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HomeMy WebLinkAbout11- Development Department L , VELOPMENT DEPARTMEJ q'T OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION FROM: KENNETH J. HENDERSON SUBJECT: EMBLEM DEVELOPMENT Executive Director DATE: August 31, 1993 --------------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action (s): On September 1, 1992, the original Owner Participation Agreement (OPA) between Emblem Development Corporation and the Redevelopment Agency was executed. On November 6, 1992, Amendment No. 1 to Emblem Development Corporation Owner Participation Agreement (OPA) executed. On July 13, 1993, Housing Committee recommends approval of revised Financial Assistance Proposal and Owner Participation Agreement (OPA) for Emblem Development. ------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): i (Community Development Commission) MOTION: That the Community Development Commission approve the revised Emblem Development financial assistance proposal and Owner Participation Agreement (OPA) to effectuate construction of fifty-nine (59) high-quality single-family detached homes and authorize the Chairman and Executive Director to execute any document necessary to effectuate said transaction. Administrator KENNETH J. HE fDERSON Executive Director --------------------------------------------------------------------------- Contact Person(s): Kenneth J. Henderson/David R. Edgar Phone: 5081 i Project Area(s): Ward(s): Supporting Data Attached: Staff Report FUNDING REQUIREMENTS: Amount: $ 380,000 Source: Low/Mod 1 Budget Authority: Approved 9/1/92 --------------------------------------------------------------------------------------------------------------------------------------------- Commission/Council Notes: ------------------------------------------------------------------------------------------------------------------------- KJH:DRE::paw:emblem.edc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: DEVELOPMENT DEPARTMENT STAFF REPORT ---------------------------------------------------------------------------------------------------------------------- EMBLEM DEVELOPMENT In August 1992, the Redevelopment Agency executed an Owner Participation Agreement (OPA) with Emblem Development Corporation to effectuate construction of fifty-nine (59) high-quality, single-family detached homes located within the State College Redevelopment Project Area (Please see attached site map). The terms of this Agreement defined the Agency's participation as providing construction financing in the amount of $472,000. These funds were to be used for "improvements of the site" and were to be repaid from sales proceeds on a per unit basis. Mr. Phil Walsh, President of Emblem Development, has met with Housing Division staff to review the project and to discuss the amount and structure of Agency assistance as currently defined within the recorded OPA. During the entitlement process for this development, a number of unforeseen events occurred which significantly affecied the financial viability of this project. These events are as follows: 1. Current zoning permits a total of 64 SFR lots, all of which were approved through the Findings of Fact document completed by the Planning and Building Services Department and adopted by the Mayor and Common Council. As a result of the review and approval process required by various departments, Planning staff required a 15 foot dedication of land along the flood control channel for patrol and maintenance purposes. This dedication resulted in a loss of six (6) lots from the original project design, thereby resulting in an increase cost of $46,645 to the project. 2. The Public Works Department required the raising of pad elevations by 1 foot above the proposed finish grade, as well as the requirement to construct a 6 foot block wall along the flood control channel. These requirements resulted in additional costs of $86,400 to the project. 3 The Planning and Building Services Department required an Arborist's Report to review existing trees on the subject property. This report delayed the project approximately four (4) months, and required the developer to relocate existing trees. The Arborist's Report was an additional $3000 cost to the project, while the cost to relocate existing trees is considered substantial but still unknown at this time. 4. The Planning and Building Services Department required the developer to pay an additional $3000 fee for traffic signal participation, above the customary per unit Traffic Signal mitigation fee. -------------------------------------------------------------------------------------------------------------------------- KJH:DRE::paw:emblem.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: �� DEVELOPMENT DEPT I'MENT STAFF REPORT EMBLEM DEVELOPMENT AUGUST 23, 1993 PAGE - 2 - ----------------------------------------------------------------------------------------------------------------------------- 5. As a result of City access (ingress/egress) requirements, it was necessary for the developer to purchase additional properties to the north of the site, at a cost of $59,000. To complete infrastructure and street improvements necessary for this access road, additional project costs totalling approximately $77,804 are required. 6. Due to continuous delays and modifications to the tract design, the developer incurred an additional $14,800 in taxes and $46,000 in land carrying costs. TOTAL: $277,650 The recent severe downturn in the residential sales market has caused the developer to significantly reduce anticipated sales prices of these homes. These sales price reductions are necessary to make the project competitive and successful in the current economy. Unanticipated sales price reductions, however, also resulted in a reduction in the financial viability of this project. The developer has formally requested that Agency participation be restructured to provide financial assistance which will not only allow the development to proceed, but would also provide the Agency with substantially increased benefits. Proposed restructured assistance would afford the Agency significantly better protection of its investment, provide a greater number of homes which are truly "affordable" to low-to-moderate income families, and would be fully recaptured within a five (5) year time period. The developer will construct these homes in three (3) phases and Agency assistance would only be provided upon actual recordation of a construction loan. The anticipated construction financing phasing schedule would be as follows: Phase I - 3 models and 17 units, beginning approximately November 1993 Phase II - 20 units, beginning approximately June 1, 1994 Phase III - 19 units, beginning approximately December 1, 1994 Agency assistance would be utilized for partial payment of building permits and fees, up to $9,500 per house for forty (40) homes, totalling $380,000. These funds would be paid to the City of San Bernardino, with the developer receiving no direct financial assistance. Funding --------------------------------------------------------------------------------------------------------- KJH:DRE::paw:emblem.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1/993 / Agenda Item Number: f / DEVELOPMENT DEPT T'MENT STAFF REPORT ..• EMBLEM DEVELOPMENT AUGUST 23, 1993 PAGE - 3 - ----------------------------------------------------------------------------------------------------------------------------- would be provided through available low-to-moderate set-aside funds, which have been previously committed to this project. In consideration of Agency assistance, the developer will offer forty (40) homes at extremely competitive ("affordable") prices to low-to-moderate income buyers who would not otherwise be able to afford a home at current market prices. The modified home prices and sizes are as follows: - Plan I 1,202 sq.ft., 3 bedrooms/2 bath, 1 story, priced at $108,000 Plan II 1,303 sq.ft., 3 bedrooms/2 bath, 1 story, priced at $115,000 Plan III 1,630 sq.ft., 4 bedrooms/2.5 bath, 2 story priced at $125,000 If the designated homes are re-sold during the affordability period and no longer remain "affordable", the Agency will then recapture a pro-rata portion of the funds expended on this development. In essence, the Agency virtually guarantees ten (10) years of affordable housing (double the national average) before assistance provided to this development is fully "forgiven". Emblem Development has been constructing high quality single-family detached homes for over 20 years in Southern California, including extensive activity in both Riverside and San Bernardino counties. Phil Walsh, the corporation President, is currently President of the Baldy-View Chapter of the Building Industry Association (BIA) of Southern California. Emblem Development's most recent local housing project, completed in 1991 (the "Golden Terrace") included twenty-three (23) homes located at Etiwanda just east of Pepper Street. In addition, the "Fiesta" project located in Riverside is currently being marketed. This project can be viewed by taking the 60 Freeway West to Pedley Road. Homes contained within the proposed development will include a number of high-quality amenities and features such as concrete the roofs, front yard landscaping and sprinklers with full yard fencing, top-quality appliances and ceramic tile counter tops. One additional benefit of this development is the substantial impact it will make on the surrounding neighborhood. A portion of the development is bounded by unincorporated properties which are in need of substantial rehabilitation/improvement. This project will not only raise the level of aesthetics within the immediate area, but will also set the standard for all future rehabilitation and development projects. -------------------------------------------------------------------------------------------------------------------------- KJ 1:DRE::paw:emblem.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: _ DEVELOPMENT DEPT' TMENT STAFF REPORT EMBLEM DEVELOPMr NT AUGUST 23, 1993 PAGE - 5 - ---------------------------------------------------------------------------------------------------------------------------- On July 13, 1993, the Housing Committee considered this item and recommended approval to the Community Development Commission. For the significant heretofore mentioned community benefits, and based upon the amount and structure of Agency assistance being requested, staff recommends adoption of the form motion. KENNETH J. 4ENDERSOX, Executive Director Development D partment -------------------------------------------------------------------------------------------------------------------------- KJH:DRE::paw:emblem.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: / I � i f Tt ST SUK ry 1 pi I I , fl coca Ift.06 1 ,{ , - :R Li aty��,,�--- a{ ,': n r ., _ + •.q � y » M e ))11 ss ,. 911 \, •' •`, �� yam— 1 © r 1 b w � f TL Lp SO- �R[[ORG QNta+ . '\ .``\;.�� ��',ly��`�j -.G'�-�- rte. }•. - -rA .. � 1•: � \ _+��j - _ ".mow •_ _ k u ca1VC �1 �~Q't �r .OI1. r. - •1 _. ._ w�ter• --»`:w� ` r <� 467M g 41L0 WE x € MKT S1' 4M rJd� � •8lTC VICINITY MAP _ WT TO %GALE / From EMBLEM Tul.01. 1993 04:33 PM P02 Emblem ]Development Corporation 9922 WALKER STREET,SURE'J' P.O.BOX 1580 CYPRESS,CALIFORNIA 90630 **Sol (714)821-9076 Jul y 1 , 1993 Me. Janis I. McWilliams Housing Development Specialist City of San Bernardino 241 N. E Street, Third Floor San Bernardino, Ca. , 92401-1507 RE% OWNER PARTICIPATION AGREEMENT (OPA) Dear Janice) In response to your letter of June 109 1993 and our subsequent conversations we have done a reevaluation of the mmtire project on Tentative Tract 14715. The review of our numbers and a survey of the competition we would indicate to us that we have two alternatives at thin time. The first would be to hold the 1arid until such time as the market returns. The second alternative is to write down the cost of the land so that we would be competitive in the market place. We have decided to write down the land $7,000.00 per lot. As a result our proforma would be as follows: PLAN 1200 $109,000.40 LAND $10,000.00 IMPROVEMENTS 21 ,979.99 FEES 14,900.00 HOUSE 43,200.90 OVERHEAD 2,000.00 MARKETING 6,goo.00 INTERIM PTS (2%) 1 ,610.00 (70Y LOAN) INTERIM INTEREST 5,434.00 (70% LOAN 75%-9 MOS-9%) ' T/OUT POINTS 1 ,638.00 (95% OF S.P. @ 1 1/2X) CLOSING COSTS 19150.00 TOTA1, $108,811.00 MINUS GRANT t 9,300.00) , ADJUSTED COSTS $ 99,311,00 PROFIT/LOSS $ 8,6 89.00 1� From EMBLEM Ju 1.01.1993 84:33 PM P03 Page 2 ' ► Janis McWilliams July 19 1993 PLAN 1320 $115,000.00 COSTSt LAND 110,000.00 IMPROVEMENTS 21 ,979.00 FEES 14,900.00 HOUSE 47,520.00 (@ $36.00 SQ. .FT. ) OVERHEAD 2,000.00 ' MARKETING 7,320.00 INTERIM PTS (2%) 1 ,708.00 INTERIM INTEREST 5,764.00 (70% LOAN 75%-9 MOS-9Y.) T/OUT PTS 1 ,739.00 CLOSING COSTS 1 ,220.00 TOTAL COSTS $114,150.00 MINUS GRANT t 9,300.00) ADJUSTED COSTS $104,b50�00 PROFIT/LOSS !t 10,350.00 PLAN 1630 $1259000.00 COSTSt LAND' $10,000.00 IMPROVEMENTS 219979.00 FEES 149900.00 HOUSE 579050.00 (0 $35.00 SQ.FT. ) OVERHEAD 21000.00 MARKETING 79920.00 INTERIM PTS (2%) 19848.00 (707. LOAN) INTERIM INTEREST 6,237.00 (70% LOAN-75% 9 M08-9Y.) T/OUT POINTS 1 ,881.00 CLOSIN© COSTS 1 ,320.00 TOTAL COSTS $125, 135.00 MINUS GRANT ( 99500.00) ADJUSTED COSTS $115,625.00 PROFIT/LOSS S 9,365.00 From EMBLEM Jul.01. 1993 04:33 PM P94 +rJ Paget 3 Ms. McWilliams July 1 , 1993 While I recognize that we would only Raver this grant available on forty of the houses we feel that a feasible marketing program can be worked out for the remaining 19 units. Current interest rates and the many financing programs available , today offer flexibility that will permit us to attract buyers for the remaining 19 units,, You recently requested the assessor parcel numbers on the properties that we own. Attached to this letter please find the list of those parcals. should you have any further questions please do not hesitate to contact the undersigned. Very truly yours, BLEM EVELOPMENT CORPORATION PHILIP W. WALSH, , President PWWtcf Enc. 9300IA • � l SABO & GREEN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW SUITE 400 6320 CANOOA AVENUE WOODLAND HILLS,CALIFORNIA 91367 (818)704-0195 ENCLOSURE MEMO Date: August 17, 1993 To: David Edgar Housing Division Manager From: Alexis Crump Enclosed please find four (4) original revised Amended and Restated Emblem Development OPA's, per your request. Please contact us if you have any further questions. AGC SBEO/0001/MISC/998 VIA FEDERAL EXPRESS i RECORDING REQUESTED BY: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WHEN RECORDED RETURN TO: SABO & GREEN, a Professional Corporation Suite 400 6320 Canoga Avenue Woodland Hills, California 91367 (Space Above for Recorder's Use) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT (EMBLEM DEVELOPMENT CORPORATION) By and Between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO and EMBLEM DEVELOPMENT CORPORATION, a California corporation 0 TABLE OF CONTENTS Pace I. [100] AMENDMENT AND RESTATEMENT A. [101] Original Owner Participation Agreement 1 B. [102] Need for Amendment and Restatement . 1 C. [103] Effect of Restated and Amended Owner Participation Agreement . . . . . . . 2 II. [200] SUBJECT OF AGREEMENT A. [201] Purpose of Agreement . . . . . . . 2 B. [202] The Redevelopment Plan . . . . . . . . 3 C. [203] The Site . . . . . . . . . . . 3 D. [204] Parties to the Agreement . . . . . . . . . 3 1. [205] The Agency . . . . . . . . . . 3 2. [206] The Participant . . . . . . . . 4 3. [207] Prohibition Against Change in Ownership, Management and Control of the Participant . . . . . . 4 4. [208] Benefit to Project Area . . . . . . . 6 III. [300] AGENCY ASSISTANCE A. [301] Project . . . . . . . . . _ 6 • B. (302) Financing Assistance . . . . 7 C. [303) Affordable Housing Covenants . . . . . . . 9 IV. [400] IMPROVEMENT OF THE SITE A. [401] Scope of Development . . . . . . • 11 B. [402] Cost of Construction . . . • •. • • . •• 11 C. [403] Construction Schedule . 12 D. [404] Bodily Injury and Property Damage Insurance . . . . . . . . 12 E. [405] City and Other Governmental Agency Permits . . . . 14 F. [406] Rights of Access . . . . • • • • • . . 14 G. [407] Local, State and Federal Laws . • • • 15 H. (408) Antidiscrimination During Construction . . . . . . . . . . . . . 15 I. [409] Taxes, Assessments, Encumbrances and Liens . . . . . . . . . . . . . . . . 16 g J. [410] Prohibition Against Transfer of the Site, the Buildings or Structures Thereon and Assignment of Agreement . . . . . . . . . . . . 16 K. [411] Mortgage, Deed of Trust, Sale and Lease-Back Financing; Rights of Holders . . . . . . . . . . 17 1. [412] No Encumbrances Except Mortgages, Deeds of Trust or Sale and Lease-Back for Development . . . 17 2. [413] Holder Not Obligated to Construct Improvements . . . . . . . 17 3. [414] Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure . . . . . . . . . 18 4. [415] Failure of Holder to Complete Improvements . . . . . . . 19 5. [416] Right of Agency to Cure Mortgage or Deed of Trust Default . . . . . . 20 V. [500] USES OF SITE; AFFORDABILITY COVENANTS A. (501) Uses - Covenants Running With the Land 21 B. [502] Maintenance of the Site . . . . . 24 C. [503] Effect of Violation of the Terms and Provisions of this Amended and Restated Owner Participation Agreement After Completion of Construction . . . . 24 VI. [600] GENERAL PROVISIONS A. [601] Notices, Demands and Communications Between the Parties . . . . 26 B. [602] Conflicts of Interest; Nonliability 26 C. [603] Enforced Delay; Extension of Times of Performance . . . . . . . . . . 27 D. [604] Inspection of Books and Records . . . . . 28 VII. (700) DEFAULTS AND REMEDIES A. [701] Defaults - - General . . 28 B. [702] Legal Actions . . . . . . . . . . . . . . 30 1. [703] Institution of Legal Actions . . . . 30 2. [704] Applicable Law . . . 31 3. [705) Acceptance of Service of Process . . 31 C. [706] Rights and Remedies are Cumulative 31 D. [707) Inaction Not a Waiver of Default . . . . 31 E. [708] Remedies . . . . . . . 32 1. [709] Damages . . . . . . . . . . . . . . 32 (11) l VIII. [800] SPECIAL PROVISIONS k A. [801] Submission of Documents to Agency for Approval . . . . . . 32 B. [802] Successors in Interest . . . . . . . . . 33 IX. [900] ENTIRE AGREEMENT, WAIVERS . . . . . . . . . . 33 X. [1001] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY A. [1001] Time for Acceptance . . . . . . . . . . . 34 ATTACHMENT NO. 1 - LEGAL DESCRIPTION ATTACHMENT NO. 2 - HEALTH & SAFETY CODE SECTION 50052.5 ATTACHMENT NO. 3 - SCOPE OF DEVELOPMENT ATTACHMENT NO. 4 - SCHEDULE OF PERFORMANCE ATTACHMENT NO. 5 - PROMISSORY NOTE SECURED BY DEED OF TRUST ATTACHMENT NO. 6 - DEED OF TRUST WITH ASSIGNMENT OF RENTS ATTACHMENT NO. 7 - AFFORDABILITY CRITERIA VERIFICATION WORKSHEET ATTACHMENT NO. 8 - MORTGAGE ASSISTANCE PROGRAM FINAL APPLICANT REPORT F 38BOOW146JB ARMA.ARIN 8/17/931230 AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT THIS AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT IS ENTERED INTO this day of September, 1993, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO (the "Agency") and EMBLEM DEVELOPMENT CORPORATION, a California corporation (the "Participant") . Agency and Participant hereby agree as follows: I. (100] AMENDMENT AND RESTATEMENT A. (101] Original Owner Participation Agreement The Agency and the Participant have previously entered into a certain Owner Participation Agreement (Emblem Development) dated as of September 1, 1992, and recorded in the County of San Bernardino Recorder's office as Document No. 92-379173 (hereinafter referred to as the "Original OPA") , and an Amendment No. 1 to Owner Participation Agreement dated as of November 6, 1992 and recorded as Document No. 92-474786 (hereinafter referred to as "Amendment No. 1") . B. (102) Need for Amendment and Restatement Because of certain economic conditions affecting both the Participant and the Agency, the Parties have deemed it necessary to make certain amendments to the Original OPA as amended pursuant to Amendment No. 1, in order to ensure the expeditious completion of the development of the single family residential homes which were / l the subject of the Original OPA and therefore the parties have further deemed it desirable to restate in its entirety the Original OPA as amended by Amendment No. 1 and as subsequently amended by this Amended and Restated Owner Participation Agreement. C. [103] Effect of Restated and Amended Owner Participation Agreement This Amended and Restated Owner Participation Agreement shall supersede in its entirety the Original OPA as amended pursuant to Amendment No. 1 provided, however, that to the extent not otherwise defined herein, all terms used herein shall have the same meanings as in the Original OPA and Amendment No. 1. II. [200] SUBJECT OF AGREEMENT A. [201] Purpose of Agreement The purpose of this Amended and Restated Owner Participation Agreement is to effectuate the Redevelopment Plan for the State College Redevelopment Project (the "Redevelopment Plan") by providing for Agency assistance to Participant for the improvement of the Site, as hereinafter defined, which is located in and will benefit the State College Redevelopment Project Area (the "Project Area") . The completion of the improvements on the Site pursuant to this Amended and Restated Owner Participation Agreement is in the vital and best interests of the City of San Bernardino, California (the "City") , and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Redevelopment Plan has been undertaken. The - 2 - f( I UL Community Development Commission, acting on behalf of the Agency, has determined that the uses contemplated by this Amended and Restated Owner Participation Agreement will benefit the low- and moderate-income housing needs of the City and the Project_Area, and has authorized the use of funds from the Agency's Low- and Moderate-Income Housing Fund. B. (202] The Redevelopment Plan The Redevelopment Plan for the State College Project No. 4 was approved by Ordinance No. 3067 of the Common Council of the City of San Bernardino on April 27, 1970; said Ordinance and the Redevelopment Plan as so approved are incorporated herein by reference. C. (203) The Site The Site is that certain real property generally located near the intersection of Kendall Road and 4th Avenue in the City of San Bernardino and consists of those Assessor Parcels as more fully described in the "Legal Description of the Site, " which is attached hereto as Attachment No. 1 and is incorporated herein by this reference. D. (204) Parties to the Agreement 1. (205] The Agency The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California (Health and Safety Code Section 33020, et sea. ) / - 3 - /1 I W, The principal office of the Agency is located at 201 North "E" Street, San Bernardino, California 92401. "Agency, " as used in this Amended and Restated Owner Participation Agreement, includes the Community Development Commission of the City of San Bernardino, the Economic Development Agency of the City of San Bernardino, the Redevelopment Agency of the City of San Bernardino, and any assignee of or successor to their rights, powers and responsibilities. 2. (206) The Participant The principal office and mailing address of the Participant for purposes of this Amended and Restated Owner Participation Agreement is Emblem Development Corporation, 9922 Walker Street, Suite "J, " Cypress, California 90630, Attn: Philip Walsh. The Participant qualifies as an owner participant pursuant to the Redevelopment Plan and rules promulgated pursuant thereto pertaining to owner participation. 3 . [207] Prohibitio n Against Chan a 'n Ownership, Management and Control of the Participant The qualifications and identity of the Participant are of particular concern to the Agency. It is because of those qualifications and identity that the Agency has entered into this .E Amended and Restated Owner Participation Agreement with the Participant. No voluntary or involuntary successor in interest of - 4 - ! / the Participant shall acquire any rights or powers under this Amended and Restated Owner Participation Agreement except as expressly set forth herein. The Participant shall not assign all or any part of this Amended and Restated Owner Participation Agreement or any rights hereunder without the prior written approval of the Agency, which approval the Agency may grant, withhold or deny at its discretion. In the event of such transfer or assignment: (1) the assignee shall expressly assume the obligations of the Participant pursuant to this Amended and Restated Owner Participation Agreement in writing satisfactory to the Agency; (2) the original Participant shall remain fully responsible for the performance and liable for the obligations of the Participant pursuant to this Amended and Restated Owner Participation Agreement; and (3) any guarantees provided to assure the performance of the Participant's obligations under this Amended and Restated Owner Participation Agreement shall remain in full force and effect. In the absence of specific written agreement by the Agency, no such transfer, assignment or approval by the Agency shall be deemed to relieve the Participant or any other party from any obligation under this Amended and Restated Owner Participation Agreement. All of the terms, covenants and conditions of this Amended and Restated Owner Participation Agreement shall be binding upon and shall inure to the benefit of the Participant and the / - 5 - �( °ruri' permitted successors and assigns of the Participant. Whenever the term "Participant" is used herein, such term shall include any other permitted successors and assigns as herein provided. The restrictions of this Section 207 shall terminate and be of no further force and effect upon completion of all portions of the Project (as hereinafter defined) . Nothing in this Section 207 shall act to restrict the sale of completed residential units developed on the Site to qualified purchasers if said sales are otherwise in compliance with the terms of this Amended and Restated Owner Participation Agreement. 4. (208] Benefit to Project Area Agency has determined that the development of the Site in accordance with this Amended and Restated Owner Participation Agreement will eliminate blight and provide needed affordable low- and moderate-income housing to the Project Area which is needed due to the insufficiency of such housing within the Project Area and the City generally. III. (300] AGENCY ASSISTANCE A. (301] Project The Participant shall develop the Site by causing the construction thereon of fifty-nine (59) detached single family residential units (the "Project") , of which forty (40) shall be reserved for sale to, and occupancy by, low- and moderate-income households, to be sold at affordable housing cost as such term is defined in Health and Safety Code Section 50052.5, a copy of which - 6 - / � is attached hereto as Attachment No. 2 and incorporated herein by this reference. The Project shall be developed in three (3) phases, as follows: Phase I - Three models and 17 units - at least 13 to be sold as affordable Low and Mod Units Phase II - 20 units - at least 13 to be sold as affordable Low and Mod Units Phase III - 19 units - at least 13 to be sold as affordable Low and Mod Units (See Scope of Development attached hereto as Attachment No. 3 and incorporated herein by this reference) . B. (302) Financing Assistance In order to assist in the development of the Project, the Agency shall provide financial assistance in a total amount not to exceed Three Hundred Eighty Thousand Dollars ($380, 000) (the "Agency Assistance") . The Agency Assistance will be provided as follows: With respect to each of the forty (40) lots to be developed and sold at affordable cost to low- and moderate-income households (hereinafter referred to as the "Low and Mod Units") , the Agency shall pay to the City Building Department, on behalf of Participant, the costs of City building permits and any related fees for each Low and Mod Unit, up to a maximum amount not to exceed Nine Thousand Five Hundred Dollars ($9,500) (the "Building Permit Amount") . To the extent the costs of the building permits and related fees for any of the forty (40) Low and Mod Units is less than the Building Permit Amount, the remaining balance up to - 7 - l ( the Building Permit Amount shall be paid directly to the Participant to assist in the payment of development costs related to the Project. To the extent the costs of any building permits or related fees exceed the Building Permit Amount, the Participant shall be solely responsible to make up the difference necessary to secure the building permit and to pay all required fees. The Participant shall also be solely responsible for the payment of the costs of any building permits and related costs or fee attributable to the nineteen (19) units which are not required to be reserved for sale to low- and moderate-income households. To the extent the Participant has previously paid the costs of any building permits for any of the Low and Mod Units, the Participant shall be entitled to a reimbursement from the Agency of the costs of such building permits up to the Building Permit Amount; provided, however, that the Participant provides the Agency with satisfactory evidence that the applicable building permit and all applicable fees have been paid for and obtained. The Agency Assistance shall be provided in three (3) phases consistent with the development of the Project, as described in the Scope of Development (Attachment No. 3) , provided, however, that (i) no payments shall be made with respect to any Phase until Participant has provided the Agency with written proof that Participant has recorded a construction loan with respect to the applicable Phase and (ii) that no payments shall be made with respect to Phase II or Phase III of the Project until all of the construction work for the immediately preceding Phase has been completed. The Participant agrees that within each Phase, at least - 8 - � ( 4 thirteen (13) of the units shall be reserved for sale to low- and moderate-income households. To the extent the Participant does not commence construction on a particular lot prior to the expiration of an issued building permit(s) , the Agency shall withhold the disbursement of any additional funds representing the Agency Assistance with respect to any additional units until the Participant has fully paid, from his own funds, the costs of a new building permit(s) for the applicable lot(s) . The Agency Assistance may only be used by Participant for purposes of paying costs related to the Project and Participant agrees not to use any portion of the Agency Assistance or any other project unrelated to this Amended and Restated Owner Participation Agreement. C. (303) Affordable Housing Covenants In consideration for the provision of the Agency Assistance, the Participant shall make forty (40) of the Low and Mod Units available to households who are of low- and moderate- income as defined in Health & Safety Code Section 50093, as amended from time to time, and who seek to purchase residences to be constructed on the Site at affordable housing cost as defined in Health and Safety Code Section 50052.5, as may be amended from time to time, as attached hereto as Attachment No. 2 . The Agency shall provide to the Participant the parameters of such ownership, including income limits adjusted for family size and the affordable { housing cost eligibility criteria that shall apply to purchase of each such residential unit. The Participant agrees to be bound by all limitations to be established by the Agency and/or any Conditions and Covenants and Restrictions as may be imposed by the Agency applicable to the affordable Low and Mod Units, as to both income limits and affordability criteria for the residences on the Site and shall provide the Agency with all relevant information, as may be requested from time to time by the Agency, to ensure compliance with this Section. The Participant shall be responsible for ensuring that all documents required of such low- and moderate-income households are executed and forwarded to the Agency, including, but not limited to, the Affordability Criteria Verification Worksheet and Mortgage Assistance Program Final Applicant Report attached to this Agreement as Attachments No. 7 and 8, respectively. With respect to the sale of each of the affordable Low and Mod Units, the Owner shall require the purchaser thereof to execute a no interest Promissory Note in substantially the form of Attachment No. 5 attached hereto and incorporated by this reference in favor of the Agency in the principal amount of Nine Thousand Five Hundred Dollars ($9,500) secured by a Deed of Trust substantially in the form of Attachment No. 6 attached hereto and incorporated herein by this reference. The principal balance of the Promissory Note shall be reduced annually on each anniversary date by an amount equal to Nine Hundred Fifty Dollars ($950.00) to the extent the applicable Low and Mod Unit remains occupied by, and - 10 - � � affordable to, a low- and moderate-income household. In the event that the Low and Mod Unit is sold prior to the expiration of ten (10) years after the date of purchase, to a purchaser who does not qualify as a low- and moderate-income household, the _remaining principal balance of the Promissory Note shall become fully due and payable immediately. If no such sale occurs, the Promissory Note and Deed of Trust shall be forgiven in full at the expiration of the ten (10) year period. The Promissory Note and Deed of Trust shall be fully assumable on the same terms and conditions by any subsequent Low- and Moderate-income household within the ten (10) year term. IV. [400] IMPROVEMENT OF THE SITE A. [401] Scope of Development The Site shall be developed by Participant as provided in the "Scope of Development, " as follows: Plan 1- 1,202 sq. ft. 3 br./2 bath - Sale Price: $108,000 Plan 2- 1,303 sq. ft. 3 br./2 bath - Sale Price: $115,000 Plan 3- 1,630 sq. ft. 4 br. /2 bath - 2 story - Sale Price: $125,000 (See Attachment No. 3 incorporated herein by this reference) . B. [402] Cost of Construction The cost of constructing the Project shall be borne by Participant. The Agency shall have no obligations, other than as expressly set forth herein, with respect to the funding of the Project. 3 C. [403] Construction Schedule Upon execution of this Amended and Restated Owner Participation Agreement, Participant will promptly begin and diligently prosecute to completion the construction of the Project. Participant shall begin and complete all construction and development of the Project within the times specified in the "Schedule of Performance" which is attached hereto as Attachment No. 4 and incorporated herein and shall ensure that at least thirteen (13) of the units in each Phase be reserved as Low and Mod Units before the Participant commences construction of the next Phase. Participant shall strictly conform to all time requirements and limitations set forth in this Amended and Restated Owner Participation Agreement. Any non-conformance shall be governed under Section VII, "DEFAULTS AND REMEDIES. " D. [404] Bodily Iniury and Property Damage Insurance Participant shall defend, assume all responsibility for and hold the Agency, the City and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys' fees and costs) , which may be caused by any of Participant's activities under this Amended and Restated Owner Participation Agreement, whether such activities or performance thereof be by the Participant or anyone directly or indirectly employed or contracted with by Participant and whether such damage shall accrue or be discovered before or after termination of this Amended and Restated Owner Participation Agreement. Participant shall take out and maintain a comprehensive liability and property - 12 - damage policy in the amount of One Million Dollars ($1,000,000) combined single limit policy, including contractual public liability, as shall protect Participant, City and Agency from claims for such damages until two (2) years after the completion of the Project. Participant shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and Agency and their respective officers, agents, and employees as additional insureds under the policy. The certificate by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by Participant shall be primary insurance and not contributing with any insurance maintained by Agency or City, and the policy shall contain such an endorsement. The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefit of the City and Agency. Participant shall furnish or cause to be furnished to Agency evidence satisfactory to Agency that any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Amended and Restated Owner Participation - 13 I Agreement carries workers' compensation insurance as required by law. E. [405] City and Other Governmental Agency Permits Before funding of the Agency Assistance or any portion thereof and/or commencement of the Project or other construction or development of any buildings, structures or other works of improvement upon the Site, Participant shall, at its own expense, secure or cause to be secured any and all permits for all necessary off-site improvements which may be required by the City or any other governmental agency having jurisdiction over such construction, development or work. Nothing contained in this Amended and Restated Owner Participation Agreement shall be deemed to be an approval by the City of any application or permit required to be obtained by Participant from the City. F. [406] Rights of Access For the purpose of assuring compliance with this Amended and Restated Owner Participation Agreement, representatives of Agency and the City shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of work for the purposes of this Amended and Restated Owner Participation Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements, so long as they comply with all safety rules. Such representatives of Agency or of the City shall be those who are so - 14 - identified in writing by the Executive Director of Agency. Agency shall hold the Participant harmless from any bodily injury or related damages arising out of the activities of Agency and the City as referred to in this Section 406 and resulting from the gross negligence or willful misconduct of the City or Agency. This Section 406 shall not be deemed to diminish or limit any rights which the City or Agency may have by operation of law irrespective of the Agreement. G. [407] Local, State and Federal Laws Participant shall carry out the construction of the Project and all related activities on the Site in conformity with all applicable laws, including all applicable federal and state labor standards; provided, however, Participant and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. Participant and its contractors and sub-contractors shall pay prevailing wages to all employees on the Project. H. [408] Antidiscrimination During Construction Participant, for itself and successors and assigns, agrees that in the construction of the improvements provided for in this Amended and Restated Owner Participation Agreement, Participant shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, age, sex, marital status, handicap, national origin or ancestry. - 15 I. [409] Taxes, Assessments Encumbrances and Liens Prior to the issuance of a Certificate of Occupancy for the last residential unit developed on the Site, Participant shall not place or allow to be placed on the Site or any part thereof any mortgage, trust deed, encumbrance or lien other than as expressly allowed by Section 412 or any other provisions of this Amended and Restated Owner Participation Agreement. Participant shall remove or have removed any levy or attachment made on any of the Site or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. J. [410] Prohibition Against Transfer of the Site the Buildinas or Structures thereon and Assignment of Agreement Prior to the issuance of a Certificate of Occupancy for the last residential unit developed on the Site, Participant shall not, except as permitted by this Amended and Restated Owner Participation Agreement, without the prior written approval of Agency, make any total or partial sale, transfer, conveyance, assignment or lease of whole or any part of the Site or of the buildings or structures on the Site. This prohibition shall not be deemed to prevent a transfer expressly permitted pursuant to Section 207 of this Amended and Restated Owner Participation Agreement, or the granting of temporary or permanent easements or permits to facilitate the development of the Site. - 16 - /r K. (411] Mortgage, Deed of Trust Sale and Lease-Back Financing; Rights of Holders 1. (412] No Encumbrances Except Mortgages Deeds of Trust or Sale and Lease-Back for Development Mortgages and deeds of trust are to be permitted before completion of the Project but only for the purposes of securing a loan of funds to be used in financing the development of the Site and any other purposes appropriate in connection with the development under this Amended and Restated Owner Participation Agreement. Participant shall not enter into any other conveyance or lien for financing without the prior written approval of Agency, which approval Agency agrees to give if any such conveyance or lien for financing is given to a bank, savings and loan association, or other similar lending institution and the terms of said financing are reasonably acceptable to Agency. The form of approval by Agency shall be in writing which references this Section 412, executed by the Executive Director of the Agency. In the event that the Agency fails to accept or reject such lender in writing within fifteen (15) days after written notice thereof is received by the Agency, such lender shall be deemed approved. 2. (413) Holder Not Obligated to Construct Improvements The holder of any mortgage or deed of trust authorized by this Amended and Restated Owner Participation Agreement shall not be obligated by the provisions of this Amended and Restated Owner Participation Agreement to construct or complete the Project or to - 17 - 0 guarantee such construction or completion. Nothing in this Amended and Restated Owner Participation Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or Project provided for or authorized by this Amended and Restated Owner Participation Agreement. 3. [414] Notice of Default to Mortgagee or Deed of Trust Holders: Right to Cure With respect to any mortgage or deed of trust granted by Participant as provided herein, whenever Agency shall deliver any notice or demand to Participant with respect to any breach or default by Participant in completion of the construction of the Project, Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Amended and Restated Owner Participation Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of this notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Amended and Restated Owner Participation 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 Project or construction already made) without first having expressly assumed the Participant's obligations to Agency by written agreement satisfactory to Agency. The holder, in that event, must agree to - 18 - / / roll complete, in the manner provided in this Amended and Restated Owner Participation Agreement, the Project to which the lien or title of such holder relates, and submit evidence satisfactory to Agency that it has the qualifications and financial responsibility necessary to perform such obligations. 4. (415) Failure of Holder to Complete Improvements In any case where, thirty (30) days after default by the Participant in completion of construction of Project under this Amended and Restated Owner Participation Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to construct or if it has exercised the option and has not proceeded diligently with construction, Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, Agency, if it so desires, shall be entitled to a conveyance from the holder to Agency upon payment to the holder of an amount equal to the sum of the following: a. The unpaid mortgage or deed of trust debt 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) ; - 19 - I � b. All expenses with respect to foreclosure; C. The net expense, if any (exclusive of general overhead) , incurred by the holder as a direct result of the subsequent management of the Site or part thereof; d. The costs of any Project made by such holder; and e. An amount equivalent to the interest that would have accrued on the aggregate of 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 Agency; less f. Any income derived by the lender from operations conducted on the Site (the receipt of principal and interest payments in the ordinary course of business shall not constitute income for the purposes of this subsection f) . 5. (416] Right of Agency to Cure Mortgage or Deed of Trust Default In the event of a mortgage or deed of trust default or breach by Participant prior to the completion of any part thereof and the holder of any mortgage or deed of trust has not exercised its option to complete construction, Agency may cure the default. In such event, Agency shall be entitled to reimbursement from Participant of all proper costs and expenses incurred by Agency in curing such default. - 20 - I� V. [500) USES OF SITE; AFFORDABILITY COVENANTS A. [501) Uses - Covenants Running With the Land Participant covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof, that for a period of ten (10) years commencing on the date of the sale of any of the Low and Mod Units each of the Low and Mod Units will be devoted to and available for sale solely to persons or families with an income which are low and moderate to very low, as those terms are defined in Health and Safety Code Sections 50093 (low- and moderate-income) and 50105 (very low income) , with sales costs of each residential unit to be at an affordable housing cost (as such term is defined in Health and Safety Code Section 50052 .5) . The foregoing covenant shall run with the land for ten (10) years commencing on the date that each Low and Mod Unit is sold. The Participant further covenants and warrants that Participant shall develop improvements on the Site in accordance with the Scope of Development. Participant covenants to develop the Site in conformity with all applicable laws. The covenants of this paragraph shall run with the land. Participant covenants by and for itself and any successors in interest 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, - 21 - 1/ t handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall Participant 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 Site. The foregoing covenants shall run with the land. All deeds, leases or contracts pertaining to the Site shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses: 1. In deeds: "The grantee herein covenants by and for himself or herself, his or her 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, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, 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. " - 22 - t 2. In 1 eases: " iL The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, that this lease is made and accepted upon and subject to the following conditions: "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, handicap, age, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practices 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 premises herein leased. " 3 . In contracts: "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, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, 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 premises. " - 23 - �� B. [502] Maintenance of the Site Participant shall, until sale of all of the fifty-nine residential units, maintain any portion of the Project which remains unsold and all other improvements on the Site and shall keep the Site free from any accumulation of debris or waste materials. Participant further agrees to maintain the Site in a neat and attractive manner until construction of the improvements described in this Amended and Restated Owner' Participation Agreement is complete so as not to, in the reasonable determination of an appropriate officer of the City, be a public nuisance, or be detrimental to the health, safety and welfare of the public, or impair value of property within one thousand (1,000) feet of the Site, and agrees that in the event Participant fails to do so, Agency may enter upon the Site for the purposes of performing necessary and desirable maintenance, that Participant will be responsible for the cost of any such maintenance undertaken by Agency, which shall be paid within thirty (30) days after receipt by Participant of written demand therefor. C. [503] Effect of Violation of the Terms and Provisions of this Amended and Restated Owner Participation Acreement After Completion of Construction The covenants established in this Amended and Restated Owner Participation Agreement shall, without regard to technical classification and designation, be binding for the benefit and in - 24 - favor of Agency, its successors and assigns, as to those covenants which are for its benefit. The covenants contained in this Amended and Restated Owner Participation Agreement shall remain in effect until the termination date of the Redevelopment Plan unless an earlier date is specified. The covenants against racial discrimination shall remain in perpetuity. Agency is deemed the beneficiary of the terms and provisions of this Amended and Restated Owner Participation Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Amended and Restated Owner Participation Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Agency, without regard to whether Agency has been, remains or is an owner of any land or interest therein in the site or in the Project Area. Agency shall have the right, if the Agreement or covenants 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 or any other beneficiaries of this Amended and Restated Owner Participation Agreement and covenants may be entitled. 25 - ell VI. (600] GENERAL PROVISIONS A. (601] Notices. Demands and Communications Between the Parties Written notices, demands and communications between Agency and Participant shall be sufficiently given if delivered by hand (and a receipt therefor is obtained or is refused to be given) or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of Agency and Participant. Such written notices, demands and communications may be sent in the same manner to such other addresses as such party may from time to time designate by mail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the tenth day from the date it is postmarked if delivered by registered or certified mail. B. (602) Conflicts of Interest• Nonliability No member, official or employee of Agency or the City shall have any personal interest, direct or indirect, in this Amended and Restated Owner Participation Agreement. No member, official or employee shall participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. No member, official or employee of Agency or the City shall be personally liable to Participant, or any successor in interest, in the event of any default or breach by 26 - l j k Agency or Participant, or for any amount which may become due to Participant or its successor or on any obligations under the terms of this Amended and Restated Owner Participation Agreement. Participant represents and warrants that it has not paid or given, and shall not pay or give, any third party any money or other consideration for obtaining this Amended and Restated Owner Participation Agreement. C. [603] Enforced Delay: Extension " of Times of Performance In addition to specific provisions of this Amended and Restated Owner Participation Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Amended and Restated Owner Participation Agreement shall be extended, where delays or defaults are due to: war; insurrections; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of another party; acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of Agency which shall not excuse performance by Agency) ; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Amended and Restated Owner Participation Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the - 27 - / i time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Amended and Restated Owner Participation Agreement may also be extended in writing by the mutual agreement of Agency and Participant. Participant is not entitled pursuant to this Section 603 to an automatic extension of time to perform because of past, present, or future difficulty in obtaining suitable temporary or permanent financing for the Site. Should such financing not be obtained, it is the sole responsibility of the Participant to request an extension of time prior to default under the Schedule of Performance. D. [604] Inspection of Books and Records Agency has the right at all reasonable times to inspect the books and records of Participant pertaining to the Site as pertinent to the purposes of this Amended and Restated Owner Participation Agreement. VII. [700] DEFAULTS AND REMEDIES A. [701] Defaults - - General Any of the following shall be considered an event of default hereunder: (a) Failure to construct and sell the number of units required to be sold in Phase I (as set forth in the Scope of - 28 - f Development, Attachment No. 3 hereto and incorporated herein by this reference) . (b) Failure to construct and sell the number of units required to be sold in Phase II (as set forth in the Scope of Development, Attachment No. 3 hereto and incorporated herein by this reference) . (c) Failure to construct and sell the number of units required to be sold in Phase III (as set forth in the Scope of Development, Attachment No. 3 hereto and incorporated herein by this reference) . (d) Failure or delay by any party to perform any other term or provision of this Amended and Restated Owner Participation Agreement. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. The party in default shall immediately commence to remedy, cure or correct such default within said thirty (30) day period. However, if in the reasonable opinion of the injured party said failure cannot be corrected within thirty (30) days after such notice, the injured party shall not unreasonably withhold its consent to an extension of time, if such corrective action is instituted by the defaulting party within said thirty (30) day period and diligently pursued until such failure is corrected. - 29 - �� Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. The Agency, in its discretion, may waive any of its rights hereunder, however, such waiver shall not be valid unless in writing and signed by a duly authorized representation of the Agency. Upon expiration of the thirty (30) day notice period, the injured party, at its option, may declare all indebtedness and obligations secured hereby due and payable with or without notice of acceleration. B. (702] Legal Actions 1. (703] Institution of Legal Actions In addition to any other rights or remedies hereunder, Agency or Participant may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy, including, but not limited to, specific performance, consistent with the purpose of this Amended and Restated Owner Participation Agreement. Any legal actions initiated pursuant to this Amended and Restated Owner Participation Agreement or otherwise with respect to this subject matter must be instituted in the Superior Court of the County of San Bernardino, State of California, or in an appropriate municipal court in that county. 30 - / 2. [704] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Amended and Restated Owner Participation Agreement. 3 . [705] Acceptance of Service of Process In the event that any legal action is commenced by any party against another party, service of process on such party shall be made by personal service upon such party or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. C. [706] Ricxhts and Remedies are Cumulative Except as otherwise expressly stated in this Amended and Restated Owner Participation Agreement, the rights and remedies of the parties are cumulative, and the exercise by any 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 any other party. D. [707] Inaction Not a Waiver of Default Any failures or delays by any party in asserting any of its right and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive any 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. - 31 - E. [708] Remedies 1. [709] Damaaes Prior to the completion of the Project, if either Participant or Agency defaults with regard to any of the provisions of this Amended and Restated Owner Participation Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured or if a cure has not been commenced and is being diligently pursued to completion by the defaulting party within thirty (30) days after service of the notice of default, the defaulting 'party shall be liable to the other for any damages caused by such default, and the non-defaulting party shall have the right to seek specific performance and such other remedies as are available in law or equity. VIII. [800] SPECIAL PROVISIONS A. [801] Submission of Documents to Agency for Approval Whenever this Amended and Restated Owner Participation Agreement requires Participant to submit any document to Agency for approval, which shall be deemed approved if not acted on by Agency within the specified time, said document shall be accompanied by a letter stating that it is being submitted and will be deemed approved unless rejected by Agency within the stated time. If there is not a time specified herein for such Agency action, Participant may submit a letter requiring Agency approval or rejection of documents within thirty (30) days after submission to Agency or such documents shall be deemed approved. - 32 - / � B. [802] Successors in Interest The terms, covenants, conditions and restrictions of this Amended and Restated Owner Participation Agreement shall extend to and shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of Participant. IX. [900] ENTIRE AGREEMENT, WAIVERS This Amended and Restated Owner Participation Agreement is executed in four (4) duplicate originals, each of which is deemed to be an original. This Amended and Restated Owner Participation Agreement includes Attachments 1 through 6, which together with this Amended and Restated Owner Participation Agreement constitute the entire understanding and agreement of the parties. No private entity shall be deemed to be a third party beneficiary with respect to any provisions of this Amended and Restated Owner Participation Agreement. This Amended and Restated Owner Participation Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements among the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Amended and { Restated Owner Participation Agreement must be in writing by the appropriate authorities of the Agency and Participant, and all - 33 - j 0 amendments hereto must be in writing by the appropriate authorities of Agency and Participant, except that the Executive Director of Agency may agree to non-substantive changes hereto with concurrence by Agency Counsel. Each individual signing below represents and warrants that he has the authority to execute this Amended and Restated Owner Participation Agreement on behalf of and bind the party he purports to represent. X. [1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY A. (1001] Time for Acceptance This Amended and Restated Owner Participation Agreement, 4 when executed by Participant and delivered to Agency, must be authorized, executed and delivered by Agency on or before thirty (30) days after signing and delivery of this Amended and Restated Owner Participation Agreement by Participant or this Amended and Restated Owner Participation Agreement shall be void, except to the extent that Participant shall consent in writing to a further extension of time for the authorization, execution and delivery of this Amended and Restated Owner Participation Agreement. The date of this Amended and Restated Owner Participation Agreement shall be the date when it shall have been signed by the Agency as evidenced by the date first above shown. - 34 - t d IN WITNESS WHEREOF, Agency and Participant have executed this Amended and Restated Owner Participation Agreement by their duly authorized officers and have caused their corporate seals or articles of incorporation to be hereunto affixed and attested as of the day first above shown. "Agency" REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO SEAL By. •Tom Minor Chairman APPROVED AS TO FORM AND By: LEGAL CONTENT: Kenneth J. Henderson Secretary f�- By: Special ncy Counsel "Participant" EMBLEM DEVELOPMENT CORPORATION, a California corporation SEAL (Emblem Development Name:`/ Corporation or attach By: �� Articles of Incorporation) Title: ,ter L� O E,w - ATTEST: By: Secretary SM1\0PA\PMLEM.AR - 35 - STATE OF CALIFORNIA ) COUNTY On before me, (-he a insert n nd title of the of is r) , personally appeared (or proved to me on the basis of satisfactory evidence) to be the person(} whose name(--s-) is/are subscribed to the within instrument and acknowledged to me that he/ executed the same in his/herlthgir authorized capacity(ice and that b his heY' y /___ , ______ signature(.s4- on the instrument the person(s}, or the entity upon behalf of which the person(s-y acted, executed the instrument. WITNESS my handf and official seal. Signatu � � (Seal) JACQUELINE M.ARNOLD COMM.#976440 Notory Public—Cailfomic SAN BERNAMNO COUNTY r My Comm.Expires NOV 1.1946 STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature . (Seal) ATTACHMENT NO. 1 LEGAL DESCRIPTION LIST OF PARCEL NUMBERS FOR TRACT 14715 APN — 015122101000 015122102000 026514120000 026521102000 026521103000 026521104000 026521105000 026521106000 026521106000 026521109000 026514119000 026521107000 026514119000 026514117000 026514101000 ATT. 1 - Page 1 ATTACHMENT N0. 2 Health & Safety Code CHAPTER L DEFINITIONS Section 60062.5. Definitions. f 6006LL Affordable housing coat W For any owneroccn_ pied lwuainq which receives assi stance prior to January 1 1991 and a condibon o t assistance is eoiance with-this section_a o dab eT6—using cost" with respect to iower income shall not exceed 25 percent of gross income. %,For any owneroocupied housing which receives assistance on or after January 1 1991 and a condition of t assistance is –compliance with this section. "affoiaable housing cost shall not exceed the Iollowinin (1) For very low income households the product of 80 percent times 50 percent of the area median income adjusted for family size appropriate for the unit 2For lower income households whose arose incomes exceed the maximum income for very low income uz_enaehoida and do not exceed 7 reent o e area m. intoome a' amil e the uct of rcent tunes 70 reent of e area median income adiustpd for f am sue appropriate or the unit 1 n bon or an ower ncome household that has a income that equals or exceeds 0 percent of e area median income adjusted or family sue iteRm&ll be o0ional �for astate or locafunding a en to require t o housing cost not exceed 80 nt of It; sa income of e household. For moderate income households, affordable housing cost shall not be less than 28 percent-of the-gross income of use o nor exceed the product of percent times 110 percent of area median' income adiusted for fLmDy size appropriate or the unitTadditio or anX moderate Income household that has a jew income that exceeds 110 percent of area median income adjusted or family size, it shLU be optional or any state or g agency to require t affordable using coat not ez percent of gross income omit a ouae o W The department shall,by regulation,adopt criteria defining,and providing for determination of, gross fmoome�ac(justments for family size appropriate to the Unit, and housing cost for purposes of determining affordable housing cost un er secboon. These regulations may provide alternative criteria,where necessary to be consistent with pertinentTWerai statutes and regulations governing federally assisted housing. The agency may,by regulation,adopt alternative criteria,and pursuant to subdivision (f)of Section 60462, alternative percentages of income may be adopted for agency-assisted housing development With respect to moderate and lower income households who are tenants of rental housing developments and me era or a holders of cooperative housing developments, or limited equity Sn ti affordable housing oust" has the same meaning as affordable rent, as defined in Regulations of the department shall also include a method for determining the maximum construc- tion cost, mortgage ken, or sales price that will make housing available to an income group at affordable housing coat . For purposes of this section "area median income"shall mean area median income as published by the department pursuant to Section ' For of this section "moderate income household" shall have the same meaning as npersons and families of erate come as defined innection WW 3. For of this sectio and provided there are no pertinent federal statutes a licable to a project or pro jua or y size appropriate to unit s mean or a household of V0011 n to a ease o a studio two ns in a ease o a on m 'arsons case o s twobedroom units four persona in the case of a m unit,and five persons to the case of a four—bedroom unit (Amended by Stats.1990,e. 1529(S.B.1852), 6 1.) ATT. 2 — Page 1 ATTACHMENT NO. 3 SCOPE OF DEVELOPMENT I. GENERAL DESCRIPTION The Site is specifically described in the Legal Description (Attachment No. 1) pursuant to Section 103 of this Amended and Restated Owner Participation Agreement. II. DEVELOPMENT Participant shall develop the Site by constructing homes of varying square footage based upon the following floor plans: Plan 1- 1,202 sq. ft. 3 br./2 bath - Sale Price: $108,000 Plan 2- 1, 303 sq. ft. 3 br./2 bath - Sale Price: $115,000 Plan 3- 1,630 sq. ft. 4 br./2 bath - 2 story - Sale Price: $125,000 Each home shall have full amenities and shall include the following: concrete tile roofs, front yard landscaping and sprinklers, fencing, ceramic tile countertop and fireplaces. All of the improvements to be provided by the Participant on the Site constitute the "Project. " The Participant shall commence and complete the Project by the respective times established therefor in the Schedule of Performance (Attachment No. 4) . follows: The Project is to be constructed in three phases, as Phase I - Three models and 17 units - at least 13 to be sold as affordable Low and Mod Units Phase II - 20 units - at least 13 to be sold as affordable Low and Mod Units Phase III - 19 units - at least 13 to be sold as affordable Low and Mod Units III. DEVELOPMENT STANDARDS The Project shall be developed in accordance with applicable City, FHA, VA & UBC building and safety codes. ATT. 3 - Page 1 J IV. 2EMOLITION AND SOILS Participant assumes all responsibility for surface and subsurface conditions at the Site, and the suitability of the Site for the Project. If the surface and subsurface conditions are not entirely suitable for such development and use, Participant shall at its cost take all actions necessary to render the Site entirely suitable for such development. Participant has undertaken all investigation of the Site it has deemed necessary and has not received or relied upon any representations of Agency, the City, or their respective officers, agents and employees. Participant shall undertake at its cost all demolition required in connection with the development of Project. V. FRONT ELEVATIONS The exterior appearance of the homes occupying the Site shall resemble in appearance the buildings contained in the Schedules attached hereto as Exhibit "A". ATT. 3 - Page 2 /� f i EXHIBIT "A" TO SCOPE OF DEVELOPMENT ATT. 3 - Page 3 / 1 JORN ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE 1. Execution of Agreement by Not later than thirty (30) days Agency. Agency shall approve after the date of execution and and execute this Amended and submission of two (2) copies of Restated Owner Participation this Amended and Restated Owner Agreement, and shall deliver one Participation Agreement to (1) copy thereof to Participant. Agency by Participant. 2. Submission of Plans. Plans Not later than September 30, and working drawings shall be 1993. submitted to City Planning and Building Services for plan check review. 3. Commence P h a s e I Not later than November 30, Construction. Project to begin 1993 . construction with payment of first building permits. 4. Completion of Phase I Not later than May 31, 1994. Construction. 5. Commence P has a II Not later than June 1, 1994. Construction. 6. Completion of Phase II Not later than November 30, Construction. 1994. 7. Commence Phase III Not later than December 1, 1994. Construction. 8. Completion of Phase III and Not later than May 31, 1995. All Construction. Participant shall complete construction of the Project and obtain Certificates of Occupancy on each of the fifty-nine (59) residential units. ATT. 4 - Page 1 � � ATTACHMENT NO. 5 PROMISSORY NOTE SECURED BY DEED OF TRUST $9,500 Place: Development Department of the City of San Bernardino 201 North "E" Street Third Floor San Bernardino, CA 92401 Attn: Housing Division Date: FOR VALUE RECEIVED, the undersigned promises to pay to the Redevelopment Agency of the City of San Bernardino (the "Agency") or its successors, the sum of Nine Thousand Five Hundred Dollars ($9,500) . Payment of principal shall be. made as follows: 1. This Note shall have a term of ten (10) years from the date of execution hereof. 2. This Note shall accrue no interest during its term. 3 . The principal balance of this Note shall be reduced annually on each anniversary date by an amount equal to Nine Hundred and Fifty Dollars ($950) to the extent the property which is subject to the Deed of Trust securing this Note remains occupied by an affordable Low- and Moderate-income Household as more fully described in that certain Amended and Restated Owner Participation Agreement dated as of September , 1993, by and between the Redevelopment Agency of the City of San Bernardino and the undersigned (the "Agreement") . 4. In the event the property which is subject to the Deed of Trust securing this Note is sold to a purchaser who does not qualify as an affordable Low- and Moderate-income Household as described in the Agreement, then the outstanding principal balance of this Note shall be deemed immediately due and payable in full. 5. A failure to pay any sum provided for in this Note when due or a material breach of this Note, the Agreement which is the subject of this Note or the Deed of Trust, shall constitute a breach hereof and shall entitle the Agency to declare all sums due hereunder immediately due and payable and to pursue all remedies available under this Note, the Agreement or the Deed of Trust. All payments due under this Note shall be made in lawful money of the United States at the principal office of the Agency, 201 North "E" Street, City Hall Annex, San Bernardino, CA 92401- 1507, or at such other place as may from time to time be designated by the Agency in writing. ATT. 5 - Page 1 d Notwithstanding any language herein to the contrary, this Note shall become immediately due and payable in the amount of all unpaid principal upon any transfer in violation of the Agreement of title of the property described in the Deed of Trust to any person, firm or corporation other than the undersigned and except as provided in said Deed of Trust, whether such transfer of title be voluntary, involuntary, or by operation of law. The undersigned reserves the right to prepay at any time all or any part of the principal amount of this Note without the payment of penalties or premiums. All payments on this Note shall be applied first to the principal due on the Note and the remaining balance shall be applied to late charges or penalty interest, if any. IN THE EVENT the undersigned shall fail to pay the payments when due, and if such failure be subsisting thirty (30) days thereafter, the unpaid principal amount of this Note, together with any accrued interest and late charges, shall become due and payable, at the option of the Agency, without notice to the undersigned. Failure of the Agency to exercise such option shall not constitute a waiver of such default. If the payments on this Note are not paid within ten (10) days of the due date, the undersigned shall pay to the Agency a late charge of 4% on the amount past due and remaining paid. If this Note be reduced to judgment, such judgment shall bear the statutory interest rate on judgments. In no event shall the interest and late charge payable hereunder exceed the maximum amount of interest permitted under the usury laws of the State of California. If suit is instituted by the Agency to recover on this Note, the undersigned agrees to pay all costs of such collection including reasonable attorney's fees and court costs. THIS NOTE is secured by a Deed of Trust of even date, duly filed for record in the office of the County Recorder of the County of San Bernardino, State of California. DEMAND, protest and notice of demand and protest are hereby waived and the undersigned hereby waives, to the extent authorized by law, any and all homestead and other exemption rights which otherwise would apply to the debt evidenced by this Note. ATT. 5 - Page 2 I � IN WITNESS WHEREOF, THIS NOTE has been duly executed by the undersigned, as of its date. (Type in or Print Name) ATT. 5 - Page 3 /( 0 STATE OF CALIFORNIA ) WL COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature . (Seal) ATT. 5 - Page 4 ( � V ATTACHMENT NO. 6 EL RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) (Space Above for Recorder's Use) DEED OF TRUST WITH ASSIGNMENT OF RENTS Deed of trust made on , 1993, by hereinafter called "Trustor, " whose address is , , California , Attn: , to hereinafter referred to as "Trustee", whose business address is , California , in favor of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, hereinafter referred to as "Beneficiary", whose business address is 201 North "E" Street, Third Floor, San Bernardino, California 92401. Trustor irrevocably grants, transfers, and assigns to Trustee in trust, with power of sale, all that property, including all easements and rights of way used in connection therewith or as a means of access thereto, in the City of San Bernardino, County of San Bernardino, State of California, described as follows: That certain property located in the City of San Bernardino, County of San Bernardino, State of California, more particularly described as: SEE ATTACHMENT NO. 1 together with the rents, issues and profits thereof, subject however to the right reserved by Trustor in Paragraph B-16 hereof to collect and apply such rents, issues and profits, prior to any default hereunder; for the purpose of securing performance in a timely manner of all of Trustor's obligations under that certain Amended and Restated Owner Participation Agreement and payment of the indebtedness evidenced by a Promissory Note executed by Trustor in the principal sum of Nine Thousand Five Hundred Dollars ($9,500) , payable to Beneficiary or order and each extension thereof, both executed in connection with this Deed of Trust; and performance of each agreement to Trustor incorporated herein by reference or contained herein. ATT. 6 - Page 1 1 I A. To protect the security of this Deed of Trust, Trustor agrees: 1. To maintain the property in good condition and repair; not to remove or demolish any building or improvement thereon; to complete promptly in workmanlike manner any improvement hereafter constructed thereon and to restore promptly in workmanlike manner any improvement thereon that is damaged or destroyed, and to pay when due all costs incurred therefor or in connection therewith; to comply with all laws, ordinances, regulations, covenants, conditions and restrictions affecting the property; not to commit or permit any waste thereof or any act upon the property in violation of law or of covenants, conditions or restrictions affecting the property. 2. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and also, if at any time Beneficiary or Trustee is a party to or appears in any such action or proceeding, or in any action or proceeding to enforce any obligation hereby secured, to pay all cost and expenses paid or incurred by them or either of them in connection therewith, including, but not limited to, cost of evidence of title and attorneys' fees in a reasonable SUM. 3. To pay (a) at least ten (10) days before delinquency, all taxes and assessments affecting the property, all assessment upon water company stock, and all rents, assessments and charges for water appurtenant to or used in connection with the property; (b) when due, all encumbrances, charges and liens, with interest, on the property or any part thereof, which appear to be prior or superior hereto; and (c) all costs, fees and expenses of this trust. 4. If Trustor fails to make any payment or to do any act as herein provided, then Beneficiary or Trustee (but without obligation so to do, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation hereof) may (a) make or do the same in such manner and to such extent as either deems necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon the property for such purpose; (b) appear in or commence any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; (c) pay, purchase, contest, or compromise any encumbrance, charge or lien that, in the judgment of either, appears to be superior hereto; and in exercising any such power, Beneficiary or Trustee may incur necessary expenses, including reasonable attorneys' fees. 5. To pay immediately and without demand all sums expended hereunder by Beneficiary or Trustee, with interest from date of expenditure at the annual rate of two percentage points over Bank of America's published prime rate. ATT. 6 - Page 2 / ' i B. It is mutually agreed that: 1. Any award of damages made in connection with the condemnation for public use of or injury to the property or any part thereof is hereby assigned and shall be paid to Beneficiary, who may apply or release such moneys received therefor upon any indebtedness secured hereby in such order as Beneficiary determines, or at the option of Beneficiary the entire amount so received or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 2. The acceptance by Beneficiary of any payment less than the amount then due shall be deemed an acceptance on account only and shall not constitute a waiver of the obligation of Trustor to pay the entire sum then due or of Beneficiary's right either to require prompt payment of all sums then due or to declare default. The acceptance of payment of any sum secured hereby after its due date will not waive the right of Beneficiary either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. No waiver of any default shall be a waiver of any preceding or succeeding default of any kind. 3 . At any time or from time to time, without liability therefor and with or without notice, upon written request of Beneficiary and presentation of this deed and the secured note for endorsement, and without effecting the personal liability of any person for payment of the indebtedness secured hereby or the effect of this deed upon the remainder of the property, Trustee may reconvey any part of the property, consent to the making of any map or plat thereof, join in granting any easement or join in any extension agreement or any agreement subordinating the lien or charge thereof. 4. Upon written request of Beneficiary stating that all sums secured hereby have been paid, surrender of this deed and the note to Trustee for cancellation and retention, and payment of its fees, Trustee shall reconvey, without warranty the property then held hereunder. The recitals in such reconveyance shall be conclusive proof of the truthfulness thereof. The grantee may be designated in such reconveyance as "the person or persons legally entitled thereto. " 5. Trustor may give such notice to Beneficiary at any time before there is a Trustee's sale of the property. At any time Trustor is in default in payments to be made to Beneficiary hereunder, any amounts paid to and received by Beneficiary for execution of releases pursuant to the terms of this paragraph after notice of default and election to sell has been recorded shall not, unless the requirements of Section 2924c of the Civil Code are fully met by or on behalf of Trustor, waive the right of Beneficiary to continue its plans to have the property sold, nor shall they have any effect on the exercise by Beneficiary of the acceleration privilege contained herein, except to entitle the ATT. 6 - Page 3 / ' 0 1100) person effecting such payment to the release of the property for It which the release amount was paid, and insofar as Beneficiary is concerned, to constitute a credit against the secured debt. 6. If Trustor or any subsequent owner of the property covered hereby shall occupy the property, or any part thereof, after any default in payment of any amount secured by this deed of trust, Trustor or such owner shall pay to Beneficiary in advance on the first day of each month a reasonable rental for the premises so occupied. On failure to pay such reasonable rental, Trustor or such owner may be removed from the premises by summary dispossession proceedings or by any other appropriate action of proceeding. 7. If default is made in payment of any indebtedness or in performance of any agreement hereby secured, then Beneficiary, with or without notice to Trustor, may declare all sums secured hereby immediately due and payable by instituting suit for the recovery thereof or for the foreclosure of this deed, or by delivering to Trustee a written declaration of default and demand for sale, as well as a written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be filed for record. If such declaration is delivered to Trustee, Beneficiary shall also deposit with Trustee this deed, the secured note, and all documents evidencing expenditures secured hereby. 8. Should Trustor, without the consent in writing of Beneficiary, voluntarily sell, transfer or convey his interest in the property or any part thereof, or if by operation of law, it be sold, transferred or conveyed, then Beneficiary may, at its option, declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require such consent to future or successive transactions. 9. After the time then required by law has elapsed after recordation of such notice of default, and notice of sale having been given as then required by law, Trustee, with or without demand on Trustor, shall sell the property at the time and place fixed in the notice of sale, either as a whole or in separate parcels and in such order as Trustee determines, at public auction, to the highest bidder, for cash in lawful money of the United States, payable at the time of sale. Trustee may postpone from time to time sale of all or any portion of the property by public announcement at the time and place of sale originally fixed or at the last preceding postponed time. Trustee shall deliver to the purchaser its deed conveying the property sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Trustor, Trustee, Beneficiary or any other person may purchase at the sale. 10. After deducting all costs, fees and expenses of Trustee and of this trust, including cost of evidence of title and reasonable attorneys' fees in connection with sale, Trustee shall ATT. 6 - Page 4 � ' apply the proceeds of sale to payment of (a) all sums expended under the terms hereof and not theretofore repaid, with accrued interest at two percentage points over Bank of America's published prime rate per annum, and (b) all other sums then secured hereby in such order as Beneficiary, in the exercise of its sole discretion, directs. The remainder, if any, shall be paid to the person or persons legally entitled thereto. 11. Before Trustee's sale, Beneficiary may rescind such notices of default and of election to cause the property to be sold by delivering to Trustee a written notice of rescission, which notice, when recorded, shall cancel any prior declaration of default, demand for sale and acceleration of maturity. The exercise of such a right of rescission shall not constitute a waiver of any default then existing or subsequently occurring, or impair the right of Beneficiary to deliver to Trustee other declarations of default and demands for sale or notices of default and of election to cause the property to be sold, or otherwise affect any provision of the secured note or of this deed or any of the rights, obligations or remedies of Beneficiary or Trustee hereunder. 12. Beneficiary may, from time to time as provided by statute, or by a writing signed and acknowledged by him and recorded in the office of the county recorder of the county in which the land or such party thereof as is then affected by this deed of trust is situated, appoint another trustee in stead and of Trustee herein named; and thereupon, the Trustee herein named shall be discharged, and the trustee so appointed shall be substituted as Trustee hereunder with the same effect as if originally named Trustee herein. 13 . If two or more persons are designated as Trustee herein, any or all powers granted herein to Trustee may be exercised by any of such persons if the other person or persons is unable, for any reason, to act. Any recital of such inability in any instrument executed by any of such persons shall be conclusive against Trustor, his heirs and assigns. 14. All leases nor or hereafter affecting the property are hereby assigned and transferred to Beneficiary by Trustor. Trustor hereby covenants that none of such leases will be modified or terminated without the written consent of Beneficiary. 15. When requested to do so, Trustor shall give such further written assignments of rents, royalties, issues and profits; of all security for the performance of leases; and of all money payable under any option to purchase, and shall give executed originals of all leases, now or hereafter on or affecting the property. 16. Trustor reserves the right, prior to any default in payment of any indebtedness or performance of any obligation secured hereby, to collect all such rents, royalties, issues and profits, as but not before they become due. Upon any such default, ATT. 6 - Page 5 ' / Trustor's right to collect such moneys shall cease, not only as to amounts accruing thereafter, but also as to amounts then accrued and unpaid. In the event of default, Beneficiary, with or without notice and without regard to the adequacy of security for the indebtedness hereby secured, either in person or by agent, or by a receiver to be appointed by the court, (a) may enter upon and take possession of the property at any time and manage and control it in Beneficiary's discretion, and (b) with or without taking possession, may sue for or otherwise collect the rents, issues and profits thereof, whether past due or coming due thereafter, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any obligation secured hereby and in such order as Beneficiary determines. None of the aforesaid acts shall cure or waive any default hereunder or invalidate any act done pursuant to such notice. Beneficiary shall not be required to act diligently in the care or management of the property or in collecting any rents, royalties or other profits that it is hereby authorized to collect, and shall be accountable only for sums actually received. 17. Without affecting the liability of Trustor or of any other party now or hereafter bound by the terms hereof, from time to time and with or without notice, may release any person now or hereafter liable for performance of such obligation, and may extend the time for payment or performance, accept additional security, and alter, substitute or release any security. 18. In any judicial action brought to foreclose this deed or to enforce any right of Beneficiary or of Trustee hereunder, Trustor shall pay to Beneficiary and to Trustee attorneys' fees in a reasonable sum, to be fixed by the court. 19. No remedy hereby given to Beneficiary or Trustee is exclusive of any other remedy hereunder or under any present or future law. 20. The pleading of any statute of limitations as a defense to any and all obligations secured by this deed is hereby waived, to the full extent permissible by law. 21. In the event of default in the payment of any indebtedness secured hereby, and if such indebtedness is secured at any time by any other instrument, Beneficiary shall not be obligated to resort to any security in any particular order; and the exercise by Beneficiary of any right or remedy with respect to any security shall not be a waiver of or limitation on the right of Beneficiary to exercise, at any time or from time to time thereafter, any right or remedy with respect to this deed. 22. Trustor shall, upon request made by Beneficiary, furnish the Beneficiary with annual statements covering the operations of the property. 23. Beneficiary may collect a "late charge" not to exceed an amount equal to four percent (4%) on the amount past due ATT. 6 - Page 6 ' and remaining unpaid on any installment that is not paid within ten (10) days from the due date thereof, to cover the extra expense involved in handling delinquent payments. 24. This deed applies to, inures to the benefit of and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, successors in interest, and assigns. The term "Beneficiary" means the owner and holder, including pledgees, of the note secured hereby, whether or not named as Beneficiary herein. In this deed, whenever the context so requires, the masculine gender includes the feminine and neuter, and the singular number includes the plural, and all obligations of each Trustor hereunder are joint and several. 25. Trustee accepts this trust when this deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee is a party unless brought by Trustee. Trustor requests that a copy of notice of default and of any notice of sale hereunder shall be mailed to him at the address set out opposite his name, immediately below. MAILING ADDRESSES FOR NOTICES: as Trustor: Attn: ATT. 6 - Page 7 0 ,r Executed at San Bernardino, California, on the date first above written. EMBLEM DEVELOPMENT CORPORATION as Trustor By: Title: ATT. 6 - Page 8 /� STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) (SEAL) ATT. 6 - Page 9 / / 0 0 ATTACHMENT NO. 7 AFFORDABILITY CRITERIA VERIFICATION WORKSHEET 'err ATT. 7 - Page 1 �� ATTACHMENT NO. 8 MORTGAGE ASSISTANCE PROGRAM FINAL APPLICANT'S REPORT ATT. 8 - Page 1 i J