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Home My WebLink AboutR32- Economic Development CITY OF SAN BERNARDINO ECONOMIC DEVELOPMENT AGENCY ORIGINAL FROM: Emil A. Marzullo Interim Executive Director SUBJECT: Joint Public Hearing - TELACU Housing - San Bernardino V, Inc., 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement (Central City North Redevelopment Project Area) DATE: May 15, 2009 -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Svnopsis of Previous Commission/Council/Committee Action(s): On February 19, 2009, Redevelopment Committee Members Johnson, Baxter and Brinker unanimously voted to recommend that the Mayor and Common Council and/or the Community Development Commission consider this action for approval. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): Open/Close Joint Public Hearing (Mavor and Common Council) Resolution of the Mayor and Common Council of the City of San Bernardino consenting to the disposition of the Redevelopment Agency of the City of San Bernardino's Properties located on the northwest comer of "G" and 41h Streets (APNs: 0134-093-19, 20, 43 and portions of 45) to TELACU Housing - San Bernardino V, Inc., for the development of 75-Unit Affordable Senior Citizen Rental Housing Development (Central City North Redevelopment Project Area) (Communitv Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute the 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement by and between the Agency and TELACU Housing - San Bernardino V, Inc. (Affordable ___m______m_~_~_~~~~__~!!}_~_~E_~~~!~LI.!_'!_ll_~!EJ;!;}?_~_~_~J_'!_R~~~!_=_~~~!~_~L~!!yli~~E_~~~~~~!~E!E_~E_~_~~_'!j_~_~!__~~~l____m__________________________m_____ Contact Person(s): Musibau Arogundade Central City North Redevelopment Project Area Phone: (909) 663-1044 Project Area(s): Ward(s): 1 sl Supporting Data Attached: 0' Staff Report 0" Resolution(s) 0" Agreement(s)/Contract(s) 0" Map(s) 0" Letter(s) LowlMod Housing Set Aside Funds FUNDING REQUIREMENTS: Amount: $ 4.56 Million Source: Budget Authority: 2008-2009 RDA Budget Fiscal Review: Signature: ecutive Director s Dejesus, J rim Admi~istrati Services Director ---c-~-~;i~~i~~ic-~-;;~~i._N-i;t~~-:--------------------~=aZ;;~;rcx;.=--------~~)-c;~-=-7~~---------r:---2125~;-l*0-i7--:':':-:J=? ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. P:\Agcndas\Comm Dcv Commission\CDC 2009\06-01-09 TELACU Senior Housing V DDA SR.doc COMMISSION MEETING AGENDA Meeting Date: 06/0112009 Agenda Item Number: (i.?/),.. ECONOMIC DEVELOPMENT AGENCY STAFF REPORT JOINT PUBLIC HEARING - TELACU HOUSING - SAN BERNARDINO V, INC., 2009 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) BACKGROUND: TELACU Housing ~ San Bernardino V, Inc. ("Developer'"), is a California non-profit public benefit corporation, founded in the late 1960's to promote community and economic development activity. For the past 20 years, the Developer has participated in the U.S. Department of Housing and Urban Development ("HUD"') Section 202 Program ("Program"'). The Developer has developed senior housing throughout many communities in California such as Baldwin Park, El Monte, Alhambra and Monterey Park. The Program provides grants to qualified non-profits to finance the construction and management of affordable rental housing for seniors. The Developer presently has three senior housing projects through the Program in the City of San Bernardino ("City"), TELACU I at the northwest corner of 6th and '"F' Streets, TELACU Il at the northeast corner of 4th and "H" Streets, TELACU III on the south side of the City at 365 East Commercial Road. The three projects make up a total of 225 scnior housing units. TELACU IV is in the design stage proposed for development on the southeast corner of Highland and Central A venues. In May 2007, the Developer applied for a HUD Section 202 Grant ("202 Grant") under TELACU Housing - San Bernardino V, Inc., and received approval notification on October 31, 2007, for a 202 Grant in the amount of $] 1.9 million (Please refer to Exhibit "A" for further details on the approval notification) to develop and operate 75 units for seniors aged 62 and older on the property located on the nOlihwest corner of 4th and "G" Streets consisting of approximately] .71 acres (APNs: 0134-093-19, 20, 43 and portions of 45) (the "Site"'). Though the award is for the full amount of $1 1.9 million, only $10.7 million can be allocated to direct construction. The remaining $1.2 million of the award must be allocated to operating costs for a period of five years. The Site will be developed with a 75-unit, three-story senior citizen housing complex with a community center of which 74 of the units will be one-bedroom with a living room, kitchen and bathroom. Each of these units will be approximately 540 square feet of living space. There will also be a two-bedroom manager"s unit ("ProjecC). The Projcct will contain attractive landscaping around the building with a water fountain at the corner of 4th and "G" Streets, a common multi-purpose kitchen, a library, a laundry room, storage space, and an attractive lobby/foyer and offices. The Site Plan prepared by Gregory Villanueva Architects is attached as Exhibit "B." The Project is adjacent to the Monte Vista Senior Housing Complex (TELACU II) locatcd on the northeast corner of 4th and "H"' Streets and will be designed to compliment the existing facility by creating a senior campus-like environment. An acrial map of the sites location is attached as Exhibit "C". 1': i\~cllllds ('UIllTll Dn CummtSSit'll CD(' 200\) ()()-(ll-(i')[ L1.;\( 'l: Sl'lll\l! Jh\LlSill~ \' D])A SR.,dm" COMMISSION MEETING AGENDA Meeting Date: 06/0I/2009 Agenda Item Number: {L~2- Economic Development Agency Staff Report TELACU Senior Housing V DDA Page 2 CURRENT ISSUE: The Agency expended approximately $4.56 million in Low- and Moderate-Income Housing Bond Funds for the acquisition, relocation, demolition and legal expenses for the Site. The Developer ordered the property appraised by Robert A. Whitt, State Certified General Real Estate Appraiser for $1.2 million in a report dated June 9, 2008. As part of the conditions for the release of the HUD 202 Grant, the Developer is required to show site control and demonstrate the Redevelopment Agency of the City of San Bernardino's ("Agency") support for the HUD 202 application. On April 21, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved a Purchase Option Agreement by and between the Agency and the Developer for a purchase price of $1.2 million (the appraised land value) for the Site. On October 9, 2008, the Senior Affairs Commission of the City of San Bernardino reviewed, provided input and supported the project design. The Developer submitted plans for design review and entitlement. On February 18, 2009, the Planning Commission approved the Project. The allowable construction portion of the 202 Grant approval notice received by TELACU for the Project is $10,735,700. The estimated total development cost for the Project is $12.5 million, leaving a financing gap of $1.8 million. TELACU is requesting the Agency to satisfy this gap in financing through a grant of the land sale proceed equal to $1.2 million for the payment of certain City fees. The remaining $600,000 would be made up by HUD and TELACU. The Agency's $1.2 million in land proceeds would be contributed to the Project cost to off-set portions of the estimated $1.36 million of the required City developer impact and permit fees. In summary, it is proposed that the Agency enter into a Disposition and Development Agreement ("DDA") with TELACU for the construction of the Project. Once TELACU receives approval from the Agency, they would commence the preparation of their working drawings, submit plans to the City's Development Services Department for plan check review, submit required documentation for a firm HUD commitment and commence construction in September 2009. Agency Staff is recommending that a Low and Moderate Income Housing Grant in the amount of $1.2 million be made available to TELACU to off-set the developer impact and permit fees required by the City. The Agency will get a 55-year Affordable Housing Covenant and Restriction on the Project thereby off-setting its affordable housing unit obligations under the California Community Redevelopment Law ("CRL"). Prior to the proposed sale of the Agency Lots to the Developer, the Commission and the Mayor and Common Council of the City of San Bernardino ("Council") are required to conduct a public hearing in accordance with Health and Safety Code Section 33433 and to consider the proposed 2009 Low and Moderate Housing Funds Grant DDA with the Developer. In compliance with CRL Section 33433(a)(1) and Government Code Section 6066, the required public notice of this meeting was published in the San Bernardino County Sun newspaper of May 18 and 25,2009. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:lAgendaslComm Dev CommissionlCDC 2009106-01-09 TELACU Senior Housing V DDA SRdoc COMMISSION MEETING AGENDA Meeting Date: 06/01/2009 Agenda Item Number: fJ-l ~ Economic Development Agency Staff Report TELACU Senior Housing V DDA Page 3 ENVIRONMENT AL IMPACT: This request is categorically exempt under the California Environmental Quality Act ("CEQA"), pursuant to Section 15332, Class 32, which consists of projects characterized as in-fill development meeting the following conditions: (a) the Project is consistent with the applicable general plan, applicable zoning designation and regulations; (b) the proposed Project occurs within city limits and is not more than 5 acres; (c) the Project site has no value as a habitat for endangered, rare or threatened species; (d) the Project would not result in any significant effects relating to traffic, noise, air quality or water quality; and (e) the Project is adequately served by all required utilities and public services. FISCAL IMP ACT: The Agency expended approximately $4.56 million for acquisition, relocation, demolition and legal fees for the Project Site. The Agency will receive $1.2 million in land proceeds that will be granted back to the Developer to off-set the City's required developer impact and permit fees on the Project. The Project opportunity cost to the Agency is $4.56. In return for the amount invested, the Agency will receive 74 affordable senior rental units and one on-site manager unit with 55-years Affordable Housing Covenants, Conditions and Restrictions (CC&Rs) and a $12.5 million improved Project. RECOMMENDATION: That the Mayor and Common Council and the Community Development Commission adopt the attached Resolutions. ~ Emil A. Marzullo, Interim Executive Director ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\CDC 2009\06-01-09 TELACU Senior Housing V DDA SR. doc COMMISSION MEETING AGENDA Meeting Date: 06/01/2009 Agenda Item Number: ~52. ~,,~E"'TD... " Il.l.tlfo {: 11111111 ~: .4to10l.Jf>-O U.S. Department of Housing and Urban Development Los Angeles Field Office, Region IX 611 W. 6th street, Suite 800 Los Angeles, CA 90017 October 31, 2007 CERTIFIED MAIL - RETURN RECEIPT REQUESTED / // ( Tom F. Provencio, Authorized Agent TELACU 5400 East Olympic Boulevard, Suite 300 Los Angeles, CA 90022 Dear Mr. Provencio: SUBJECT: Section 202 Supportive Housing for the Elderly Agreement Fiscal Year: 2007 Project Name: TELACU San Bernardino V City and State: San Bernardino, CA Project No.: 143-EE068-W AH-NP/CA43-S071-003 No. of Units: li-_ No. of Residents: 74 I am pleased to advise you that your application to construct 74 units of housing for the elderly and one two~bedroom unit for a resident manager under the Section 202 Supportive Housing Program for the Elderly has been approved. Capital Advance authority in the amount of$10,735,700 is available for this project, along with Project Rental Assistance contract and budget authority of $383.200 and $1.149.600. respectively. In accordance with the provisions ofthe Revised Continuing Appropriations Resolution, 2007 the amount of the .Project Rental Assistance made available for this project is based on 75 percent (rather than on 100 percent) of the current operating cost standards applicable to Section 202 projects in San Bernardino, CA. This takes into account the average tenant contribution toward rent In addition, the term of the Project Rental Assistance Contract is 3 (three) years. Section 202 Capital Advance Funds and Project Rental Assistance Contract Funds will be obligated for your project upon your signing of this Agreement and returning it to this Office so that it can be executed by the Assistant Secretary for Housing. The signature of the Assistant Secretary for Housing constitutes the obligation of funds. As with all programs, these funds are subject to the availability of appropriations. The FY 2007 Department of Housing and Urban Development Revised Continuing Appropriations Resolution requires that the funding made av"ailable for this program be obligated by September 30, 2010. Once signed by you and co-signed by the Assistant Secretary for Housing, this Agreement will constitute an obligation on the part of the Federal government, contingent upon the terms and conditions herein. In addition, pursuant to 31 U.S.C. Section 1551, any fnnds (capital advance and PRAC) not disbursed (obligated or un-obligated) by September 30,2015, will be recaptured. Please indicate by signing in the space provided whether or not you accept this Agreement including the special conditions or requirements that are specified herein, and certify to your understanding that the project must be developed in accordance with the terms set forth in this Agreement. Return by Certified Mail - Return Receipt Requested, two signed copies oftbis Agreement, along with the resume for the consultant (if a consultant has been or will be used) to this Office within 14 days from the date of this letter. If a consultant has been or will be used, the consultant must submit its Previous Participation Certification (Form HUD-2530) within 14 days from the date ofthis letter. If the Sponsor will be the consultant, the submission of these documents on the consultant may be deferred until after formation of the Owner corporation but no later than 90 days from the date of this document. If such is the case, the consultant's resume must be submitted to this Office and the Form HUD-2530 filed immediately upon completion of the contractual arrangements. If filing Form HUD-2530 electronically, information on the APPS registration and filing process is found at HOD's web site at http://www.hud.gov/offices/hsglmfhlapps/appsmfhm.cfin. Please advise this Office whether or not a consultant has been or will be used and the type of consultant by completing the following: () Sponsor/Consultant () Independent Professional Consultant () No Consultant has been or will be used TERMS AND CONDITIONS Your acceptance of this Agreement constitutes a certification and agreement by the Sponsor that: (1) There will not be made any sale, assignment, conveyance, or any other form of transfer of this Agreement, funding, the property or project, or any interest therein, except a transfer from the Sponsor to an approved single-purpose Owner organized by it. (2) The Agreement and fund reservation will be canceled if construction, rehabilitation or acquisition has not commenced within 18 months from the date oftms Agreement, unless limited extensions, of up to 24 months, are approved by HUD. Such extensions will be based upon HUD's determination that the Owner has established a reasonable schedule and is making sufficient progress toward the start of construction. (3) The Section 202 Capital Advance and Project Rental Assistance Contract funds available for the project identified herein may not be used in connection with any other project. (4) This Agreement and fund reservation will be subject to cancellation, at HUD's option, in the event there comes into existence or HUD becomes aware of a pre- existing conflict of interest involving the project on the part of officers or directors of either the Sponsor or Owner organization (including affiliates). (5) An attempt will be made to obtain exemption from State and/or local real and/or personal property taxes. Evidence of filing, together with the response received from the taxing authority, must be submitted with the Application for Firm Commitment in one of the following forms: (a) Tax exemption (b) Tax abatement (c) Payment in Lieu of Taxes (PILOT) (d) Ineligibility for any tax relief Eligibility for (a), (b), or (c) must be supported by a copy of the appropriate legislation or ordinance. (6) HUD will not amend the amounts approved herein for this project before initial closing has occurred. Therefore, based on HUD's review of the Firm Commitment Application, the Sponsor will be liable for the cost of any front- end cash requirement should the cost to develop the project exceed the amount specified. in this Agreement. After initial closing, HUD may consider an amendment to the Agreement, ifnecessary, but only for increases resulting from approved change order items during construction, subject to the availability of funds. (7) Special Conditions or Requirements - This Agreement is issued subject to: a. Formation of a legally acceptable single-purpose Owner corporation within 30 days from the date of this document. b. Capitalization of the Owner corporation in a sufficient amount to permit the Owner to meet its obligations in connection with the project. This includes the minimum capital investment, start-up costs, excess land costs, ineligible amenities, excessive construction costs and any other funds the Sponsor specifically commits to the project C. Evidence that the site is under the Owner's control at the time the Application for Finn Commitment is submitted. d. Form HUD-2530, Previous Participation Certification, is to be submitted for all officers and directors of the Sponsor's and Owner's board within 90 days and there must be subsequent clearance thereof. e. Credit investigation clearance of the Owner's officers. f. Submission of an Application for Firm Commitment in full compliance with HUD's design and cost stlldards and programmatic requirements within 180 days from the date of this Agreement. The design and cost standards apply to all projects regardless of the proposed operating cost level. The design must not include any prohibited features and must be cost efficient g. Submission of Conflict of Interest and Disclosure Certifications for each officer and director of both the Sponsor and Owner and Identity of Interest and Disclosure Certifications for all development team members. NOTE: At any time a new development team member is added or changed, an Identity of Interest Certification must be submitted. Likewise, at any time the Sponsor or Owner changes any officers or directors, a Conflict of Interest and Disclosure Certification must be submitted for the new person(s). h. Submission of the land appraisal within 30 days from the date of this Agreement. i. You are required to comply with the Department's policy with respect to salary limitations for consultants. If a consultant will be used for your project, you must ensure that the maximum salary payable to the consultant will not exceed the daily equivalent of the rate of the high of the pay band paid fcr level IV of the Executive Schedule, unless specifically authorized by law. You can determine the maximum consultant's salary based on the level IV rate of the Executive Schedule by accessing the Office of Personnel and Management's website at www.opm.gov/oca/pavrates. j. You are required to provide a drug-free workplace. Compliance With this requirement means that you will: 1) Publish a statement, notifYing employees that it is unlawful to manufacture, distribute, dispense, possess or use a controlled substance in the applicant's workplace and that such activities are prohibited. The statement must specifY the actions that will be taken against employees for violation of this prohibition. The statement must also notifY employees that as a condition of employment under the federal award that they are required to abide by the terms of the statement and each employee must agree to notifY the employer in writing of any violation of a criminal drug statute occurring in the workplace no later than five calendar days after such violation; 2) Establish an on-going drug-free awareness program to inform employees about a) The dangers of drug abuse in the workplace; b) The applicant's policy of maintaining a drug-free workplace; c) Any available drug counseling, rehabilitation, or employee maintenance programs; and d) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; 3) Notify the federal agency in writing within 10 calendar days after receiving notice from an employee of a drug abuse conviction or otherwise receiving actual notice of a drug abuse conviction. The notification must be provided in writing to HUD's Office of Departmental Grants Management and Oversight, Department of Housing and Urban Development, 451 Seventh Street, SW, Room 3156, Washington, DC 20410-3000, along with the following infonnation: a) The program title and award number for each HUD award covered; b) The HUD staff contact name, phone and fax numbers; and c) A grantee contact name, phone and fax numbers; and 4) Require that each employee engaged in the perfonnance of the federally funded award be given a copy of the drug-free workplace statement required in item (1) and notify the employee that one of the following actions will be taken against the employee within 30 calendar days of receiving notice of any drug abuse conviction' a), Institution of a personnel action against the employee, up to and including termination consistent with requirements of the Rehabilitation Act of 1973, as amended; or b) Requiring that the employee participate satisfactorily in a drug abuse assistance or rehabilitation program approved fof sl)ch purposes by a federal, state or local health, law enforcement or other appropriate agency. k.. In accordance with 24 CFR part 24, no award of federal funds may be made to applicants that are presently debarred or suspended, or proposed to be debarred or suspended, from doing business with the federal government. This requirement applies not only to you, as the Sponsor, and the Owner, when formed, but also to all lower tier covered transactions and to all solicitations for lower tier covered transactions. The prohibition includes the following: 1) Having principals whot within the previous three yearst have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtainingt attempting to obtaint or performing a public (federal, state, or local) transaction, violation of federal or state anti-trust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; and 2) Charges or indictments against the Sponsor, Owner and their principals by a governmental entity (federal, state and local) for commission of any of the above violations within the previous three years. I. You, as the Sponsor, and the Owner, when formed, are subject to the provisions of Section 319 of Public Law 101-121 (approved October 23, 1989) (31 D.S.C. 1352) (the Byrd Amendment), which prohibits recipients of federal contracts, grants, or loans from using appropriated funds for lobbying the executive or legislative branches of the federal government in connection with a specific contract, grant, or loan. In addition, the Owner, when formed, must disclose, using Standard Form LLL "Disclosure of Lobbying Activities," any funds, other than federally appropriated funds, that will be or have been used to influence federal employees, Members of Congress, and congressional staff regarding specific grants or contracts. m. You, as the Sponsor, and the Owner, when formed, are required to report annually, beginning from the date of the Agreement Letter, on the results -achieved against the output goal(s) and outcome(s), which you proposed in the Program Outcome Logic Model that was submitted in your application. 1. Starting with awards-made in 2007, ffiJD is establishing a Grants Performance page that will feature all approved logic models that shows each awardee's projected outputs and outcomes during the period of performance. As required performance report are received by HUD, they will be added to the web site n. Based on the information provided in your Program Outcome Logic Model, you,-as the Sponsor, and the OWner, when formed; will be required to submit to HUD a statement reporting on the Return on Investment (ROn as a result of this funding award. ffiJD will issue instructions on the ROI at a later date. O. Other Conditions: Site Requirements I o c: u m E '" Jl c: '" J) - o z;. ::; o .E ::>0 o.~ .~ 0 "EO:: "'0> E c: ",'- al~ c: 0 ",J: cn~ rnoQ .5 ~ g ~Cf)N 0'" J::O :J '" o'E ~o ~~ z~~ ~ "G"STREET b , '" 250' - 0" b . b PLANT AREA (PAl PA ~ CONCRETE PATIO LPlANTlNG\ ~ COURT 100' - 0" f- W W ~ f- en :J: t; PA VEGETABLE .PlANTERS. PA PA : 18'.0"J I 0 z I ~ I . Z 0: I ~ :<: I g .0: l- I w 0: I u: f PA 0. , , ., :: f8 II . II b. b. J' ~ 27' - O"--.f. " WI SUOING ~ 5 GUEST PARKING ELEC. GATE . SPACES P r ,27'-0", 0. J 38 TENANT PARKING SPACES r 171' - O' 17 PARKING SPACES @ g'..()" O.C. 171' - O' 19 PARKING SPACES @ 9'-0" D.C. f8 PlANT AREA EXISTING eMU WALL BUIlDING ANALYSIS TENANT PARKING: 37 - STANDARD.STAllS. 02 - DISABLED STALLS ,. 39 GUEST PARKING: 3. STANDARD STAlLS. 02 - DISABLED STALLS" 7 TOTAL PARKING =40 THREE STORY 8UILOtNG 74 ONE BEDROOM UNITS Ol1WO BEDROOM MANAGER'S UNIT TOTAL OF 75 UNITS TOTAL BUILDING AREA = 64. 000 SQ. FT. sITe PLAN AREA OF PROPERTY: 1.71 ACRES 74,600 SQ. FT. LOTCOVERAGE: lSTFLODRPlAN = 22,24OSo. FT SCALE 1" = 2f1- O' t"L.~ ffi ...1I1.:r W NORlH PARKING REQUIRED: .50 PER OWEUJNG = 75 x .50 ,. 30 PARKING SPACES PARKING PROVIDED CONSTRUCTION TYPE: TYPE V - 1 HOUR. FULLY SPRlNKLERED SITE PlAN Q.V. TELACU-SAN BERNARDINO V ~- ...... SENIOR HOUSING I~ A 1.1 i 5o'a . ...- SAN BERNARDINO, CAUFORNIA e'.:..' , VILlANUEVA ARCHlTECTS,INC, B .."'''''''"'"'''' ...._. $Il.H~~G'2ctO .........- I'tOe.(7WJCIas3T . ~ ~: :..!:" fn:01fIlIl).ttm . Lorraine Wyche From: Sent: To: Subject: glenda _ sobrique@dailyjournal.com Thursday, May 14,20098:16 AM Lorraine Wyche Confirmation of Order 1595361 for TELACU Housing - San Bernardino V Dear Customer: The ordf~I gardinq Listed below has be n recei and p this order, ease cont your ad ed. If you rcJi_nator cr the have any questions number Ii ted be ow. tamer }\ccount Number: 10056 Type; of Not i l\d De~_3cr Lon Our Order Number Nevispaper Publication te(s) : ePNS : TELJ\CfI H 95361 : SAN BERNARDINO COUNTY SUN o /18/ 0,0 /25/ 009 ERNMENT PUBLIC NOTICE-SB jn an Bernardino Sl /Hrq Date o /01/2009 Thank or ino the Daily tion. :~OBl{JOUF IT OUHNAL CORPORATION [FORNI NEWSPAPER SERVICE E. FIRST ST., LOS ANGELE nee: (00) 8 7840 / ( 13 L rax: (800) 540 4089 / (213) EI.Jl<E}\U , CA 9001 -,[)~~OO 9-') ,181 PUBLIC NOTICE NOTICE OF A JOINT PUBLIC HEARING OF THE MAYOR AND COMMON COUNCIL AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO TO CONSIDER THE SALE OF CERTAIN PARCELS OF LAND TO TELACU HOUSING - SAN BERNARDINO V, INC., PURSUANT TO THE HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433 (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) PLEASE TAKE NOTICE that the Mayor and Common Council of the City of San Bernardino (the "Council") and the Community Development Commission of the City of San Bernardino (the "Commission") as the governing board of the Redevelopment Agency of the City of San Bernardino (the "Agency"), will conduct a joint public hearing at 4:00 p.m., on Monday, June I, 2009, in the City Council Chambers at City Hall, 300 North "D" Street, San Bernardino, or as soon as possible thereafter as the matter may be heard to consider the terms on which the Agency may hereafter transfer certain land to TELACU Housing - San Bernardino V, Inc. (the "Developer"). At the joint public hearing, the Council and the Commission shall receive evidence and testimony regarding the proposed terms of the disposition and development by the Developer of certain Agency owned properties referred to as the "Property". The Property includes parcels of land which are currently owned by the Agency (APNs: 0134-093-19,20,43 and 45). Each of the parcels of land included as the Property is situated within an area designated by the Agency as the "Central City North Redevelopment Project Area" particularly on the northwest corner of 4tli and "G' Streets. It is proposed that the Agency shall transfer the Property to the Developer subject to the terms and conditions of an agreement entitled "2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Grant Disposition and Development Agreement" (the "2009 Low and Moderate Income Housing Funds Grant DDA"). The Developer shall undertake the development of the parcels pursuant to the 2009 Low and Moderate Income Housing Funds Grant DDA, as 74 new senior citizen rental residential dwelling units and one (1) on-site manager unit. The Project will be funded in part with $11.9 million H U D 202 Grant and Agency $1.2 million Low and Moderate Income Housing Fund Grant. NOTICE IS FURTHER GIVEN that any and all persons are invited to appear before the Council and the Commission and present evidence or testimony concerning the foregoing matters relating to the 2009 Agreement at the time, date and place set forth herein. A Summary Report has been prepared relative to the proposed disposition of the Property to the Developer pursuant to the 2009 Low and Moderate Income Housing Funds Grant DDA. This Summary Report sets forth the details of the disposition and development of the Property to be transferred to the Developer and it has been prepared pursuant to the requirements of the Health and Safety Code, Section 33433. Copies of the Summary Report and the 2009 Low and Moderate Income Housing Funds Grant DDA are on file and are available for inspection and copying by interested persons during normal business hours at the office of the Agency at 201 North "E" Street, Suite 301, San Bernardino, California 92401, (909) 663-1044. The Agency has reviewed the proposed proiect under the California Environmental Quality Act ("CEQA") and has determined that the approval of the 2009 Low and Moderate Income Housing Funds Grant DDA and the potential development of 74 new senior citizen rental residential dwelling units and one (1) on-site manager unit by the Developer pursuant to the 2009 Low and Moderate Income Housing Funds Grant DDA qualifies as a Categorical Exemption, under Class 32 of the CEQA Guidelines, Section 15332. I nterested persons may contact Musibau Arogundade, Project Manager for the Agency at (909) 663- 1044 or by email musibaua@sbrda.org, for additional information relating to the ioint public hearing and the proposed disposition of the Property to the Developer under the terms of the 2009 Low and Moderate Income Housing Funds Grant Df;?A. NOTICE given this 14 day of May 2009. sna; 5/25/09 SBS-1595361# SUMMARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW - REGARDING THE DISPOSITION AND DEVELOPMENT OF AGENCY PROPERTY LOCATED ON THE NORTHWEST CORNER OF 4TH AND "G" STREETS (APNs: 0134-093-19, 20, 43 AND PORTIONS OF 45), PURSUANT TO THE TERMS OF THE 2009 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND TELACU HOUSING SAN BERNARDINO V, INC. (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) INTRODUCTION This Summary Report (this "Report") has been prepared by the Redevelopment Agency of the City of San Bernardino (the "Agency") in accordance with Health and Safety Code Section 33433. This Report sets forth certain details of the 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement ("DDA") by and between the Agency and TELACU Housing - San Bernardino V, Inc. (the "Developer"). The DDA provides for the transfer of certain Agency-owned land to the Developer for new development of 74 affordable senior citizen rental dwelling units and one on-site manager unit located on the northwest comer of 4th and "G" Streets (APNs: 0134-093-19, 20, 43 and portions of 45) (the "Property") in the Central City North Redevelopment Project Area ("Project Area"). The new housing development project, which may be undertaken by the Developer, is referred to in the DDA as the "Project". This Report is prepared for the transfer of the Property. This Report is organized into the following six (6) sections: I. Salient Points of the Proposed DDA: This section includes a description of the major responsibilities to be assumed by the Agency and the Developer. II. Cost of the Proposed DDA to the Ae:encv: This section outlines the proposed costs to the Agency. III. Estimated Value of the Interests to be Conveyed Determined at the Hie:hest and Best Use Permitted under the Redevelopment Plan: This section summarizes the value of the Property to be conveyed by the proposed DDA to the Developer, at the highest use permitted. IV. Estimated Reuse Value of the Interests Determined at the ReQuired Use and with the Conditions. Covenants and Restrictions ReQuired bv the Proposed DDA: This section summarizes the sales price to be paid to the Agency, if any. V. Blie:ht Alleviation: This section describes the existing blighting conditions in and around the Project Area, and an explanation of how the proposed sale and development of the Property will assist in alleviating the blighting conditions. VI. Conformance with the AB 1290 Implementation Plan - Ae:encv Five-Year Implementation Plan- Housine: Component (2004/05 throue:h 2008/09) Adopted on January 22. 2007: This section identifies how the proposed DDA will result in a development activity that fulfills goals and objectives established in the Agency's AB 1290 Five- Year Implementation Plan. 1 PlAgendaslAgenda AttachmentslSummary Reports\2009106-0 1-09 TELACU V- Summary Report (Final).doc I. SALIENT POINTS OF THE PROPOSED DDA A. Description of the proposed Proiect . The purpose of the proposed DDA is to transfer the Property to the Developer to facilitate the development of 74 units of affordable senior citizen rental housing and one on-site manager unit on the Property in the Project Area. All necessary infrastructure improvements such as electricity, sewer, gutter and landscaping will be provided by the Developer. The Developer will utilize the HUD Section 202 financing and the additional financial assistance to be provided by the Agency as set forth in the DDA in the amount of $l ,200,000 to complete the Project. B. Agency Responsibilities . Transfer the Property to the Developer pursuant to the terms of the DDA and remitting an amount equal to the sale price of the Property in the amount of $1,200,000 for the benefit of the Project to the Developer. Said amount shall be used solely for the payment of the City of San Bernardino Development Impact Fees and other City building permit fees. C. Developer Responsibilities . Execute and implement the DDA with the Agency and agree to accept the Property and develop 74 units of affordable senior citizen rental housing and one on-site manager unit per the DDA and rent the 74 units to low-income senior households and secure the construction/permanent financing required to develop the Property. The units will be rented to individuals and households earning not more than 80% of the area median income ("AMI") and will be subject to a covenant agreement in favor of the Agency assuring compliance with the requirements for the use of the $1,200,000 of the Low and Moderate Income Housing Fund. Such Agency covenant agreement is in addition to that additional covenant agreement as will be imposed by HUD. . Complete the construction per the Schedule of Performance in the DDA. II. COST OF THE PROPOSED DDA TO THE AGENCY The Agency expended an estimated $4.56 million for the acquisition, closing costs, demolition, relocation and legal cost from the Low and Moderate Income Housing Funds for the Property. Based upon the structure of the DDA, the Agency will transfer the Property to the Developer for a purchase price in the amount of $1 ,200,000, whereupon the Agency will make said funds available to the Developer for the payment of the City of San Bernardino Development Impact Fees and other City permit fees, for the construction of 74 affordable senior citizen rental-housing units and one on-site manager unit per the DDA. The Developer has obtained a commitment for HUD Section 202 financing for the construction of the Project and to rent the 74 units to low-income senior households at or below 80% of the AMI. The cost to the Agency of the DDA is the above set forth amount of $4.56 million as expended by the Agency for the acquisition, closing costs, demolition, relocation and legal costs of the Property. The Agency will receive 74 affordable senior rental units and one on-site manager unit with 55-years Affordable Housing Covenants, Conditions and Restrictions (CC&Rs) and a $12.5 million improved Project. 2 P:\AgendaslAgenda AttachmentslSummary Reports\2009106-01-09 TELACU v- Summary Report (Final).doc III. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT THE HIGHEST AND BEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN The value of the interest to be conveyed based upon the restrictions and requirements pursuant to the DDA and the income limitations to be imposed by the HUD Section 202 financing for the construction of 74 affordable senior citizen rental units and one on-site manager unit on the Property negates any residual land value for the Property. This use as affordable senior citizen rental units for persons with income levels at or below 80% of the AMI is considered the highest and best use for the Property permitted under the Central City North Redevelopment Project Area Plan. IV. ESTIMATED REUSE VALUE OF THE INTERESTS DETERMINED AT THE REQUIRED USE AND WITH THE CONDITIONS. COVENANTS AND RESTRICTIONS REQUIRED BY THE PROPOSED DDA The estimated fair market value of the interest to be conveyed to the Developer is zero based upon the covenants, conditions and restrictions contained in the DDA and the other income limitations to be imposed by the HUD Section 202 financing related to the requirement to provide 74 affordable senior citizens rental-housing units pursuant to the terms of the DDA. The transfer of the Property is necessary to implement the Redevelopment Plan for the Project Area and to provide 74 new affordable senior citizens rental-housing units for low-income senior households. The interest to be conveyed to the Developer has been determined to be the highest and best use (lower-income senior citizen residential rental units) permitted under the Central City North Redevelopment Project Plan and such use is consistent with the determination of the reuse value. V. BLIGHT ALLEVIATION The prior acquisition of the Property by the Agency and the demolition and site clearance of the prior improvements was the initial step that fostered the elimination of blight in the Downtown Area in the vicinity of the Property. The development of the Property will further eliminate existing blight, foster the reuse of under utilized property into new affordable senior citizen rental housing units for the benefit of the low-income senior residents of the Project Area and the City. It is anticipated that additional rental housing in the Downtown Area with covenants imposed both by HUD and pursuant to the DDA will assure the continued viability of this Project and the continuing progress toward further elimination of blight in the Downtown Area. VI. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN - A2encv Five-Year Implementation Plan - Housim! Component (2004-2005 throu2h 2008-2009) Adopted on January 22. 2007: The Five-Year Implementation Plan adopted by the Agency contains several broad operational goals and objectives for the Project Area. Among these are the following: . Eliminate blighting influences, including, deteriorating buildings, uneconomic land uses, obsolete structures, and other environmental, economic, and social deficiencies. 3 P\Agendas\Agenda Attachments\Summary Reports\2009\06-01-09 TELACU v- Summary Report (Final).doc . To re-plan, redesign, and develop underdeveloped areas that are stagnant or improperly utilized. . To provide affordable housing opportunities. The DDA will assist the Agency in meeting the objectives and goals of its Five-Year Implementation Plan for the Project Area in the following ways: . The execution of the DDA with the Developer will continue redevelopment activities of the Agency by providing an additional 74 units of low-income housing within a designated redevelopment project area. . Reduce the low-income Regional Housing Needs Assessment (RHNA) number from 676 to 602 needs. . Allow the Agency to comply with CRL Section 333334.4(b) by providing units that addresses the housing needs of seniors. . Allow the Agency to meet the requirement that a proportional amount of Agency Low and Moderate Income Housing Funds must be expended to address senior housing needs in the Project Area and Citywide. Based upon the preceding factors, the DDA is consistent with the adopted Five-Year Implementation Plan. The interest and land conveyed to the Developer will be developed in conformance with the City's General Plan and Housing Element, Municipal Development Code, and the Agency's AB 1290 Implementation Plan. 4 P:lAgendas\Agenda Attachments\Summary Reports\2009\06-01-09 TELACU Y- Summary Report (Final).doc 1 2 3 4 5 6 7 8 9 RESOLUTION NO. ((" r:~ r'--', '\\ (,",' UI(""'J\<l U' r=..~) \ '\ \ ." ~"""rP' ,':::;,';;~ ~_,.....< l RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CONSENTING TO THE DISPOSITION OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO'S PROPERTIES LOCATED ON THE NORTHWEST CORNER OF "G" AND 4TH STREETS (APNS: 0134-093-019, 20, 43 AND PORTIONS OF 45) TO TELACU HOUSING - SAN BERNARDINO V, INC., FOR THE DEVELOPMENT OF 75-UNIT AFFORDABLE SENIOR CITIZEN RENTAL HOUSING (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") is a 10 public body, corporate and politic; and 11 WHEREAS, the Agency owns vacant properties located on the northwest comer of 4th and 12 "G" Streets (APNs: 0134-093-19,20,43 and portions of 45, collectively "Property"); and 13 WHEREAS, the Agency acquired the Property using low- and moderate-income housing tax increment set-aside funds; and 14 15 WHEREAS, the Agency proposes to transfer the Property to TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer"), in 16 accordance with the terms and conditions of the 2009 Affordable Senior Citizen Rental Housing 17 18 Low and Moderate Income Housing Funds Grant Disposition and Development Agreement (the 19 "2009 Low and Moderate Income Housing Funds Grant Agreement"); and 20 WHEREAS, the Developer shall develop and improve the Property as may hereafter be 21 transferred by the Agency to the Developer pursuant to the 2009 Low and Moderate Income 22 Housing Funds Grant Agreement with 75-unit affordable senior citizen rental housing, using the 23 design and improvement standards which are consistent with City Conditional Use Permit No. 08- 24 30, as previously approved by the Planning Commission on February 18, 2009; and 25 WHEREAS, the Developer has the background, experience and financial capability to 26 develop the Project and has received approval the of the U.S Department of Housing and Urban 27 Development ("HUD"), Section 202 Capital Advance of $10,735,700 for the construction of the 28 Proj ect; and 1 P:lAgendaslResolutionslResolutions\2009\06,OI-09 TELACU Housing - San Bernardino Y, Inc. MCC Res? doc \D<1 le \ \ ''A7/ 'V..r / / 1 WHEREAS, it had been found and determined that the environmental reView of the 2 disposition of Agency Property is a "categorically exempt project" for the reasons indicated in the 3 Agency Staff Report. No potentially adverse environmental effects are anticipated to be associated 4 with the redevelopment of the Project; and 5 WHEREAS, the Agency has prepared and published a notice of joint public hearing in The 6 San Bernardino County Sun newspaper on May 18, 2009, and again on May 25, 2009, regarding 7 the consideration and consenting to the disposition of the Property to the Developer. 8 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY 9 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS 10 FOLLOWS: 11 12 Section 1. The Recitals of this Resolution are true and correct. Section 2. On June 1, 2009, the Mayor and Common Council of the City of San 13 Bernardino ("Council") conducted a full and fair joint public hearing with the Community 14 Development Commission of the City of San Bernardino ("Commission"), and considered the 15 written Agency Staff Report and consented to the disposition of the Agency Property to the 16 Developer. The minutes ofthe City Clerk for the June 1,2009, joint public hearing of the Council 17 and the Commission shall include a record of all communication and testimony submitted to the 18 City Council and the Commission at the joint public hearing by interested persons relating to the 19 disposition of the Property. 20 Section 3. The Council hereby finds and determines that the environmental review of the 21 approval of the 2009 Low and Moderate Income Housing Funds Grant Agreement and the 22 redevelopment activities contemplated thereunder is a "categorically exempt project" for the reasons 23 indicated in the Agency Staff Report. No potentially adverse environmental effects are anticipated 24 to be associated with the redevelopment of the Project. 25 Section 4. The City is not a party to the Disposition and Development Agreement, and 26 nothing in this Resolution shall be deemed to constitute an approval by the City of any application 27 for a development project permit or approval which the Developer may hereafter be required to 28 obtain from the City as a condition precedent to the performance of the Developer's obligation 2 P:\Agendas\Resolutions\Resolutions\2009\06-01.09 TELACU Housing - San Bernardino V, Inc, MCC Reso.doc 1 under the Disposition and Development Agreement with respect to the redevelopment of the 2 Project. The City hereby reserves its discretion under all applicable law to approve or reject, and to 3 impose any appropriate condition of its approval on the project development permit application as 4 the Developer may hereafter submit to the City in connection with the Project. 5 Section 5. This Resolution shall take effect upon its adoption and execution in the 6 manner as required by the City Charter. 7 /II 8 /II 9 /II 10 /II 11 /II 12 /II 13 /II 14 /II 15 /II 16 1/1 17 /II 18 /II 19 /II 20 /II 21 /II 22 /II 23 /II 24 III 25 III 26 III 27 III 28 /II 3 P:\AgendasIResolutionslResolutions\2009\06-01-09 TELACU Housing - San Bernardino V, Inc. MCC Reso.doc 19 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CONSENTING TO THE DISPOSITION OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO'S PROPERTIES LOCATED ON THE NORTHWEST CORNER OF "G" AND 4TH STREETS (APNS: 0134-093-019, 20, 43 AND PORTIONS OF 45) TO TELACU HOUSING - SAN BERNARDINO V, INC., FOR THE DEVELOPMENT OF 75-UNIT AFFORDABLE SENIOR CITIZEN RENTAL HOUSING (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) 2 3 4 5 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and meeting Nays Abstain Absent Rachel G. Clark, City Clerk 20 The foregoing Resolution is hereby approved this 21 22 23 day of ,2009. Patrick J. Morris, Mayor City of San Bernardino 24 Approved as to Form: 25 26 By: 27 28 1-f~ 4 P:\Agendas\Resolutions\Resolutions\2009\06_01_09 TELACU Housing - San Bernardino V, Inc. MCC Reso.doc 1 2 3 4 5 6 7 8 9 RESOLUTION NO. (C(Q)(PY RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2009 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND TELACU HOUSING SAN BERNARDINO V, INC. (AFFORDABLE SENIOR CITIZEN RENTAL HOUSING DEVELOPMENT CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") is a 11 10 public body, corporate and politic; and 13 12 4th Streets (APN's: 0134-093-19,20,43 and portions of 45, collectively "Property"); and WHEREAS, the Agency owns vacant properties located on the northwest comer of "G" and WHEREAS, the Agency acquired, demolished and relocated tenants from the Property 14 using low and moderate income housing tax increment set-aside funds in the amount of $4.56 15 million; and 16 WHEREAS, the Agency proposes to. transfer the Property to TELACU Housing-San 17 Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer") in 18 accordance with the terms and conditions of the "2009 Affordable Senior Citizen Rental Housing 19 Low and Moderate Income Housing Funds Grant Disposition and Development Agreement (the 20 "2009 Low and Moderate Income Housing Funds Grant Agreement"); and 21 WHEREAS, the Developer shall develop and improve the Property as may hereafter be 22 transferred by the Agency to the Developer pursuant to the 2009 Low and Moderate Income 23 Housing Funds Grant Agreement with 75-unit affordable senior citizen rental housing, using the 24 design and improvement standards which are consistent with City Conditional Use Permit No. 08- 25 30, approved by the Planning Commission on February 18,2009; and 26 WHEREAS, the Developer shall pay the Agency the sum of $1.2 million for the Property 27 which shall then be granted to the Developer to pay a portion of the $1.36 million required in 28 City's developer impact and permit fees; and 1 P \Agendas\Resolutions\Resolutions\2009\06.01-09 TELACU Housing. San Bernardino \' Inc CDC Resodac 1 WHEREAS, the Developer has the background, expenence and financial capability to 2 develop the Project and has received the approval of the U.S Department of Housing and Urban 3 Development ("HUD"), Section 202 Capital Advance Grant in the amount of $10,735,700 for the 4 construction of the Project; and 5 WHEREAS, it had been determined that the environmental review of the 2009 Low and 6 Moderate Income Housing Funds Grant Agreement with regards to the disposition and development 7 of Agency Property is a "categorically exempt project" for the reasons indicated in the Agency Staf 8 Report. No potentially adverse environmental effects are anticipated to be associated with the 9 redevelopment of the Project; and 10 11 12 13 14 15 16 17 WHEREAS, the Agency has prepared and published a notice of joint public hearing in The San Bernardino County Sun newspaper on May 18,2009, and again on May 25, 2009, regarding the consideration and disposition of the Property to the Developer; and WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency may transfer the Property to the Developer subject to the Mayor and Common Council of the City of San Bernardino ("Council") and the Community Development Commission of the City of San Bernardino ("Commission") adopting a Resolution authorizing the Agency to transfer the Property in light of the findings set forth herein, pursuant to Health and Safety Code Section 33433; and WHEREAS, the Agency has prepared a Summary Report that describes the salient points of 18 19 20 21 22 23 24 25 the 2009 Low and Moderate Income Housing Funds Grant Agreement and identifies the cost to the Agency of the disposition and development of the Property. NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section 1. The Recitals of this Resolution are true and correct. On June 1, 2009, the Community Development Commission of the City 0 Section 2. 26 San Bernardino ("Commission") conducted a full and fair joint public hearing with the Mayor and 27 28 Common Council of the City of San Bernardino ("Council"), and considered the written Agency staff report relating to the 2009 Low and Moderate Income Housing Funds Grant Agreement, the 2 P'Agendas'Resolutions"Resoiutions'o1009',06-01.09 TELACU Housing. San Bernardino V, Inc CDC Reso doc 1 Summary Report and the testimony submitted relating to the disposition and redevelopment of the 2 Property by the Developer pursuant to the terms and conditions of the 2009 Low and Moderate 3 Income Housing Funds Grant Agreement. The minutes of the City Clerk for the June 1,2009, joint 4 public hearing of the Commission and the Council shall include a record of all communication and 5 testimony submitted to the Commission and the Council at the joint public hearing by interested 6 persons relating to the Summary Report, the Project and the approval of the 2009 Low and 7 Moderate Income Housing Funds Grant Agreement. 8 This Resolution is adopted in order to satisfy the provisions of Health and Section 3. 9 Safety Code Section 33433 as those provisions relate to the disposition of the Property by the 10 Agency to the Developer on the terms and conditions set forth in the 2009 Low and Moderate 11 Income Housing Funds Grant Agreement. The Commission hereby finds and determines as 12 follows: 13 14 15 16 17 18 (i) The Summary Report contains the information described in Health and Safety Code Section 33433(a) (2) (B); (ii) The disposition and redevelopment of the Property by the Developer in accordance with the 2009 Low and Moderate Income Housing Funds Grant Agreement is consistent with the affordable housing supply preservation and expansion programs of the Agency Housing Implementation Plan; 19 (iii) The terms and conditions of the 2009 Low and Moderate Income Housing Funds 20 21 22 23 24 25 26 27 28 Grant Agreement contain assurances that the Developer will redevelop the Property which is planned to be transfer at no cost to the Developer; (iv) As required by Health and Safety Code Section 33433(b )(2), the disposition and redevelopment of the Property by the Developer in accordance with the 2009 Low and Moderate Income Housing Funds Grant Agreement is not less than the fair reuse value at the use as affordable senior housing and with the covenants and conditions and development costs authorized by said Agreement; and (iv) The disposition of the Property to the Developer on the terms set forth in the 2009 Low and Moderate Income Housing Funds Grant Agreement shall assist in the 3 P \A.genda5\Resolutions\Resolutions''1009\06~O 1-09 TELACC Housing ~- San Bernardino V, Ine CDC Resodac 1 2 elimination of conditions of blight on the Property and in the Central City North Redevelopment Project Area. 3 Section 4. The Commission hereby finds and determines that the environmental review 4 of the approval of the 2009 Low and Moderate Income Housing Funds Grant Agreement and the 5 redevelopment activities contemplated thereunder is a "categorically exempt project" for the reasons 6 indicated in the Agency Staff Report. No potentially adverse environmental effects are anticipated 7 to be associated with the redevelopment of the Property, and accordingly based upon its own 8 independent review of the information provided to the Commission regarding the Property; the 9 Commission hereby authorizes the filing of a Notice of Exemption under CEQA relating to the 10 Project. 11 Section 5. The Commission hereby receives and approves the Summary Report and the 12 2009 Low and Moderate Income Housing Funds Grant Agreement in the form as submitted at this 13 joint public hearing. 14 Section 6. The Commission hereby approves the disposition of the Property by the 15 Agency to the Developer on the terms set forth in the 2009 Low and Moderate Income Housing 16 Funds Grant Agreement and hereby authorizes the Interim Executive Director of the Agency to 17 execute the Agreement on behalf of the Agency and the Interim Executive Director of the Agency is 18 hereby authorized to make minor corrections, additions, clarifications, interpretations to the 19 Agreement, provided said changes are not substantive in nature, do not increase the monetary 20 impact to the Agency and are consented to by the Agency Counsel. 21 Section 7. 22 /1/ 23 1// 24 1// 25 /1/ 26 1// 27 1// 28 1// This Resolution shall take effect upon its adoption and execution. 4 I P\Agendas\Resolutions'Resolutions"']009.06.01.09 TELACC Housing ~ San Bernardino V, Ine (DC Reso doc 1 2 3 4 5 6 7 8 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2009 AFFORDABLE SENIOR CITIZEN RENT AL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND TELACU HOUSING SAN BERNARDINO V, INC. (AFFORDABLE SENIOR CITIZEN RENTAL HOUSING DEVELOPMENT CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 9 Development Commission of the City of San Bernardino at a 10 thereof, held on the day of 11 Commission Members: Ayes 12 ESTRADA 13 BAXTER 14 BRINKER 15 SHORETT KELLEY 16 JOHNSON 17 MC CAMMACK 18 21 The foregoing Resolution is hereby approved this 22 23 24 25 26 Approved as to Form: 19 20 27 28 meeting ,2009, by the following vote to wit: Nays Abstain Absent Secretary day of ,2009. Patrick J. Morris, Chairperson Community Development Commission of the City of San Bernardino By: \~~ gency 0 I 5 P:\Agendas"'Resolutions'Resolutions\2009\06-01.09 TELACL~ Housing - San Bernardino V, Jne CDC Reso doc 2009 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT By and Between Redevelopment Agency of the City of San Bernardino, California (Agency) And TELACU Housing - San Bernardino V, Inc. A California Non-Profit Public Benefit Corporation (Developer) Central City North Redevelopment Project Area 2009 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING LOW AND MODERATE INCOME HOUSING FUNDS GRANT DISPOSITION AND DEVELOPMENT AGREEMENT This 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement (the "Agreement") is dated as of _, 2009, by and between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer"). This Agreement is entered into with respect to certain facts presented in these Recitals: --RECIT ALS-- (a) The Agency owns the vacant parcel of land located at 708 West 4th Street, San Bernardino, California 92410 (APNs: 0134-093-19.20.43 and portions of 45), as more specifically described in Exhibit "A", attached hereto and incorporated herein by reference (the "Property"). The Agency, pursuant to the terms of this Agreement plans to convey and transfer fee simple title to the Property to the Developer to enable the Developer to construct and to develop the Project (as defined in Recital (c) below), pursuant to the terms, covenants and conditions of this Agreement; and (b) The Developer desires to construct and to operate a Senior Housing complex consisting of seventy-four (74) one (I)-bedroom affordable senior housing units and one (1) two (2)-bedroom manager's unit on the Property described above (the "Project"); and (c) The Project is entitled, "TELACU Hacienda" and is designated as Project No. 143-EE068-WAH-NP; and (d) The Project proposed shall be constructed on the Property (the "Site"). The legal description for the Site is depicted and described on Exhibit "A", attached hereto and incorporated herein by this reference; and (e) The Developer has obtained approval from the United States Department of Housing and Urban Development ("HUD") for Section 202 Capital Advance Program Funding fot the Project in the approximate amount of Ten Million Seven Hundred Thirty-Five Thousand Seven Hundred Dollars ($10,735,700.00) and the Developer will enter into the HUD Capital Advance Documents (as hereinafter defmed) with HUD at the time of the initial HUD closing; and (f) The Agency is willing to grant to the Developer the Agency Affordable Housing Grant (the "Agency Affordable Housing Grant"), subject to the terms, covenants and conditions of this Agreement; and 1 P:lAgendaslAgenda Allachments\AgeAda AllachmentslAgenda AllachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc (g) The Agency is participation in the Project is limited to the amounts set forth in this Agreement; and (h) The Developer is responsible for the construction of the said Project at its sole expense, from the funding sources described above, and from any other funding source available to it for that purpose; and (i) The Agency has determined that development of the Site pursuant to this Agreement and the fulfillment generally of the Agreement are in the vital and best interest of the City and of the Agency. NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE AND THE MUTUAL PROMISES AND COVENANTS SET FORTH HEREIN, THE AGENCY AND THE DEVELOPER HEREBY AGREE AS FOLLOWS: 1. Definitions. In addition to the meaning ascribed to certain words and phrases as set forth in the Recitals of this Agreement, other words and phrases shall have the meaning described below: 1.1. Agency Mfordable Housing Grant. The term "Agency Affordable Housing Grant" refers to a sum not to exceed One Million Two Hundred Thousand Dollars ($1,200,000.00) which the Developer shall use to pay for the development impact fees and any other governmental agency required fees in connection with the construction and the development by the Developer of the Project at the Site (collectively, the "Impact Fees"), as provided in Section 4.9. 1.2. Agency Grant Deed. The term "Agency Grant Deed" shall mean that certain grant deed by which the Agency shall convey and transfer the Property to the Developer in substantially the form attached hereto as Exhibit "D". 1.3. Agency Regulatory Agreement. The term "Agency Regulatory Agreement" shall mean that certain Agency Regulatory Agreement and Affordable Senior Citizen Residential Housing Development Declaration of Restrictive Covenai1ts affecting this Site and the Project by and between the Developer and the Agency in the form attached hereto as Exhibit "F". 1.4. Certificate of Completion. The term "Certificate of Completion" shall mean that certain Certificate of Completion, attached hereto as Exhibit "B". 1.5. City. The term "City" shall mean the City of San Bernardino, a charter city, having its offices at 300 North "D" Street, San Bernardino, California 92418. 1.6. Closing/Closing Date/Close of Escrow. The terms "Closing", "Closing Date" and "Close of Escrow" shall mean the date on which the conditions for the completion of the performance of the duties of the parties have been satisfied and the Agency Grant Deed and the Agency Regulatory Agreement are filed for record in the Office of the County Recorder of San Bernardino County, California. The Closing shall occur on or before the date provided in the Schedule of Performance, attached hereto as (Exhibit "C"). 2 P:lAgendaslAgenda AttachmentslAgenaa AttachmentslAgenda Attachments\Agrmls-Amend 2009\06-01-09 TELACU Housing - San Be,Tl",dino V,lnc. DDAdoc 1.7. Escrow. The term "Escrow" shall mean the land transfer and construction financing transaction account by and among the Developer, the Agency, and the escrow department of the Title Company. For the purpose of this Agreement, the parties hereby designate the escrow department of the Title Company to serve as the "Escrow Agent". 1.8. Hazardous Substances. The term "Hazardous Substances" shall mean (i) any hazardous or toxic substance or material including petroleum, petroleum-based products, asbestos and asbestos containing materials (ACM) and lead-based paint (LBP), or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government and/or (ii) any substance or material identified by the United States Government, the State of California or any local governmental authority as hazardous or toxic and which is included on any list of such substances published by any such governmental entity. 1.9. HUD. The term "HUD" shall mean the United States Department of Housing and Urban Development. 1.10 HUD Capital Advance Documents. The term "HUD Capital Advance Documents" shall mean the various documents by and between HUD and the Developer which evidence the terms and conditions of the HUD Section 202 Grant to the Developer for the Project. The HUD Capital Advance Documents include, without limitation, the HUD note, the HUD regulatory agreement, the HUD deed of trust, the HUD use agreement, the HUD UCC-l Financing Statement, the HUD Capital Advance Agreement and the HUD Project Rental Assistance Contract. 1.11. HUD Section 202 Grant. The term "HUD Section 202 Grant" shall mean that certain grant of funds in the approximate amount of Ten Million Seven Hundred Thirty-Five Thousand Seven Hundred Dollars ($10,735,700.00), to be made by HUD to the Developer for the acquisition of the Property and improvement of the Project pursuant to that certain Notification of Selection for Section 202 Fund Reservation for Project No. 143-EE068-W AH- NP, dated October 31, 2007. The HUD Section 202 Grant is sometimes referred to herein as the "HUD Capital Advance". 1.12. Low-Income Senior Citizen Household. The term "Low-Income Senior Citizen Household" shall refer to a Senior Citizen Household which has the household income characteristics of a "low-income family" as set forth at 42 United States Code Section 1437a(b) and 24 California Code of Regulation Section 6914. 1.13. Project. The term "Project" shall mean all of the work of investigation, design, construction, improvement, modification, and financing necessary in order for the Developer to acquire the Site and to construct and to place in service thereon the affordable senior citizen rental housing project consisting of seventy-four (74) one (I)-bedroom rental units reserved for occupancy by Senior Citizen Households and one (I) unit with two (2)-bedrooms reserved for occupancy by on-site management personnel. The Project also includes all related landscaping, driveways, utilities, and any improvements which may be required by the City on the Site or within the public rights-of-way adjacent to the Site. The functional elements of the Project are more particularly described in the Scope of Development attached hereto as Exhibit "E" (the "Scope of Development"). 3 P:\AgendaslAgenda AttachmentslAgond. Attachment,lAgend. AIlachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc 1.14. Redevelopment Plan. The term "Redevelopment Plan" shall mean the Redevelopment Plan for the Central City North Redevelopment Project. A copy of the Redevelopment Plan is on file in the Office of the City Clerk of the City. The Redevelopment Plan is incorporated herein by this reference as though fully set forth herein. 1.15. Schedule of PerfQrmance. The term "Schedule of Performance" shall mean that certain Schedule of Performance attached hereto as Exhibit "C". 1.16. Senior Citizen Household. The term "Senior Citizen Household" shall mean and refer to a person or family eligible to occupy a rental dwelling unit at the Project under the HUD Capital Advance Documents and the Agency Grant Deed, at the time of initial occupancy of the rental dwelling unit: (i) a person(s) sixty-two (62) years of age or older; and, if applicable. (ii) provided at least one (1) member of the family is sixty-two (62) years of age or older, a "qualified permanent resident", as this term is defined in California Civil Code Section 51.3(b)(2) and (3). The occupancy of each unit shall be limited to a maximum oftwo (2) senior citizens at any time. During the term of the HUD Capital Advance Documents compliance by the Developer with such documents will be deemed compliance with the definition set forth in this Section 1.16 and in Section 1.12. 1.17. Site. The term "Site" shall mean that certain unimproved real property located within the Project Area in the City of San Bernardino, County of San Bernardino, State of California, consisting of 1.71 acres ofland (more or less) and more particularly described in the legal description, attached hereto as Exhibit "A". 1.18. Title Company. The term "Title Company" shall mean First American Title Company or such other title company mutually agreeable to the Agency and to the Developer. 2. Purpose of the Agreement. The purpose of this Agreement is to effectuate the Redevelopment Plan by acquiring and improving the Site as well as to assist in providing affordable rental housing which is reserved for occupancy by Senior Citizen Households and by Low-Income Senior Citizen Households. The redevelopment of the Project on the Site and the fulfillment generally of this Agreement are in the best interests of the City and the welfare of its residents and are in accordance with the public purposes and provisions of the applicable federal, state, and local laws and regulations under which the Project has been undertaken and is being assisted. 4 P:lAgendaslAgeoda Anachmeots\Agend. AttaChmeotslAgenda AnachmeotslAgnnts-Amend 2009\06-01-09 TELACU Housing. San Bernardino V,lnc. DDAdoc 3. Disposition of the Property and Escrow. 3.1. Transfer of the Property. Subject to the satisfaction of the terms and conditions of this Agreement, the Developer hereby agrees to accept from the Agency and the Agency agrees to transfer to the Developer the Property on the terms hereinafter set forth. (a) Sale and Purchase. In accordance with and subject to the terms and conditions of this Agreement, the Agency agrees to sell to the Developer and the Developer agrees to purchase from the Agency the Property for a purchase price in the amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) (the "Purchase Price"). At the Closing, the Escrow Agent shall credit Twenty Thousand Dollars ($20,000.00) toward the Purchase Price representing a Purchase Option payment made by the East Los Angeles Community Union ("TELACU") pursuant to that certain Purchase Option Agreement (the "Purchase Option"), dated as of April 21, 2008, by and between TELACU and the Agency. (b) Assignment by and Release of TELACU Regarding the Purchase Option. Upon the execution of this Agreement by and between the Developer and the Agency, TELACU shall have assigned all of its rights, title and interest in and to the Purchase Option to the Developer to permit the Developer to purchase the Property and TELACU shall be released from any further obligation or liability under said Purchase Option. Upon the execution of this Agreement by and between the Developer and the Agency, the Developer and the Agency agree that this Agreement shall supersede the Purchase Option. (c) Possession of the Property. The Agency warrants to the Developer and agrees that possession of the Property shall be delivered by the Agency to the Developer at the Close of Escrow free of any third party possessory rights subject to those possessory rights, if any, identified in the preliminary title report and/or in the Title Policy in connection with the Property which has been approved by the Developer. 3.2. Escrow. The Developer and the Agency hereby agree to establish the Escrow for the transfer of the Property from the Agency to the Developer. The Developer and the Agency shall cause the Escrow to be opened within sixty (60) calendar days following the full execution of this Agreement. This Agreement shall constitute the joint escrow inStructions of the Agency and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent and the Escrow shall be deemed to be opened when the Escrow Agent has received a fully executed copy of this Agreement and assigned its escrow account transaction identification to this Agreement. The Escrow Agent is empowered to act under these instructions. The Agency and the Developer shall cooperate with the Escrow Agent and promptly prepare, execute, and deliver to the Escrow Agent such additional escrow instructions consistent with the terms herein as shall be reasonably necessary. No provision of any additional escrow instructions shall modify this Agreement and in the event of any conflict between the provisions of this Agreement and such additional escrow instructions, the provisions of this Agreement shall prevail. 3.3. Conditions to Closing. (a) The obligation of the Developer to accept title to the Property and to Close the Escrow shall be contingent upon the satisfaction, or waiver by the Developer, of each and all of the following conditions (collectively, the "Developer Conditions") by the dates set forth herein: 5 P:lAgendaslAgenda AttachmenlSlAgmlda AltachmenlSlAgenda AnachmenlS\AgnnIs-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc (i) the Agency has deposited into Escrow a certificate (the "FIRPT A Certificate") in such form as may be required by the Internal Revenue Service pursuant to Section 1445 of the Internal Revenue Code and a California Form 590-RE (the "Residency Certificate"), pursuant to Section 18805 of the California Revenue and Taxation Code; (ii) HUD has issued its "Firm Commitment" to the Developer for the Project as provided in 24 CFR Part 850 and the Developer has approved the terms thereof; (iii) the Agency has prepared and the Developer has approved a legal description of the Property which shall be attached to the Agency Grant Deed when delivered to the Escrow Agent; (iv) the Developer has accepted the condition of the Property as provided in Section 3.8; (v) the Developer has obtained all necessary approvals from governmental agencies with jurisdiction over the Project for the issuance of all permits and other entitlements for the construction of the Project, subject only to the submission of the [mal plans and the payment of the applicable permit fees and public capital improvement charges; (vi) the Title Company has confirmed that it shall issue a CLTA Owner's policy of title insurance for the Property in a form acceptable to the Developer; (vii) the Agency has executed and delivered to the Escrow Agent in recordable form the Agency Grant Deed, the Agency Regulatory Agreement and all other documents required under this Agreement in recordable form; (viii) the HUD use agreement, the HUD regulatory agreement, the HUD deed of trust and other recordable documents required by HUD (the "HUD Recording Documents") have been delivered to the Escrow Agent in recordable form, and the Developer has received and the Escrow Agent has confirmed that the proceeds of the HUD Section 202 Grant are immediately available to the order and account of the Developer in an amount sufficient to fund the Escrow, if applicable, together with all other payments and disbursements approved by HUD to be made at the time of the Closing; and (ix) the Agency has deposited with the Escrow Agent the full amount of the Agency Affordable Housing Grant Funds which funds shall be disbursed by the Escrow Agent on the Closing Date to pay the Impact Fees. The Agency Affordable Housing Grant Funds are to be disbursed to pay for the Impact Fees before funds under the HUD Capital Advance are disbursed in connection with the construction and the development of the Project; and Any waiver of the satisfaction of the foregoing conditions by the Developer must be expressed and in writing. In the event that the foregoing conditions have not been satisfied 6 P:lAgendaslAgenda AnachmentslAienda AttachmentslAgenda AttachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc within the time provided in the Schedule of Performance but not in all events by a date not later than thirty (30) calendar days after written request from the Developer, or in the event that the Agency may be in default, the Developer may terminate this Agreement by delivering a written notice in accordance with Section 3.1 0, subject to any cure rights provided therein. From time- to-time, during the period when the Escrow is open, the Agency may send written notices to the Developer which reference this Section 3.3(a), and within ten (10) calendar days following the receipt of such a notice the Developer shall provide the Agency with a suitably detailed written report which describes the action, if any, which the Developer believes may be necessary in order for any of the Developer Conditions to the Closing be satisfied. (b) The obligation of the Agency to transfer the Property to the Developer and to Close the Escrow shall be contingent upon the satisfaction, or waiver by the Agency, of each of the following conditions (collectively, the "Agency Conditions") by the date set forth herein: (i) the Developer has provided the Agency with the information set forth in Section 3.7, and the Firm Commitment from HUD for the HUD Section 202 Capital Grant remains in full force and effect without material modification or change, and such other commitments as necessary to finance the acquisition of the Property and development of the Project or otherwise provided the Agency with financial statements or loan commitments which evidence the Developer's capability to accept title to the Property and to acquire the Property and to develop the Project, remain in full force and effect without material modification or change; (ii) the Developer has delivered its written notice of acceptance of the condition of the Property to the Agency as provided in Section 3.8; (iii) the Developer has not made or attempted to make a Transfer in violation of Section 4.3 and no default by the Developer exists under this Agreement; (iv) the Developer has deposited into Escrow and executed in recordable form the certificate of acceptance of the Agency Grant Deed, the Agency Regulatory Agreement and the other documents required under this Agreement and has delivered to the Escrow Agent any other funds required to pay costs of the Developer to be paid at the time of Closing; (v) the Developer has accepted the condition of the Property and shall have timely performed each and every other obligation of the Developer hereunder; (vi) the Developer has submitted the final building plans for the Project for approval by the Agency as provided in Section 4.1 below and the Agency has approved such final building plans; and (vii) the Developer has obtained all other necessary governmental approvals for the issuance of all permits and other entitlement for the construction of the Project, subject only to the submission of fmal plans and the payment of the applicable permit fees and public capital improvement charges. 7 P:lAgendaslAgenda Attaclunents\Agenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc Any waiver of the satisfaction of the foregoing conditions by the Agency must be expressed and in writing. In the event that the foregoing conditions have not been satisfied within the time provided in the Schedule of Performance, or in the event that the Developer may be in default, the Agency may terminate this Agreement by delivering a written notice in accordance with Section 3.10, subject to any cure rights provided therein. From time-to-time, during the period when the Escrow is open the Developer may send written notices to the Agency which reference to this Section 3.3(b), and within ten (10) calendar days following the receipt of such notice the Agency shall provide the Developer with a suitably detailed written report which describes the action, if any, which the Agency believes is necessary in order for any of the foregoing Agency Conditions to the Closing be satisfied. 3.4. Tax Reporting and Miscellaneous Matters. Prior to the Closing, the Developer and the Agency shall execute and deliver a certificate (the "Taxpayer ID Certificate") in such form as may be required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or the regulations issued pursuant thereto, certifying as to the description of the Property, date of Closing, gross price, if any, and taxpayer identification number for the Developer and the Agency. Prior to the Closing, the Developer and the Agency shall cause to be delivered to the Escrow Agent such other items, instruments and documents, agreements and monies and the parties shall take such further actions, as may be necessary or desirable in order to complete the Close of Escrow. 3.5. Escrow Procedures and Conveyance of the Property. (a) The Closing shall occur upon satisfaction of the Developer Conditions and the Agency Conditions as applicable; provided, however, that notwithstanding any other provision of the Schedule of Performance or Section 7.5 to the contrary, in the event that the Closing has not occurred by a date not later than on or before September 30,2009, for any reason, then after such date, either party who is not then in default may give its written notice of termination of the Escrow which references this Section 3.5(a), whereupon, this Agreement shall terminate and the Escrow shall be canceled. The Escrow Agent shall return any instruments, documents, agreements and/or funds then in its possession to the party who delivered such instruments, documents and/or funds, and each party shall pay one-half (Y2) of the Escrow Agent's reasonable cancellation charges, if any. Upon the payment of such Escrow cancellation charges, the parties shall be mutually released from any further liability hereunder. The final date for the Closing may be extended by the mutual written agreement of the parties. (b) Within ten (10) calendar days prior to the estimated time of the Closing, the Escrow Agent shall advise the Agency and the Developer in writing of the approximate amount of the fees, charges, and other costs necessary to Close the Escrow, and of any instruments, documents and/or agreements which have not been provided by said party and which must be deposited in Escrow to permit the Closing. (c) On or before the third business day preceding the Closing Date, the Agency shall tender the Agency Affordable Housing Grant in immediately available funds to the Escrow Agent, if requested by the Developer under Section 4.9, and the Agency shall execute, acknowledge and deposit into Escrow: (i) the Agency Grant Deed; (ii) the Agency Regulatory Agreement; and (iii) the FIRPT A Certificate. 8 P:lAgendaslAgenda AttachmentslAge1i1la AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Be:nardino V, Inc. DDAdoc (d) On or before the Closing, the Developer shall execute and acknowledge, as may be required and deposit into Escrow: (i) the acceptance of the Agency Grant Deed; (ii) as required by HUD, the HUD Recording Documents; (iii) other security documents of a lender approved by the Agency pursuant to Section 3.7, if any; (iv) the Agency Regulatory Agreement; and (vi) payment to the Escrow Agent of the Developer's share of costs, if any, as determined by the Escrow Agent pursuant to Section 3.9. (e) Upon the completion by the Agency and by the Developer of the deliveries and actions specified in these escrow instructions the Escrow Agent shall be authorized to pay any documentary transfer taxes and recording fees, if required by law, and thereafter cause to be recorded in the appropriate records of San Bernardino County, California, the Agency Grant Deed, the HUD Deed of Trust, the HUD Regulatory Agreement, the HUD Use Agreement, the Agency Regulatory Agreement and the other instruments, documents and/or agreements delivered or exchanged by the parties through this Escrow. Concurrent with recordation, the Escrow Agent shall deliver the Title Policy to the Developer. Following recordation, the Escrow Agent shall deliver copies of said instruments to the Developer and to the Agency (including, without limitation, the delivery to the Agency of a complete set of the [mal and fully executed copies of the HUD Capital Advance Documents) and provide the parties with copies of the final Escrow closing statement of each party. In addition, after deducting any sums specified in this Agreement, the Escrow Agent shall disburse funds to the party entitled thereto. 3.6. Title Matters. (a) At Closing, the Agency shall convey fee title to the Property to the Developer subject only to: (i) the HUD Use Agreement, the 'HUD Deed of Trust, the HUD Regulatory Agreement and the HUD UCC-l Financing Statement; (ii) the Senior Citizen Household use restriction as set forth in the Agency Grant Deed; (iii) the other covenants, conditions and restrictions set forth in the Agency Grant Deed; (iv) the Agency Regulatory Agreement; (v) non- delinquent real property taxes and assessments; (vi) utility easements; (vii) public street easements; (viii) applicable zoning and development regulation of the City as affects the Property; and (ix) covenants, conditions, and restrictions, easements, and other encumbrances and title exceptions approved by the Developer under Section 3.6(b) or otherwise created or consented to by the Developer and acceptable to HUD under the terms of the HUD Capital Advance Documents (collectively, the "Permitted Exceptions"). (b) Within fifteen (15) calendar days after the Escrow is deemed opened, the Agency shall deliver to the Developer a preliminary title report for the Property issued by the Title Company, dated as of the opening of Escrow, together with copies of all title exception/matters referenced therein. Within thirty (30) calendar days following its receipt of the preliminary title report, the Developer shall deliver to the Agency written notice specifying in detail any exception (other than those exceptions specifically listed in Section 3.6(a)) disapproved and the reason thereof. Within fifteen (15) calendar days following its receipt of such written notice from the Developer, the Agency shall deliver written notice to the Developer as to whether the Agency will or will not cause the disapproved exceptions to be removed or to be endorsed with endorsements providing the Developer with reasonable assurance with respect to the disapproved exceptions. If the Agency elects not to cure the disapproved exceptions, the Developer may terminate this Agreement, without any liability of the Agency to the Developer by giving notice which references this Section 3.6(b) and the parties shall be mutually released from any further 9 P:\Agendas\Agenda Attachment'lAgenaa Attachments\Agenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdoc duty or responsibility. If the Agency so elects to cure the disapproved exceptions, the Agency shall do so on or before the Closing. (c) Upon the Closing, the Title Company shall furnish the Developer with a CL T A owner's policy of title insurance insuring the Developer's fee interest in the Property subject only to the Permitted Exceptions (the "Title Policy"). The Agency acknowledges that the Permitted Exceptions and the Title Policy. must also be in a form acceptable to HUD under the HUD Capital Advance Documents. The Agency shall pay the premium charged by the Title Company for the issuance of the Title Policy. The Developer shall be responsible for obtaining and paying for the cost of any title policy insuring the interest of HUD or any other interested person in the Property and/or the Project. 3.7. Developer Financing. (a) Within the time set forth in the Schedule of Performance, the Developer shall submit to the Interim Executive Director of the Agency (the "Interim Executive Director") for approval evidence reasonably satisfactory to the Interim Executive Director that the Developer has the financial capability necessary for the development of the Project and operation of the Senior Citizen Household rental housing facility following its completion, pursuant to this Agreement. Such evidence of [mancial capability shall include all of the following: (i) reliable cost estimates for the Developer's total cost of acquiring the Property and developing the Project (including both hard and soft costs); (ii) a complete copy of the Firm Commitment for the HUD Section 202 Capital Grant executed by HUD for the financing and acquisition of the Property and development of the Project; (iii) a financial statement and/or other documentation reasonably satisfactory to the Interim Executive Director sufficient to demonstrate that the Developer has adequate funds available and committed (inclusive of the funds available to the Developer following the Close of Escrow under the Agency Affordable Housing Grant) to cover the difference between the total acquisition and development costs of the Project; (iv) a copy of the proposed contract between the Developer and its general contractor for all of the improvement of the Project certified by the Developer to be a true and correct copy thereof. The Interim Executive Director shall also have the right to review and approve any revisions that are made to the proposed contract with the general contractor after its approval by the Interim Executive Director. The form of construction contract required by HUD and the approval of the contractor by HUD shall be deemed approved by the Agency; (v) evidence of the good faith efforts of the Developer to implement a local resident employment history program during the course of construction and improvement ofthe Project as set forth in Section 4.7; 10 P:lAgendaslAgenda AnachmenlS\AgernIa AttachmentslAgenda Attachments\Agrmls-Amend 2009\06-01-09 TELACU Housing _ San Bernardino V, Inc. DDAdoc (vi) Project operating cost projections and a completed Project management operations plan in a form reasonably satisfactory to the Interim Executive Director which demonstrates that the Developer has an acceptable plan of operation and management of the Project. Such a management operations plan approved or accepted by HUD under the terms of the HUD Capital Advance Documents shall be deemed acceptable to the Interim Executive Director. (b) the Developer covenants and agrees to take all action, furnish all information, give all consents and pay all sums required to keep the Firm Commitment and the HUD Section 202 Grant in full force and effect and shall comply with all conditions thereof, and shall promptly execute, acknowledge and deliver all applications, credit applications and data, [mancial statements, and documents in connection therewith, and shall actually draw upon and utilize the full amount of the HUD Section 202 Grant only for the costs of the Project authorized under the HUD Capital Advance Documents including, but not limited to, the acquisition of the Property, architectural, engineering, legal, organizational, insurance and developer fees and for paying for the cost of construction and improvement of the Project. (c) The Developer hereby authorizes the Agency to contact HUD from time-to-time as the Agency may deem necessary or appropriate to confirm information as relates to the HUD Section 202 Grant for the Project. 3.8 Condition of the Site. (a) The Developer shall have the right to approve the physical condition of the Property, including its soil and environmental condition, based upon the Developer's inspection of the Property and the records of the Agency. The Developer shall, at its sole cost and expense, retain the consultant or consultants of its choice to assist the Developer in its review of any and all aspects of the soils, environmental, geotechnical and other physical conditions of the Property, including all information, reports and records of the Agency pertaining to the physical condition of the Property. The Developer and its consultants shall also have the right to make any inspection of the Property and to conduct any intrusive soil sampling tests it deems appropriate with respect to either its geotechnical soils investigations or soils investigations relating to the potential presence of any Hazardous Substance on the Property. The Developer shall notify the Agency at least seventy-two (72) hours in advance of any entry onto the Property pursuant to Section 3.8(c) and in the event the Developer or its consultant desires to conduct tests involving the drilling, trenching or boring of the soils located on the Property, the Developer's consultant shall work with and cooperate with the Agency to assure that all such tests are conducted in a manner consistent with the highest industry standards and in a manner that will not damage or injure the Property. Within the time provided in the Schedule of Performance, the Developer shall conduct and complete its own independent inspection and investigation of the Property, and its investigation of all records and reports concerning the physical condition of the Property, determine if the soils, environmental, geotechnical and other physical conditions ofthe Property are suitable for the development and construction of the Project on the Property. The Developer shall not rely on any statement or representation by the Agency or the City relating to the conditions of the Property. Without limiting the foregoing, the Agency makes no representation or warranty as to whether the Property presently complies with environmental laws or whether the Property contains any Hazardous Substances. By not later than the date indicated in the Schedule of Performance, the Developer shall deliver a written notice to the 11 P:lAgendaslAgenda AttachmenlS\Agenda AttachmentslAgenda AttachmenlSlAgnnts-Amend 20091OlHl1-09 TELACU Housing - San Bernardino V, Inc DDA.doc Agency which references this Section 3.8 and includes a statement that either: (i) the Developer accepts the condition of the Property in its "AS-IS", "WHERE IS" and "SUBJECT TO ALL F AUL TS" conditions; or (ii) the Developer disapproves the condition of the Property for the specific reason(s) or grounds set forth in such notice. The Agency shall have no obligation or liability to the Developer to correct, cure, remedy or abate any soils, environmental, geotechnical or other physical condition of the Property, including without limitation the remediation of any Hazardous Substance thereon, which may provide the Developer with a basis to disapprove the condition of the Property. If the Developer notifies the Agency in writing of its disapproval of the soils, environmental, geotechnical and/or other physical conditions of the Property, then this Agreement shall be subject to termination by either party without liability to the other upon the giving of notice of termination which references this Section 3.8, whereupon the parties shall be mutually released from all further responsibilities or liabilities. (b) The Developer shall take the Property in its "AS-IS", "WHERE IS" and "SUBJECT TO ALL F AUL TS" condition and the Developer shall be responsible for any defects in the Property, whether patent or latent, including, without limitation, the physical, environmental and geotechnical condition of the Property, and the existence of any contamination, Hazardous Substances, vaults, debris, pipelines, abandoned wells or other structures located at, on, in, above, under, from or about the Property. The Agency makes no representation or warranty concerning the physical, environmental, geotechnical or other condition of the Property, the suitability of the Property for the Project, or the present use of the Property, and specifically disclaims all representations or warranties of any nature concerning the Property made by it, the City and their employees, agents and representatives. The foregoing disclaimer of the Agency includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence of Hazardous Substances or similar substances, the purpose for which the Property is suited, or drainage. The Agency shall not be responsible for grading the Property and makes no representation or warranty concerning the compaction of soil upon the Property, nor of the suitability of the soil for construction. The Developer has specifically reviewed and accepts the provisions of this Section 3.8(b), and the provisions of this Section 3.8(b) shall survive the Close of Escrow. Initials of Developer (c) Prior to the date specified in the Schedule of Performance for the approval of the condition of the Property under this Section 3.8, the Developer, its employees, agents or contractors have the right, at the Developer's sole cost and expense, to enter onto the Property to conduct soils, engineering, or other tests and studies, to perform preliminary work or for any other purposes to carry out the terms of this Agreement; provided, however, that no work of improvement of the Project shall commence until the Escrow has closed and the Developer has acquired the fee title interest in the Property from the Agency. The Developer shall indemnify, defend and hold the Agency harmless from and against any claims, injuries or damages arising out of or involving any such entry or activity as provided in this Section 3.8; provided, however, the Developer shall have no liability for any claims, injuries or damages arising out of the intentional misconduct, gross negligence or gross omissions of the Agency. Any such activity 12 P:lAgendaslAgenda Attachments~d. AttachmentslAgenda AllachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc shall be undertaken by the Developer only after securing any necessary permit from the appropriate governmental agencies and delivering to the Agency certificates of insurance evidencing the coverages required in Section 4.I(u). In the event HUD acquires title to the Property in accordance with and under the HUD Capital Advance Documents, HUD shall not have any liability under Section 3.8(b) and under Section 3.8(c) of this Agreement. 3.9. Cost of Escrow. (a) At the Closing, the Escrow Agent is authorized to allocate certain Escrow costs as follows: the Agency shall pay (i) the documentary transfer tax; (ii) recording fees for the Agency Grant Deed and the Agency Regulatory Agreement; (iii) the premium for the Title Policy; and (iv) all of the customary service charges and expenses of the Escrow Agent. The Developer shall pay (1) the recording charges for all financing documents and other matters, including the HUD Capital Advance Documents; and (2) the price for any endorsements or binders to the Title Policy as the Developer may in its discretion request (including any separate policies of title insurance in favor of HUD or third parties as may be necessary). Each party shall pay its own attorneys' fees. Any other usual and customary fees or costs which are not specifically allocated herein shall be paid by the Agency provided, however, that the parties who incur special messenger or overnight delivery charges shall be solely responsible for such expenses of the Escrow Agent. (b) Ad valorem taxes and assessments on the Property, if any, for the current year shall be prorated by the Escrow Agent as of the date of the Closing, and the Agency is responsible for any such taxes or assessments levied, assessed or imposed prior to the Closing, and the Developer is responsible for those after the Closing. If the actual taxes are not known at the date of the Closing, the proration shall be based upon the most current tax figures. When the actual taxes for the year of the Closing become known, the Developer and the Agency shall, within thirty (30) calendar days after written notice, prorate the taxes in cash between themselves outside of the Escrow. (c) In the event that a party who is not then in default may terminate this Agreement before the Closing, the parties shall each pay one-half (~) of the Escrow Agent's fees, charges, and expenses, including Title Policy cancellation charges, if any. In the event that a party who is not in default may terminate this Agreement as provided in Section 3.10, then the party who is in default shall be responsible for paying for all of the Escrow Agent's fees, charges, and expenses, including Title Policy cancellation charges, if any: 3.10. Cancellation of Escrow Prior to the Closing Upon Failure of Conditions Without Fault by Either Party, Default and Termination. The Escrow may be canceled and this Agreement terminated prior to the Closing upon the written notice of either party who then shall have fully performed its obligations hereunder if: (i) either the Developer Conditions or the Agency Conditions have not occurred or have not been approved, disapproved, or waived as the case may be, by the approving party by the date established either in the Schedule of Performance or herein for the occurrence of such condition; or (ii) Escrow is not in a position to close by no later than on or before September 30, 2009, for any reason. In the event of the foregoing, the terminating party may demand, in writing, return of its money, instruments, agreements, papers, and/or documents from the Escrow Agent and shall deliver a copy of such notice to the non-terminating party. Fifteen (15) calendar days after such notice has been 13 P:lAgendaslAgenda Attachments\Agenda AttachmentslAgenda AnachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdoc delivered to the Escrow Agent and the other party, this Agreement shall terminate and the Escrow Agent shall cancel the Escrow without further instruction, whereupon the parties shall be mutually released from any further obligation; provided, however, that the mutual representations of the parties under Section 3.12 and the indemnity provisions of Section 6.7 shall survive this Agreement. 3.11. Responsibilities of the Escrow Agent. (a) All funds received in Escrow shall be deposited by the Escrow Agent in an escrow account with any state or national bank doing business in the State of California. (b) All communications from the Escrow Agent shall be directed to the addresses and in the manner provided in Section 7.2 of this Agreement for notices, demands and communications between the Agency and the Developer. (c) The Escrow Agent is not to be concerned with the sufficiency, validity, correctness of form, or content of any document prepared outside of Escrow and delivered to Escrow. The sole duty of the Escrow Agent is to accept such documents and follow the Developer's and the Agency's instructions for their use. (d) Upon the satisfaction of the Developer's Conditions and the Agency's Conditions, the Escrow Agent shall comply with the fmal written Escrow Closing instructions addressed to the Escrow Agent by the Developer and by the Agency. ( e) The Escrow Agent shall in no case or event be liable for the failure of any of the conditions to the Closing, or for forgeries or false impersonation, unless such liability or damage is the result of negligence or willful misconduct by the Escrow Agent. 3.12. No Real Estate or Broker Commission Payable. The parties mutually represent and warrant that no real estate broker commission or finder's fee is payable to a third party in connection with the transfer of the Property by the Agency to the Developer. 4. Development of the Project by the Developer. 4.1. Scope of Development. (a) Except for the work of technical investigation and testing of soils as authorized under Section 3.8, no other work of improvement of the Project shall be undertaken on the Property prior to the Closing. It is the intent of the parties that promptly following the Close of Escrow the Developer shall commence the work of improvement of the Project on the Site. The Project consists of the elements set forth in the Scope of Development (See Exhibit "E"). (b) The City's zoning ordinance and the City's building requirements will be applicable to the use of the Site and development of the Project. The Developer acknowledges that the plans for development of the Site as set forth in the Scope of Development shall be subject to the City's zoning ordinance and building requirements. No action by the Agency or the City with reference to this Agreement or related documents shall be deemed to constitute a waiver of any City requirements which are applicable to the Site or to the Developer or to any 14 P:\AgendaslAgenda Attachments\Agenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc successor-in-interest of the Developer except by modification or variance duly approved by the City in accordance with the applicable law in its sole and absolute discretion. (c) The Scope of Development set forth in Exhibit "E", is hereby approved by the Agency upon its execution of this Agreement. The Project shall be developed and completed in conformance with the Scope of Development and any and all other plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and between the Developer and the Agency. The Interim Executive Director of the Agency is authorized to approve the preliminary and the final construction plans for the Project, together with the preliminary and the final landscaping plans provided that the Interim Executive Director finds at the time of such approval that such plans are reasonably consistent with the Scope of Development. (d) The approval of the Scope of Development by the Agency shall not be binding upon the Mayor and Common Councilor the Planning Commission of the City with respect to any approvals of the Project required by such other bodies under applicable law. If any revision of the Scope of Development is required by another government official, agency, department or bureau having jurisdiction over the development of the Site and the Project as a result of development project permits, reviews and approvals under applicable law, the Developer and the Agency shall cooperate in efforts to either modify the Scope of Development to accommodate such regulatory requirements or obtain waivers or recommendation of such revisions by the regulatory agencies. The Agency shall not unreasonably withhold approval of such revisions to the Scope of Development as may be required by such regulatory approval powers. (e) Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all reasonable conditions of approval applicable to all permits and other governmental actions affecting the development of the Site and the Project. (f) The Developer shall at its sole cost and expense cause landscaping plans in connection with development of the Project to be prepared and submitted to the City by a licensed landscape architect within the times provided in the Schedule of Performance. The Developer shall prepare and submit to the City for its approval, preliminary and landscaping plans for the Project which are consistent with City Code requirements. These plans shall be prepared, submitted and approved within the times respectively established therefore in the Schedule of Performance as shown on Exhibit "C", and shall be consistent with the Scope of Development. (g) The Developer shall, at its sole cost and expense prepare and submit development plans, construction drawings and related documents within the times provided in the Schedule of Performance for the development of the Project. Such development plans, construction drawings and related documents shall be prepared and submitted in sufficient detail necessary to obtain all necessary building permits from the City for construction of the Project. The Agency shall cooperate with and shall assist the Developer in order for the Developer to obtain the approval of any and all development plans, construction drawings and related documents submitted by the Developer to the City consistent with this Agreement within thirty (30) calendar days following the City's receipt of said plans. Any failure by the City to approve any of such plans or to issue necessary permits for the development of the Site within said thirty (30) calendar day period 15 P:lAgendaslAgenda AttachmentsV\8enda AttachmentslAgenda AttachmenlslAgrmls-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond said thirty (30) calendar day period in which the City approves said plans; provided, however, that in the event that the City disapproves of any of such plans, the Developer shall within thirty (30) calendar days after receipt of such disapproval revise and resubmit such plans in accordance with the City's requirements and in such form and substance so as to obtain the City's approval thereof. If the City fails to approve or disapprove the plans within thirty (30) calendar days following submission, the plans are deemed approved. (h) During the preparation of all drawings and plans in connection with the development of the Project, the Developer shall provide to the Agency regular progress reports to advise the Agency of the status of the preparation by the Developer, and the submission to and review by the City of construction plans and related documents. The Developer shall communicate and consult with the Agency as frequently as is necessary to ensure that any such plans and related documents submitted by the Developer to the City are being processed in a timely fashion. (i) The Agency shall have the right of reasonable architectural review and approval of building exteriors and design of the structures to be constructed on the Site. The Agency shall also have the right to review all plans, drawings and related documents pertinent to the development of the Project in order to ensure that they are consistent with this Agreement and with the Scope of Development. G) [RESERVED--NO TEXT] (k) [RESERVED--NO TEXT] (1) The Interim Executive Director of the Agency shall approve any modified or revised plans, drawings and related documents to which reference is made in this Agreement within the times established in the Schedule of Performance as long as such plans, drawings and related documents are generally consistent with the Scope of Development and any other plans which have been approved by the Agency. Upon any disapproval of plans, drawings or related documents, the Interim Executive Director of the Agency shall state in. writing, the reasons for such disapproval. The Developer, upon receipt of notice of any disapproval, shall promptly revise such disapproved portions of the plans, drawings or related documents in a manner that addresses the reasons for disapproval and reasonably meets the requirements of the Agency in order to obtain the Agency's approval thereof. The Developer shall resubmit such revised plans, drawings and related documents to the Agency as soon as possible after its receipt of the notice of disapproval and, in any event, no later than thirty (30) calendar days thereafter. The Interim Executive Director of the Agency shall approve or disapprove such revised plans, drawings and related documents in the same manner and within the same times as provided in this Section for approval or disapproval of plans, drawings and related documents initially submitted to the Agency. (m) If the Developer desires to make any change in the construction drawings, plans and specifications and related documents after their approval by the Agency and/or by the City, the Developer shall submit the proposed change in writing to the Interim Executive Director of the Agency and/or to the City for their independent approval. The Interim Executive Director of the Agency shall notify the Developer of approval or disapproval thereof in writing within thirty 16 P:lAgendaslAgenda Atlachmentru\genda AnachmentslAgenda Attachments\Agnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino Y, Inc. DDAdoc (30) calendar days after submission to the Agency. This thirty (30) calendar day period may be extended by mutual consent of the Developer and the Interim Executive Director of the Agency. Any such change shall, in any event, be deemed to be approved by the Agency unless rejected, in whole or in part, by written notice thereof submitted by the Interim Executive Director of the Agency to the Developer, setting forth in detail the reasons therefore, and such rejection shall be made within said thirty (30) calendar day period unless extended as permitted herein. The Agency shall use its best efforts to cause the City to review and approve or disapprove any such change as provided in Section 4.1 (s) hereof. (n) The Developer, upon receipt of a notice of disapproval by the Agency and/or by the City, may revise such portions of the proposed change in construction drawings, plans and specifications and related documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or to the City for their independent approval in the manner provided in Section 4.1 (g) hereof. (0) The Developer shall have the right, during the course of construction of the Project to make changes in construction of structures and "minor field changes" without seeking the approval of the Agency; provided, however, that such changes do not affect the type of use to be conducted within all or any portion of a structure. Said "minor field changes" shall be defmed as those changes from the approved construction drawings, plans and specifications which have no substantial effect on the improvements and are 'made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section shall be deemed to constitute a waiver of or change in the City's Building Code requirements governing such "minor field changes" or in any and all approvals by the City otherwise required for such "minor field changes". (P) The cost of designing, constructing, installing and equipping the Project, including the installation of all off-site public improvements, shall be borne by the Developer. (q) [RESERVED--NO TEXT] (r) The Developer shall pay for any and all costs, including, but not limited to, the costs of design, construction, relocation and securing of permits for utility improvements and connections which may be required in developing the Project. The Developer shall obtain any and all necessary approvals for utility services prior to the commencement of applicable portions of said construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. (s) The Developer shall commence the work of improvements of the Project on the Site within ninety (90) calendar days following the Close of Escrow for the Site, and thereafter shall diligently prosecute such construction to completion. All construction and development obligations and responsibilities of the Developer as related to the Project shall be initiated and completed within the times specified in the Schedule of Performance, or within such reasonable extensions of such times as may be granted by the Agency or as otherwise provided for in this Agreement. The Developer shall substantially complete the improvement of the Project by the date set forth in the Schedule of Performance. During the course of the construction of the Project the Schedule of Performance may be revised, from time-to-time, as mutually agreed upon in writing by and between the Developer and the Agency. Any and all deadlines for 17 P:\AgendaslAgenda AttaehmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lne OOAdoc performance by the parties shall be extended for any times attributable to delays which are not the fault of the performing party and are caused by the other party, other than periods for review and approval or reasonable disapprovals of plans, drawings and related documents, specifications or applications for permits as provided in this Agreement. Following the commencement of the work of improvement of the Project, all changes in construction shall also require the prior written approval ofHUD. (t) During the period of construction of the Project, the Developer shall submit to the Agency written progress reports when and as reasonably requested by the Agency but in no event more frequently than every four (4) weeks. The reports shall be in such form and detail as may reasonably be required by the Agency, and shall include a reasonable number of construction photographs taken since the last such report submitted by the Developer. In addition, the Developer will attend Agency meetings when requested to do so by Agency Staff. (u) Prior to entry by the Developer to conduct limited testing on the Property pursuant to Section 3.8, and following the Closing before the commencement of any construction by the Developer of the Project, the Developer shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to the Agency, during the entire term of such entry or construction, the following policies of insurance: (i) a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of One Million Dollars ($1,000,000.00) or (ii) bodily injury limits of Five Hundred Thousand Dollars ($500,000.00) per person, One Million Dollars ($1,000,000.00) per occurrence, One Million Dollars ($1,000,000.00) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000.00) per occurrence and Five Hundred Thousand Dollars ($500,000.00) in the aggregate. (ii) a policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Developer and the Agency, and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Developer in the course of carrying out the work or services contemplated in this Agreement. (iii) a policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000.00) per person and Five Hundred Thousand Dollars ($500,000.00) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000.00) per occurrence and One Hundred Thousand Dollars ($100,000.00) in the aggregate or (ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000.00). Said policy shall include coverage for owned, non-owned, leased and hired vehicles. (iv) during the course of construction and improvement of the Project, a policy of builder's risk insurance covering the full replacement value of the Project. 18 P:lAgendaslAgenda Attachments\Agenda AnachmentslAgenda AlIacbmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Ine DDAdoc All of the above policies of insurance shall be primary insurance and shall name the City and the Agency, and their officers, employees, and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City and the Agency and their officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) calendar days prior written notice by registered mail to the Agency. In the event any of the said policies of insurance are canceled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Interim Executive Director of the Agency. No work or improvement of the Site or operation of the Project shall commence until the Developer has provided the Agency with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages, and said certificates of insurance or binders are approved by the 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 Interim Executive Director of the Agency due to unique circumstances. The Developer shall provide in all contracts with contractors, subcontractors, architects, and engineers who provide services in connection with the improvement of the Project that such persons shall maintain the same policies of insurance required to be maintained by the Developer pursuant to this Section, unless waived by the Interim Executive Director of the Agency. Compliance by the Developer with the insurance requirements of HUD for Section 202 projects shall be deemed to meet the foregoing requirements during the period of the HUD Capital Advance Documents so long as the Agency, the City and their officers, employees, and agents are named as additional insureds on all said policies as evidenced by certificates of insurance issued to the City and the Agency. The Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which the Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or omissions or the activities or omissions of any individual or entity for which the Developer is otherwise responsible. (v) The Developer, for itself and its successors and assigns agrees that in the construction of the Project, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry. (w) The Developer shall carry out its construction of the Project in conformity with the HUD Capital Advance Documents and all applicable laws, including all applicable state labor standards and requirements. (x) The Developer shall, at its own expense, secure or shall cause to be secured, any and all permits which may be required for such construction, development or work by the City or any other governmental agency having jurisdiction. The Agency shall cooperate in good faith 19 P:lAgendaslAgenda AllachmentslAgell1la AttachmenlslAgenda AllachmenlslAgrmlS-Amend 2009\06-01-09 TELACU Housing - San Bernardinn V, Inc. DDAdoc with the Developer in the Developer's efforts to obtain from the City or any other appropriate governmental agency, any and all such permits applicable to the development of the Project. (y) Officers, employees, agents or representatives of the Agency shall have the right of reasonable access to the Site, without the payment of charges or fees, during normal construction hours during the period of construction of the Project for the purpose of verifying compliance by the Developer within the terms of this Agreement. Such officers, employees, agents or representatives of the Agency shall be those persons who are so identified by the Interim Executive Director. Any and all officers, employees, agents or representatives of the Agency who enter the Site pursuant hereto shall identify themselves at the job site office upon their entrance on to the Site and shall at all times be accompanied by a representative of the Developer while on the Site; provided, however, that the Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours upon reasonable notice from the Agency. The Agency shall indemnify and hold the Developer harmless from injury, property damage or liability arising out of the exercise by the Agency and/or the City of this right of access, other than injury, property damage or liability relating to the negligence of the Developer or its officers, agents or employees. (z) The Agency shall inspect relevant portions of the construction site prior to issuing any written statements reflecting adversely on the Developer's compliance with the terms and conditions of this Agreement pertaining to development of the Site. 4.2. Taxes, Assessments, Encumbrances and Liens. The Developer shall pay prior to the delinquency, all real property taxes and assessments assessed and levied on or against the Site subsequent to the Close of Escrow. The Developer shall not place and shall not allow to be placed on the Site any mortgage, trust deed, deed of trust, encumbrance or lien not otherwise authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Site, or shall assure the satisfaction thereof. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto. The covenants of the Developer set forth in this Section relating to the placement of any unauthorized mortgage, trust deed, deed of trust, encumbrance or lien, shall remain in effect only until the Certificate of Completion has been recorded with respect to redevelopment of the Project. 4.3. Change in Ownership Management and Control of the Developer -- Assignment and Transfer. (a) Transfer, as used in this Section 4.3, the term "Transfer" means: (1) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, by the Developer of more than a 49% interest (or series of such sales, assignments and the like, which in the aggregate, exceed a disposition of more than a 49% interest) with respect to its interest in this Agreement, the Site, or the Project, or any part thereof, or any interest therein, or of the improvements constructed thereon, or any contract or agreement to do any of the same; or 20 P:lAgendaslAgenda Attachment'lAgenda AttachmentslAgenda AltAchments\Agrmts-Amend 2009\06-01-09 TELACU Hou,ing - San Bernardino Y, Inc. DDAdoc (2) Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any ownership interest of the Developer, its nonprofit corporation business organization (or series of such sales, assignments and the like, which in the aggregate, exceeded a disposition of more than a 49% interest); or (3) Any merger, consolidation, sale or lease of all or substantially all of the assets of the Developer in the Agreement, the Site or the Project (or series of such sales, assignments and the like, which in the aggregate, exceeded a disposition of more than a 49% interest); or (4) The leasing of part or all of the Site or the Project except for the lease of the Project upon its completion by the Developer to Low-Income Senior Citizen Households. (b) This Agreement is entered into solely for the purpose of the redevelopment of the Site and the improvement of the Project and the subsequent operation and use of the Site by the Developer for renovated dwelling unit occupancy by Low-Income Senior Citizen Households in accordance with the terms of this Agreement. The Developer recognizes that the qualifications and identity ofthe Developer are of particular concern to the Agency, in view of: (I) the importance of the development of the Site to the general welfare of the community; and (2) the fact that a Transfer is for all practical purposes a transfer or disposition of the responsibilities of the Developer, as applicable, with respect to the development of the Site and the Project. The Developer further recognizes and acknowledges that it is because of the qualifications and identity of the Developer that the Agency is entering into this Agreement with the Developer, and, as a consequence, Transfers are permitted only as provided in this Agreement. (c) The limitations on a Transfer as set forth in this Section 4.3 shall apply until such time as a Certificate of Completion is approved by the Agency and filed for recordation as provided in Section 4.6. Except as expressly permitted in this Agreement, the Developer represents and agrees that it has not made nor shall it create or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the Agency until such time as a Certificate of Completion has been recorded. Any Transfer made in contravention of this Section 4.3 shall be voidable at the election of the Agency and shall then be deemed to be a default under this Agreement. After the date of recordation of a Certificate of Completion, certain other provisions of this Agreement shall nonetheless be applicable to subsequent conveyances of interest in the Site, or portions thereof, as provided in the Agency Grant Deed and in the Agency Regulatory Agreement. (d) The following types of a Transfer shall be permitted and approved by the Agency and are referred to herein as a "Permitted Transfer": 21 P:lAgendaslAgenda Attachments\Agenda AttachmentslAgenda Allachments\Agrmts-Amend 2009\06-01~9 TIOLACU Housing - San Bernardinn V, Inc. DDAdoc (1) Any Transfer by the Developer creating a "Security Financing Interest" in the Site (including such a Transfer under the HUD Capital Advance Documents) which conforms to the provisions of Section 4.4; (2) Any Transfer directly resulting from the foreclosure of a Security Financing Interest created by the Developer in the Site or the granting of a deed in lieu of foreclosure of a Security Financing Interest; (3) Any Transfer of any interest in the Developer, irrespective of the percentage of ownership to any non-profit affiliate of or other non-profit entity controlled by the Developer, or to any other entity in which the Developer owns a controlling interest; (4) Any Transfer of the Site or the Project to HUD and thereafter, to HUD's transferee, or any transfer otherwise approved in writing by HUD. (e) No Permitted Transfer of this Agreement or any interest in the Site or the Project, by the Developer (other than a Permitted Transfer created pursuant to a Security Financing Interest under Section 4.3(d)) shall be effective unless, at the time of the Permitted Transfer, the person or entity to which such Transfer is made, shall expressly assume the obligations of the Developer under this Agreement and such person also agrees to be subject to the conditions and restrictions to which the Developer is subject under this Agreement. Such an assumption of obligation shall be evidenced by a written instrument delivered to the Agency in a recordable form which is satisfactory to the Agency. (f) The Agency may, in its reasonable discretion, approve in writing any other Transfer as requested by the Developer, provided such proposed transferee can demonstrate successful and satisfactory experience in the ownership, operation, and management of a Low- Income Senior Citizen Household rental housing facility operation similar to the Project. Any such transferee for itself and its successors and assigns, and for the benefit of the Agency, shall expressly assume all of the obligations of the Developer to the Agency under this Agreement. There shall be submitted to the Agency for review, all instruments and other legal documents proposed to effect any such other Transfer; and the approval or disapproval of the Agency, shall be provided to the Developer in writing within thirty (30) calendar days of receipt by the Agency of the Developer's request, and the Agency approval of a transfer and shall not be unreasonably withheld or delayed upon written notice to the Agency, and any Transferee approved by HUD shall be deemed approved by the Agency; provided, however, such Transferee shall assume the obligations of this Agreement. (g) Following the issuance of a Certificate of Completion, the Developer shall be released by the Agency from any liability under this Agreement which may arise from a default of a successor-in-interest occurring after the date of such a Transfer; provided, however that the covenants of the Developer as set forth in the Agency Grant Deed and in the Agency Regulatory Agreement shall run with the land for the term as provided in the Agency Grant Deed and in the Agency Regulatory Agreement. 22 P:lAgendaslAgenda Attachment'V\genda AttachmentslAgenda Attachments\Agnnu-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc 4.4. Security Financing; Right of Holders. (a) Notwithstanding any provision of Section 4.3 to the contrary, mortgages, deeds of trust, or any other form of lien required for any reasonable method of financing the construction and improvement of the Project, including, without limitation, the HUD Section 202 Grant and any security interest or lien in the Site arising under the HUD Capital Advance Documents are permitted before the recordation of the Certificate of Completion (referred to in Section 4.6 of this Agreement). The Developer shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for financing if the Developer proposes to enter into the same before the recordation of any Certificate of Completion other than the HUD Capital Advance Documents. The Developer shall not enter into any such other conveyance for construction financing without the prior written approval of the Agency, which approval the Agency shall grant if: (i) such approval by the Agency is a condition of the disbursement of the proceeds of the HUD Section 202 Grant to the Developer for the Project; or (ii) any such other conveyance is permitted under the HUD Section 202 Capital Grant for the Project and is given to a responsible [mancial or lending institution including, without limitation, banks, savings and loan institutions, insurance companies, real estate investment trusts, pension programs and the like, or other acceptable persons or entities for the purpose of constructing the Project on the Site. (b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or other refinancing, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the Site whether by voluntary act of the Developer or otherwise; provided, however, that no notice of filing of preliminary notices or mechanic's liens need be given by the Developer to the Agency prior to suit being filed to foreclose such mechanic's lien. ( c) The words "mortgage" and "deed of trust" as used herein shall be. deemed to include all other customary and appropriate modes of financing, real estate construction and land development. (d) The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no manner be obligated by the provisions of this Agreement to construct or complete the improvement of the Site or to guarantee such construction or completion. (e) Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in the completion of construction of the Project, or any breach or default of any other obligations which, if not cured by the Developer, entitle the Agency to terminate this Agreement or exercise its right to re-enter the Property, or a portion thereof under the Agency Grant Deed, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, to commence the cure or remedy of any such default and to diligently and continuously proceed with such cure or remedy within one hundred twenty (120) calendar days after the receipt of the notice; and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within one hundred twenty (120) calendar days after obtaining 23 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, In<:. DDAdoc possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such one hundred twenty (120) calendar day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project (beyond the extent necessary to conserve or protect the improvements or construction already made) without fIrst having expressly assumed the Developer's obligations by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates and must submit evidence satisfactory to the Agency that it has the qualifIcations and fInancial responsibility necessary to perform such obligations. Any such holder completing such improvements in accordance herewith shall be entitled, upon written request made to the Agency, to be issued a CertifIcate of Completion by the Agency. Notwithstanding the preceding paragraph, the provisions of this Section 4.4(e) shall not be applicable during the term of the HUD Capital Advance Documents, unless such application ofthis Section 4.4(e) is fIrst approved in writing by HUD. (f) In any case, where one hundred eighty (180) calendar days after default by the Developer, if the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Site or any portion thereof has not exercised the option to construct the applicable portions of the Project, or has exercised the option but has not proceeded diligently and continuously with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between the holder and the Developer. If the ownership of the Property has vested in the holder, the Agency, may, at its option, but not its obligation, be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (1) The unpaid mortgage, deed of trust or other security interest debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between the holder and the Developer, at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings). (2) All expenses, if any, incurred by the holder with respect to foreclosure. (3) The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Property, such as insurance premiums and real estate taxes. (4) The cost of any improvements made by such holder. (5) An amount equivalent to the interest that would have accrued on the aggregate on such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. 24 P:\AgendaslAgenda AttachmentslAgeil3. AttaehmentslAgenda Attachmenls\Agnnts-Amend 2009\06-01-W TELACU Housing _ San Bernardino V,!ne DDAdoc (6) After expiration of the aforesaid one hundred eighty (180) calendar day period, the holder of any mortgage, deed of trust or other security affected by the option created by this Section, may demand, in writing, that the Agency act pursuant to the option granted hereby. If the Agency fails to exercise the right herein granted within sixty (60) calendar days from the date of such written demand, the Agency shall be conclusively deemed to have waived such right of purchase of the mortgage, deed of trust or other security interest. Notwithstanding the preceding paragraph, the provisions of this Section 4.4(f) shall not be applicable during the term of the HUD Capital Advance Documents, unless such application of this Section 4.4(f) is fust approved in writing by HUD. (g) In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the Property (or any portion thereof) prior to the issuance of a Certificate of Completion for the Project (or any portion thereof), and the holder has not exercised its option to complete the development, the Agency may cure the default but is under no obligation to do so prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be deemed to have a lien of the Agency as may arise under this Section 4.4(g) upon the Property or the Site (or any portion thereof) to the extent of such costs and disbursements; provided however, any such lien in favor of the Agency as may arise under this Section 4.4(g), shall be subject to the prior written approval of HUD. Any such lien shall be subordinate and subject to mortgages, deeds of trust or other security instruments executed by the Developer for the purpose of obtaining the funds to construct and improve the Site as authorized herein. 4.5. Right of the Agency to Satisfy- Other Liens on the Site After Conveyance of Title to the Developer. After the conveyance of title to the Property by the Agency to the Developer and prior to the recordation of the Certificate of Completion (referred to in Section 4.6 of this Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any unauthorized liens or encumbrances on the Property, the Agency shall after one hundred twenty (120) calendar days prior written notice to the Developer have the right, but not the obligation, to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site, or any portion thereof, to forfeiture or sale. 4.6. Certificate of Completion. (a) Following the written request therefore by the Developer and the completion of construction of the Project, excluding any normal and minor building "punch-list" items to be completed by the Developer, the Agency shall furnish the Developer with a Certificate of Completion for the Site substantiated in the form set forth in Exhibit "B". (b) The Agency shall not unreasonably withhold the issuance of a Certificate of Completion. A Certificate of Completion shall be, and shall so state, that it is a conclusive 25 P,lAgendaslAgenda AttachmentslAgenda AttaehmentslAgenda Attachments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,!ne DDAdoc determination of satisfactory completion of all of the work of improvement of the Project. After the recordation of the Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by any covenants contained in the Agency Grant Deed and the Agency Regulatory Agreement. (c) Any Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of San Bernardino County where the Site is located. (d) If the Agency refuses or fails to furnish a Certificate of Completion after written request from the Developer, the Agency shall, within fifteen (15) calendar days of the written request or within three (3) calendar days after the next regular meeting of the Agency, whichever date occurs later, provide to the Developer a written statement setting forth the reasons with respect to the Agency's refusal or failure to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to the Developer or other minor building "punch-list" items, the Agency may issue its Certificate of Completion upon the posting of a bond, cash or irrevocable letter of credit, reasonably approved as to form and substance by the Agency Counsel and obtained by the Developer in an amount representing a fair value of the work not yet completed as reasonably determined by the Agency. For the purpose of the preceding sentence, the words "minor building punch-list items" refers to Project construction items which do not in the aggregate exceed a total cost often percent (10%) of the amount of the HUD-approved construction budget for the Project. If the Agency shall have failed to provide such written statement within the foregoing period, the Developer shall be deemed conclusively and without further action of the Agency to have satisfied the requirements of this Agreement with respect to the Site as if a Certificate of Completion had been issued therefore. (e) A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to fmance the improvements described herein, or any part thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion as referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants or conditions subsequent contained in the Agency Grant Deed attached hereto as Exhibit "D" and in the Agency Regulatory Agreement attached hereto as Exhibit "F". 4.7. Developer Job Program. (a) The Developer will use good faith efforts to cause the general contractor who shall be retained by the Developer to construct the Project to recruit (and to encourage its subcontractors to recruit) local residents of the City of San Bernardino to perform work and construction services relating to the improvement of the Project. Such good faith efforts covenant of the Developer shall remain in effect during the course of the construction and improvement of the Project. The Agency shall consult with the Developer, from time-to-time, to assist the Developer in formulating programs to implement the foregoing; provided, however, that this covenant of the Developer is not intended to require the Developer (or its general 26 PlAgendaslAgenda AnachmentslAgemla AttachmentslAgenda AttachmentslAgrmts-Atnend 2009I06-DI-09IELACU Housing - San Bernardino V, Inc. DDA.doc contractor and subcontractors) to implement any program or engage in any pattern or practice of recruitment orhiring at the Project which would violate applicable law. (b) The Developer agrees to use good faith efforts to hire residents of the City of San Bernardino for available job openings in the completed Project. Such good faith efforts covenant of the Developer shall remain in effect during the term of the Agency Regulatory Agreement. The Agency shall consult with the Developer, from time to time, to assist the Developer in formulating programs to implement the foregoing. The foregoing is not intended to require the Developer to implement any program or engage in any pattern or practice of recruitment or hiring at the Project which would violate applicable law. 4.8. [RESERVED -- NO TEXT]. 4.9. Agency Affordable Housing Grant. (a) The Agency Affordable Housing Grant funds not exceeding the amount specified in Section 1.1 shall be used and disbursed by the Escrow Agent on the Closing Date to pay for the Impact Fees. Except for the use by the Developer of the Agency Affordable Housing Grant funds to pay for the Impact Fees on the Closing Date, the Developer shall pay all costs ad expenses to construct, to develop and to complete the Project. Except for the payment by the Agency to the Escrow Agency of the Agency Affordable Housing Grant funds in accordance with this Agreement, the Agency shall have no duty or obligation to pay for any fees, cost, or expenses (including, without limitation, attorneys' fees and/or court costs) in connection with the construction, the development and/or the completion of the Project by the Developer. (b) Provided the Developer is not in default under this Agreement, and provided the Developer's Conditions and the Agency's Conditions have been fully performed, unless waived, the Agency shall tender the Agency Affordable Housing Grant funds to the Escrow Agent prior to the Close of Escrow. On the Close of Escrow, the Escrow Agency shall use and disburse the Agency Affordable Housing Grant funds to pay for the Impact fees. 5. Use of the Site. 5.1. Use of the Site. The Developer hereby covenants and agrees, for itself and its successors and assigns, that the Site shall be developed, used and maintained as rental housing for occupancy by Senior Citizen Households as more fully set forth in the Agency Grant Deed (Exhibit "D") and the Agency Regulatory Agreement (Exhibit "F"). 5.2. No Inconsistent Uses. The Developer covenants and agrees that it shall not devote the Site, or any part thereof, to uses inconsistent with the Agency Grant Deed and the Agency Regulatory Agreement. In the event of a conflict between the application of the provisions of the Agency Grant Deed and/or the Agency Regulatory Agreement to the Site and the Project and the application of the HUD Capital Advance Documents to the Site and the Project, such conflict shall be resolved in favor of the HUD Capital Advance Documents. 5.3. Discrimination Prohibited. Except as provided in the HUD Capital Advance Documents and the Agency Grant Deed and the Agency Regulatory Agreement, with respect to the reservation of each of the rental units in the Project for occupancy by Senior Citizen 27 P:lAgendaslAgenda AttachmentslAgeooa AttachmentslAgenda Attachments\Agrmts-Amend 2009\06-<>1-09 TELACU Housing. San Bernardino V, Inc. DDA.doc Households, there shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, age, familial status, physical or mental disability, ancestry or national origin in the rental, sale, lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any portion thereof, nor shall the Developer, or any person claiming under or through the Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Site or any portion thereof. The nondiscrimination and nonsegregation covenants contained herein and in the Agency Grant Deed shall remain in effect in perpetuity. 5.4. Effect of Covenants. Subject to the provisions of Section 7.15 hereof, the Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the restrictions and community redevelopment and affordable rental housing covenants running with the land, whether or not appearing in the Agency Grant Deed or the Agency Regulatory Agreement for and in its own right and for the purposes of protecting the interests of the community in whose favor and for whose benefit the coven~ts running with the land have been provided. The community redevelopment and affordable rental housing covenants in favor of the Agency shall run without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site, and shall be effective as both covenants and equitable servitudes against the Site. The Agency shall have the right, if any, of the community redevelopment and affordable rental housing covenants set forth in this Agreement which are provided for its benefit are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it may be entitled. No other person or entity shall have any right to enforce the terms of this Agreement under a theory of third-party beneficiary or otherwise, except the City as the successor in regulatory function of the Agency as provided in Health and Safety Code Section 33334.4, or other applicable law. The covenants running with the land and their duration are set forth in the Agency Grant Deed and in the Agency Regulatory Agreement. Nothing in this Agreement or in the Agency Grant Deed or in the Agency Regulatory Agreement shall be deemed to limit the power of the City to enforce any provision of any development project permit which it may approve in connection with the Project, or to otherwise enforce any provision of law against the Developer and the Site and the Project. 6. Enforcement. 6.1. General Conditions. (a) In the event that either the Developer Conditions or the Agency Conditions have not been approved, disapproved or waived by the parties, as the case may be, prior to the Closing by the applicable date set forth in the Schedule of Performance, then the remedies of the parties shall be as set forth in Section 3.10. In the event that a breach or default may occur prior to the Close of Escrow, and subject to the extension of time set forth in Section 7.5 hereof, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if a party otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, 28.. P:lAgendaslAgenda AttachmentslAgclida AttachmentslAgenda AttachmentslAgrmt>-Amend 2009\06-01-09 TELACU Housir.g - San Bernardino V, Inc. DDAdoc correction or remedy are specifically set forth in this Agreement, then within said time limits), such party shall not be deemed to be in default hereunder. (b) From and after the Close of Escrow and subject to the extensions of tilTIe set forth in Section 7.5 hereof, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if a party otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such party shall not be deemed to be in default hereunder. (c) The injured party shall give written notice of default to the party in default, specifying the default complained of by the nondefaulting party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (d) Any failure or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. (e) After the Close of Escrow, the Agency shall have no right to terminate this Agreement without the prior written approval of HUD. 6.2. Legal Actions. (a) In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. (b) The laws of the State of California shall govern the interpretation and enforcement of this Agreement. (c) In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Interim Executive Director or Chair of the Agency, or in such other manner as may be provided by law. (d) In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service on Tom Provencio for service of process and at such address as may be specified in written notice to the Agency, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. 29 P:lAgendaslAgenda Att""hments\Agenda AttaehmentslAgenda AttachmentslAgrmts-Arnend 2009\06-01-09 TELACU Hnusing - San Bernardinn V, Ine DDAdoc 6.3. Rights and Remedies are Cumulative. Except with respect to any rights and remedies expressly declared to be exclusive in Section 3.10 and Section 3.3 of this Agreement as relates to a failure of conditions precedent occurring before the Close of Escrow, the rights and remedies of the parties as set forth in this Section 6 are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.4. Damages. If either party defaults with regard to any provision of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the defaulting party does not diligently commence to cure such default after service of the notice of default and promptly complete the cure of such default within a reasonable time, not to exceed thirty (30) calendar days (or such shorter period as may otherwise be specified in this Agreement for default) after the service of written notice of such a default. In the event that a default relates to a matter arising after the Close of Escrow the defaulting party shall be liable to the other party for damages caused by such default. 6.5. [RESERVED--NO TEXT] 6.6. Right to Re-enter, Repossess and Revest. (a) The Agency shall, upon thirty (30) calendar days notice to the Developer, which notice shall specify this Section 6.6, have the right, at its'option, to re-enter and take possession of all or any portion of the Property, together with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer hereunder, if after conveyance of title, the Developer (or its successors-in-interest) shall: (1) Fail to commence construction of all or any portion of the improvements as required by this Agreement for a period of ninety (90) calendar days after written notice to proceed from the Agency; provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 7.5 hereof; or (2) Abandon or substantially suspend construction of all or any portion of the improvements for a period of ninety (90) calendar days after written notice of such abandonment or suspension from the Agency; provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled to pursuant to Section 7.5 hereof; or (3) Assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer, of the Site or the Project or any part thereof, in violation of this Agreement, and such violation shall not have been cured within thirty (30) calendar days after the date of receipt of written notice thereof from the Agency to the Developer. (b) The thirty (30) calendar day written notice specified in this Section shall specify that the Agency proposes to take action pursuant to this Section and shall specify which of the Developer's obligations set forth in Subsections (1) through (3) herein have been breached. The 30 P:lAgendas\Agenda AttachmentslA8~a AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01.()9 TELACU Housing. San BemMdino V,lnc. DDAdoc Agency shall proceed with its remedy set forth herein only in the event that the Developer continues in default of said obligation(s) for a period of thirty (30) calendar days following such notice, or upon commencing to cure such default, fails to diligently and continuously prosecute said cure to a satisfactory conclusion. (c) The right of the Agency to reenter, repossess, terminate, and revest shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit: (1) Any mortgage, deed of trust or other security interest permitted by this Agreement; (2) Any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests; (3) Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded documents applicable to the Site. (d) The Agency Grant Deed shall contain appropriate references and provisions to give effect to the Agency's right, as set forth in this Section under specified circumstances prior to the recordation of a Certificate of Completion with respect to such portion, to reenter and take possession of such portion, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. (e) Upon the revesting in the Agency of title to the Property, or any part thereof, as provided in this Section, the Agency shall, pursuant to its responsibilities under State law, use its best efforts to resell the Property, or any part thereof, at fair market value as soon and in such manner as the Agency shall fmd feasible and consistent with the objectives of such law, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligations of making or completing the improvements, or such other improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for the Site, or any part thereof. Upon such resale of the Site, or any part thereof, the proceeds thereof shall be applied: (1) First, to make any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred with respect to the making or completion of the agreed upon improvements or any part thereof on the Site or any portion thereof; next to reimburse the Agency on its own behalf or on behalf of the City for all actual costs and expenses incurred by the Agency and the City, including, but not limited to, customary and reasonable fees or salaries to third party personnel engaged in such action (but excluding the Agency's or the City's general overhead expense), in connection with the recapture, management and resale of the Site or any portion thereof; all taxes, assessments and water and sewer charges paid by the City and/or the Agency with respect to the Site or any portion thereof; any amounts otherwise owing to the Agency by the Developer and its successor transferee; and 31 P:lAgendaslAgenda AttaehmentslAgenda AtuehmentslAgend. AttaehmeOlslAgrmts-Amend 2009\06-01-09 TELACU Housing _ San Bernardino V, Ine DDAdoe (2) Second, to the extent that any and all funds which are proceeds from such resale are thereafter available to reimburse the Developer, or its successor transferee, up to the amount equal to the sum of: (1) the Purchase Price paid by the Developer for the Property (or allocable to the applicable part thereof); and (2) the costs incurred for the development of the Property, or applicable part thereof, or for the construction of the improvements thereon including, but not limited to, costs of carry, taxes and items set forth in the Developer's cost statement which shall be submitted to and approved by the Agency; and (3) Any balance remaining after the foregoing application of proceeds shall be retained by the Agency. (f) Notwithstanding the prOVlSlons of subsection (a) through subsection (e), inclusive, above, this Section 6.6 shall not be applicable during the term of the HUD Capital Advance Documents, unless such application of this Section 6.6 is fIrst approved in writing by HUD. 6.7. Mutual Indemnification. The Developer agrees to indemnify and hold the City and the Agency, and their officers, employees and agents, harmless from and against all claims for liability for damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in performing its obligations hereunder other than claims for liability, claims for damages, judgments, costs, expenses and/or fees arising from or related to the wrongful conduct by, or any gross negligent act or gross omission of, the Agency, its agents, employees, representatives or consultants. The Agency agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all claims or liability for damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Agency in performing its obligations hereunder other than claims for liability, claims for damages, judgments, costs, expenses and/or fees arising from or related to the wrongful conduct by, or any negligent act or omission of, the Developer, its agents, employees, representatives or consultants. In the event HUD acquires title to the Property in accordance with and/or under the HUD Capital Advance Documents, HUD shall not have any liability under this Section 6.7 of this Agreement. 6.8. Attorneys' Fees. In the event of litigation between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, court costs and other costs and expenses incurred, including such fees and costs incurred on appeal, in addition to whatever other relief to which it may be entitled. As used in the preceding sentence, the words "reasonable attorney's fees" in the case of the Agency, include the salary and benefIts payable to lawyers employed in the Office of the City Attorney of the City, who provide legal counsel to the Agency in such litigation as allocated on an hourly basis. In the event HUD acquires title to the Property in accordance with and/or under the HUD Capital Advance Documents, HUD shall not have any liability under this Section 6.8 of this Agreement. 7. Miscellaneous. 7.1. Governing Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 32 P:\Agendas\Agenda Attachments\A8enda Allachments\Agenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc 7.2. Notices. Notices, demands, and communications between the Agency and the Developer shall be sufficiently given if personally delivered or dispatched by registered or certified mail, postage prepaid or return receipt requested, to the following addresses: AGENCY: DEVELOPER: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 Phone: (909) 663-1044 Fax: (909) 888-9413 TELACU Housing - San Bernardino V, Inc. c/o TELACU Attention: Tom Provencio, Treasurer 5400 East Olympic Boulevard, Suite 300 Los Angeles, California 90022 Phone: (323) 721-1655 Fax: (323) 721-3560 Any notice shall be deemed to have been received as of the earlier time of actual receipt by the addressee thereof or the expiration of forty-eight (48) hours after depositing of such notice in the United States Postal System in the manner described in this Section. Such written notices, demands, and communications may be sent in the same manner to such other addresses as a party may, from time to time, designate by mail. 7.3. Conflicts of Interest. No member, official, or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his personal interests or the interests of any corporation, partnership, limited liability company, or association in which he is, directly or indirectly, interested. 7.4. Non-liability of Agency Officials and Employees. No member, official, employee, or consultant of the Agency or the City shall be personally liable to the Developer, or any successor-in-interest of the Developer, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement. 7.5. Enforced Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the party claiming an extension of time to prepare, or acts or failure to act of any public or governmental agency or entity (provided that acts or failure to act of the City or the Agency shall not extend the time for the Agency to act hereunder except for delays associated with lawsuit or P:lAgendaslAgenda AttachmentslAgenda AnachmentslAgenda AnachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc 33 injunction including, but without limitation to, lawsuits pertammg to the approval of the Agreement, and the like). An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the party which claims the existence of the delay has first provided the other party with written notice of the occurrence of the delay within ten (10) calendar days of the commencement of such occurrence of delay. The inability of the Developer to obtain a satisfactory commitment from HUD for the HUD Section 202 Capital Grant or to satisfy any other condition of this Agreement relating to the acquisition of the Site and the redevelopment of the Project shall not be deemed to be a force majeure event or otherwise provide grounds for the assertion of the existence of a delay under this Section 7.5. The parties hereto expressly acknowledge and agree that changes in either general economic or regulatory conditions or changes in the economic or regulatory assumptions of any of them which may have provided a basis for entering into this Agreement and which occur at any time after the execution of this Agreement, are not force majeure events and do not provide any party with grounds for asserting the existence of a delay in the performance of any covenant or undertaking which may arise under this Agreement. Each party expressly assumes the risk that changes in general economic or regulatory conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such party under this Agreement, but that such inconvenience or hardship is not a force majeure event and does not excuse the performance by such party of its obligations under this Agreement. 7.6. Books and Records. (a) Maintenance of Books and Records. The Developer shall prepare and maintain all books, records and reports necessary to substantiate the Developer's compliance with the terms of this Agreement or reasonably required by the Agency. (b) Right to Inspect. The Agency shall have the right, upon not less than seventy- two (72) hours notice, at all reasonable times, to inspect the books and records of the Developer pertinent to the purposes of this Agreement. Said right of inspection shall not extend to documents privileged under attorney-client or other such privileges. 7.7. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 7.8. Merger of Prior Agreements and Understandings. This Agreement and all documents incorporated herein contain the entire understanding among the parties hereto relating to the transactions contemplated herein and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written are merged herein and shall be of no further force or effect. 7.9. Representations and Warranties of the Developer The Developer hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Agency has been made in material reliance by the Agency on such covenants, representations and warranties: 34 PlAgendaslAgend. Attaclu:1ents~nda AttachmentslAgenda AttachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc. DDAdoc (1) The Developer is a duly organized and validly existing California non- profit public benefit corporation. The Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. (2) The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (3) This Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Agreement shall be, duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. (4) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which the Developer is a party or by which the Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Site. All representations and warranties contained in this Section 7.9 are true and correct on the date hereof and on the Closing Date and the Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive this Agreement and the Close of Escrow. 7.10. Representations and Warranties of the- Agency. The Agency hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Developer has been made and the acquisition by the Developer of the Site will have been made in material reliance by the Developer on such covenants, representations and warranties: , (1) Each and every undertaking and obligation of the Agency under this Agreement shall be performed by the Agency timely when due; and that all representations and warranties of the Agency under this Agreement and its exhibits shall be true in all material respects at the Closing as though they were made at the time of Closing. (2) The Agency is a community redevelopment agency, duly formed and operating under the laws of California. The Agency has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby. 35 PlAgendaslAgenda Attachments\A8<;da AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdoc (3) The Agency has taken all requisite action and obtained all reqmsIte consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (4) The persons executing any instruments for or on behalf of the Agency have been authorized to act on behalf of the Agency and that the Agreement is valid and enforceable against the Agency in accordance with its terms and each instrument to be executed by the Agency pursuant hereto or in connection therewith will, when executed, be valid and enforceable against the Agency in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by the Agency. (5) Prior to the Closing, the Agency will be the owner of (and the Developer will acquire hereunder) the entire right, title and interest in the Property to effectively vest in the Developer good and marketable fee simple title to the Property, that the Developer will acquire the Property free and clear of all liens, encumbrances, claims, rights, demands, easements, leases or other possessory interests, agreements, covenants, conditions, and restrictions of any kind or character (including, without limiting the generality of the foregoing, liens or claims for taxes, mortgages, conditional sales contracts, or other title retention agreement, deeds of trust, security agreements and pledges and mechanics lien) except for the matters covered in Section 3.6(a) of this Agreement and except for the title exceptions, exclusions and matters identified in the preliminary title report relating to the Property in accordance with Section 3 .6(b) of this Agreement. (6) There are no pending or, to the best of the Agency's knowledge, threatened claims, actions, allegations or lawsuits of any kind, whether for personal injury, property damage, property taxes or otherwise, that could materially and adversely affect the value or use of the Property or prohibit the sale thereof, nor to the best of the Agency's knowledge, is there any governmental investigation of any type or nature pending or threatened against or relating to the Property or the transactions contemplated hereby. (7) Between the date of this Agreement and the Close of Escrow, the Agency will continue to manage, operate and maintain the Property in the same manner as existed prior to the execution of this Agreement. (8) There are no contracts or agreements to which the Agency is a party relating to the operation, maintenance, service, repair, development, improvement or ownership of the Property which will survive the Close of Escrow except as may be set forth in the Agency Grant Deed or in the Agency Regulatory Agreement. (9) The Property is not located within a designated earthquake fault zone pursuant to California Public Resources Code Section 2621.9 and a designated area that is particularly susceptible to ground shaking, liquefaction, landslides or other ground failure during an earthquake pursuant to California Public Resources Code Section 2694. 36 P:lAgendaslAgenda AttachmenlsVigenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdoc (10) The Agency has taken all appropriate action to reserve the sum of One Million Two Hundred Thousand Dollars ($1,200,000.00) for the Agency Affordable Housing Grant for the Project, as provided in Section 4.9. If the Agency becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by the Agency under this Agreement, whether as of the date given or any time thereafter through the Closing Date and whether or not such representation or warranty was based upon the Agency's knowledge and/or belief as of a certain date, the Agency will give immediate written notice of such changed fact or circumstance to the Developer, but such notice shall not release the Agency of its liabilities or obligations with respect thereto. All representations and warranties contained in this Section 7.10 are true and correct on the date hereof and on the Closing Date and the Agency's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive this Agreement and the Close of Escrow. 7.11. Binding Effect of the Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their legal representatives, successors and assigns. This Agreement shall likewise be binding upon and obligate the Site and the successors in interest, owner or owners thereof, and all of the tenants, lessees, sub lessees, and occupants of such Site. 7.12. Assurances to Act in Good Faith. The Agency and the Developer agree to execute all agreements, documents and instruments and to take all action and shall use their best efforts to accomplish the purposes of this Agreement. The Agency and the Developer shall each diligently and in good faith pursue the satisfaction of any conditions or contingencies subject to their approval. 7.13. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 7.14. HUD Modifications. In the event HUD shall reasonably request modifications to this Agreement and/or the exhibits hereto, as a condition to the issuance of its Firm Commitment for the disbursement of the proceeds of the HUD Section 202 Grant to the Developer, neither the Developer nor the Agency will unreasonably withhold their consent to such modification. 7.15. Rights of HUD. (a) The terms and prOVlSlons of this Agreement and the Agency Regulatory Agreement shall be subordinate to the terms and provisions of the HUD Capital Advance Documents and any other documents entered into by the Developer in connection with the HUD Section 202 Grant for the Project. Notwithstanding anything contained herein to the contrary, in the event the Secretary of HUD (the "Secretary") should take title to the Project and/or the Site 37 P:lAgendaslAgenda Anachments\Agellda AttachmenlSlAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants, conditions and restrictions set forth in this Agreement shall cease and terminate and be of no further force or effect, provided however, that nothing herein shall be deemed to prevent the Agency from accepting a transfer in its sole and absolute discretion of title in the Site and/or the Project from the Secretary in any such event. (b) Notwithstanding anything in this Agreement to the contrary, in the event any provision in this Agreement contradicts, modifies, or in any way changes the terms of the HUD Capital Advance Documents, the terms of the HUD Capital Advance Documents shall prevail and govern; or if any provision of this Agreement in any way tends to limit the Secretary in its administration of the National Housing Act of 1937, as amended, or the Housing Act of 1959, as amended, or the regulations pursuant thereto with respect to the Project, this Agreement shall be deemed amended by the parties to the extent required by HUD so as to comply with such acts, regulations and HUD Capital Advance Documents. (c) Notwithstanding anything in this Agreement to the contrary, no amendment to this Agreement shall be effective without the prior written approval of the Secretary of HUD, its successors or assigns. III III III III III III III III III III /11 III III III III III III III III III 38 P:lAgendaslAgenda AttachmentslJligenda AttachmentslAgenda AttachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V. Inc. DDAdoc IN WITNESS WHEREOF the Agency and the Developer have executed this Agreement as of the date first written above. AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date: By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: ~ ~~ Agency Counse DEVELOPER TELACU Housing - San BernardinoV, Inc., a California non-profit public benefit corporation Dated: By: 39 PlAgendaslAgenda Attachments\A8enda AttachmentslAgenda AttaehmentslAgrmts-Amend 2009\06-01-09 TELACU Housing. San Bernardino V, Ine DDAdoe EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All that certain real property situated in the County of San Bernardino, State of California, described as follow: Parcel No.1: APN 0134-093-043 Lot 8, Block 26, according to the map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Excepting therefrom the North 50 feet; And The West 50 feet of Lot 1, Block 26, according to map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Parcel No.2: APN 0134-093-020 That portion of Lot 1, Block 26, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Beginning at a point 50 feet East of the Southwest comer of said Lot 1; Thence running North 150 feet, more or less, to the North line of Lot 1; Thence East 50 feet; Thence South 150 feet, more or less, to South line of said lot; Thence West 50 feet to the Point of Beginning. Parcel No.3: APN 0134-093-019 That portion of Lot 1, Block 26, of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County, described as follows: 40 P:lAgendaslAgenda Attaehm<nts\Agenda AttaehmentslAgenda AllachmentslAgnnts-Amend 2009\06'{)1-00 TELACU Housing - San Bernardino Y,!ne DDAdoc Beginning at a point on the South line of said Lot 1, 150 feet 4 inches from the Southeast corner of said lot; Thence Westerly along the South line of said lot, 48 feet, more or less, to the Southwest corner of the land conveyed to A. F. Beasley, et ai, by Deed Recorded in Book 58, Page 425, of deeds; Thence North along the East line of the land conveyed to Beasley, 150 feet, more or less to the North line of Lot 1; Thence East along the North line of Lot 1,48 feet, more or less, to a point 150 feet 4 inches West of the Northeast corner of said Lot 1; Thence South to the Point of Beginning. Parcel No. 4:APN 0134-093-045 portion That portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning on the West line of "G" Street 99 feet 9 1/3 inches North of the Southeast corner of said Lot 1; Thence North along "G" Street, 49 feet 10 2/3 inches, more or less, to the Northeast corner of said Lot 1; Thence West along the North line of said Lot 1, a distance of 150 feet; Thence South 49 feet 10 2/3 inches, more ofless to a point 99 feet 9 1/3 inches North of the South line of said Lot 1; Thence East 150 feet to the Point of Beginning. Parcel No. 5:APN 0134-093-045 portion All that portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning at the Southeast corner of said Lot 1; Thence North 99 feet 9 1/3 inches; Thence West 150 feet 4 inches; Thence South 99 feet 9 1/3 inches to the South line of said Lot 1; Thence East 150 feet 4 inches to the Point of Beginning. 41 P:lAgendaslAgenda Attachmen15\Agenda Attachmen15lAgenda Attachmen15\Agnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, lne. DDA.doc EXHIBIT "B" When Recorded, Mail to: Redevelopment Agency of the City of San Bernardino Attn.: Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, CA 92401 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO CERTIFICATE OF COMPLETION The undersigned officer of the Redevelopment Agency of the City of San Bernardino (the "Agency") hereby certifies as follows: By its Resolution No. CDC , adopted and approved 200 and Resolution No. , adopted and approved _, 200_, the Agency has resolved as follows: Section 1. The improvements required to be constructed in accordance with that certain Disposition and Development Agreement (the "Agreement") dated as of _, 2009 by and between the Agency and TELACU Housing-San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer") on the lands (the "Property") more fully described in Exhibit "A" attached hereto and incorporated herein by this reference, have been completed in accordance with the provisions of the Agreement. Section 2. This Certificate of Completion shall constitute a conclusive determination of satisfaction of the agreements and covenants contained in the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct and . develop the improvements on the Property, excluding any normal and customary tenant improvements and minor building "punch-list" items, and including any and all buildings and any and all parking, landscaping and related improvements necessary to support or which meet the requirements applicable to the building and its use and occupancy on the Property, whether or not said improvements are on the Property or on other property subject to the Agreement, all as described in the Agreement, and to otherwise comply with the Developer's obligations under the Agreement with respect to the Property and the dates for the beginning and completion of construction of improvements thereon under the Agreement; provided, however, that the Agency may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the Agency Grant Deed (Recorded Instrument No. ) and the Agency Regulatory Agreement (Recorded Instrument No. ) pursuant to which the Property was conveyed under the Agreement. The Agreement is an official record of the Agency and a copy of the Agreement may be inspected in the office of the Secretary of the Agency, 201 North "E" Street, Suite 301, San Bernardino, California, during regular business hours. 42 P:lAgendaslAgenda Attachments\A8eruJa AttacbmentslAgenda Attacbments\Agrmts-Amend 2009\06-QI-09 TELACU Housing - San Bernardino V, Inc. DDAdoc Section 3. The Property to which this Certificate of Completion pertains is more fully described in Exhibit "A" attached hereto. DATED AND ISSUED this _ day of ,200_ Emil A. Marzullo Interim Executive Director [NOTARY JURAT ATTACHED] 43 P:lAgendas\Agenda AttachmentslAgenda AttaclunentslAgenda Attachments\Agnnts-Amend 2009\06-01-09 ~LACU Housing - San Bernardino Y, Inc. DDA.doc EXHIBIT "A" LEGAL DESCRlPTION OF THE PROPERTY All that certain real property situated in the COlmty of San Bernardino, State of California, described as follow: Parcel No.1: APN 0134-093-043 Lot 8, Block 26, according to the map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Excepting therefrom the North 50 feet; And The West 50 feet of Lot 1, Block 26, according to map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Parcel No.2: APN 0134-093-020 That portion of Lot 1, Block 26, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Beginning at a point 50 feet East of the Southwest comer of said Lot 1; Thence running North 150 feet, more or less, to the North line of Lot 1; Thence East 50 feet; Thence South 150 feet, more or less, to South line of said lot; Thence West 50 feet to the Point of Beginning. Parcel No.3: APN 0134-093-019 That portion of Lot 1, Block 26, of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County, described as follows: 44 P:lAgendaslAgenda Attachmenls\Agemla Attachments\Agenda AttachmenlslAgrmls-Amend 2009\06-01-09 TELACU Housing. San Bernardino V,Inc. DDAdoc Beginning at a point on the South line of said Lot 1, 150 feet 4 inches from the Southeast comer of said lot; Thence Westerly along the South line of said lot, 48 feet, more or less, to the Southwest comer of the land conveyed to A. F. Beasley, et ai, by Deed Recorded in Book 58, Page 425, of deeds; Thence North along the East line of the land conveyed to Beasley, 150 feet, more or less to the North line of Lot 1; Thence East along the North line of Lot 1,48 feet, more or less, to a point 150 feet 4 inches West of the Northeast comer of said Lot 1; Thence South to the Point of Beginning. Parcel No. 4:APN 0134-093-045 portion That portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning on the West line of"G" Street 99 feet 9 1/3 inches North of the Southeast comer of said Lot 1; Thence North along "G" Street, 49 feet 10 2/3 inches, more or less, to the Northeast comer of said Lot 1; Thence West along the North line of said Lot 1, a distance of 150 feet; Thence South 49 feet 102/3 inches, more ofless to a point 99 feet 9 1/3 inches North of the South line of said Lot 1; Thence East 150 feet to the Point of Beginning. Parcel No. 5:APN 0134-093-045 portion All that portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning at the Southeast comer of said Lot 1; Thence North 99 feet 9 1/3 inches; Thence West 150 feet 4 inches; Thence South 99 feet 9 1/3 inches to the South line of said Lot 1; Thence East 150 feet 4 inches to the Point of Beginning. 45 P:lAgendaslAgenda AltaclunentslAgeiiaa AnachmentslAgenda AnachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc DDA-doc EXHIBIT "C" Schedule of Performance Execution of Ae:reement The Agreement shall be authorized, executed and delivered by the Developer to the Agency. Evidencing of Financing The Developer shall provide Agency with financing for the Project pursuant to Section 3.7 of the Agreement. Design The Developer shall prepare all plans and specifications and obtain all required permits. Evidence of Insurance The Developer shall furnish to the Agency a certificate of insurance as set forth in Section 4.1(u) of the Agreement. Opening of Escrow The Agency and the Developer shall open escrow to complete HOD Initial Closing. Close of Escrow Agency Funding HOD Initial Closing Commencement of Construction The Developer shall commence construction of the improvements of the Site pursuant to Section 4.1 and Exhibit "C". Completion of Construction The Developer shall complete the construction of all improvements on the Site as well as off-site improvements. Certificate of Completion To be issued by the Agency at the request of the Developer upon completion of construction in accordance with Section 4.6 of the Agreement 46 On or before June 30, 2009. On or before August 30, 2009 unless extended for up to six months by HOD No later than September 15,2009. Prior to the Developer or its agents commencing construction of the Site. Within 30 calendar days after written request from the Agency or the Developer. On or before September 30, 2009 or as extended by HOD. On or before HUD Initial Closing. On or before September 30, 2009 or as extended by HOD. Within thirty (30) calendar days after HOD Initial Closing. Within 425 calendar days after HOD Initial Closing or as extended by HOD. Within fifteen (15) calendar days after written request from the Developer to the Agency. P:lAgendaslAgenda Atta"~mentslAgenda AllaclunentslAgenda AttachmenlS\AgrmlS-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc EXHIBIT "COO Schedule of Performance (Continued) It is understood that this Schedule of Performance is subject to all of the terms and conditions of the text of the Agreement. The summary of the items performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict of or inconsistency between this Schedule of Performance and the text of the Agreement, the text of the Agreement shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both the Developer and the Agency. The Interim Executive Director of the Agency shall have the authority to approve extensions of time without action of the Community Development Commission of the Agency not to exceed a cumulative total of 180 calendar days. During the term of the HUD Capital Advance Documents, any extensions of the time periods set forth in the Schedule of Performance approved by HUD shall be deemed approved by the Agency. 47 P:lAgendaslAgenda Attacbments\Agenda AttachmentslAgenda AnachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc EXHIBIT "D" Form of Agency Grant Deed 48 P:lAgendaslAgenda Attachment'lAgenda Attachment,lAgenda AttachmemslAgrmts-Amend 2009\06-01-09 TELACU Hou,ing - San Bernardino V. lnc DDAdoc EXHIBIT "D" RECORDING REQUESTED BY ) Redevelopment Agency ) of the City of San Bernardino ) ) ) AND WHEN RECORDED MAll., TO: ) TELACU ) 5400 East Olympic Blvd., Suite 300 ) Los Angeles, CA 90022 ) Attention: Tom Provencio, Treasurer ) ) (Space above line reserved for use by Recorder) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGENCY GRANT DEED OF A PUBLIC AGENCY AND COMMUNITY REDEVELOPMENT AFFORDABLE SENIOR CITIZEN RESIDENTIAL HOUSING DEVELOPMENT, USE AND OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS This Agency Grant Deed of a Public Agency and Community Redevelopment Affordable Senior Citizen Residential Housing Development, Use and Occupancy Conditions, Covenants and Restrictions (the "Agency Grant Deed") hereby grants from the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), that certain real property situated at the northwest comer of 4th and "G" Streets (APNs: 0134-093-19,20,43 and portions of 45), San Bernardino, California (the "Property") to TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer"), subject to the community redevelopment affordable senior citizen residential housing development, use and occupancy conditions, covenants and restrictions contained in PART B hereof. The Agency is the grantor in this Agency Grant Deed and the Developer is the grantee. PART A For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby grants to the Developer, subject to the community redevelopment affordable senior citizen residential housing development, use and occupancy conditions, covenants and restrictions of this Agency Grant Deed, all of the right, title and interest of the Agency in the Property, as more particularly described below: 49 P:\Agendas\Agenda Attachments\Agenda Attachments\Agenda Anachments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc DDA-doc (-- The Property--) See Exhibit "A" attached hereto, on file in the Official Records of the Office of the Recorder of San Bernardino County. PART B The grant of the Property by the Agency to the Developer is expressly subject to the satisfaction of the community redevelopment affordable senior citizen residential housing development, use and occupancy conditions, covenants and restrictions as arise under that certain agreement entitled "2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement," dated as of _, 2009 (the "Agreement"), by and between the Agency and the Developer: 1. The Property shall be reserved for development, use, improvement and occupancy for senior citizen household multi-family residential purposes, as the term "Senior Citizen Household" is defined below; and 2. During the first forty (40) years, commencing on the date of recordation of this Agency Grant Deed not less than seventy-four (74) of the Units (the "Restricted Units") shall be rented or occupied by, or if vacant, available for rental and occupancy by Lower Income Senior Citizen Households at "affordable rents" as defined below. Thereafter, for an additional fifteen (15) year period, the Restricted Units shall be rented and occupied by, or if vacant, available for rental and occupancy by low-income senior tenants as defined in Health and Safety Code Section 50093; and 3. For the purpose of subparagraph 1 and 2 above, the following definitions of certain terms shall apply: "affordable rents" means and refers to a sum of rent, including a reasonable utility allowance, for a particular Senior Citizen Household which occupies a rental housing unit on the Property which is computed in accordance with the provisions of Health and Safety Code Section 50053 as may be amended from time-to-time; "lower income households" means and refers to persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time-to-time pursuant to Section 8 of the United States Housing Act of 1937. Such income for lower income households shall not exceed eighty percent (80%) of the Area Median Income, adjusted for family size and revised annually; and "Senior Citizen Household" means and refers to a person or family eligible to occupy a rental dwelling unit on the Property under the "HUD Capital Advance Documents", as this term is defined in the Agreement, and after the expiration of the term of the HUD Capital Advance Documents, the words Senior Citizen Household shall mean and refer to a person or family who is/are at the time of initial occupancy ofthe rental dwelling unit by such person(s): 50 PlAgendaslAgenda AttaehmentslAgenda AttaehmentslAgenda Attaehments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lne DDA doc (i) sixty-two (62) years of age or older; and, if applicable. (ii) provided at least one (1) member of the family is sixty-two (62) years of age or older, a "qualified permanent resident", as this term is defined in California Civil Code Section 51.3(b )(2) and (3) as such section of the California Civil Code presently exists or may hereafter be amended from time-to-time. 4. During the term of the HUD Capital Advance Documents, compliance by the Developer with the HUD Capital Advance Documents as relates to "Senior Citizen Households", "affordable rents" and "lower income households" shall be deemed in compliance with the provisions of this PART B of the Agency Grant Deed. During the term of such HUD Capital Advance Documents, in the event of any conflict between the provisions of PART A and/or PART B of this Agency Grant Deed and the HUD Capital Advance Documents, the provisions of the HUD Capital Advance Documents shall control. PART C Subject to the covenant of the Developer as provided in P ART B, the Developer shall refrain from restricting the rental, sale, or lease of any portion of the Property on the basis of race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin of any person. All such deeds, leases, or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) Deeds: In deeds, the following language shall appear: Except as specifically provided for in the Agency Regulatory Agreement (the "Agency Regulatory Agreement"), dated _, 200_, recorded in the official records of the County of San Bernardino, State of California (the "Official Records"), as Instrument No. , with respect to renting the units within the Project to Senior Citizens, as such term is defined therein, and subject to the covenant in the Agency Grant Deed that restricts the Property for development, use, improvement and occupancy by Senior Citizen Households, as this term is defined in the Agency Regulatory Agreement. The Developer herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the Developer itself, or any persons claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land. 51 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc. DDAdoc (b) Leases: In leases, the following language shall appear: The lessee herein covenants by and for itself, its heirs, executors, administrators, successors, and assigns, and all persons claiming under or through them and this lease is made and accepted upon and subject to the following conditions: Except as specifically provided for in the Agency Regulatory Agreement, dated _, 200_, and recorded in the official records of the County of San Bernardino, State of California (the "Official Records"), as Instrument No. , with respect to renting units within the Project to Senior Citizens, as such term is defined therein, and subject to the covenant in the Agency Grant Deed that restricts the Property for development use, improvement and occupancy by Senior Citizen Households, as this term is defined in the Agency Regulatory Agreement. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the leasing, subleasing, renting, transferring, use, occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased. (c) Contracts: In contracts, the following language shall appear: Except as specifically provided for in the Agency Regulatory Agreement, dated _, 200_, and recorded in the official records of the County of San Bernardino, State of California (the "Official Records"), as Instrument No. , with respect to renting units within the Project to Senior Citizens, as such term is defined therein, and subject to the covenant in the Agency Grant Deed that restricts the Property for development use, improvement and occupancy by Senior Citizen Households, as this term is defmed in the Agency Regulatory Agreement. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the land. The foregoing covenants shall remain in effect in perpetuity. During the term of the HUD Capital Advance Documents, in the event of any conflict between the provisions of P ART C of this Agency Grant Deed and the HUD Capital Advance Documents, the provisions of the HUD Capital Advance Documents shall control. 52 P:\Agendas\Agenda Attac'unentslAgenda Attachments\Agenda AttachmentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc PART D No violation or breach of the covenants, conditions, restnctIOns, provIsIOns or limitations contained in PART B, PART C or PART F of this Agency Grant Deed shall, defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by and approved by the Agency pursuant to the Agreement; provided, however, that any successor of the Developer to the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. PART E The terms and provisions of PART B, PART C and PART F of this Agency Grant Deed shall be subordinate to the terms and provisions of the HUD Capital Advance Documents and any other documents entered into by and between the Developer and the Secretary of Housing and Urban Development ("Secretary of HUD") in connection with the improvement of the Property. Notwithstanding anything contained herein to the contrary, in the event the Secretary of HUD should take title to the Property through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants, conditions and restrictions set forth in PART B, PART C, PART D and PART F of the Agency Grant Deed shall cease and terminate and be of no further force or effect. Notwithstanding anything in this Agency Grant Deed to the contrary, in the event any provision in this Agency Grant Deed tends to contradict, modify, or in any way change the terms of the HUD Capital Advance Documents, the term of the HUD Capital Advance Documents shall prevail and govern; or if any provision of this Agency Grant Deed in any way tends to limit the Secretary in its administration of the National Housing Act of 1937, as amended, or the Housing Act of 1959, as amended, or the regulations pursuant thereto, this Agency Grant Deed shall be deemed amended so as to comply with such acts, regulations and HUD Capital Advance Documents. Notwithstanding anything in this Agency Grant Deed to the contrary, no amendment to PART B through PART F, inclusive of this Agency Grant Deed by the Developer, or its successors or assigns and the Agency shall be effective at any time during the period of time when the HUD Capital Advance Documents are in effect without the prior written approval of the Secretary of HUD, its successors or assigns. PART F The provisions of this Agency Grant Deed are expressly declared by the Agency to promote and increase, improvement and preservation of the community's supply of low-income housing. The transfer of the Property by the Agency to the Developer for this purpose and the recordation of this Agency Grant Deed is required by the provisions of Health and Safety Code Sections 33334.2 and 33334.3, and other applicable laws and actions of the Agency. Upon the delivery of this Agency Grant Deed to the Developer, the community redevelopment affordable senior citizen residential housing development, use and occupancy conditions, covenants and restrictions as contained herein shall be conditions, covenants and restrictions which affect the Property and shall run with the land and shall be enforceable by either the Agency or by the City of San Bernardino, a municipal corporation, as community redevelopment affordable senior citizen residential housing development, use and occupancy conditions, covenants and restrictions against the Developer and each successor-in-interest or assignee of the Developer in 53 P:lAgendaslAgenda Attachments\A8enda Attachments\Agenda AttachmentslAgrmts-Amend 2009\06-01~ TELACU Housing - San Bernardino V,lnc. DDAdoc the Property as provided in Health and Safety Code Section 33334.3(f)(2). No person other than the City of San Bernardino or the Agency or HUD shall be deemed to be authorized to enforce any provision of this Agency Grant Deed as a covenant or restriction which runs with the land and affects the Property. /II /II /II 1/1 /II 1/1 1/1 /II /II 1/1 1/1 /II /II /II /II /II /II /II /II /II /II /II /II /II /II /II 1/1 /II /II 1/1 54 P:lAgendaslAgenda AttachmentslA8enda AttachmentslAgenda AttachmentslAgrmts.Amen~ 2009\06-01-00 TELACU Housing. San Bernardino V,lnc. DDAdoc THIS AGENCY GRANT DEED is executed as of the date indicated below next to the authorized signature of the Interim Executive Director of the Agency. AGENCY Redevelopment Agency of the City of San Bernardino, a corporate body, public and politic Dated: By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: Agency Counsel [NOTARY JURAT ATTACHED] 55 P:\Agendas\Agenda Attachments\Agenda Anachments\Agenda Attachments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdo<: ACCEPTANCE OF AGENCY GRANT DEED AND COMMUNITY REDEVELOPMENT AFFORDABLE SENIOR CITIZEN RESIDENTIAL HOUSING DEVELOPMENT, USE AND OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS BY THE DEVELOPER The undersigned officers of TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer"), hereby accepts the delivery of the instrument identified above as the "Agency Grant Deed of a Public Agency and Community Redevelopment Affordable Senior Citizen Residential Housing Development, Use and Occupancy Conditions, Covenants and Restrictions" (the "Agency Grant Deed"), and the transfer of the Property from the Redevelopment Agency of the City of San Bernardino, subject to the conditions, covenants and restrictions contained in the Agency Grant Deed. The Developer hereby acknowledges and agrees that it accepts the Property in an "AS- IS", "WHERE IS" and "SUBJECT TO ALL FAULTS" condition and that the Developer is solely responsible for causing the Property to be improved as set forth in the Agreement by and between the Agency and the Developer. The Developer hereby further accepts and agrees to each of the community redevelopment affordable senior citizen residential housing development use, and occupancy conditions, covenants and restrictions contained in the Agency Grant Deed that touch and concern the Property and community redevelopment affordable senior citizen residential housing development, use improvement and occupancy conditions, covenants and restrictions which run with the land, subject to the provisions of P ART E of the Agency Grant Deed during the period of time when the HUD Capital Advance Documents are in effect. DEVELOPER TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation Date: By: Its: By: Its: [NOTARY JURAT ATTACHED] 56 P:\Agendas\Agenda Attachments\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All that certain real property situated in the Cmmty of San Bernardino, State of California, described as follow: Parcel No.1: APN 0134-093-043 Lot 8, Block 26, according to the map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the COllilty Recorder of said County. Excepting therefrom the North 50 feet; And The West 50 feet of Lot 1, Block 26, according to map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Parcel No.2: APN 0134-093-020 That portion of Lot 1, Block 26, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office ofthe County Recorder of said County. Beginning at a point 50 feet East of the Southwest comer of said Lot 1; Thence flllllling North 150 feet, more or less, to the North line of Lot 1; Thence East 50 feet; Thence South 150 feet, more or less, to South line of said lot; Thence West 50 feet to the Point of Beginning. Parcel No.3: APN 0134-093-019 That portion of Lot 1, Block 26, of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County, described as follows: 57 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda Attachments\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc. DDAdoc Beginning at a point on the South line of said Lot 1, 150 feet 4 inches from the Southeast corner of said lot; Thence Westerly along the South line of said lot, 48 feet, more or less, to the Southwest corner of the land conveyed to A. F. Beasley, et al, by Deed Recorded in Book 58, Page 425, of deeds; Thence North along the East line of the land conveyed to Beasley, 150 feet, more or less to the North line of Lot 1; Thence East along the North line of Lot 1, 48 feet, more or less, to a point 150 feet 4 inches West of the Northeast corner of said Lot 1; Thence South to the Point of Beginning. Parcel No. 4:APN 0134-093-045 portion That portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning on the West line of"G" Street 99 feet 9 1/3 inches North of the Southeast corner of said Lot 1; Thence North along "G" Street, 49 feet 102/3 inches, more or less, to the Northeast corner of said Lot 1; Thence West along the North line of said Lot 1, a distance of 150 feet; Thence South 49 feet 10 2/3 inches, more ofless to a point 99 feet 9 1/3 inches North of the South line of said Lot 1; Thence East 150 feet to the Point of Beginning. Parcel No. 5:APN 0134-093-045 portion All that portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning at the Southeast corner of said Lot 1; Thence North 99 feet 9 1/3 inches; Thence West 150 feet 4 inches; Thence South 99 feet 9 1/3 inches to the South line of said Lot 1; Thence East 150 feet 4 inches to the Point of Beginning. 58 P:lAgendaslAgenda AttachmentslAgenda AnachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc. DDAdoc EXHIBIT "E" Scope of Development A. General Proiect Description The Site contains approximately 74,488 square feet. The Project shall consist of the construction of seventy-four (74) one-bedroom units designated as affordable housing for senior citizens of low income and one (1) two (2)-bedroom manager's unit as defined by federal law and regulations, and one (1) two (2)-bedroom managers unit. B. Design Obiectives The following is a statement of design objectives for development of the Site: 1. The creation and achievement of an attractive and pleasant environment reflecting a high level of concern for architectural and urban design principles both in terms of the development itself and its compatibility and suitability with the surrounding community . 2. The provision of a pleasing, safe and well-maintained living environment and vehicle parking in an urban environment. C. Development Standards /II 1/1 /II 1/1 /II III III /II /II /II /II III The Project shall be designed and constructed in accordance with the approved terms and conditions of approval of the land use entitlements approved by the City of San Bernardino for this Project, attached hereto and incorporated herein by reference. 59 P:lAgend.slAgend. AttachmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc EXHIBIT "F" Agency Regulatory Agreement Redevelopment Agency of the City of San Bernardino Attention: Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 ) ) ) ) ) ) ) ) ) ) ) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: NO RECORDING FEE PURSUANT TO GOVERNMENT CODE SECTION 27383 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGENCY REGULATORY AGREEMENT AND AFFORDABLE SENIOR CITIZEN RESIDENTIAL HOUSING DEVELOPMENT DECLARATION OF RESTRICTIVE COVENANTS (Health and Safety Code Section 33334.2) This Agency Regulatory Agreement and Affordable Senior Citizen Residential Housing Development Declaration of Restrictive Covenants (the "Agency Regulatory Agreement") is made and entered into as of this _ day of , 2009, by and between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and TELACU Housing - San Bernardino V, Inc., a California non-profit public benefit corporation (the "Developer"). -RECIT ALS-- A. The Agency and the Developer have entered into the 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement, dated as of _,2009 (the "Agreement"). A copy of the Agreement is on file with the Agency Secretary. B. Pursuant to the terms of the Agreement, the Agency will provide resources to the Developer for improvement of the "Project" subject to the conditions of the "HUD Capital Advance Documents", as these terms are more specifically described in the Agreement, and the Agency has agreed to provide the Developer with an Agency Low and Moderate Income Housing Funds Affordable Housing Grant (the "Agency Affordable Housing Grant") in support of the Project, subject to certain conditions. . 60 P:lAgendaslAgenda AnachmentslAgenda AnaehmentslAgenda Attachments\Agrntts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc C. In consideration for the Agency Affordable Housing Grant, the Developer has agreed to maintain a certain number of the rental dwelling units in the Project as available at "affordable rent" to low-income Senior Citizen Households as these terms are defined in the Agreement for the term of this Agency Regulatory Agreement and to further agree to observe all the terms and conditions set forth below. D. The Agency has agreed to provide the Agency Affordable Housing Grant on the condition that the Project be maintained and operated in accordance with Health and Safety Code Sections 33334.2 and 33413 and in accordance with certain additional restrictions concerning affordability, operation, and maintenance of the Project, as specified in this Agency Regulatory Agreement. E. In order to ensure that the Project will be used and operated in accordance with these conditions and restrictions, the Agency, and the Developer wish to enter into this Agency Regulatory Agreement for themselves and their successors and assigns. THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, ITS SUCCESSORS AND ASSIGNS, AND TELACU HOUSING-SAN BERNARDINO V, INC., ITS SUCCESSORS AND ASSIGNS, HEREBY COVENANT AND AGREE AS FOLLOWS: ARTICLE 1 DEFINITIONS 1.1. Definitions. When used in this Agency Regulatory Agreement, certain terms and phrases as denoted by an initially capitalized letter shall have the same meaning as found in the Agreement unless the specific context of the usage of a term or phrase may otherwise require, and certain additional defmed terms which appear below in this Section 1.1 shall have the meaning in this Agency Regulatory Agreement as ascribed below: a. "Adjusted Income" shall mean the total anticipated annual income of all persons in a household which occupies (or is proposed to occupy) a Restricted Unit as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor state housing program regulation that utilizes a reasonably similar method of calculation of adjusted annual income. In the event that no such program exists, the Agency shall provide the Developer with a reasonably similar method of calculation of adjusted income as provided in 25 California Code of Regulations Section 6914. b. " Agency Regulatory Agreement" shall mean this Agency Regulatory Agreement and Affordable Senior Citizen Residential Housing Development Declaration of Restrictive Covenants. c. "Agreement" means that certain 2009 Affordable Senior Citizen Rental Housing Low and Moderate Income Housing Funds Grant Disposition and Development Agreement dated as of _, 2009, by and between the Developer 61 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda AttachmentslAgnnts-Amend 2009\06-01-09 TELACU Hnusing - San Bernardino V,Inc. DDAdoc and the Agency. A copy of the Agreement is on file with the Agency Secretary and is incorporated herein by this reference. d. "Certificate of Occupancy Date" means the date of issuance by the City of the initial certificate of occupancy for the Project. e. "City" shall mean the City of San Bernardino, California. f. "Closing Date" shall mean the date of recordation of this Agency Regulatory Agreement. g. "Developer" shall mean TELACU Housing - San Bernardino V, Inc., a California nonprofit public benefit corporation. h. "Lower Income" shall mean the annual income for lower income households with an Adjusted Income as established and amended from time:-to-time pursuant to Section 8 of the United States Housing Act of 1937, as amended, and as published by the State of California Department of Housing and Community Development. 1. "Management Agent" shall mean the experienced management agent selected by the Developer for the management of the Project as provided in Section 5.2 of this Agency Regulatory Agreement. J. "Rent" shall mean the total of each monthly payment by the tenants of a Restricted Unit to the Developer for the following: use and occupancy of the Restricted Unit and land and associated facilities, including parking (other than parking services acquired by tenants on an optional basis), any separately charged fees or service charges assessed by the Developer which are required of all tenants, other than security deposits, the cost of an adequate level of service for utilities paid by the tenant, including garbage collection, sewer, common area, water, electricity, gas and other heating, and refrigeration costs, but not telephone service, any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than the Developer, and paid by the tenant. k. "Restricted Units" shall mean the seventy-four (74) Units which are affordable Rent - restricted pursuant to this Agency Regulatory Agreement. 1. "Senior Citizen Household" shall mean and refer to a person or family eligible to occupy a rental dwelling Restricted Unit at the Project under the HUD Capital Advance Documents and the Agency Grant Deed, who is/are at the time of initial occupancy of the rental dwelling Restricted Unit: 1. a person(s) sixty-two (62) years of age or older; and, if applicable. 2. provided at least one (1) member of the family is sixty-two (62) years of age or older, a "qualified permanent resident", as this term is defined in California Civil Code Section 51.3(b)(2) and (3). The occupancy of each 62 P:lAgeodaslAgenda Anachrnents\Agenda AnachrnentslAgenda AttachrnentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc Restricted Unit shall be limited to a maximum of two (2) senior citizens at any time. m. "Site" shall mean the real property described in Exhibit "A" attached hereto and incorporated herein. n. "Term" shall mean the period of fifty-five (55) years, beginning on the date of recordation of the Agency Regulatory Agreement and ending on the fifty-fifth (55th) anniversary following such date. o. "Units" shall mean the seventy-four (74) Restricted nits and the one (1) two bedroom manager's dwelling unit to be constructed by the Developer on the Site. ARTICLE 2 SENIOR CITIZEN HOUSEHOLD RESTRICTED UNITS -- RENT AND OCCUPANCY AFFORDABILITY COVENANTS -- 2.1. Occupancy Requirement. During the first forty (40) years of the Term of this Agreement not less than seventy-four (74) of the Units (the "Restricted Units") shall be rented or occupied by, or if vacant, available for rental and occupancy by Lower Income Senior Citizen Households. Thereafter for the additional fifteen (15)-year Term of this Agreement, the Restricted Units shall be rented and occupied by, or if vacant, available for rental and occupancy by low-income senior tenants as defmed in Health and Safety Code Section 50093. 2.2. Allowable Rent for Restricted Units. a. Subject to Section 2.3 below, the Rent charged the occupants of the Restricted Units shall not exceed thirty percent (30%) of one-twelfth of the Adjusted Income, adjusted for household size. b. In calculating the allowable Rent for the Restricted Units, the household size shall be assumed to be one (1) person per Restricted Unit. c. At least one hundred eighty (180) calendar days prior to increasing Rent on any Restricted Unit, the Developer shall submit to the Agency for review and approval a written request for such increase. Households occupying Restricted Units shall be given at least ninety (90) calendar days written notice prior to any increase in Rent. Rent for a Restricted Unit may only be increased one time per year and the Rent levels following an increase, or upon a new occupancy, shall not exceed the applicable Rent levels set forth in Section 2.2.a., above. 2.3. Increased Income of a Senior Citizen Household Occupancy of a Restricted Unit. a. In the event, upon recertification of an occupant household's income for a Restricted Unit, the Developer discovers that a Lower Income household no longer qualifies as a Lower Income household, then such household shall not be required to vacate the Project and the 63 P:lAgendaslAgenda ArtachmentslAgenda ArtachmentslAgenda ArtachmentslAgnnts-Art,end 2009\06-01-09 TELACU Housing - San Bernardino V. Inc. DDAdoc Rent chargeable to that household shall be increased to an amount of Rent which is the lesser amount of (i) thirty percent (30%) of that household's actual montWy income; or (ii) the amount payable by the tenant under State or local law. However, when the Restricted Unit is vacated by that household the Restricted Unit shall be rented to a Lower Income household at the Rent level allowed in Section 2.2 for a Restricted Unit as of the date of commencement of such a new occupancy. Moreover, a Restricted Unit occupied by a Lower Income household shall be deemed, upon the termination of such Lower Income household's tenancy to be continuously occupied by a Lower Income household until that Restricted Unit is reoccupied. b. If the Project is subject to state or federal rules governing low-income housing tax credits, the provisions of those rules regarding continued occupancy by, and Rent charged to, households whose incomes exceed the eligible income limitation shall apply in place of the provisions set forth in Section 2.3.a., above. 2.4. Lease Provisions. a. The Developer shall include in leases or rental agreements for all Restricted Units provisions which authorize the owner to immediately terminate the tenancy of any household one or more of whose members misrepresented any fact material to the household's qualification as a Lower Income and/or Senior Citizen Household and for all Restricted Units (except the on- site manager's unit) any misrepresentation relating to the Senior Citizen Household qualification. Each lease or rental agreement for a Restricted Unit shall also provide that the household is subject to annual certification in accordance with Section 4.1 below, and that, if the household's income increases above the applicable limits for a Lower Income household such household's Rent may be subject to increase to the lesser of (i) thirty percent (30%) of that household's actual adjusted montWy income; or (ii) the amount payable by the Tenant under the State or local law, or the household may be required to vacate the Restricted Unit. b. The leases for Restricted Units shall provide that if the Project is subject to State or federal rules governing low-income housing tax credits, the provisions of those rules regarding continued occupancy by, and increases in Rent for households whose incomes exceed the eligible income limitation shall apply in place of the provisions set forth in Section 2.4.a, above. 2.5. BUD Compliance. During the period of time when the HUD Capital Advance Documents are in effect with respect to the Project, compliance by the Developer with the requirements of the BUD Section 202 program and the BUD Capital Advance Documents including the form of tenant lease approved by HUD shall be deemed compliance by the Developer with requirements of this ARTICLE 2, and Section 3.1, and ARTICLE 4, and in the event of a conflict between any such provision of this Agreement and the BUD Capital Advance Documents, the requirements of the BUD Capital Advance Documents shall control. //1 /1/ //1 /1/ 64 P:lAgendaslAgenda Anachrnents~nda AttachrnentslAgeoda AnachrneolslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc ARTICLE 3 OPERATION AND MAINTENANCE OF THE PROJECT 3.1. Use as Senior Citizen Rental Housing. The Project shall be operated only as rental housing for Senior Citizen Households, except for not more than one (1) of the Units which may be used and occupied by on-site resident manager(s) employed by the Developer and/or the Management Agent. No part of the Project shall be operated as transient housing. 3.2. Compliance with the Agreement. The Developer shall comply with all the terms and provisions of the Agreement. 3.3. rRESERVED--NO TEXTl 3.4. Taxes and Assessments. The Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, employment, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Site; provided, however, that the Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Developer exercises its right to contest any tax, assessment, or charge against it, the Developer, on fmal determination of the proceeding or contest, shall immediately payor discharge any decision or judgment rendered against it, together with all costs, charges and interest. This Section 3.4 shall in no way limit the Developer's right to apply for property tax exemption(s) and other tax exemptions which may otherwise be available to the Developer. 3.5. Nondiscrimination. Except as otherwise required by the rental requirements of the HUD Section 202 program and the HUD Capital Advance Documents, all of the Units shall be available for occupancy on a continuous basis to Senior Citizen Household members of the general public (who are also income eligible with respect to the Restricted Units). The Developer shall not give preference to any particular class or group of persons in renting the Units. There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, age, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit. Neither the Developer nor any person claiming under or through the Developer, shall establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the operation and management of any Unit. All deeds, leases or contracts made or entered into by the owner as to the Units or the Site or portion thereof, shall contain covenants prohibiting discrimination as prescribed herein. The Developer shall include a statement in all advertisements, notices and signs for the availability of Units for rent to the effect that the owner is an Equal Housing Opportunity provider. III III 65 P:lAgendaslAgenda AllachmentslAl!enda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06..01-09 TELACU Housing - San Bernardino V, (nc DDA.doc ARTICLE 4 SENIOR CITIZEN HOUSEHOLD AND INCOME CERTIFICATION AND REPORTING 4.1. Age and Income Certification. a. The Developer shall obtain and complete prior to initial occupancy and thereafter maintain on file income certifications from each tenant household renting any of the Restricted Units. The Developer shall make a good faith effort to verify that the income provided by an applicant or occupying Senior Citizen Household in an income certification is accurate by taking one or more of the following steps as part of the verification process: (1) obtain an income tax return for the most recent tax year; (2) conduct a credit agency or similar search; (3) obtain an income verification form from the applicant's current employer; (4) obtain an income verification form from the United States Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. On the anniversary of the occupancy of such Restricted Unit the Developer shall recertify the household income of the Senior Citizen Household occupying the Restricted Unit. Copies of tenant income certification shall be available to the Agency upon request. b. The Developer shall verify, prior to the occupancy of each Restricted Unit, that the Senior Citizen Household satisfies the requirements of a Senior Citizen Household as provided in the Agreement. Thereafter, the Developer shall annually verify that the Senior Citizen Household retains its qualification as a Senior Citizen Household. For purposes of this Section 4.1.b, the Developer may conclusively rely upon the evidence of the age of the occupant(s) of the Restricted Unit as presented in a valid California Driver's License, other form of identification issued by the State or federal government which includes a date of birth. 4.2. Annual Restricted Unit Rental Affordabilitv Report to the Agency. Commencing on the June 30 next following the Certification of the Occupancy Date and on each June 30 thereafter during the Term of the Agency Regulatory Agreement, the Developer shall submit a report to the Agency, in a form approved by the Agency. The annual report shall include for each Restricted Unit covered by this Agency Regulatory Agreement, the Rent and the income and family size of the Senior Citizen Household occupying the Restricted Unit. The report shall also state the date the tenancy commenced for each Restricted Unit and such other information as the Agency may be required by law to obtain; provided, however, that the Agency shall take reasonable steps to maintain the confidential nature of the information contained therein relating to any Restricted Unit. 4.3. Additional Information. The Developer shall provide any additional information reasonably requested by the Agency, including, without limitation, such Project-related income and expense accounting information. The Agency shall have the right to examine and make copies of all books, records or other documents of the Developer which pertain to any Unit; provided, however, that the Agency shall take reasonable steps to maintain the confidential nature of the information contained therein. 66 P:lAgendaslAgenda AttachmentslAg-;nda AttaehmenlSlAgenda Attachments\Agr!nlS-AmeDd 2009\06-01-09 TELACU Housing - San Bernardino Y, Inc. DDAdoc 4.4. Records. The Developer shall maintain complete, accurate and current records pertaining to the Units, and shall permit any duly authorized representative of the Agency (during business hours and upon not less than seventy-two (72) hours notice) to inspect records, including records pertaining to income and household size of tenant households of Restricted Units; provided, however, that the Agency shall take reasonable steps to maintain the confidential nature of the information contained therein relating to any household. ARTICLE 5 PROPERTY MANAGEMENT 5.1. Management Responsibilities. The Developer shall be responsible for management of the Project, including, without limitation, the selection of tenants, certification and recertification of household size, and income for the Restricted Units and the age of the head-of-household of all Restricted Units, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The Agency shall have no responsibility for the management or operation of the Site or the Project. 5.2. Management Agent. The 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 Developer directly performs the functions of the Management Agency by its employees or by means of a service contract with an entity owned or controlled by the Developer, such a Management Agent shall be deemed approved by the Agency. If the Management Agent is an entity or person other than the Developer, its employees or an entity owned or controlled by the Developer, the Developer shall submit for the Agency's approval the identity of any proposed Management Agent together with additional information relevant to the background, experience and [mancial 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 as set forth above, the Agency shall approve the proposed Management Agent by notifying the Developer in writing. Unless the proposed Management Agent is disapproved by the Agency within thirty (30) calendar days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved. The Developer is hereby approved by the Agency as the Management Agent for the Project. Any Management Agent approved by HUD during the term of the HUD Capital Advance Documents shall be deemed approved by the Agency. 5.3. Maintenance of the Site and the Proiect. a. The Developer shall maintain the Site and the Project in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that, at any time during the term of this Agency Regulatory Agreement, there is an occurrence of an adverse condition on any area of the Site in contravention of the general maintenance standard described above (a "Maintenance Deficiency"), then the Agency shall notify the Developer in writing of the Maintenance Deficiency and give the Developer (60) calendar days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Developer 67 P:lAgendaslAgenda AttaclunentslAgenda AttaclunentslAgenda Attaclunents\Agrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,lnc DDA.doc fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Developer ten (10) calendar days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply with the provision of this Section 5.3 .a. If, upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non- compliance with the general maintenance standard, as described above, thereafter the Agency shall have the right, but not the obligation, to enter the Site and perform all acts necessary to cure the Maintenance Deficiency, or take other action at law or equity, the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency as authorized by this Section 5.3.a shall become a lien on the Site. If the amount of the lien is not paid within thirty (30) calendar days after written demand for payment by the City or by the Agency has been presented to the Developer, the Agency shall have the right to enforce the lien in the manner as provided in Section 5.3.c. b. Graffiti which is visible from any public right-of-way which is adjacent or contiguous to the Site shall be removed by the Developer from any exterior surface of a structure or improvement on the Site by either painting over the evidence of such vandalism with a paint which has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water as appropriate. In the event that graffiti is placed on the Site and such graffiti is visible from an adjacent or contiguous public right-of-way and thereafter such graffiti is not removed within seventy-two (72) hours following the time of its application; then in such event and without notice to the Developer, the Agency shall have the right, but not the obligation, to enter the Site and to remove the graffiti. Notwithstanding any provision of Section 5.3 to the contrary, any sum expended by the Agency for the removal of graffiti from the Site as authorized by this Section 5.b, shall become a lien on the Site. If the amount of the lien is not paid within thirty (30) calendar days after written demand for payment by the Agency to the Developer, the Agency shall have the right to enforce its lien in the manner as provided in Section 5.3c. c. The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 5.3 expressly include the power to establish and enforce a lien or other encumbrance against the Site, or any portion thereof, in the manner provided under California Civil Code Sections 2924, 2924b and 2924c in the amount reasonably necessary to restore the Site to the maintenance standard required under Section 5.3.a, or Section 5.3.b, including reasonable attorneys' fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action. The provisions of this Section 5.3 shall be a covenant running with the land for the Term of the Agency Regulatory Agreement and shall be enforceable by the Agency, and its successors and assigns. Nothing in the foregoing provisions of this Section 5.3 shall be deemed to preclude the Developer from making any alterations, additions, or other changes to any structure or improvement or landscaping on the Site, provided that such changes comply with applicable law. No lien as may arise under this Section 5.3 shall interfere with or be superior to the security interest of any mortgage secured by the Site. d. Notwithstanding the foregoing provisions of this Section 5.3, during the term of the HUD Capital Advance Documents, the Agency shall not enter the Site, except in an 68 P:lAgendaslAgenda AttachrnentslAgenda AnachrnentslAgenda AttachrnentslAgnnts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V. Inc. DDAdoc emergency, without the prior written approval of HUD, and any lien of the Agency authorized under this Section 5.3 shall also be subject to the prior written approval of HUD. 5.4. Insurance Coverage. The Developer shall cause to have in full force and effect during the term of this Agency Regulatory Agreement, insurance coverage as follows: (i) If any building or improvements erected by the Developer on the Site shall be damaged or destroyed by an insurable cause, the Developer shall, at its own cost and expense, diligently repair or restore the Site and the Project consistent with the original plans and specifications for the Project. Such work or repair shall be commenced within one hundred twenty (120) calendar 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 insurance proceeds shall be insufficient for such purpose, the Developer shall make up the deficiency; (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 occurrence, One Million Dollars ($1,000,000.00) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000.00) per occurrence and Five Hundred Thousand Dollars ($500,000.00) in the aggregate. (iii) a policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Developer, the Agency, and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Developer in the course of carrying out the activities in this Agency Regulatory Agreement. (iv) a policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000.00) per person and Five Hundred Thousand Dollars ($500,000.00) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000.00) per occurrence and One Hundred Thousand Dollars ($100,000.00) in the aggregate or (ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000.00). Said policy shall include coverage for owned, non-owned, leased and hired vehicles. All of the above policies of insurance shall be primary insurance and shall name the City and the Agency, and their officers, employees, and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City and the Agency and their officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) calendar days prior written notice by registered mail to the Agency. In the 69 P:lAgendaslAgenda AttachmentsiAgenda AttachrnentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDAdoc event any of said policies of insurance are canceled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Interim Executive Director of the Agency. No operation of the Project shall commence until the Developer has provided the Agency with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages, and said certificates of insurance or binders are approved by ~he 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 Interim Executive Director of the Agency due to unique circumstances. Compliance by the Developer with the insurance requirements of HUD under the HUD Capital Advance Documents shall be deemed to meet the foregoing requirements during the period that the HUD Capital Advance Documents are in effect so long as the Agency, the City and their officers, employees, and agents are named as additional insureds on all said policies as evidenced by certificates of insurance issued to the City and the Agency. The Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which the Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. Upon prior written notice from the Agency to the Developer, the Developer, at its sole cost and expense, shall immediately increase any insurance policy coverage amounts and the Developer shall immediately obtain and maintain additional insurance policies in such coverage amounts as reasonably determined by the Agency; provided, however, during the term of the HUD Capital Advance Documents, any such increase shall require HUD's prior approval and any such requested increases, whether or not made during the term of the HUD Capital Advance Documents, must be reasonable. ARTICLE 6 MISCELLANEOUS AND PRIORITY OF HUD CAPITAL ADVANCE DOCUMENTS 6.1. Term. The provisions of this Agency Regulatory Agreement shall apply to the Site for the entire Term. This Agency Regulatory Agreement shall bind any successor, heir or assign of the Developer, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, with or without the approval of the Agency, except as expressly released by the Agency. 6.2. Priority of HUD Capital Advance Documents. This Agency Regulatory Agreement shall be subject to and subordinate to the terms and provisions of the HUD Capital Advance Documents and any other documents entered into by and between the Developer and the Secretary of Housing and Urban Development ("Secretary of HUD") in connection with the improvement or operation of the Project. Notwithstanding anything contained herein to the I 70 P.lAgendas\Agend. AtUchmentslAiend. An.chments\Agenda All.chmentslAgrmts-Amend 2009\06-01.09 TELACU Housing - San Bernardino V, Ine. DDAdoc contrary, in the event the Secretary of HUD should take title to the Site through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants, conditions and restrictions set forth in this Agency Regulatory Agreement shall cease and terminate and be of no further force or effect. Notwithstanding anything in this Agency Regulatory Agreement to the contrary, in the event any provision in this Agency Regulatory Agreement tends to contradict, modify, or in any way change the terms of the HUD Capital Advance Documents, the terms of the HUD Capital Advance Documents shall prevail and govern; or if any provision of this Agency Regulatory Agreement in any way tends to limit the Secretary of HUD in its administration of the National Housing Act of 1937, as amended, or the Housing Act of 1959, as amended, or the regulations pursuant thereto, this Agency Regulatory Agreement shall be deemed amended so as to comply with such acts, regulations and the HUD Capital Advance Documents. 6.3. rRESERVED--NO TEXTl 6.4. Non-Liability of Officials. Employees and Agents. The Agency shall not be personally liable to the Developer for any obligation created under the terms of this Agency Regulatory Agreement except in the case of actual fraud or willful misconduct by such person. 6.5. Covenants to Run With the Land. Subject to the provisions of Section 6.2, the Agency and the Developer hereby declare their express intent that the conditions, covenants and restrictions set forth in this Agency Regulatory Agreement are affordable redevelopment housing covenants and that each and every provision of this Agency Regulatory Agreement shall run with the land, and shall bind all successors-in-title to the Site and/or to the Project; provided, however, that on the expiration of the Term of this Agency Regulatory Agreement said conditions, covenants and restrictions shall expire. 6.6. Enforcement by the Agency. If the Developer fails to perform any obligation under this Agency Regulatory Agreement, and fails to cure the default within thirty (30) calendar days after the Agency has notified the Developer in writing ofthe default or, ifthe default cannot be cured within thirty (30) calendar days, fails to commence to cure within thirty (30) calendar days and thereafter fails to diligently pursue such cUre, the Agency shall have the right, but not the obligation, to enforce this Agency Regulatory Agreement by any or all of the following actions, or any other remedy provided by law: a. Action to Compel Performance or for Damages. The Agency may bring an action at law or in equity to compel the performance of the obligations of the Developer under this Agency Regulatory Agreement, and/or for damages; provided that during the term of the HUD Capital Advance Documents, HUD has consented in writing to any such enforcement action; b. Enforce Liens. The Agency may enforce and execute upon the lien rights of the Agency as conferred under Section 5.3 of this Agency Regulatory Agreement; provided that during the term of the HUD Capital Advance Documents, HUD has consented in writing to any such lien. 6.7. Attorneys' Fees and Costs. In any action brought to enforce this Agency Regulatory Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including attorneys' fees and court costs. This section shall be interpreted in accordance with 71 - P:lAgendaslAgenda AnachmentslAgenda ArtachmentslAgeoda ArtachmeotslAgrmts-Ameod 2009\06-01-09 TELACU Housing - San Bernardino V,Inc. DDA.doc California Civil Code Section 1717 and judicial decisions interpreting that statute. For the purposes of this Section 6.7, the salary, fringe benefits and overhead expenses of lawyers employed in the Office of the City Attorney of the City of San Bernardino shall be deemed to be attorney's fees. In the event HUD acquires title to the Property in accordance with and/or under the HUD Capital Advance Documents, HUD shall not have any liability under this Section 6.7 of this Agency Regulatory Agreement. 6.8. Recording and Filing. The Agency and the Developer shall cause this Agency Regulatory Agreement, and all amendments and supplements to it, to be recorded in the Official Records of the County of San Bernardino, California. 6.9. Governing Law. This Agency Regulatory Agreement shall be governed by the laws of the State of California, except those provisions preempted by federal law. 6.10. Amendments. This Agency Regulatory Agreement may be amended only by a written instrument executed by all the parties hereto or their successors-in-title, and duly recorded in the real property records of the County of San Bernardino, California; provided however, that during the period of time when the provisions of the HUD Capital Advance Documents are in effect, this Agency Regulatory Agreement may not be amended without the prior written approval of the Secretary ofHUD. 6.11. Notice. All notices given or certificates delivered under this Agency Regulatory Agreement shall be deemed received on the delivery or refusal date shown on the delivery receipt, if: (i) personally delivered by a commercial service which furnishes signed receipts of delivery, or (ii) mailed by certified mail, return receipt requested, postage prepaid, addressed as shown on the signature page. Any of the parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent. 6.12. Severability. If any provision of this Agency Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agency Regulatory Agreement shall not in any way be affected or impaired thereby. 6.13. [RESERVED--NO TEXT. 6.14. Relationship of the' Parties. The relationship between the Agency and the Developer during the term of this Agency Regulatory Agreement shall not be construed as a joint venture, equity venture, or partnership. The Agency does not undertake nor assume any responsibility or duty to the Developer or any third party with respect to the ownership of the Site or the operation of the Project or the actions of the Developer. The Developer shall have no authority to act as an agent of the Agency or to bind the Agency to any obligation. 6.15. Waiver. Any waiver by the Agency of any obligation in this Agency Regulatory Agreement must be in writing. No waiver will be implied from any delay or failure by the Agency to take action on any breach or default of the Developer or to pursue any remedy allowed under this Agency Regulatory Agreement or applicable law. Any extension of time granted to the Developer to perform any obligation under this Agency Regulatory Agreement 72 - P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Arnend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc shall not operate as a waiver or release from any of its obligations under this Agency Regulatory Agreement. Consent by the Agency to any act or omission by the Developer shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the Agency's written consent to future waivers. 6.16. Other Agreements. The Developer represents that it has not entered into any agreements that would restrict or compromise its ability to comply with the terms of this Agency Regulatory Agreement. Except for the HUD Capital Advance Documents and any other documents required by HUD under the HUD Section 202 program, the Developer shall not enter into any agreements that are inconsistent with the terms of this Agency Regulatory Agreement without the express approval by the Agency in writing. //1 1/1 1// 1// 1// //1 //1 1// 1// //1 1/1 1// //1 //1 1/1 //1 //1 /II //1 //1 1// //1 //1 1/1 //1 73 - P:\A.gendas\Agenda Anachments\Agenda Attachments\Agenda Attachments\Agrmts-Arnend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc IN WITNESS WHEREOF, the Agency and the Developer have for themselves and their successors and assigns executed this Agency Regulatory Agreement by duly authorized representatives in counterpart original copies, all as of the date first written above. AGENCY Redevelopment Agency of the City of San Bernardino Date: By: Ernil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: Agency Counsel DEVELOPER TELACU Housing-San Bernardino V, Inc., a California non-profit public benefit corporation By: Date: By: [ALL QFFICER/PRINCIP AL SIGNATURES TO BE NOTARIZED] 74 PlAgendaslAgenda AttachmentslAgenda AttachmenlSlAgenda AttachmenlslAgrmlS-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All that certain real property situated in the COlll1ty of San Bernardino, State of California, described as follow: Parcel No. 1: APN 0134-093-043 Lot 8, Block 26, according to the map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Excepting therefrom the North 50 feet; And The West 50 feet of Lot 1, Block 26, according to map of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Parcel No.2: APN 0134-093-020 That portion of Lot 1, Block 26, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County. Beginning at a point 50 feet East of the Southwest comer of said Lot 1; Thence running North 150 feet, more or less, to the North line of Lot 1; Thence East 50 feet; Thence South 150 feet, more or less, to South line of said lot; Thence West 50 feet to the Point of Beginning. Parcel No.3: APN 0134-093-019 That portion of Lot 1, Block 26, of the City of San Bernardino, County of San Bernardino, State of California, as per map recorded in Book 7, Page 1 of Maps, in the Office of the County Recorder of said County, described as follows: 75 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgenda AttachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDA.doc Beginning at a point on the South line of said Lot 1, 150 feet 4 inches from the Southeast comer of said lot; Thence Westerly along the South line of said lot, 48 feet, more or less, to the Southwest comer of the land conveyed to A. F. Beasley, et al, by Deed Recorded in Book 58, Page 425, of deeds; Thence North along the East line of the land conveyed to Beasley, 150 feet, more or less to the North line of Lot 1; Thence East along the North line of Lot 1, 48 feet, more or less, to a point 150 feet 4 inches West of the Northeast comer of said Lot 1; Thence South to the Point of Beginning. Parcel No. 4:APN 0134-093-045 portion That portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning on the West line of"G" Street 99 feet 9 1/3 inches North of the Southeast comer of said Lot 1; Thence North along "G" Street, 49 feet 10 2/3 inches, more or less, to the Northeast comer of said Lot 1; Thence West along the North line of said Lot 1, a distance of 150 feet; Thence South 49 feet 10 2/3 inches, more ofless to a point 99 feet 9 1/3 inches North of the South line of said Lot 1; Thence East 150 feet to the Point of Beginning. Parcel No. 5:APN 0134-093-045 portion All that portion of Lot 1, Block 26, according to the map of 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, described as follows: Beginning at the Southeast comer of said Lot 1; Thence North 99 feet 9 1/3 inches; Thence West 150 feet 4 inches; Thence South 99 feet 9 1/3 inches to the South line of said Lot 1; Thence East 150 feet 4 inches to the Point of Beginning. 76 PlAgendaslAgenda Anachmc'tslAgenda Altachments\Agenda AllachmentslAgrmts-Amend 2009\06-01-09 TELACU Housing - San Bernardino V, Inc. DDAdoc