordatim, to enable the Secretary to detemine the natters specified above at sutEection (a) of this Section 10.06 and that the loan has been trade or close<J_ Section 10. C7 Lvidence of Liquid Assets - fo'orm ~henever a f'articipatiD:) Party is required to provide evidence of liquid assets for an acti vi ty in an anount and manner satisfactory anC.i acceptable to a leooinC] institutioo, SUdl evidence shall be in the form specified at Section 1(;.02: shall be Q"l the letterhead of the leooing institution: shall identify the l-'articipatiD:) Farty: ana shall state that the ParticipatiD:) Party has Q"l haoo or inmediately available to the l-'articipating Party, liquid assets of a value am in an anount satisfactory anCl acceptable to the lendiD:) institution, and that the availability and use of the liquid assets for the activity to be carriecl out by the participatiD:) Party in connection with the Project is assured to the satisfaction of the lending institution. 'lhe dOcument shall be executed by an authorized officer of the lending institutiooJ and shall have attached an ~inion of lecipient I s counsel, made in accordance with , Revised 6/81 15 Section 10.03, that the docunents a:mply with bectioo 10.CJ2 and that the officer 01 the lending institution was authorized to execute the sane. Section 10.08 Evidence of hnances Satisfactory to CDunsel - Iobrm (a) ~henever evidence is required in the form of a statement and q>inion of lecipient' s cxxmsel that a Participating Party will provide a specific anount of finances for purposes of carrying oot the cx:mnitment of that Participating Party in oonnection with the Project, such evidence shall be in the fom of an opinion of Recipient's counsel made in accordance with Section le.03. ( b) 'lbe cpinion of Recipient' s counsel shall certify that counsel has examined into the availability to the Participati~ Party of liquid assets and/or of debt financing1 shall state the anount and the source of liquid assets 00 ban] or iIrmediately available to the ParticipatilT:l Party for use in the Project, ana shall state the anount arx] tile source of debt financing which is available, or irrevocallly conmitted, tc; the ParticipatiD3 lJarty for use in the Project. 'lhe evidence of these funds shall re ronsistent with the provisions ot Sections le.05, 10.06 and 10.(J7 above to the extent possible. (c) 'l'he q>inion of klcir-ient' s counsel shall be that the Parti- cipatilT:l Party has on harxJ, or imrediately available, or irrevocably oom:1i.tted to the l'articipating Party, for use in carrying oot the ccmnitnents of the Participati~ l'arty to the Project, liquid assets ancVor debt financing in a sum equal to the specified anDunt of finances requireci in this (;rant Agreement. (d) hutmissions pursuant to this Section shall be subject to HUn ap~roval as to tom and content. Section 10.09 Anti-Speculation Provisions - Sale of leal Property (a) whenever, in E.xhibi t L of this Grant Agreement, a document is Iequired to oontain a provision for the prevention or discouragement of speculatioo in the purchase and sale of prop:!rty by a beneficiary of grant funds, then, unless otherwise specified, such provision shall a:r~1ply with this Section. (b) 'l'he document shall prohibit the beneficiary of grant funds fran selling or otherwise disposing of the property within a period specified in Exhibi t 1 of this c.rant Agreement after the date of the purchase, for an anount in excess of the purchase price paid, ~lus the actual costs of arfJ ~ts to the property by the beneficiary. '1be prohibition against sale shall have the same force and effect as a lis FEndens, and shall specify that in the event of any attempted sale, in violation of the provisim, the Recipient shall bE: entitled .to the ex parte issuance of an injll"lction restraining such sale. 'lhe document shall be executed and authenticated in such manner and form as may be required under state law to authorize its recordatioo at the place of recordation of deeds, as if a lis pendens; and the dcx:ument shall be so recorded. (c) 'lhe docurfent may, in oonjmction with the foregoing, or in lieu thereof, describe a procedure whereunaer, in the event of any sale of the prq.erty within tile period specified in f.xhibit L of this Grant Agreement, the CI'lOmt of grant funds which benefited the beneficiary shall be repaid by the beneficiary to the Recipient. Such procedure may include a pro-rata reductioo of the anount to be repaid, based upon the time elapsing between the date of the initial purchase of the property and its disIX>sition by the beneficiary. 'lhe cbcur.ent nwst either specify the anount of grant funds which benefited the benef iciary, or set forth a fotmUla or agreed metloi for detetmining such anount. '!he docunent shall be executed and authenticated in such manner and form as may be required to authorize its recordatim, as if a lis pendens1 ar.d the ckx:unent shall be so reooJ:'ded. section 10.10 Evidence of Title to leal Property - Form Whenever, in Exhibit E of this Grant Agreement, a Participatin:J Party or the Recipient is required to aCX}Uire fee siJIple or leasehold title to real property, and proof of such acquisition is requi.rer.i, evidence shall De in the form of an opinion of Recipient I s oounsel, made in aC<X>rdance wi tit Sect.i.al 10.03. The opinion shall certify that on a specified date, either an original ALTA policy of land or nortgage title insurance, or other records identified in 16 Revised 6/81 the opinion, were examined by Recipient I s CX)1JI1Sel; and that said p:Ui.cy or other reaJrds identified the Part.1cipatin;J Party, or a wlDlly-amed subsidiazy of the Partic1patinq Party, or the Recipient or its agent or agency, as required, as the ~ or lessee of reaxd, in fee sinple or leasehold. of said property. The opinion shall further state that on the date specified by Recipient1s counsel, the record fee 81nple or leasehold t1 tie to said real property was vested, in the Part.1c1pet.irlg Party, or such subsidiary thereof, or in the Recipient or its agent or aqency as required. In lieu thereof, evidence may be in the fonn of docunents which cxrrply with Section 10.02 and which Ca1tclin sufficient evidence, inchrling evidence of recordation, to enable the Secretary to determine, to the satisfaction of the Secretary, that the Participating Party or the Recipient did aCXJUire the title, as required. AFTICIE XI t-1ISCELIANIDlS Section 11.01 Notices " I I I, 11 I (a) All anendments, notices, requests, objections, waivers, rejections, agreements, awroyals, disclosures ano consents of any kind made pursuant to this Grant Agreement shall t:e in writing. (b) Any such cannunication shall be deened effective for all pur- ~s as of the date such oarrnlllication is mailed, postage prepaid, by registered or certified mail, return receipt requested, to be delivered a1ly to the office of the addressee, addressed as follows: ( 1) COmrunications to the Secretary shall t:e mailed simultaneously to: (A) 'lbe Director, Office of Urban ~velcpnent Action Grants, u.s. ~partnent of fbusing and urban ~velopnent, 451 7th "Street, S.W., Rxm 7258, Washington, D.C. 20410, and (B) 'lbe Area Office l-1anager of the HUt Area Office authorized to receive the Ag>lication of the Recipient for the grant hereunder 1 and (C) such other persons or at such other addresses as may be furnished by the secretary to the Iecipient. (2) COnmmications to the Jecipient shall be addressed to the lecipient, at the address set forth in Exhibit A of this Grant Agreement, or such other address as may t:e furnished by the Recipient to the Secretary. Section 11.02 Assignnent tC> right, t:enefit, or advantage inuring to the Recipient under this tirant Agreement and no burden im{X>sed on the lecipient hereunder may be assigned without the prior written awroval of the 5e~retary. M authorization by the Secretary for the transfer of grant funds by lecipient to a Participati~ Party shall rot l::e deer:ed an authorization for an assignment, and such Participating ~arty shall not succeed to any rights, benefits or advantages of the Recipient hereunder. Section 11. 03 Successors EDund ~is Crant Agreement shall bind, and the rights, benefits and advan- tages shall inure to, the ~cipient 's successors. Section 11.04 Jenedies I-bt Inpaired I-b delay or anission of the Secretary in exercising any right or remedy available under this Grant Agreenent shall inpir any such right or remedy or constitute a waiver of any ~fault, or an acquiescence therein. Section 11. 05 Cunulati ~ ~nedies All rights and remedies of the Secretary lDlder this Grant Agreement shall be cumulati~. Section 11.06 se~rability 'lbe invalidity of any article, section, sul:section, clause or pro- vision of this ~rant Agreement shall rot affect the validity of the remaining RevisEd 6/81 17 U "1 j: ii' hi. L: :n, ..,.~ JO"."j. .,..iltl articles, sections, sub3ections, clauses or provisions hereof. Section 11.07 ~tire Agreement ~is Grant Jlgreement oonsti tutes the entire agreenent between the Secretary and the ~ipient and supersedes all prior oral and written agreements between the parties hereto with respect to the subject grant. ~twithstanding the provisions of Sectl.On 1.01 of this Grant Agreement, in the event of any inconsistency between the provisions of this t;rant Agreement and anything contained in the AWl icat im , then the provisions of this (;rant Agreement shall prevail. Section 11.08 Execution in COUnterparts 'Ihis ~rant Agreement may be executed in any number of counterparts. All such CDunterparts shall be deemed to be originals and together shall CXX'}- sti tute but one and the sane instrument. Section 11.09 '!able of Contents: 'Iitles and Headings Any table of CDntents, the title of the Articles, and the headiR3s of the sections and Slltsections set forth herein are not a part of this Grant Agreement and shall not be deened to affect the meaning or construction of any of its provisions. Section 11.10 Anendnent of this Grant Agreenent ~is Crant Agreement, or any part hereof, may be amended ftan tine tD time hereafter only in writing executed by the Secretary and the Recipient. Section 11.11 Disclaimer of Relationships '!he Recipient acknowledges that the obligation of the Secretary is limited to providing grant tunc1s in the manner and on the tetmS set forth in this Grant Jlgreement. k>thing in this Crant Agreement, nor any act of either the secretary or of the Recipient, shall be deemed or construed by either of them, or by third persons, to '-Teate any relatioosbip of third-party beneficiary, principal and agent, limited or general partnership, or jOint venture, or of any association or relationship whatsoever involving the Secretary. Section 11.12 Governing Law 'Ihis Grant Agreement as it may affect the rights, remedies, duties, and obligations of the secretary shall be governed by and construed in accordance with Federal law. Insofar as Federal law does not apply, the provisialS of this Grant Agreement shall be governed by and CDnstrued in accordance with the laws of the Recipient's State. Sectial 11.13 Waiver by Secretary '!he Secretary reserves and shall have the exclusive right to waive, at the sole discretion of the Secretary, and to the extent permitted by law, any requirement or provision under this Grant Agreement. No act by or on behalf of the Secretary shall be, or be deemed or construed to be, any waiver of any such requirement or provisim, unless the same be in writing, signed by the Secretary, and exIX'essly stated to c:onsti tute such waiver. Section 11.14 Lffective Date (a) 'Ibis Grant Agreement shall, when executed and dated by the Secretary, constitute an offer by the Secretary to the Recipient to make the within grant and to enter into this Grant Agreenent. Nlen delivered to the Aecipient so executed and dated, the same shall constitute a tender of said offer, ~ic:h shall be pranptly accepted, if at all, by the Recipient and which shall not be altered without the Secretary's approval. '!be Seaetary may revoke the tender and rescind the offer at any time prior to its acceptance by the J;ecipient, by written notice of the Secretary to the Recipient, given as specified at Sectioo 1l.01 of this Grant Agreement. Rarised 6/81 18 '.\'~~'I:f" (b) 'Ibis Grant Agreement shall be deemed to have been accepted, and shall becxIne effective, as of the date this Grant Agreement is executed and dated by the Recipient. Section 11.15 Termination of Grant Agreement Unless otherwise terminated by the Secretary pursuant to Article VII of this Grant Agreement, or by the III.Jtual consent of Recipient and the Secretary, this Grant Agreement shall tenninate upon the canpletion of all close-out procedures respecting this grant and the final settlement and conclusion between Recipient and the Secretary of all issues arising out of this grant, unless otherwise provided in the close-out agreement between Recipient and the Secretary. Revised 6/81 19 SIGNATlRE PAGE THIS GRANT AGREEMENT, numbered B-87-AA-06-0620 is hereby executed and delivered by the Parties hereto on the dates set forth below their respective signatures, as follows: THE SECRETARY OF It015ING AND mOAN Il:VELOPHENT Late: &)/~? I I By: lAJ oi s L. Gi i am Deputy Assistant Secretary for Program Policy Development and Evaluation Office of Community Planning and ~vel opment THE CITY OF SAN BERNADINO, CALIFORNIA Date: k- - 7 -I 7 ~A~t(?t~ Ry: Ti t 1 e: Mayor IMPORTANT One (1) fully executed copy of this Grant Agreement must be mailed to the Office of Urban Development Action Grants, and two (2) fully executed copies of this Grant Agreement must be mailed to the HUD Field Office Manager, in accordance with Section 11.01, on the same date executed by Recipient. -20- \ Recipient: San Bernadino, California Grant Number B-87-M-06-0620 EXHIBIT A SUPP.LE.MENTARY PROVISIONS Rider to Section 1.03 (2) . In addi tion to Recipient's Application for Federal Assistance (SF 424), the "Awlication" shall include any additional subnittals since the date the Application was filed upon which the Secretary relied in making this award. , . Rider to Section 1.03( 12). The tenn "Participating Party" consists of each of the following persons, fiI1l1S, corporations and entities: wll:!velC4;)erw means Haagen/G:>lding Partnership, a California general partnership wi th The Alexander Haagen Conpany as managing general partner, and whose address is 3500 Sepulveda Boulevard, Box 10010, Manhattan Beach, California 90266-8010. WI.en:JerW means Wells Fargo Bank, Real Estate Industries Group, 433 North Canrlen Drive, Beverly Hills, California 90210, or other conventional lender acceptable to the Jecipient. WAgencyW means Camunity I:evelopment Contnission of the City of San Bernadino, City Hall, 300 North D Street, San Bernadino, California 92418. Rider to Section 1.03(13). The phrase "the umG percentage of" contained on the first line of paragraph (13) and the last sentence of paragraph (13) are deleted in their entirety. Rider to Section 1.03(21). "Project Elements" means the construction of an approximately 80,000 square foot shopping center on the Project Site, as more particularly described in the Application. Rider to Section 1.03(22). "Project Site" means approximately 10 acres of land located on Baseline Street and Medical Center Drive (fonnerly Muscott Street), San Bernadino, California, as more particularly described in the Awlication. EXHIBIT A Page 1 of 3 Jevised 8/6/86 Recipient: San Bernadino, California Grant Number B-87-AA-06-0620 Continuation Sheet - Exhibit A Rider to Section 2.01. The annunt of this UIltI\G grant is One Million Eight Hundred Forty Eight 11Dusand One Hundred Ibllars ($1,848,100). Rider to Sections 2.04, 9.01, 9.02 and 9.03. Any repayment or other payments received pursuant to Paragraph III of Exhibit E of this Grant Agreement and received prior to carpletion of the UQl\G funded Recipient .Activities shall be held in escrow pursuant to Section 2.04(a) of this Grant Agreement until C01l'letion of the UQl\G funded Iecipient .Activities. All escrowed funds shall bear interest with the accounts insured by an agency of the U.S. G:>vernment. Upon coopletion of the UQl\G funded Iecipient .Activities, any funds held in said escrow shall be spent for activities eligible under Title I of the fbusing and Conmunity D:!velopnent .Act of 1974, as amended, and shall be spent in accordance wi th Part 570 of Ti tIe 24 Code of Federal legulations. Any repayments received after coopletion of the UQl\G funded Recipient Acti vi ties shall be deemed miscellaneous revenues and shall be spent for activities eligible under Title I of the llousing and Cbmmunity D:!velopment . . .Act of 1974, as amended, and shall not be governed by Part 570. Rider to Section 4.01. The applicable Federal rules include, without limitation, Section 104(j) of the .Act which requires grantees to "provide for reasonable benefits to any person inVOluntarily and permanently displaced as a result of the use of assistance received under this title [which includes Section 119, Urban tevelopment .Action Grants] to acquire or sutstantially rehabilitate pnqperty." Rider to Section 5.01(8). Paragraph (8) shall be deleted in its entirety and the following shall be inserted in place thereof: "(8) lecipient shall catply with the conflict of interest provision set forth in 24 eFR Section 570.611 (48 Federal Register 186, pp. 43571-72, 9/23/83)." EXHIBIT A levised 8/6/86 Page 2 of 3 Recipient: San Bernadino, California Grant NumberB-87~-06-0620 Continuation Sheet - Exhibit A Rider to Sections 5.03 and 9.06. The jobs referenced at Section 5.03 and the assurances required at Section 9.06 shall aggregate: Total New Pennanent Jobs: 248 'Ibtal New Pennanent Jobs for low- and ,.t:x:lerate-Incane Persons: 161 'Ibtal New Peonanent Jobs for CE;fA-Eligible Persons: 99 Total New Peonanent Jobs for Minori ties: 136 Job Requirements shall be coopleted wi thin 36 months f ran the rate of Preliminary Approval. Rider to Section 9.13 Conflict of Interest. Section 9.13 shall be deleted in its entirety and the following shall be inserted in place thereof: "TIle Recipient shall include in all contracts wi th Participating Parties and in all contracts with any party involving the use of Grant Funds, a conflict of interest provision consistent with 24 CFR Section 570.611 (48 Federal Register 186, pp. 43571-72, 9/23/83)." . . Rider to Section 11.01. The address of the Recipient for the purpose of COOI'llJnications relating to this Grant Agreement is: Honorable Evlyn Wilcox Mayor of San Bernad ino San Bernadino, California 92418 Contact Person: Glenda Saul Executive Director Pedevelopnent Agency of the City of San Berncd ino City Ball 300 North D Street San Berncdino, California 92418 (714) 383-5081 Rider to Section 11.14. In the event Recipient shall not execute and return one counterpart of this Grant Agreement to the Secretary am two (2) counterparts to the HUD Field Office within 60 days from the date the Secretary signed the Grant Agreement, this tender and offer may be revokErl and rescinded by the Secretary. EXHIBIT A Pevised 8/6/86 Page 3 of 3 Recipient: San Bernadino, California Grant Number B-87-AA-06-0620 EXHIBIT B DESCRIPI'ION OF RECIPIENT ACl'IVITIES Rider to Section 1~03(17). The "Recipient Activities" shall consist of the following: Recipient shall: (a) make a grant to Ieveloper of not nore than $1,848,100 of Grant Funds which shall be used in accordance with Exhibit D of this Grant Agreement; (b) lease the Project Site fran Agency for a naninal consideration; and (c) sublease the Project Site to Ieveloper in accordance with the teIlTlS set forth in Paragraph VIII of of Exhibit E to this Grant Agreement. EXHIBIT B Revised 8/6/86 Page 1 of 1 Recipient: San Bernadino, California Grant Number B-87-M-06-0620 EXHIBIT C IESCRIPI'ION OF OON-RECIPIENT AcrIVITIES Rider to Section 1.03 (11 ) . The "N:>n-Recipient Acti vi ties" shall consist of the foUowing: I Ieveloper shall: (a) sublease the Project Site and cooplete the Project Elements on the Project Site at a total cost of not less than $9,868,200 in accordance with Exhibit D to this Grant Agreement using not less than $4,475,000 of private loan funds, not less than $500,000 of contribJted Ieveloper's fee, not less than $1,045,100 of tenant funds, not more than $1,848,100 of Grant Funds and not less than $2,000,000 of tax increment revenues~ (b) borrow fran lender not less than $4,475,000 for interim financing for the Project ~ (c) use a grant of not less than $2,000,000 of Tax Allocation Bond proceeds for financing the Project~ (d) contribJte not less than $500,000 of Ieveloper's fee in the Project~ (e) use a grant of not rnore than $1,848,100 of Grant Funds for financing the Project~ (f) sublease the Project Site fran Iecipient in accordance wi th the tenns set forth in Paragraph VIII of Exhibit E to this Grant Agreement~ (g) unconditionally and irrevocably guarantee the investment of not less than $1,045,100 in tenant improvements for the Project; and (h) unconditionally and irrevocably guarantee the carpletion of the Project in accordance with the schedule set forth in Exhibit F to this Grant Agreement. II lender shall lend to Ieveloper not less than $4,475,000 for interim financing for the Project. III Agency shall: (a) grant to Ieveloper not less than $2,000,000 of funds attribJtable to tax increment revenues for the Project~ (b) acquire the Project Site and relocate property owners at a total cost of not less than $1,325,000; and (c) lease the Project Site to Recipient for a nominal consideration. EXHIBIT C Ievised 8/6/86 Page 1 of 1 Recipient: San Bernadino, California USE OF FUNCG SOURCES OF FUNCG Line Item Activity umG Private other 'IUI'AL Funds Funds Funds COSTS a. Land Acquisition $1,250,000 $1,250,000 b. Relocation 75,000 75,000 c. Clearance and ~nolition 61,700 61,700 d. Off-Site Lmprovements 274,000 274,000 e. Q,-Si te Improvements $92,500 357,500 450,000 f. Building Construction $1,848,100 1,730,900 3,579,000 g. Parking 1,306,800 1,306,800 h. Tenant bnprovenents 1,864,000 1,864,000 i. Professional Fees 1,150,000 1,150,000 j. Interim Costs 416,700 416,700 k. Contingencies 300,000 300,000 1. Tenant Improvements (not counted in leverage ratio) 466,000 466,000 m. WOrking Capital (not counted in leverage ratio) n. Profit & Overhead (not counted in leverage ratio) o. TOTAL PROJECT carr $1,848,100 $6,020,100 $3,325,000 $11,193,200 p. Recipient administrative costs re imoorsed f ran UIlI\G funds q. Less: items not counted in leverage ratio (line 1 & ~ve1oper fee, within line i) - 966,000 r. Total private investment to be reported on OPR's ("countable private") 5,054,100 s. Plus: Discounted value of UQl\G loan repayment + t. Plus: Discounted value of other public loan repayments + u. Plus: Present value of lease payments + v. Totals used in canputing leverage ratio $1,848,100 $5,054,100 f Discount Rate: 8% EXHIBIT 0 Grant Number B-87-AA-06-0620 EXHIBIT 0 Project Budget - Sunmary of Projected Expenditures Paae 1 of 1 , , ~cipient: San Bernadino, California Grant Number B-87-AA-06-0620 EXHIBIT E R&;UlRED EVlDEf'lfIARY MATERIALS The evidentiary materials to be subnitted by the Recipient for the approval of the Secretary shall include the applicable provisions of Article IX of this Grant Agreement and shall consist of the following: I (a) All qoverrvnental awrovals and permits necessary for the cannencement of the Recipient and tbn-Recipient Activities shall have been obtained. (b) Evidence of this conrnitment shall be a written certification from Recipient, signed by the chief executive officer, in accordance with Section 10.02 of this Grant Agreement, that all such governmental awrovals and permits have been obtained. II (a) Fee si.l11ple title to the Project Site shall be held by Agency and leasehold title to the Project Site shall he held by Recipient. (b) Evidence of this cannitment shall be in accordance with Section 10.10 of this Grant Agreernent. III (a) Recipient, Agency and ~veloper shall enter into an agree.nent which shall contain provisions consistent with the following: (1) Recipient shall agree to carry out all Recipient Activities set forth in Exhibit B to this Grant Agreelnent. (2) ~ency shall agree to carry out all tbn-Recipient Activities ascribed to Agency in Exhibit C to this Grant Agreement. (3) ~veloper shall agree to carry out all tbn-Recipient Activities ascribed to O:!veloper in Exhibit C to this Grant Agreement. The aqreelnent shall set forth the scope of the work, its location, and the obliqation of Leveloper to invest not less than $6,020,100 of private funds in the Project in accordance with Exhibit D to this Grant l'gree.nent. ( 4) Recipient shall be obligated to make a grant to ~veloper of not mor.e than $1,848,100 of Grant Funds which shall be used in accordance with Exhibit D to this Grant Agreement. EXHIBIT E Page 1 of 3 Revised 8/6/86 Recipient: San Bernadino, California Grant Number B-87-AA-06-0620 Continuation Sheet - Exhibit E (aa) Disoorsenents of Grant Funds shall be based on vouchers subnitte<l by D:!veloper, verified by Recipient, and certified by the architect, construction manager, or other certifying official acceptable to Recipient. All subnissions by contractors of rronthly requisitions shall be on AlA Forms 702 and 703 or their equivalent. (bb) Grant Funds may be drawn down and disoorsed for use in accordance with Exhibit 0 to this Grant Agreement in a ratio to countable private funds of not rrore than $1.00 of Grant Funds to $2.73 of countable private funds expended on the Project. "Countable private" funds mean the total funos described on line r of Exhibi tOto this Grant Agreement. (5) All awlicable terns and conditions of this Grant Agreement, inch.kling Article IX provisions and joh assurances specified in Sections 5.03 and 9.06 shall be set forth in the agreement. (6) 1lle agreement shall specify a schedule for perfonnance of Recipient and tOn-Recipient Activities consistent with Paragraph II of Exhibit F to this Grant Agreement. (7) OJring the term of this Grant Agreerrent, D:!veloper shall agree to provide necessary data and infonnation as to private investment and jobs relating to this Grant Agreement. (b) Evidence of this comnibnent shall be in accordance with Section 10.04 of this Grant Agreelnent. IV (a) Agency shall make available not less than $2,000,000 of funds attriwtable to tax increment revenues which shall be used for financing the Project. (b) Evidence of this comnitment shall be in the form of a certification fran the depository of such proceeds stating that said depository has on hand and imnediately available to ~veloper such proceeds for use only fot- financing the construction and developnent of the Project and that all corxlitions precedent to an initial diswrsement of said proceedS have been satisfied. EXHIBIT E Revised 8/6/86 Page 2 of 3 , Reci.pient: San Bernadino, California Grant Number B-87-M-06-0620 Continuation Sheet - Exhibit E v (a) ~veloper shall irrevocably and unconditionally guarantee the inv~!'=;bnent of not less than $1,045,100 in tenant improvements in the Project. (b) Evidence of this comnibnent shall be in accordance with Section 10.04 of this Grant Agreelnent. VI (a) lender shall lend not less than $4,475,000 to ~veloper for interim financing for the Project. (b) Evidence of this ccmnitment shall be in accordance with Section 10.06 of this Grant Agreelnent. VII (a) Recipient's attorney shall certify that Agency has on hand or irrevocably canmitted to it $1,325,000 to carry out the Agency activities set forth in Paragraph III(b) of Exhibit C to this Grant Agreement. (b) Evidence of this canmitment shall be in accordance with Section 10.03 of this Grant Agreement and shall include a certification that all conditions precedent to an initial diswrsement of said funds have been satisfied. VIII (a) Recipient shall sublease the Project Site to ~veloper for a term of not less than 65 years for consideration of 35% of the net annual cash f low of the Project. "l'et annual cash flow" means all operating receipts of the Project less debt service on the loan fran lender; real estate taxes; and reasonable operating expenses (incltxlin9 a manaqement fee not to exceed 5% of operating incane) allowable for Federal incane tax purposes, but excluding reserves for capital inprovements, depreciation and other non-cash items. lease payments shall be due within 90 days of the end of each operating year of the Project. (b) Evidence of this ccmnitment shall be in accordance with Section 10.04 of this Grant Agreelnent. EXlIIBIT E levised 8/6/86 Page 3 of 3 ~ 11 Recipient: San Bernadino, California Grant Number B-87~-06-0620 EXHIBIT F PRQJOCT PERFORMANCE SCHEOOLE I (a) The Evidentiary Materials described in Exhibit E of this Grant Agreement must be sutmitted to the Secretary by Recipient not later than six (6) IOOI1ths from the date the Secretary executed this Grant Agreement. (b) Upon notification to Recipient of the approval by the Secretary of the Evidentiary Materials required by su~ragraph (a) alx>ve, and upon receipt by the HUD Field Office of a written certification frOll lecipient to the Secretary that construction of the Ieveloper's portion of the Project has carmenced and is continuing Recipient shall be authorized to draw down Grant Funds in accordance with Paragraph III of Exhibit E to this Grant Agreement for Eligible Costs consistent with letter of Credit procedures and the provisions of this Grant Agreement. II The lecipient and Non-lecipient Activities shall be commenced and CCJ11>leted in accordance with the following schedule: Activity Ccmnencement U:tte Canpletion U:tte land Acquisition Cktober 1, 1987 Construction May 1, 1988 III March 1, 1989 Notwithstanding anything to the contrary in this Grant Agreement, construction of the Project must be commenced no later than 12 months fran the date the Secretary executed this Grant Agreement. No time extensions shall be given to this 12 month commencement of construction requirement. EXHIBIT F levised 8/6/86 Page 1 of 1