HomeMy WebLinkAboutR29-Economic Development Agency
ORIG\NAL
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Maggie Pacheco
Interim Executive Director
SUBJECT:
2005 49th Street Single Family Residential
Disposition and Development Agreement -
Telacu Development, LLC (40th Street
Redevelopment Project Area)
DATE:
November 9,2005
Svnopsis of Previous Commission/Council/Committee Action(s):
On June 21, 2005, Redevelopment Committee Member Longville and Alternate Committee Member Johnson unanimously
voted to recommend that the Community Development Commission consider this action for approval.
Recommended Motion(s):
Open/Close Public Hearing
(Mavor and Common Council)
A: Resolution of the Mayor and Common Council of the City of San Bernardino approving the 2005 49th Street Single
Family Residential Disposition and Development Agreement by and between the Redevelopment Agency of the City
of San Bernardino ("Agency") and Telacu Development, LLC ("Developer") (Telacu 49th Street New Homes Project
- 40th Street Redevelopment Project Area)
(Communitv Development Commission)
B: Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing
the Interim Executive Director to execute the 2005 49th Street Single Family Residential Disposition and
Development Agreement by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and
Telacu Development, LLC ("Developer") (Telacu 49th Street New Homes Project - 40th Street Redevelopment
Project Area)
Contact Person(s):
Project Area(s):
Maggie Pacheco
40th Street Redevelopment Project Area
Phone:
(909) 663- 1044
Ward(s):
4th
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0' Agreement(s)/Contract(s) 0 Map(s) 0 Letters
SIGN::::!Y 'flU};;=-
M'ggi, pOCh,,2"im """Ii" Di,,"m
Source:
RDA Low/Moderate Income Housing Funds
FUNDING REQUIREMENTS:
2005/2006 RDA
I' '
U~~LUQ ~hj~/t
Barbara Lindseth, Director Admin. Services
Commission/Council Notes:
Rcso. 2ODS-~fl2
Cl:i!./ZDOC;-4-/
P:\Agendas\Comm Dev Commission\CDC 2005\05-11-21 49th 51. Telacu Development SR(2),doc
COMMISSION MEETING AGENDA
Meeting Date: 11/21/2005
Agenda Item Number: KJ... q
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
2005 49TH STREET SINGLE FAMILY RESIDENTIAL
DISPOSITION AND DEVELOPMENT AGREEMENT - TELACU DEVELOPMENT, LLC
(40TH STREET REDEVELOPMENT PROJECT AREA)
BACKGROUND AND CURRENT ISSUE:
The Agency has been working with TELACU, a non-profit community development corporation, for the
past five years in the development of affordable senior housing in San Bernardino. TELACU was
founded in the late 1960's to principally promote community, housing and economic development..
TELACU Development LLC, ("LLC") is a subsidiary ofTELACU, a for profit entity, who was created to
assist TELACU in achieving its mission and goals. TELACU has developed many affordable or market
rate housing projects throughout California, such as Baldwin Park, EI Monte, Alhambra, and Monterey
Park and in the City of San Bernardino. LLC has also developed single-family homes in communities
such as Panorama City, Pomona, Pico Rivera, and Commerce/Bell Garden. LLC specializes in the
development of for sale housing, commercial, retail, office, and light industrial buildings throughout
California. Due to TELACU's desire to expand their presence in San Bernardino, Staff and LLC have
been evaluating the prospect of developing the Agency's eleven (II) vacant parcels on 49th Street (the
"Site"), within the 40th Street Redevelopment Project Area, with single-family homes. These parcels are
zoned RMH which permits development of single-family homes.
LLC proposes to develop the Site with two (2) design concepts in square footage of 1,407 and 1,456
square feet, 2 stories, 3 bedrooms, 2 ~ bath, and a 2 car garage (the "Project"). The Project will be
developed in conformance with the City's design standards. The Project construction budget is estimated
at approximately $3 million. LLC will provide all the financing needed for the Project acquisition,
construction and development costs, etc. If approved by the Commission, they will commence the
preparation of their working drawings, submit for plan check by March 2006, and complete construction'
by October of 2006.
Below are the basic deal points contemplated in the proposed Disposition and Development Agreement
(DDA):
· Agency will sell six (6) parcels at the fair market value price of $52,000 per parcel (for a total of
$312,000) to LLC for the development of six (6) market rate single-family homes without any
Agency restrictions and financial assistance;
· Agency will convey to LLC five (5) parcels at $1.00 each, ($5.00) for the development of five (5)
single-family homes that will be sold to income eligible buyers earning no more than 120% of the
area median income and the homes will be sold with a 45 year affordability restriction
("Low/Mod Units") per State Law. To assist with the sale of the Low/Mod Units, on May 16,
2005, the Commission approved a $550,000 appropriation in HOME funds to be used for down
payment assistance for low/mod buyers for this Project. However, because of rising construction
costs and the rising median house price, using HOME funds will restrict the sale of the affordable
units to low income buyers and require a greater subsidy by the Agency. Hence, Staff.
recommends that the HOME dollars be replaced with Low/Mod Housing Funds in the equivalent
amount. The $550,000 will be used to provide eligible homebuyers with down payment
assistance in an amount not to exceed forty percent (40%) of the gross sales price of the
Completed New Home if it is sold to a "lower income household" and an amount not to exceed
twenty percent (20%) of the gross sales price of the Completed New Home if it is sold to a person
P:\Agendas\Comm Dev Commission\CDC 2005\05-11-21 49th St. Telacu Development SR(2).doc
COMMISSION MEETING AGENDA
Meeting Date: 11/21/2005
Agenda Item Number:
RdfJ
,
Economic Development Agency Staff Report
TELACU Development, LLC - 49th Street DDA
Page 2
or household whose income is greater than that of a lower income household; the downpayment
assistance is due and payable along with the resale profits and share in the equity, if any, if and
when a home is sold prior to the 45 year term.
. The new home sales price may range between $261,000 - $276,000, depending on the market
when the homes are completed;
. LLC will provide all necessary financing for development of the Project and ensure its completion
in accordance with all City Standards and pursuant to the performance schedule in the proposed
DDA;
. At the completion and sale of the Project, after all allowable expenses and Project costs, any profit
realized will be divided 50/50 between the Agency and LLC.
Prior to the proposed sale of the Site to the Developer, the Commission, and Council are required to
conduct a public hearing in accordance with Health and Safety Code Section 33433. The attached
Summary Report identifies the salient points of the disposition of the Site pursuant to the DDA, the
purchase price of the Site and the estimated value of the interest conveyed, determined at the highest and
best use permitted based on the restricted reuse value per the DDA. As required under the Health and
Safety Code Section 33433, a public notice of this public hearing was also published.
ENVIRONMENTAL IMPACT:
The proposed Project is exempt from the California Environmental Quality Act (CEQA), pursuant to 9
15332, Class 32, which consists of projects characterized as in-fill development meeting the following
conditions: (a) the Project is consistent with the applicable general plan applicable zoning designation and
regulations; (b) the proposed Project occurs within city limits and not more than five (5) acres; the Project
site has no value as habitat for endangered, rare or threatened species; the Project would not result in any
significant effects relating to traffic, noise, air quality, or water quality; and the Site is adequately served
by all required utilities and public services
FISCAL IMPACT:
The Agency has expended approximately $630,900 from the Low/Mod Housing Fund for the acquisition,
demolition and ancillary costs for 5 four-plexes (estimated at $326,400), and the acquisition of 6 vacant
parcels (estimated at $304,500). Based on the deal points noted above, the Agency will receive $312,005
in land sale proceeds (less customary closing and escrow costs) from LLC to offset its costs. In addition,
$550,000 in from the Low/Moderate Housing Fund will be budgeted for the Project's five income eligible
home buyers.
RECOMMENDATION:
That the Mayor (n
olution .
and the Community Development Commission adopt the attached
/~
P:\Agendas\Comm Dev Commission\CDC 2005\05-11-21 49th 51. Telacu Development SR(2),doc
COMMISSION MEETING AGENDA
Meeting Date: 11/21/2005
Agenda Item Number: I( ~ 9
City Attorney's Office
Agenda Item Review Form
Internal Use Only
2/.
Council Meeting Date: November 7, 2005
Department: EDA
Description of Agenda Item: 1) Resolution of the City Approving the 2005 49th Street Single
Family DDA between the RDA and Telacu Development LLC. 2) Resolution of the RDA
Authorizing the Director to Execute the 2005 49th Street Single Family DDA between the RDA
and the Telacu Development LLC.
Any Problems/Issues of particular concern: No
Deputy CIA Reviewing: (Initials and date): N/A
Sr. Assistant CA Reviewing (Initials and date): N/A
Interested Parties/Real Parties in Interest on this Agenda item: Telecu Development, LLC,
Santa Ana, CA: Stradling Yocca Carlson & Rauth, attn. Jon Goetz, Newport Beach, CA.
Development Services Dept. ONLY: Names of Developers/Owners:
Location:
Other Significant Information: This DDA authorizes Telacu to develop eleven single family
residences on 49th Street in the 40th Street Redevelopment Project Area. Telacu will
purchase the six unrestricted lots from the Agency at $52,000 per lot for $312,000 and will
purchase the 5 restricted lots for $1.00 each for a total of $312,005. The six houses built on the
six lots will be sold for fair market housing prices. The five homes built of the five lots are to
be transferred to low or moderate income households. Homes will vary in size from 1407 to
1456sq.ft, and consist of two stories, three bedrooms 2.5 bath and a two car garage. The
Agency will allocate $550,000 to the project to provide qualified home buyers with down
payment assistance. The new home sales price may be between $261,000 and $276,000,
depending upon the housing market when the homes are completed. At the completion ofthe
and sale of the Project, any net profit with be divided between the RDA and Telacu.
Sr. Asst. City Attorney
Approval to Sign:
"(:~t%'
ate)
QJj
(Initials)
HTC/ed[AgendaRev.Fonn ]
..
"-
RESOLUTION NO.
t~~V
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE 2005 49TH STREET SINGLE
FAMILY RESIDENTIAL DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") AND TELACU
DEVELOPMENT, LLC ("DEVELOPER") (TELACU 49TH STREET NEW
HOMES PROJECT - 40TH STREET REDEVELOPMENT PROJECT AREA)
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
3
4
5
6
7
is a public body corporate and politic; and
WHEREAS, the Agency owns the following eleven (11) vacant parcels: 263 49th Street
(APN: 0154-126-24); 271 49th Street (APN: 0154-126-26); 275 49th Street (APN: 0154-126-27);
279 49th Street (APN: 0154-126-28); 283 49th Street (APN: 0154-126-29); and (APN's: 0154-
125-08,09,10, II, 12 and 13) (the "Site"); and
8
9
10
11
12
WHEREAS, each of the parcels ofland identified above is referred to as the Site; and
13
WHEREAS, the Agency acquired the Site using low and moderate income housing tax
14
increment set-aside funds; and
15
WHEREAS, the Agency proposes to transfer the Site to Telacu Development, LLC, a
16
California corporation (the "Developer") in accordance with the terms and conditions of an
agreement entitled "2005 49th Street Single Family Residential Disposition and Development
Agreement (Telacu 49th Street New Homes Project)", (the "2005 Agreement"); and
WHEREAS, the Developer shall develop and improve the Site as may hereafter be
transferred by the Agency to the Developer pursuant to the 2005 Agreement with eleven (11)
17
18
19
20
21
New Homes (the "Project"), using the design and development standards, which are consistent
22
with City General Plan and Development Standards which shall be approved by the Planning
Commission at a later date; and
23
24
WHEREAS, the Agency has prepared and published a notice of joint public hearing in
the San Bernardino County Sun Newspaper on July 5 and 11, 2005, regarding the consideration
25
and approval of the 2005 Agreement; and
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...
WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency may
2
transfer the Site to the Developer subject to the Mayor and Common Council adopting a
3
Resolution authorizing the Agency to transfer the Site in light of the findings set forth herein,
pursuant to Health and Safety Code Section 33433; and
WHEREAS, the Agency has prepared a Summary Report that describes the salient
4
5
6
points of the 2005 Agreement and identifies the cost to the Agency of the disposition of the Site
and the development of the Project by the Developer.
7
8
NOW, THEREFORE, IT IS HEREBY RESOL YED, DETERMINED AND ORDERED
BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS
FOLLOWS:
9
10
Section 1.
The Recitals of this Resolution are true and correct.
11
Section 2.
On November 21, 2005, the Mayor and Common Council ("Common
12
Council") conducted a full and fair joint public hearing with the Community Development
13
Commission ("Commission"), and considered the \Hitten Agency Staff Report relating to the
14
15
2005 Agreement, the Summary Report and the testimony submitted relating to the disposition
and development of the Project by the Developer pursuant to the terms and conditions of the
16
2005 Agreement. The minutes of the City Clerk for the November 21, 2005, joint public
17
hearing of the Common Council and the Commission shall include a record of all
18
communication and testimony submitted to the Common Council and the Commission at the
19
joint public hearing by interested persons relating to the Summary Report, the Project and the
approval of the 2005 Agreement.
20
21
Section 3.
This Resolution is adopted in order to satisfy the provisions of Health and
22
Safety Code Section 33433 as those provisions related to the disposition of the Site by the
Agency to the Developer on the terms and conditions set forth in the 2005 Agreement. The
Common Council hereby finds and determines as follows:
23
24
25
(i)
The Summary Report contains the information described in Health and Safety
Code Section 33433(a)(2)(B);
4841-9109-1200.1
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.,
(ii)
The disposition and development of the Site by the Developer in accordance with
the 2005 Agreement is consistent with the affordable single family housing
2
3
supply, preservation and expansion programs of the Agency Housing
4
Implementation Plan.
5
Section 4.
The Common Council hereby find and determine that the environmental
6
review of the approval of the 2005 Agreement and the development activities contemplated
7
thereunder is a "categorically exempt project" under the California Environmental Quality Act
8
(CEQA), pursuant to S 15332, Class 32. No potentially adverse environmental effects are
9
anticipated to be associated with the development of the Project.
Section 5.
The Common Council hereby receives and approves the Summary Report
10
II
and the 2005 Agreement in the form as submitted at this joint public hearing.
Section 6.
The Common Council hereby approves the disposition of the Site by the
12
Agency to the Developer on the terms set forth in the 2005 Agreement.
13
Section 7.
The City is not a party to the 2005 Agreement, and nothing in this
14
Resolution shall be deemed to constitute an approval by the City of any application for a
15
development project permit or approval, which the Developer may hereafter be required to
16
obtain from the City as a condition precedent to the performance of the Developer's obligation
17
under the 2005 Agreement with respect to the development of the Project and/or the
18
construction of any New Home on the Site. The City hereby reserves its discretion under all
]9
applicable law to approve or reject, and to impose any appropriate condition of its approval on
20
any such development project permit application as the Developer may hereafter submit to the
21
City in connection with the Project.
22
23
This Resolution shall take effect upon its adoption and execution in the
manner as required by the City Charter.
Section 8.
24
1//
25
4841-9109-1200.1
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3
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING THE 2005 49TH STREET SINGLE
FAMIL Y RESIDENTIAL DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") AND TELACU
DEVELOPMENT, LLC ("DEVELOPER") (TELACU 49TH STREET NEW
HOMES PROJECT - 40TH STREET REDEVELOPMENT PROJECT AREA)
2
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6
7
Common Council of the City of San Bernardino at a
meeting thereof, held
on the day of
8
Council Members: Aves
9
ESTRADA
10
LONGVILLE
11
MCGINNIS
12 DERRY
13 KELLEY
]4 JOHNSON
15 MC CAMMACK
16
, 2005, by the following vote to wit:
Navs
Abstain
Absent
17
Rachel G. Clark, City Clerk
18
19
The foregoing resolution is hereby approved this
day of
,2005.
20
21
22
Judith Valles, Mayor
City of San Bernardino
23
Approved as to form and Legal Content:
24
25 By:
4841-9109-1200 1
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RESOLUTION NO.
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR TO EXECUTE
THE 2005 49TH STREET SINGLE FAMILY RESIDENTIAL DISPOSITION
AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND TELACU DEVELOPMENT, LLC ("DEVELOPER")
(TELACU 49T11 STREET NEW HOMES PROJECT - 40TH STREET
REDEVELOPMENT PROJECT AREA)
3
4
5
6
7
8
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
9
is a public body corporate and politic; and
WHEREAS, the Agency owns the following eleven (11) vacant parcels: 263 49th Street
(APN: 0154-126-24); 271 49th Street (APN: 0154-126-26); 275 49th Street (APN: 0154-126-27);
279 49th Street (APN: 0154-126-28); 283 49th Street (APN: 0154-126-29); and (APN's: 0154-
125-08,09,10,11,12 and 13) (the "Site"); and
10
II
12
13
WHEREAS, each of the parcels ofland identified above is referred to as the Site; and
14
WHEREAS, the Agency acquired the Site using low and moderate income housing tax
15
increment set-aside funds; and
16
WHEREAS, the Agency proposes to transfer the Site to Telacu Development, LLC, a
17
California corporation (the "Developer") in accordance with the terms and conditions of an
agreement entitled "2005 49th Street Single Family Residential Disposition and Development
Agreement (Telacu 49th Street New Homes Project)", (the "2005 Agreement"); and
18
19
20
WHEREAS, the Developer shall develop and improve the Site as may hereafter be
transferred by the Agency to the Developer pursuant to the 2005 Agreement with eleven (11)
New Homes (the "Project"), using the design and development standards, which are consistent
21
22
23
with City General Plan and Development Standards which shall be approved by the Planning
24
Commission at a later date; and
25
4815-6126-2848.1
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WHEREAS, the Developer has the background, experience, and financial capability of
2
developing the Project and has been successful in securing a construction financial commitment
3
in support of the Project; and
WHEREAS, the Agency has prepared and published a notice of joint public hearing in
The San Bernardino County Sun Newspaper on July 5 and 11,2005, regarding the consideration
and approval of the 2005 Agreement; and
4
5
6
7
WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency may
8
transfer the Site to the Developer subject to the Mayor and Common Council ("Common
9
Council") and the Community Development Commission ("Commission") adopting a
10
Resolution authorizing the Agency to transfer the Site in light of the findings set forth herein,
II
pursuant to Health and Safety Code Section 33433; and
WHEREAS, the Agency has prepared a Summary Report that describes the salient
12
13
points of the 2005 Agreement and identifies the cost to the Agency of the disposition of the Site
and the development of the Project.
14
15
NOW, THEREFORE, THE COMMISSION OF THE CITY OF SAN BERNARDINO
DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
]6
Section 1.
The Recitals of this Resolution are true and correct.
17
Section 2.
On November 21, 2005, the Commission conducted a full and fair joint
18
public hearing with the Mayor and Common Council, and considered the written Agency Staff
19
Report relating to the 2005 Agreement, the Summary Report, and the testimony submitted
relating to the disposition and development of the Project by the Developer pursuant to the
20
21
terms and conditions of the 2005 Agreement. The minutes of the Agency Secretary for the
22
November 21, 2005, joint public hearing of the Commission and the Common Council shall
23
include a record of all communication and testimony submitted to the Commission and the
24
Common Council at the joint public hearing by interested persons relating to the Summary
25
Report, the Project and the approval of the 2005 Agreement.
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Section 3.
This Resolution is adopted in order to satisfy the provisions of Health and
2 Safety Code Section 33433 as those provisions relate to the disposition of the Site by the
3 Agency to the Developer on the terms and conditions set forth in the 2005 Agreement. The
4 Commission hereby finds and determines as follows:
5
(i)
The Summary Report contains the information described in Health and Safety
6
Code Section 33433(a)(2)(B);
7
(ii)
The disposition and development of the Site by the Developer in accordance with
the 2005 Agreement is consistent with the affordable single family housing
8
9
supply, preservation, and expansion programs of the Agency Housing
10
Implementation Plan;
11
(iii) The terms and conditions of the 2005 Agreement contain assurances that the Site
12
will be developed by the Developer as "New Homes", as this term is defined in
the 2005 Agreement;
13
(iv) The disposition of the Site to the Developer on the terms set forth in the 2005
14
15
Agreement shall assist in the elimination of conditions of blight on the Site in the
40th Street Redevelopment Project Area.
16
Section 4.
The Commission hereby find and determine that the environmental
17
review of the approval of the 2005 Agreement and the development activities contemplated
18
thereunder is a "categorically exempt project" under the California Environmental Quality Act
19
(CEQA), pursuant to S 15332, Class 32. No potentially adverse environmental effects are
20
anticipated to be associated with the development of the Project and accorUingly based upon-its
21
own independent review of the information provided to the Commission regarding the Project,
22
the Commission hereby authorizes the filing of a Notice of Exemption under CEQA relating to
the Project.
23
24
Section 5.
The Commission hereby receives and approves the Summary Report and
25 the 2005 Agreement in the form as submitted at this joint public hearing. The Commission
hereby further finds and determines, based upon the Agency's written appraisal of the Agency
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Lots, dated April 27,2005, that the purchase price payable by the Developer to the Agency for
the six (6) Agency Lots on which New Homes shall be constructed and offered for sale without
2
3
resale or household income restriction is not less than the fair market value for such Agency
4
Lots and the sole source of Agency funds used and applied to assist with the development of the
5
five (5) New Homes which shall be reserved for use and occupancy by persons and households
6
of low and moderate income, shall be derived from the low and moderate income housing set
7
aside tax increment funds of the Agency and from no other source.
8
Section 6.
The Commission hereby approves the disposition of the Site by the
9
Agency to the Developer on the terms set forth in the 2005 Agreement and hereby authorize the
10
Interim Executive Director to execute the 2005 Agreement on behalf of the Agency, to make
minor corrections, additions and clarifications to the 2005 Agreement, provided such changes
II
are not substantive in nature, do not increase the monetary impact to the Agency and the
12
changes are approved by the Agency Counsel.
13
Section 7.
This Resolution shall take effect upon its adoption and execution. The
14
15
approval by the Commission of the 2005 Agreement shall have no further force and effect
unless the 2005 Agreement has been fully executed by the Developer and the Agency within
thirty (30) days following the date of adoption of this Resolution.
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17
/II
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/II
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2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR TO EXECUTE
THE 2005 49TH STREET SINGLE FAMILY RESIDENTIAL DISPOSITION
AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND TELACU DEVELOPMENT, LLC ("DEVELOPER")
(TELACU 49TH STREET NEW HOMES PROJECT - 40TH STREET
REDEVELOPMENT PROJECT AREA)
3
4
5
6
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
7
Development Commission of the City of San Bernardino at a
meeting
8
thereof, held on the
day of
, 2005, by the following vote to wit:
9
Commission Members:
Abstain
Absent
Navs
Ayes
10
] 1
ESTRADA
LONGVlLLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
12
13
14
15
]6
17
18
Secretary
19
The foregoing resolution is hereby approved this
day of
,2005.
20
21
22
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
23
Approved as to form and Legal Content:
24
f.2~/I~
By:
25
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SUMMARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433 OF
THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON THE DEVELOPMENT
AND DISPOSITION OF CERTAIN AGENCY OWNED PROPERTIES PURSUANT TO THE
2005 49TH STREET SINGLE FAMILY RESIDENTIAL DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY AND TELACU
DEVELOPMENT, LLC (TELACU 49TH STREET NEW HOMES PROJECT)
INTRODUCTION
This Summary Report has been prepared by the Agency (the "Agency") in accordance with Health and
Safety Code Section 33433. This Report sets forth certain details of the 2005 40th Street
Redevelopment Project Area Single Family Residential Development Agreement (the "2005
Agreement") by and between the Agency and TELACU Development, LLC, a California corporation
(the "Developer"). The 2005 Agreement provides for the disposition of certain Agency-owned
Property to the Developer for development as new single-family dwellings.
This Summary Report is organized into the following six (6) sections:
I. Salient Points of the Proposed 2005 A2reement: This section includes a description of the
project and the major responsibilities to be assumed by the Agency and the Developer.
II. Cost of the 2005 A2reement to the A2encv: This section outlines the proposed 2005
Agreement costs to the Agency.
III. Estimated Value of the Interests to be Conveyed Determined at the Hi2hest and Best Use
Permitted Under the Redevelopment Plan: This section summarizes the value of the
properties to be conveyed by the 2005 Agreement to the Developer at the highest use permitted.
IV. Estimated Reuse Value of the Interests Determined at the Required Use and with the
Conditions, Covenants and Development Costs Required bv the Proposed A2reement:
This section summarizes the sale price payments to be made to the Agency. If the sales price
amount is less than the fair market value of the interest to be transferred, determined at the
highest and best use consistent with the redevelopment pfan, the Agency shall provide, as part
of the summary, an explanation of the reasons for the difference.
V. Bli2ht Alleviation: This section describes the existing blighting conditions in and around the
Project Area, and an explanation of how the proposed sale and development will assist in
alleviating the blighting conditions.
VI. Conformance with the AB 1290 Implementation Plan: This section identifies how the
proposed 2005 Agreement will result in a development activity that fulfills goals and objectives
established in the Agency's AB 1290 Five- Year Implementation Plan.
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I. SALIENT POINTS OF THE 2005 AGREEMENT
A. Description of the propose Proiect
. The purpose of the 2005 Ap,reement is to facilitate the development of eleven (I I)
single-family homes on 4911 Street of the 40lh Street Redevelopment Project Area.
All necessary infrastructure improvements such as electricity, sewers, gutter,
landscaping will be provided by the Developer. The following Agency-owned lands
are affected by the 2005 Agreement:
Agency Lot Address APN Number Approximate Size
of Agency Lot
263 491n St. (vacant lot) 0154-126-24 6,750 sq. ft
271 49tn St. (vacant lot) 0154-126-26 6,750 sq. ft
275 49tn St. (vacant lot) 0154-126-27 6,750 sq. ft
279 49tn St. (vacant lot) 0154-126-28 6,750 sq. ft
283 491h St. (vacant lot) 0154-126-29 6,750 sq. ft
491n St. (vacant lot) 0154-125-08 6,750 sq. ft
491n St. (vacant lot) 0154-125-09 6,750 sq. ft
491h St. (vacant lot) 0154-125-10 6,750 sq. ft
491n St. (vacant lot) 0154-125-11 6,750 sq. ft
491h St. (vacant lot) 0154-125-12 6,146 sq. ft
49tn St. (vacant lot) 0154-125-13 6.465 sq. ft
B. Agencv Responsibilities
. Enter into the 2005 Agreement with TELACU Development, LLC for the transfer
and development of eleven (II) single-family homes (the "Site") per the terms of
the 2005 Agreement.
C. TELACU Development. LLC Responsibilities
. Enter into the 2005 Agreement with the Agency and agree to buy the Site and to
develop eleven (II) single-family homes per the 2005 Agreement.
. To pay fair market value on six (6) lots within the Site.
· Secure the construction and permanent financing required to develop the Project.
. To accept transfer of 5 lots at $1.00 each within the Site, which will be restricted to
low or moderate income eligible home buyers per the 2005 Agreement.
. Complete Project per the Schedule of Performance in the 2005 Agreement.
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II. COST OF THE PROJECT AND THE 2005 AGREEMENT TO THE AGENCY
. The cost of the 2005 Agreement to the Agency, includes, but is not limited to land
acquisition and clearance costs. The Agency's expenditure estimate is as follows:
Developer Estimated
Agency Acquisition Acquisition Demolition
Property Address APN# CostlMarket Value Cost Cost
263 49tn S1. 0154-126-24 $56,279 $1.00 $7,100
271 49th S1. 0154-126-26 $56,244 $1.00 $7,900
275 49th S1. 0154-126-27 $52,967 $1.00 $6,900
279 49th S1. 0154-126-28 $63,668 $1.00 $6,250
283 49th S1. 0154-126-29 $57,790 $1.00 $6,900
49th S1. (vacant lot) 0154-125-08 $52,000 $52,000 $0
49th S1. (vacant lot) 0154-125-09 $52,000 $52,000 $0
49th S1. (vacant lot) 0154-125-10 $52,000 $52,000 $0
49th S1. (vacant lot) 0154-125-11 $52,000 $52,000 $0
49th S1. (vacant lot) 0154-125-12 $48,250 $52,000 $0
49th S1. (vacant lot) 0154-125-13 $48,250 $52,000 $0
Sub Totals *$591,448 $312,005 *$35,050
Total *$630,900
*The Agency also expended an estimated $4,402 for fencing and weed abatement on the above
properties.
. As shown above, the Agency has expended an estimated $630,900 for the acquisition
and related costs of the eleven (II) Agency Lots out of which five (5) had substandard
structures and were demolished. The Agency will transfer the eleven (II) Lots to the
Developer for the construction of II new single-family homes, out of which five (5)
homes will provide affordable housing opportunities to low or moderate-income
households and six (6) others will be sold at market housing prices.
. Under State Law, the Agency is authorized to transfer property to third party developers
for redevelopment of new homes to be reserved for occupancy by low- and moderate-
income households ("Qualified Homebuyers") and to provide affordable housing
opportunities consistent with the PI.9yisions of the Redevelopment Plan for 40th Street
Redevelopment Project Area.
. The Agency further intends to allocate the sum of $550,000 to the Project to provide the
Qualified Homebuyers with down payment/closing costs assistance in an amount not to
exceed 40% of the purchase price of the five (5) New Homes with affordability
covenants. Therefore, the total Agency cost of the 2005 Agreement is $1,180,900
($630,900 plus $550,000). The developer is expected to pay $312,005 as the fair
market value to the Agency for the six (6) unrestricted Agency Lots and $5.00 for the 5
restricted Agency Lots ($1,180,900 less the fair market land value price of $312,005)
for a net cost of$868,895 to the Agency.
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III. ESTIMA TED VALUE OF THE INTEREST TO BE CONVEYED BY THE AGENCY
DETERMINED AT THE HIGHEST AND BEST USES PERMITTED UNDER THE
REDEVELOPMENT PLAN:
The estimated appraised fair market value of the interest to be conveyed based upon the
Agency's written appraisal, dated April 27, 2005 is $572,000 (11 x $52,000). This value is
considered to be the highest and best use for the eleven (11) Agency Lots permitted as single
family residential under the 40th Street Redevelopment Project Area Plan.
IV. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED BASED ON THE
REQUIRED REUSE AND WITH THE CONDITIONS, COVENANTS AND
RESTRICTIONS REQUIRED:
The estimated fair market value of the interest to be conveyed to the Developer is $572,000.
The sale of the Site is necessary to implement the Redevelopment Plan for the 40th Street
Redevelopment Project Area and to provide New Homes for residents, including five (5) New
Homes as affordable housing for low or moderate-income households. Five (5) of the eleven
(11) Agency Lots will be developed with single-family affordable housing units and be made
available to low or moderate-income households per the 2005 Agreement. Because of this
requirement, the Agency will sell five (5) Agency Lots to the Developer at the price of $1.00
each and the Developer will be required to insure that said lots are sold to low or moderate
income buyers subject to the recordation of the 45-year Affordability, Covenants and
Restrictions (Exhibit "D"). With regard to the six other Agency Lots, the Agency will sell
those lots to the Developer at the fair market value price of $52,000 each, which will be
developed by the Developer for market rate housing units for a total consideration to be paid to
the Agency of $312,005.
In conclusion, the interest to be conveyed to Developer has been determined to be the highest
and best use (single family residential development of New Homes) permitted under the 40th
Street Redevelopment Plan and holds true for the reuse value, considering a portion of the Site
is subject to conditions, covenants and restrictions placed by the Agency per the 2005
Agreement.
V. BLIGHT ALLEVIATION:
The development of the Agency Lots will eliminate existing blight foster the reuse of under
utilized property into new single family homes for the benefit of the residents of 40th Street
Redevelopment Project Area, increase property values and place the Site back on tax role.
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VI. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN:
The Five-Year Implementation Plan adopted by the Agency contains several broad operational
goals and objectives for the 40th Street Redevelopment Project. Among these are the following:
. Eliminate blighting influences including deteriorating buildings, uneconomic
land uses, obsolete structures, and other environmental, economic, and social
deficiencies.
. To facilitate land assembly to prevent piecemeal development that would leave
economic potential underachieved.
. To re-plan, redesign and develop underdeveloped areas that are stagnant or
improperly utilized.
. To encourage cooperation and participation of residents, businesspersons, public
agencies and community organizations in revitalizing the area.
The proposed 2005 Agreement will assist the Agency in meeting the objectives and goals of its Five-
Year Implementation Plan for the 40th Street Redevelopment Project in the following way:
The execution of the 2005 Agreement with the Developer will continue the redevelopment activities by
providing affordable new single family dwelling units and market rate housing within an existing
Agency designated redevelopment project area. Based upon the preceding factors, the proposed 2005
Agreement is consistent with the adopted Five- Year Implementation Plan. The interest and land
conveyed to the Developer will be developed in conformance with the City's General Plan and
Housing Element, Municipal Development Code, and Agency's AB 1290 Implementation Plan.
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2005
40TH STREET REDEVELOPMENT PROJECT AREA
SINGLE FAMILY RESIDENTIAL DEVELOPMENT AGREEMENT
(TELACU 49th Street New Homes Project)
T ABLE OF CONTENTS
Page
ARTICLE I TERMS AND CONDITIONS...............................................................................2
Section 1.01. Integration of all Agreements Relating to the Project and Definition of Terms......2
Section 1.02. Parties to the Agreement. .........................................................................................8
Section 1.03. Prohibition against Change in Ownership, Management and Control of
Developer and Assignment of Agreement...............................................................9
Section 1.04. Benefit to Project Area.................................................................. ...........................9
Section 1.05. Effective Date. ...... ......... ......... ...................................................... ....... ....................9
Section 1.06. List of Exhibits to Agreement................................................................................l 0
ARTICLE II ......... ....................................................................................................................10
Section 2.01. Purchase and Sale of the Agency Lots to the Developer.......................................l0
Section 2.01.1 Purchase Price for the Agency Lots.......................................................................l 0
Section 2.02. Developer Deposit, Payment of Purchase Price; Application or Return of
Deposit. ................................................................................................................. .11
Section 2.03. Opening and Closing of the Agency Lot Escrow. .................................................11
Section 2.04. Escrow Instructions.................................................................................. ........... ...12
Section 2.05. Conveyance of Title .................. ......... ........................ ............................................12
Section 2.06. Additional Closing Obligations of Agency............................................................13
Section 2.07. Closing Obligations of Developer .........................................................................13
Section 2.08. Inspections and Review. ........................................................................................14
Section 2.09. Due Diligence Investigation of the Agency Lots...................................................14
Section 2.10. Due Diligence Approval Certificate ....................................:.................................15
Section 2.11. Books and Records ................................................................................................15
Section 2.12. Condition of the Agency Lots; Developer's Release.............................................15
Section 2.13. Review and Approval of Condition of Title by the Developer. .............................16
Section 2.14. Survey ................... .................................................................................................16
Section 2.15. Extension of Due Diligence Period........................................................................17
Section 2.16. Developer's Conditions Precedent.........................................................................17
Section 2.17. The Agency's Conditions Precedent......................................................................18
Section 2.18. Delivery of Documents and Purchase Price after Closing Date by Agency Lot
Escrow Holder .......................... .............................................................................18
Section 2.19. Satisfaction of Conditions......................................................................................19
Section 2.20. Termination...................................................... .~....................... ~................. ...... .19
Section 2.21. Prorations, Closing Costs, Possession. ..................................................................19
Section 2.22. Breach by Either Party of the Provisions of this Article II; Limited Equitable
Remedy and Liquidated Damages... .....................................................................20
Section 2.23. Representations and Warranties.............................................................................21
Section 2.24. Suitability of Agency Lots, Damage, Destruction and Condemnation Prior to
Close of an Agency Lot Escrow ............................................................................23
ARTICLE IIIDEVELOPMENT OF THE AGENCY LOTS ..................................................24
Section 3.01. Scope of Development by Developer. ...................................................................24
Section 3.02. Insurance Coverage of Developer......................................................... .................28
Section 3.03. Prohibition against Transfer Prior to Release Date................................................28
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Section 3.04. Security Financing; Right of Holders. ...................................................................29
Section 3.05. Property Taxes and Assessments...........................................................................30
ARTICLE IVUSE AND DISPOSITION OF THE AGENCY LOTS BY THE
DEVELOPER.................. .....................................................................................30
Section 4.01. Uses of Agency Lots. .............................................................................................30
Section 4.02. Disposition of the Completed New Homes to Homebuyers and Special
Provisions for New Home Escrows for Affordable Lots.......................................30
Section 4.03. Maintenance of the Agency Lots ...........................................................................33
Section 4.04. Obligation to Refrain from Discrimination............................................................33
Section 4.05. Form of Nondiscrimination and Nonsegregation Clauses.....................................33
Section 4.06. Effect and Duration of Covenants under Section 4.01 and Section 4.05...............34
Section 4.07. Project Development Cost Pro Forma. ..................................................................34
Section 4.08. Agency Downpayment Assistance Funds..............................................................35
Section 4.09. Agency Participation in New Home Profit. ...........................................................36
Section 4.10. No Distribution of New Home Profit to Developer until Release Date. ...............36
ARTICLE V ARTICLE V DEFAULTS, REMEDIES AND TERMINATION....................37
Section 5.01. Defaults - General. .................................................................................................37
Section 5.02. Legal Actions. ........................................................................................................38
Section 5.03. Rights and Remedies are Cumulative....................................................................38
Section 5.04. Default and Damages ........................ ..... ............................. ...................................38
Section 5.05. Agency Audit Costs ...............................................................................................39
ARTICLE VI GENERAL PROVISIONS ............................................... ...................................39
Section 6.01. Notices, Demands and Communications between the Parties. ..............................39
Section 6.02. Conflict of Interest .................................................................................................40
Section 6.03. Warranty against Payment of Consideration for Agreement.................................40
Section 6.04. Nonliability of Agency Officials and Employees..................................................40
Section 6.05. Enforced Delay: Extension of Time ofPerformance.............................................40
Section 6.06. [RESERVED - NO TEXT]. ..................................................................................41
Section 6.07. Approvals. ............................................................................................................ ..41
Section 6.08. Real Estate Commissions.......................................................................................41
Section 6.09. Indemnification.................................................................................................... ..41
Section 6.10. Attorneys' Fees ......................................................................................................42
Section 6.11. Effect ......................................................................................................................42
ARTICLE VII ENTIRE AGREEMENT, WAIVERS AND AMENDMENT........................42
Section 7.01. Entire Agreement. ..................................................................................................42
EXHIBIT "A" LEGAL DESCRIPTION OF AGENCY LOTS..............................................44
EXHIBIT "B" FORMS OF AGENCY GRANT DEED
Form #1 Agency Lot - Homebuyer (covers 6 Agency Lots)
Form #2 Affordable Lot - Low or Moderate Income Homebuyer
(covers 5 Agency Lots/Affordable) .....................................................................46
EXHIBIT "C" SCHEDULE OF PERFORMANCE ................................................................47
EXHIBIT "D" FORM OF AFFORDABILlTY COVENANT.....................................48
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2005
40TH STREET REDEVELOPMENT PROJECT AREA
SINGLE FAMILY RESIDENTIAL DEVELOPMENT AGREEMENT
(TELACU 49th Street New Homes Project)
THIS 2005 40TH STREET REDEVELOPMENT PROJECT AREA SINGLE FAMILY
RESIDENTIAL DEVELOPMENT AGREEMENT (this "Agreement") is dated as of November 21,
2005, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
a public body corporate and politic (the "Agency") and TELACU DEVELOPMENT, LLC, a
California limited liability company (the "Developer"), in light of the facts set forth in the following
paragraphs of the Recitals:
RECIT ALS
1. As of the "Effective Date" of this Agreement (as this term is defined below), the
Agency owns certain properties described as follows:
Agency Lot Address
263 49th Street (Vacant Lot)
271 49th Street (Vacant Lot)
275 49th Street (Vacant Lot)
279 49th Street (Vacant Lot)
183 49th Street (Vacant Lot)
49th Street (Vacant Lot)
49th Street (Vacant Lot)
49th Street (Vacant Lot)
49th Street (Vacant Lot)
49th Street (Vacant Lot)
49th Street (Vacant Lot)
APN
0154-126-24
0154-126-26
0154-126-27
0154-126-28
0154-126-29
0154-125-08
0154-125-09
0154-125-10
0154-125-11
0154-125-12
0154-125-13
2. Each of the Agency-owned parcels of land identified in the table in the preceding
paragraph is referred to in this Agreement as an "Agency Lot"; and
3. The Agency acquired each such Agency Lots using low and moderate income housing
tax increment set-aside funds; and
4. The Agency proposes to transfer the Agency Lots to the Developer in accordance with
the terms and conditions of this Agreement; and
5. The Developer shall develop and improve each such Agency Lot as may hereafter be
transferred by the Agency to the Developer pursuant to this Agreement with a New Home, and five (5)
of the Agency Lots as improved with New Homes shall be reserved for occupancy by Homebuyers
whose household income level is that of a person of family of low or moderate income (a "Low or
Moderate Income Homebuyer"); and
6. Each of the Agency Lots as may hereafter be transferred to the Developer by the
Agency under this Agreement shall be developed and improved with New Homes by the Developer
under design and improvement standards which are consistent with the City's General Plan and
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Development Standards, and such further separate review and approval by the City of the specific plan
of improvement of each Agency Lot by the Developer as may hereafter be indicated; and
7. The Developer has the background, experience and financial capability of developing
the Project as hereinafter described and appears well qualified to secure a construction financial
commitment from a commercial lending institution in support of the Project; and
8. Pursuant to Health and Safety Code Section 33433, the Mayor and Common Council
and the Agency have conducted a joint public hearing for the disposition of the Agency Lots to the
Developer.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE AGENCY AND THE
DEVELOPER HEREBY AGREE AS FOLLOWS:
ARTICLE I
TERMS AND CONDITIONS
Section 1.01. Integration of all Agreements Relating to the Proiect and Definition of Terms.
(a) This Agreement integrates all of the terms and conditions mentioned herein and
supercedes all negotiations, discussions and understandings between the parties with respect to the
Project and all items of assistance, which the Agency may hereafter provide to the Developer.
(b) In addition to the words, which have defined meanings as set forth in the preceding
paragraphs of this Agreement, certain other phrases or terms as used in this Agreement shall have the
meaning set forth as follows:
Adjusted Family Income. The words "Adjusted Family Income" mean "gross income" as this
term is defined in 25 California Code of Regulations Section 6914, for the total annual income
of each individual or family residing or treated as residing in the Completed New Home.
Affordability Covenant. The words "Affordability Covenant" mean the Redevelopment
Agency of the City of San Bernardino Community Redevelopment Housing Affordability
Covenants and Restrictions by and among the Low or Moderate Income Homebuyer, the
Developer and the Agency pertaining to a particular Completed New Home, which has been
constructed and completed on an Affordable Lot. An Affordability Covenant in appropriate
final form shall be recorded concurrently with the close of each New Home Escrow for the sale
ofa Completed New Home on an Affordable Lot.
Affordable Lot. The words "Affordable Lot" mean and refer to each of the following Agency
Lots:
(i) Agency Lot/Affordable Lot APN No. 0154-126-24;
(ii) Agency Lot/Affordable Lot APN No. 0154-126-26;
(iii) Agency Lot/Affordable Lot APN No. 0154-126-27;
(iv) Agency Lot/Affordable Lot APN No. 0154-126-28;
(v) Agency Lot/Affordable Lot APN No. 0154-126-29;
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Each Affordable Lot shall be transferred to the Developer subject to the terms and conditions of
this Agreement. Following the close of a New Home Escrow for any of the five (5) Affordable
Lots, the Completed New Home on such Affordable Lot shall be occupied by a Low or
Moderate Income Homebuyer.
Affordable Housing Cost. The words "Affordable Housing Cost" shall have the meaning as
set forth in Health and Safety Code Section 50052.5, as this section may hereafter be amended
from time-to-time by the State of California. A Low or Moderate Income Homebuyer, andlor
the Successor-In-Interest of such Low or Moderate Income Homebuyer, if any, shaH pay no
more than an Affordable Housing Cost as its purchase price for the Completed New Home as
of the applicable Delivery Date.
Agency Downpayment Assistance Funds. The words "Agency Downpayment Assistance
Funds" mean and refer to Agency Low and Moderate Income Housing Funds, which the
Agency may hereafter provide to one or more Low or Moderate Income Homebuyers of a
Completed New Home on an Affordable Lot. The maximum amount of Agency Downpayment
Assistance Funds, which may hereafter be provided to a Low or Moderate Income Homebuyer
shaH not exceed of the percentage of the gross sales price of the Completed New Home as
provided in Section 4.08.
Agency Lot. The words "Agency Lot" mean and refer to each parcel of land identified in
Recital Paragraph No. I. As the term "Agency Lot" is used in this Agreement, the words may
also refer to an Affordable Lot, as applicable.
Agency Lot Escrow Holder. The words "Agency Lot Escrow Holder" shall be the escrow
company as jointly designated by the Developer and the Agency who shaH serve as the escrow
holder under the Agency Lot Escrow.
Agency Lot Purchase Price. The words "Agency Lot Purchase Price" mean and refer to the
sum payable by the Developer to the Agency for the purchase of each of the eleven (11)
Agency Lots in the foHowing amounts:
(i) Agency Lot APN No. 0154-125-08:
(ii) Agency Lot APN No. 0154-125-09:
(iii) Agency Lot APN No. 0154-125-10:
(iv) Agency Lot APN No. 0154-125-11:
(v) Agency Lot APN No. 0154-125-12:
(vi) Agency Lot APN No. 0154-125-13:
$52,000.00;
$52,000.00;
$52,000.00;
$52,000.00;
$52,000.00;
$52,000.00.
The Agency Lot Purchase Price for each of the Affordable Lots is as foHows:
(vii)
(viii)
(ix)
(x)
(xi)
Affordable Lot APN No. 0154-126-24:
Affordable Lot APN No. 0154-126-26:
Affordable Lot APN No. 0154-126-27:
Affordable Lot APN No. 0154-126-28:
Affordable Lot APN No. 0154-126-29:
$1.00;
$1.00;
$1.00;
$1.00;
$1.00.
Easement Agency Lot shaH be transferred to the Developer subject to the terms and conditions
of this Agreement.
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Agency Lots Escrow. The words "Agency Lots Escrow" mean and refer to the escrow
transaction for the exchange of and recordation of documents, payment of funds, delivery of
title insurance and the transfer of the Agency Lots from the Agency to the Developer.
Agency Low and Moderate Income Housing Fund. The words "Agency Low and Moderate
Income Housing Fund" mean and refer to the special affordable housing fund established by
the Agency for each of its redevelopment project areas in accordance with the provisions of
Health and Safety Code Section 33334.2 et seq. The Agency has previously acquired each of
the Agency Lots solely from amounts on deposit with the Agency Low and Moderate Income
Housing Fund.
Completed New Home Purchase Price. The words "Completed New Home Purchase Price"
mean and refer to the applicable purchase price payable by the Homebuyer to the Developer for
the purchase of each Completed New Home at the close of the applicable New Home Escrow.
The Completed New Home Purchase Price includes the cost of options and upgrades to the
Completed New Home, which are installed in the New Home prior to the close of the New
Home Escrow and paid for by the Homebuyer. The Completed New Home Purchase Price for
a Completed New Home constructed on an Affordable Lot shall be an amount which does not
exceed the affordability requirements for Low or Moderate Income Households under
California Health and Safety Code Section 50052.5(b)(3) at the time of the close of the New
Home Escrow.
Completed New Home. The words "Completed New Home" mean and refer to each new
single family residential unit to be designed, constructed and improved by the Developer on
each Agency Lot and reserved for sale and occupancy to Homebuyers. Each Completed New
Home constructed on an Affordable Lot shall be reserved and made available for sale and
occupancy by a Low or Moderate Income Homebuyer designated by the Developer.
Delivery Date. The words "Delivery Date" mean the close of a New Home Escrow for a
particular Completed New Home, or in other words, on the Delivery Date, title and possession
of a constructed New Home on an Agency Lot shall be delivered by the Developer to the
Homebuyer at the close of the New Home Escrow.
Development Project Cost Pro Forma. The words "Development Project Cost Pro Forma"
mean and refer to the development pro forma included in the Scope of Development. The
Development Project Cost Pro Forma sets forth the Developer's best estimate as of the
Effective Date, of the cost to gevelop, construct and sell each of the Completed New Homes to
Homebuyers in accordance with the terms of this Agreement. The Development Project Cost
Pro Forma includes an estimated gross sales price for each Completed New Home and an
estimate of the total amount of New Home Sales Costs.
Due Diligence Period. The words "Due Diligence Period" refer to the period of time
following the Effective Date of this Agreement, during which the Developer shall undertake
and complete such due diligence investigation of the condition of each Agency Lot, as the
Developer may in its sole discretion and responsibility believe to be indicated with respect to
each such Agency Lot.
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Effective Date. The words "Effective Date" mean and refer to the date on which this
Agreement has been fully executed by the officers or representatives of the parties following an
approving majority vote of the members of the governing board of the Agency authorizing the
execution of this Agreement by the Agency and the conditions of Section 1.05 have been
satisfied.
Environmental Laws. The words "Environmental Laws" mean all federal, state, local, or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements
of any government authority regulating, relating to, or imposing liability of standards of
conduct concerning any hazardous substance (as later defined), or pertaining to occupational
health or industrial hygiene (and only to the extent that the occupational health or industrial
hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the
Site), occupational or environmental conditions on, under, or about the Site or Sales Office, as
now or may at any later time be in effect, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") [42 USC
Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA") [42
USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution
Control Act ("FWPCA") [33 USC Section 1251 et seq.]; the Toxic Substances Control Act
("TSCA") [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act
("HMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC
Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking
Water Act [42 USC Section 300fet seq.]; the Solid Waste Disposal Act [42 USC Section 6901
et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the
Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the
Occupational Safety and Health Act [29 USC Section 655 and 657]; the California
Underground Storage of Hazardous Substances Act [H & S C S~ction 25288 et seq.]; the
California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California
Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et seq.] the Porter-
Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments
of or regulations promulgated under the statutes cited above and any other federal, state, or
local law, statute, ordinance, or regulation now in effect or later enacted that pertains to
occupational health or industrial hygiene, and only to the extent the occupational health or
industrial hygiene laws, ordinances, or regulations relate t9 hazardous substances on, under, or
about the Site, or the regulation or protection of the environment, including ambient air, soil,
soil vapor, groundwater, surface water, or land use.
Hazardous Substances. The words "Hazardous Substances" mean and include without
limitation:
those substances included within the definiteness of "hazardous substance," "hazardous
waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or
contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any other environmental
law; and
those substances listed in the United States Department of Transportation (DOT) Table
[49 CFR 172.101], or by the EP A, or any successor agency, as hazardous substances
[40 CFR Part 302]; and
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other substances, materials, and wastes that are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations; and
any material, waste, or substance that is:
(I) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant to 33 USC Section 1321 or
listed pursuant to 33 USC Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
Homebuyer. The word "Homebuyer" mean and refer to each person or family who may
hereafter purchase one of the eleven (11) Completed New Homes from the Developer. The
word "Homebuyer" includes any person who may purchase from the Developer one of the five
(5) Completed New Homes on an Affordable Lot.
Low or Moderate Income Household. The words "Low or Moderate Income Household"
mean and refer to "persons and families of low or moderate income" as this term is defined in
Health and Safety Code Section 50093, as this section may be hereafter amended from time to
time by the State of California.
Low or Moderate Income Homebuyer. The words "Low or Moderate Income Homebuyer"
mean and refer to each of the purchasers of a constructed New Home on an Affordable Lot
(e.g., all persons identified as having a property ownership interest vested in the Affordable Lot
as improved with the New Home as of the close of the New Home Escrow). At the close of
each New Home Escrow for a Low or Moderate Income Homebuyer, such occupants shall have
an annual Adjusted Family Income, which does not exceed the household income qualification
limits of a Low or Moderate Income Household.
New Home. The words "New Home" mean and refer to each of the single-family residential
dwelling units (including the associated landscape improvements) as shall be constructed and
installed by the Developer on each Agency Lot.
New Home Escrow. The words "New Home Escrow" mean and refer to the real estate
conveyance transaction or escrow by and between the Developer and each Homebuyer or each
Low or Moderate Income Homebuyer, as applicable, and later, by and between the Low or
Moderate Income Homebuyer and the Successor-In-Interest of each Low or Moderate Income
Homebuyer during the conveyance and sale of the Completed New Home. The transfer of each
Agency Lot as improved with a New Home from the Developer (e.g., a Completed New Home)
to a Homebuyer or each Low or Moderate Income Homebuyer in the case of an Affordable Lot
(or later, by and between the Low or Moderate Income Homebuyer and the Successor-In-
Interest to such Low or Moderate Income Homebuyer) shall be accomplished upon the close of
the New Home Escrow.
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New Home Escrow Holder. The words "New Home Escrow Holder" mean and refer to the
escrow company designated by the Developer who shall serve as the escrow holder under the
New Home Escrow by and among such New Home Escrow Holder, the Developer and a
Homebuyer or a Low or Moderate Income Homebuyer, as applicable, for the transfer and sale
by the Developer of the each Completed New Home (e.g., an Agency Lot as improved with a
New Home).
New Home Profit. The words "New Home Profit" shall have the meaning set forth in Section
4.09.
New Home Sales Costs. The words "New Home Sales Costs" mean and refer to the actual and
reasonable costs incurred by the Developer in the acquisition, development, improvement and
sale of all of the Agency Lots as improved with New Homes to Homebuyers or Low or
Moderate Income Homebuyers, as applicable, as such costs are enumerated below in
subparagraphs (I) through (10), inclusive, for all of the Completed New Homes. New Home
Sale Costs include each of the following:
(I) the Agency Lot Purchase Prices, plus the actual and reasonable escrow and title
insurance costs paid by the Developer for the purchase of the Agency Lots through the
Agency Lots Escrow;
(2) the .cost of preparing the Agency Lots for improvement, including demolition expenses,
if any paid by the Developer, grading, and all off-site costs incurred in connection with
the improvement of the Agency Lots, including utility connection charges and adjacent
"public right-of-way improvements, if any;
(3) architectural, engineering, legal, accounting, consulting and other professional service
fees paid in connection with the planning, execution and financing of the Project;
(4) the cost of insurance, construction lender financing charges, points and fees,
construction loan interest, surety and completion bonds, property taxes, assessments as
incurred and paid by the Developer between the time of the Transfer Date for the
Agency Lots to the Delivery Date for the Completed New Homes;
(5) the cost of construction materials, equipment, utility charges to the Agency Lots during
the course of construction of the New Homes, builder's reserve warranty funds and
furnishings installed in the Completed New Homes and the cost of labor to so construct
and install the Completed New Homes, and the cost of the Completed New Homes of
all building permits, public school fees, and other regulatory agency charges and the
cost of landscaping and fencing as installed and constructed on the Completed New
Homes;
(6) the cost of construction supervision costs and private security patrol services incurred
by the Developer in connection with the Completed New Homes;
(7) the Completed New Homes sales, marketing and commissions payable at the Delivery
Date of the Completed New Homes of six and four-tenths percent (6.4%) of the gross
sales price of each Completed New Home;
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(8) New Home Escrow closing escrow charges, title insurance premiums and recording fees
paid by the Developer at the Delivery Date for the Completed New Homes;
(9) a Developer overhead fee of three percent (3%) of the project sales revenue; and
(10) a Developer profit allowance of eight and five-tenths percent (8.5%) of the gross sales
price of all of the Completed New Homes.
New Home Sale Costs Certificate. The words "New Home Sale Costs Certificate" mean and
refer to the written accounting and cost certification prepared by the Developer and submitted
to the Agency not later than sixty (60) days following the close of the last of the New Home
Escrows for Completed New Homes. The New Home Sales Costs Certificate shall contain a
suitably detailed description of the costs and expenses, which the Developer has provisionally
allocated to the Completed New Homes as the New Home Sales Costs.
Notice of Agency Concurrence. The words "Notice of Agency Concurrence" mean and refer
to the acknowledgment executed by the Interim Executive Director of the Agency and
delivered to the holder of the New Home Escrow, in which the Agency confirms that the
proposed Low or Moderate Income Homebuyer, appears to satisfy all of the Adjusted Family
Income and other requirements of the Affordability Covenant for occupancy of the New Home.
Project. The word "Project" mean and refer to the purchase of each of the Agency Lots by the
Developer and thereafter, the redevelopment of a New Home on each such Agency Lot for sale
by the Developer to Homebuyers. The Project is more particularly described in the Scope of
Development by Developer in Section 3.01. The Project shall be undertaken by the Developer
in accordance with the dates set forth in the Schedule of Performance attached as Exhibit "C".
Qualified Residence Period. The words "Qualified Residence Period" mean in the case of
each Completed New Home constructed on an Affordable Lot, the period of time beginning on
the Delivery Date and ending on the date, which is forty-five (45) years after the Delivery Date.
Real Estate Sales and Marketing Work. The words "Real Estate Sales and Marketing Work"
refer to the services to be provided by the Developer relating to the marketing of each
Completed New Home for sale to a Homebuyer. The Real Estate Sales and Marketing Work
includes without limitation the presentation of each Completed New Home to one or more
Homebuyers for the purpose of causing a Homebuyer to purchase the Completed New Home
from the Developer.
Section 1.02. Parties to the Agreement.
(a) The Agency. The Agency is a public body, corporate and politic, exerclSlng
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 33000, et seq.) The
principal office of the Agency is located at 201 North "E" Street, Suite 301, San Bernardino,
California 92401.
(b) The Develooer. The Developer is TELACU Development, LLC a California limited
liability company. The principal office and mailing address of the Developer for purposes of this
Agreement is 414 West 4th Street, Suite L, Santa Ana, California 92701.
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Section 1.03. Prohibition against Change In Ownership. Management and Control of
Developer and Assignment of Agreement.
The qualifications and identity of the Developer are of particular concern to the Agency. It is
because of those qualifications and identity that the Agency has entered into this Agreement with the
Developer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights
or powers under this Agreement except as expressly set forth herein.
Except as set forth in Section 3.03, prior to the completion of the Project, the Developer shall
not assign all or any part of this Agreement, or any rights hereunder, without the prior written approval
of the Agency Interim Executive Director.
The Developer shall promptly notify the Agency in writing of any material change in the
identity of the parties either comprising or in control of the Developer, as well as any and all changes
in the interest or the degree of control of the Developer by any such party, of which information the
Developer or any of its partners or officers has been notified or may otherwise have knowledge or
information. This Agreement may be terminated by the Agency prior to the close of the Agency Lot
Escrow, if there is any material change, whether voluntary or involuntary, in membership, ownership,
management or control of the Developer (other than such changes occasioned by the death or
incapacity of any individual shareholder or officer) that has not been approved by the Agency prior to
the time of such change or the Agency may seek other appropriate relief in the event that at any time
following the close of the Agency Lots Transfer Escrow, such a material change occurs in the
ownership, or control of the Developer, the Developer's interest under the Agreement; provided,
however, that the Agency shall first notify the Developer in writing as set forth in Section 6.01, of its
intention to terminate this Agreement or assert any other remedy under this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an
assignment of this Agreement shall not be required in connection with any transfer to a limited liability
company, partnership, corporation, or other entity or entities in which TELACU Development, LLC or
an affiliate retains management and control of the transferee entity.
For the purpose of this Section 1.03 the words "material change" refer to any total or partial
sale, assignment, or conveyance, or any trust power or any transfer in any other mode or form by the
Developer of more than a forty-nine percent (49%) interest of the ownership of the Developer, and/or a
series of such sales, assignments or conveyances which in the aggregate exceed' a disposition or change
of more than a forty-nine percent (49%) interest of the ownership of the Developer.
Section 1.04. Benefit to Proiect Area.
The Agency has determined that the redevelopment of the Agency Lots by the Developer in
accordance with this Agreement will eliminate blight and provide needed affordable housing to the 40th
Street Redevelopment Project Area as well as to areas in proximity thereto, which housing is needed
due to the insufficiency of new affordable housing within the City generally.
Section 1.05. Effective Date.
(a) The Effective Date shall occur when this Agreement has been fully executed by the
parties and each of the following conditions have been satisfied:
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(i) the Mayor and Common Council have adopted in their sole discretion an
approving resolution as set forth in Health and Safety Code Section 33433, approving this
Agreement and the disposition of the Agency Lots to the Developer under the terms of this
Agreement;
(ii) the Community Development Commission, as the governing board of the
Agency, has adopted in its sole discretion an approving resolution as set forth in Health and
Safety Code Sections 33431 and 33433 approving this Agreement; and
(iii) the Interim Executive Director has confirmed that the Developer has provided
the Agency with satisfactory evidence of the Developer's compliance with the insurance
coverage protections in favor of the Agency as set forth in Section 3.02.
(b) In the event that the three (3) conditions identified in Section 1.05(a) have not been
satisfied within sixty (60) days following the approval of this Agreement by the Mayor and Common
Council and the members of the governing board of the Agency, then regardless of whether this
Agreement may have been executed by one of the parties prior to such date, thereafter this
Agreement shall have no further force and effect and the parities shall be mutually discharged from
any further responsibility or liability to the other party which may otherwise arise under this
Agreement.
Section 1.06. List of Exhibits to Agreement.
The following is a listing of the Exhibits attached to this Agreement. Each such exhibit is
incorporated by this reference into the text of this Agreement:
EXHIBIT "A"
Legal Description of Agency Lots
EXHIBIT "B"
Forms of Agency Grant Deed:
Form #1 Agency Lot - Homebuyer (covers 6 Agency Lots)
Form #2 Affordable Lot - Low or Moderate Income Homebuyer
(covers 5 Agency Lots/Affordable)
EXHIBIT "C"
Schedule of Performance
EXHIBIT "D"
Form of Affordability Covenant
ARTICLE II
Section 2.01. Purchase and Sale of the Agency Lots to the Developer.
Subject to all of the terms, conditions and provisions of this Agreement, and for the
consideration of the payment of the Agency Lot Purchase Price by the Developer to the Agency for the
Agency Lots as herein set forth, the Agency hereby agrees to sell and the Developer hereby agrees to
purchase all of the right, title and interest of the Agency in the Agency Lots.
Section 2.01.1 Purchase Price for the Agency Lots.
The Agency agrees to sell the Agency Lots and the Developer agrees to purchase the
Agency Lots in an AS IS CONDITION and at the Agency Lot Purchase Price.
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Section 2.02. Developer Deposit. Payment of Purchase Price; Application or Return of
Deposit.
(a) Within five (5) calendar days following the Effective Date of this Agreement, the
Developer shall deposit the sum of Twenty Five Thousand Dollars ($25,000.00) (the "Deposit") with
Fidelity National Title Company (the "Agency Lot Escrow Holder") or with such other title company
as the parties may mutually agree. The Agency Lot Escrow Holder shall invest the Deposit in an
interest-bearing escrow account at the written instruction of the Developer with the interest thereon
to accrue to the benefit of the Developer. At the Close of Escrow, the Agency Lot Escrow Deposit,
together with all interest earned thereon, shall be applied to the Agency Lot Purchase Price and costs
of closing payable by Developer.
(b) In the event that (i) the Agency or the Developer terminates this Agreement prior to the
close of the Agency Lot Escrow pursuant to Section 2.20; or (ii) the Developer does not deliver its
Due Diligence Approval Certificate (as hereinafter defined) to the Agency Lot Escrow Holder
pursuant to Section 2.10 and this Agreement is thereafter terminated; or (iii) the Developer's
conditions precedent to the close of the Agency Lot Escrow described in Section 2.16 are not
satisfied and this Agreement is thereafter terminated; or (iv) either one or more of the Agency Lots
suffer damage prior to the close of the Agency Lot Escrow, or an action of eminent domain is
commenced by a governmental entity with respect to one or more of the Agency Lots prior to the
close of the Agency Lot Escrow, and the Developer elects to terminate this Agreement pursuant to
Section 2.25, then the Deposit (less an amount equal to half of the customary and reasonable escrow
cancellation charges of the Agency Lot Escrow Holder) shall be returned to the Developer.
Section 2.03. Opening and Closing of the Agency Lot Escrow.
(a) The transfer and sale of the Site shall take place through the.Agency Lot Escrow to be
administered by the Agency Lot Escrow Holder or such other escrow or title insurance company
mutually agreed upon by the Developer and the Agency. Notwithstanding the actual date of the
opening of the Agency Lot Escrow, the Agency Lot Escrow shall be deemed open ("Opening of
Escrow") upon delivery of the Deposit by the Developer, and a fully executed copy of this
Agreement to the Agency Lot Escrow Holder. The Agency Lot Escrow Holder shall promptly
confirm to the parties the escrow number and the title insurance order number assigned to the
Agency Lot Escrow.
(b) In the event that the Developer has not delivered its Due Diligence Approval Certificate
to the Agency and the Agency Lot Escrow Holder within sixty (60) days from the Opening of the
Agency Lot Escrow for any reason, then in such event this Agreement shall be subject to termination
by the Agency upon thirty (30) days written notice to the Developer, and unless the Due Diligence
Approval Certificate is delivered to the Agency and the Agency Lot Escrow Holder within thirty (30)
days following the date of such notice, this Agreement shall terminate, whereupon the Deposit shall
be returned by the Agency Lot Escrow Holder to the Developer (less an amount equal to half of the
customary and reasonable escrow cancellation charges payable to the Agency Lot Escrow Holder)
without further or separate instruction to the Agency Lot Escrow Holder, and the parties shall each
be relieved and discharged from all further responsibility or liability under this Agreement.
(c) Provided that the Developer has delivered its Due Diligence Approval Certificate within
the period of time authorized in Section 2.03(b), then the Closing Date of the Agency Lot Escrow
shall occur within sixty (60) days thereafter, subject to the provisions of Section 2.16 and Section
2.17. The words "Close of Escrow," "Closing Date" and "Closing" shall mean and refer to the date
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when the Agency Lot Escrow Holder is in receipt of all necessary documents and funds and the
Agency Lot Escrow Holder is in a position to comply with the final written instructions of the parties
and cause the Agency Grant Deeds for each of the Agency Lots to be recorded and the policy of
insurance for each of the Agency Lots to be delivered to the Developer.
Section 2.04. Escrow Instructions.
This Agreement also constitutes escrow instructions of the parties to the Agency Lot Escrow
Holder. Additionally, the Developer and the Agency each agree to execute the customary
supplemental escrow instructions of the Agency Lot Escrow Holder in the form provided by the
Agency Lot Escrow Holder to its clients in real property escrow transactions administered by it. In the
event of a conflict between the additional terms of such customary supplemental escrow instructions of
the Agency Lot Escrow Holder and the provisions of this Agreement, the provisions of this Agreement
shall supersede and be controlling. Upon any termination of this Agreement or cancellation of the
Agency Lot Escrow, the Agency Lot Escrow Holder shall forthwith return all monies (as provided in
this Agreement) and documents, less only the Agency Lot Escrow Holder's customary and reasonable
escrow cancellation fees and expenses, as set forth herein.
Section 2.05. Conveyance of Title.
On or before 12:00 noon on the business day preceding the Closing Date, the Agency shall
deliver to the Agency Lot Escrow Holder a separate Agency Grant Deed for each Agency Lot in the
form attached hereto as Exhibit "8" duly executed and acknowledged by the Agency. (The Agency
Grant Deed for each Affordable Lot shall contain certain income and occupancy restrictions, which are
specially applicable to such Affordable Lot). Each such Agency Grant Deed shall convey all of the
right, title and interest of the Agency in the particular Agency Lot to which it corresponds to the
Developer. The Agency Lot Escrow Holder shall be instructed to record the Agency Grant Deeds in
the Official Records of San Bernardino County, California, if and when Agency Lot Escrow Holder
holds the various instruments and funds for the accounts of the parties as set forth herein and can
obtain for the Developer a CLTA or ALTA (if requested by Developer) owner's extended coverage
policy of title insurance ("Title Policy") issued by the Title Insurance Company with liability in an
amount equal to the Agency Lot Purchase Price together with such endorsements to the policy or
policies of title insurance as may be reasonably requested by the Developer, insuring the following:
that each of the Agency Lots consists of a legal lot pursuant to the Subdivision Map Act with
fee title to each Agency Lot vested in the Developer and subject only to:
(I) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the Developer pursuant to Section
2.13 below;
(3) applicable provisions of the subdivision map for each particular Agency Lot, if
any;
(4) the affordability provisions in the case of each Agency Grant Deed for an
Affordable Lot;
(5) the applicable provisions of this Agreement; and
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(6) such other title exceptions, if any, resulting from documents being recorded or
delivered through the Agency Lot Escrow.
Section 2.06. Additional Closing Obligations of Agencv.
On or before 12:00 noon on the business day preceding the Closing Date (unless indicated
otherwise), the Agency shall deliver to the Agency Lot Escrow Holder (unless indicated to be
delivered directly to the Developer) copies of the following documents and other items:
(1) a certificate of non-foreign status (the "Non-Foreign Affidavit") executed by the
Agency, in the customary form provided by the Agency Lot Escrow Holder, and a California
Franchise Tax Board Form 590-RE executed by the Agency;
(2) all soils, seismic, geologic, drainage, toxic waste and environmental reports,
surveys, "as-built" plans and specifications, working drawings, grading plans, elevations and
similar information with respect to the Agency Lots heretofore obtained by the Agency, if any,
which the Agency has in its possession and/or control to the extent that originals of such items
have not been delivered previously by the Agency to the Developer pursuant to Section 2.08
below;
(3) two (2) duplicate original copies of the estimated Closing Statement described in
Section 2.21, duly executed by the Agency;
(4) evidence of the existence, organization and authority of the Agency and of the
authori-ty of persons executing documents on behalf of the Agency reasonably satisfactory to
the Agency Lot Escrow Holder and Title Company;
(5) a hazards report on the Agency Lots;
(6) any other documents, instruments and records required to be delivered to the
Developer under the terms of this Agreement, which have not been previously delivered.
Section 2.07. Closing Obligations of Developer.
On or before 12:00 noon on the business day preceding the Closing Date, the Developer shall
deliver to the Agency Lot Escrow Holder copies of the following documents and other items:
(I) an~acknowledgment and acceptance of each of the Agency Grant Deeds, duly
executed and acknowledged by the Developer;
(2)
Developer;
two (2) duplicate original copies of the Closing Statement, duly executed by the
(3) evidence of the existence, organization and authority of the Developer and ofthe
authority of persons executing documents on behalf of the Developer reasonably satisfactory to
the Agency Lot Escrow Holder and the Title Company;
(4) [RESERVED - NO TEXT];
(5) evidence of financing for the Project in a form reasonably acceptable to the
Interim Executive Director of the Agency;
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(6) any other documents, instruments or funds required to be delivered by the
Developer under the terms of this Agreement or as otherwise required by the Agency Lot
Escrow Holder or Title Company in order to close Agency Lot Escrow, which have not
previously been delivered.
Section 2.08. Inspections and Review.
Due Diligence Items. Within five (5) days after the Effective Date of this Agreement, the
Agency shall deliver true, correct and complete copies or originals of the following documents
and items (collectively, "Due Diligence Items") to the Developer:
(i) copies of all soils, seismic, geologic, drainage, toxic waste, engineering,
environmental and similar type reports and surveys (including, but not limited to, any
Environmental Site Assessments of the Agency Lots), if any, in the possession or control of the
Agency and correspondence relating thereto, if any, within the Agency's possession or control.
(ii) notices of violations, including, but not limited to, zoning ordinances,
development or building codes affecting any of the Agency Lots in the Agency's possession or
control.
(iii) disclosure of any legal matters affecting the use or condition of any of the
Agency Lots within the knowledge of the Agency.
Section 2.09. Due Diligence Investigation of the Agency Lots.
(a) Within sixty (60) days from and after the Opening of Escrow, and subject to the
extensions of time set forth below in Section 2.15, the Developer shall have the right to examine,
inspect and investigate the Agency Lots (the "Due Diligence Period") to determine whether their
condition is acceptable to the Developer in its sole and absolute discretion. The Agency and the
Developer understand and acknowledge that the Agency Lots are located in a special studies zone
due to their proximity to an earthquake fault, and may require further study of their geological
condition.
(b) During the Due Diligence Period, the Agency shall permit the Developer, its engineers,
analysts, contractors and agents to conduct such physical inspections and testing of the Agency Lots
as the Developer deems prudent with respect to the physical condition of the Agency Lots, including
the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic
and other geological and topographical matters, and for purposes of surveying the potential presence
of any Hazardous Substance, if any. Any such investigation work on the Agency Lots may be
conducted by the Developer and/or its agents during any normal business hours upon seventy-two
(72) hours prior notice to the Agency, which notice will include a description of any investigation
work or tests to be conducted by the Developer on the Agency Lots. Upon the Agency's request, the
Developer will provide the Agency with copies of any test results to the extent it is not contractually
prohibited from doing so and further, to the extent that the delivery of such copies to the Agency
shall impose no cost or other liability upon the Developer. During the Due Diligence Period, the
Developer shall also have the right to investigate all matters relating to the zoning, use and
compliance with other applicable laws, which relate to the use and development and improvement of
the Agency Lots. The Agency shall cooperate fully to assist the Developer in completing such
inspections and investigations of the condition of the Agency Lots. The Agency shall have the right,
but not the obligation, to accompany the Developer during such investigations and/or inspections.
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Section 2.10. Due Diligence Approval Certificate.
Within sixty (60) days following the Opening of the Agency Lot Escrow, the Developer shall
complete its investigation of the Agency Lots (subject to the extensions of time set forth in Section
2.15) and deliver a due diligence approval certificate signed by the Developer (the "Due Diligence
Approval Certificate") to the Agency Lot Escrow Holder which either:
(i) indicates that the Developer accepts the condition of the Agency Lots or;
(ii) contains a description of the matters or exceptions relating to the condition of
the Agency Lots, which the Developer was not able to accept or resolve to its satisfaction
during the Due Diligence Period.
In no event, however, shall the Developer's delivery of the Due Diligence Approval Certificate
be deemed as a waiver as to any claims, which the Developer may have against third parties with
respect to the condition of the Agency Lots.
Section 2.11. Books and Records.
As part of the Developer's due diligence investigations during the Due Diligence Period, the
Developer shall be afforded full opportunity by the Agency to examine all books and records, which
relate to the Agency Lots in the possession of the Agency and/or the Agency's agents or employees,
including the reasonable right to make copies of such books and records. During the Due Diligence
Period, the Agency will make sufficient staff available to assist the Developer with obtaining access to
information relating to the Agency Lots, which is in the possession or control of Agency.
Section 2.12. Condition of the Agency Lots; Developer's Release.
The Developer acknowledges and agrees that it shall be given a full opportunity under this
Agreement to inspect and investigate every aspect of the Agency Lots during the Due Diligence
Period. The Developer shall accept the delivery of title to each of the Agency Lots on the Close of
Escrow in an "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS" condition. The Developer
further agrees and represents to the Agency that by a date no later than the end of the Due Diligence
Period, the Developer shall have conducted and completed (or waived the completion) of all of its
independent investigation of the condition of the Agency Lots which the Developer may believe to be
indicated. The Developer hereby acknowledges that it shall rely solely upon its own investigation of
the Agency Lots and its own review of such information and documentation, as it deems appropriate
for the purpose of accepting the condition and possession of the Agency Lots. The Developer is not
relying on any statement or representation by the Agency relating to the condition of the Agency Lots
unless such statement or representation is specifically contained in this Agreement. Without limiting
the foregoing, the Agency makes no representations or warranties as to whether the Agency Lots
presently comply with Environmental Laws or whether the Agency Lots contain any Hazardous
Substance. Furthermore, to the extent that the Agency has provided the Developer with information
relating to the condition of the Agency Lots, including information and reports prepared by or on
behalf of the City of San Bernardino, the Agency makes no representation or warranty with respect to
the accuracy, completeness or methodology or content of such reports or information.
Notwithstanding the foregoing, the parties shall retain all rights at law against each other and against
third parties with respect to the condition of the Agency Lots.
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Section 2.13. Review and Approval of Condition of Title by the Developer.
(a) Within fifteen (15) days following the Opening of Escrow, the Agency shall cause to be
delivered to the Developer a preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company, describing the condition of title of
the Agency Lots, together with copies of all exceptions specified therein and with an easements
plotted but excluding matters disclosed on a survey (the "Preliminary Title Report"). The Developer
shan notify the Agency in writing within thirty (30) days of its receipt of such preliminary title report
("Developer's Title Objection Notice") of any objections the Developer may have to the title
exceptions contained in the Preliminary Title Report prior to the expiration of the Due Diligence
Period. The Agency shall have a period of ten (10) days after receipt of the Developer's Title
Objection Notice in which to deliver written notice to the Developer ("Agency's Title Notice") of the
Agency's election to either: (i) agree to remove the objectionable items prior to the Close of Escrow,
or (ii) decline to remove any such title exceptions and terminate this Agreement and cancel the
Agency Lot Escrow; provided, however, that the Agency shan be required to remove all monetary
liens and encumbrances created by or as a result of the Agency's activities on any such Agency Lot.
If the Agency notifies the Developer of its election to terminate this Agreement and cancel Agency
Lot Escrow rather than remove the objectionable items, the Developer shall have the right, by written
notice delivered to the Agency within ten (10) days after the Developer's receipt of the Agency's
Title Notice, to agree to accept the Agency Lots subject to the objectionable items, in which event
the Agency's election to terminate Agreement and cancel the Agency Lot Escrow shall be of no
effect, and the Developer shall take title at the Close of Escrow subject to such objectionable title
items. In the event that the Agency Lot Escrow is terminated by the Agency under this Section
2.13(a), the Agency shall be responsible for paying for all Agency Lot Escrow cancellation costs of
the Agency Lot Escrow Holder and the Deposit shall be promptly returned to the Developer.
(b) Except as provided in this Agreement, the Agency covenants not to further encumber
and not to place any further liens or encumbrances on any Agency Lot, including, but not limited to,
covenants, conditions, restrictions, easements, liens, options to purchase, options to lease, leases,
tenancies, or other possessory interests in any Agency Lot without the prior written consent of the
Developer. Upon the issuance of any amendment or supplement to the Preliminary Title Report
which adds additional exceptions (including, but not limited to, adding additional exceptions for
matters shown on the Survey as hereinafter defined), the foregoing right of review and approval shall
also apply to said amendment or supplement (provided that the period for the Developer to review
such amendment or supplement shall be the later of the expiration of the Due Diligence Period or ten
(10) days from receipt of the amendment or supplement) and Agency Lot Escrow shall be deemed
extended by the amount of time necessary to allow such review and approval in-the time and manner
set forth above.
Section 2.14. Survey.
The Developer may obtain a survey of the Agency Lots prepared by a land surveyor duly
licensed by the State of California and in compliance with ALTAI ASCM standards ("Survey"). The
Survey shall be in a form acceptable to the Title Company for the deletion of the standard survey
exception in the Title Policy relating to boundaries, without the addition of further exceptions unless
the same are acceptable to the Developer in its sole and absolute discretion. The Developer shan have
until the end of the Due Diligence Period to complete and examine the Survey and to notify Agency in
writing of any objections the Developer has to the Survey ("Developer's Survey Objection Notice").
The Agency shan have a period of five (5) days after receipt of the Developer's Survey Objection
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Notice in which to deliver written notice to the Developer ("Agency's Survey Notice") of the
Agency's election to either: (i) agree to remove the objectionable items prior to the Close of Agency
Lot Escrow or (ii) decline to remove such items and terminate this Agreement and the Agency Lot
Escrow. If the Agency notifies the Developer of its intention to not remove the objectionable items,
the Developer shall have the right, by written notice delivered to the Agency within five (5) days after
the Developer's receipt of Agency's Survey Notice, to agree to accept the Agency Lots subject to the
objectionable items, in which event, the Agency's election to terminate Agreement and cancel the
Agency Lot Escrow shall be of no effect, and the Developer shall accept the Property at the Close of
Escrow subject to such objectionable items. In the event that Agreement is terminated by the Agency
under this Section 2.14, the Agency shall be responsible for paying for all Agency Lot Escrow
cancellation costs of the Agency Lot Escrow Holder and the Deposit shall be promptly returned to the
Developer. Prior to the Closing, the Survey shall be recertified to the Developer, Title Company and
the Developer's lender, if any. The Survey will be performed at the Developer's sole cost and
expense.
Section 2.15. Extension of Due Diligence Period.
In the event Agency fails to provide to the Developer the documents or other information
required by Section 2.08 and Section 2.11 by the date(s) set forth therein, the Due Diligence Period for
such information shall be extended by one (l) day for each day of the delay by the Agency to permit
the Developer to perform an adequate due diligence review (but not to exceed a total of thirty (30)
days.) The Developer will use its best efforts to notify Agency of any documents the Agency has
failed to deliver to the Developer within the time periods provided in Sections 2.08 and 2.11. In the
event that the Developer has delivered its Due Diligence Approval Certificate and thereafter, prior to
the Close of Escrow, the Agency presents the Developer with any new Due Diligence Item, the Close
of Escrow shall be extended to permit the Developer to perform an adequate due diligence review of
such new item for up to thirty (30) days. In the event that the Developer may fail to accept such new
item within such additional period of time and cause the Agency Lot Escrow to close, then in such
event either party may terminate this Agreement and cancel the Agency Lot Escrow as set forth in
Section 2.20.
Section 2.16. Developer's Conditions Precedent.
The Developer's obligation to purchase the Agency Lots from the Agency shall be conditioned
upon the satisfaction of the following conditions precedent, all of which shall be satisfied (or waived in
writing by the Developer pursuant to Section 2.19) prior to the Close of Escrow:
(I) the Agency shall not have defaulted on any material term of this Agreement to
be performed by the Agency hereunder, and each representation and warranty made by the
Agency in this Agreement shall remain true and correct. For purposes of this subsection (1)
only, a representation that is limited to the Agency's knowledge or notice shall be false if the
factual matter that is subject to the representation is false, notwithstanding any lack of
knowledge or notice to the Agency;
(2) the Developer's approval of the Preliminary Title Report and the Survey, if
applicable, within the time periods specified in Sections 2.13 and 2.14;
(3) the Developer's approval of the contents of all Due Diligence Items, and the
other investigations of the Agency Lots made by the Developer and/or its designees pursuant to
Sections 2.08 and 2.09 herein on or before the expiration of the Due Diligence Period, or such
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later date if the Due Diligence Period is extended pursuant to Section 2.15. The Developer
shall be deemed to have disapproved such Due Diligence Items unless they are approved on or
before 5:00 p.m. on the final day of the Due Diligence Period, or such later date if the Due
Diligence Period is extended pursuant to Section 2.15 herein;
(4) the Developer's approval of any notice of change in representation or warranty
given by the Agency pursuant to Section 2.23(a) hereof;
(5) the Title Company has committed to issue the Title Policy, In favor of the
Developer in the form described in Section 2.05;
(6) the Developer has obtained a construction financing loan commitment to cover
all costs of development of the Project including but not limited to the installation of the public
improvements necessary for the development of the Agency Lots, and payment of all City or
School fees, or other governmental entities fees, on terms reasonably acceptable to it;
Section 2.17. The Agency's Conditions Precedent.
The Agency's obligation to convey the Agency Lots to the Developer shall be conditioned
upon the satisfaction of the following conditions precedent, all of which shall be satisfied (or waived in
writing pursuant to Section 2.19) prior to the Close of Escrow:
(1) the Developer has accepted the condition of the Agency Lots and submitted its
Due Diligence Approval Certification to the Agency Lot Escrow Holder on or before the date
set forth in this Agreement;
(2) the Developer has accepted the condition of title of the Agency Lots on or
before the date set forth in Section 2.13;
(3) the Developer has provided the Agency with satisfactory evidence of the
commitment of a lender to provide construction financing to the Developer for the construction
and improvement of the New Homes, including all applicable development fees, with an initial
construction loan disbursement amount sufficient to construct and improve not less than eleven
(11) New Homes on the Agency Lots;
(4) the Developer shall not be in default of any material term of this Agreement to
be performed by the Developer hereunder and each representation and warranty of the
Developer made in this Agreement shall remain true and correct;
Section 2.18. Delivery of Documents and Purchase Price after Closing Date by Agency Lot
Escrow Holder.
The Agency Lot Escrow Holder shall deliver to the Agency the Agency Lots Purchase Price in
immediate funds on the next business day following the Closing Date together with the other
documents and instruments requested by the Agency prior to the Closing Date and the Agency Lot
Escrow Holder shall deliver to the Developer within (3) business days following the Closing Date a
conformed copy of each of the Agency Grant Deeds, as recorded, the policy of title insurance or a
binder thereof issued by the Title Company in favor of the Developer for each Agency Lot together
with other documents and instruments requested by the Developer prior to the Closing Date.
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Section 2.19. Satisfaction of Conditions.
Where satisfaction of any of the foregoing conditions requires action by the Developer or by
the Agency, each party shall use its diligent best efforts, in good faith, and at its own cost, to satisfy
such condition. Where satisfaction of any of the foregoing conditions requires the approval of a party,
such approval shall be in such party's sole and absolute discretion.
Either party may waive any of the conditions set forth in the Agreement, but any such waiver
shall be effective only if contained in a writing signed by the applicable party and delivered to the
Agency Lot Escrow Holder and the other party.
Section 2.20. Termination.
In addition to the right of each party to terminate this Agreement pursuant to Section 2.03 and
Section 2.15, in the event each of the conditions set forth in Section 2.16, in the case of the Developer,
or Section 2.17 in the case of the Agency is not satisfied within one hundred and eighty (180) days
after the Effective Date of this Agreement (subject to Section 2.15, if applicable) or waived by the
applicable party pursuant to Section 2.19, either party may, at its option, terminate this Agreement and
cancel the Agency Lot Escrow opened hereunder, thereby releasing the parties from further obligations
hereunder and all documents delivered by the Developer to the Agency or the Agency Lot Escrow
Holder shall be returned to the Developer and all documents delivered by the Agency to the Developer
or the Agency Lot Escrow Holder shall be returned to the Agency, and the Deposit shall be disbursed
to the Developer, except as set forth in Section 2.02(b). Nothing in this Section 2.20 shall be construed
as releasing any party from liability for any default of its obligations hereunder or breach of its
representations. and warranties under this Agreement occurring prior to the termination of this
Agreement and/or the cancellation of the Agency Lot Escrow.
Section 2.21. Prorations. Closing Costs. Possession.
(a) Proration of Taxes. Real and personal property taxes for the Agency Lots shall be
prorated by the parties to the Closing Date on the basis of a three hundred sixty-five (365) day year
on the basis that the Agency is responsible for (i) all such taxes (if any) for the fiscal year of the
applicable taxing authority occurring prior to the Current Tax Period (as defined below) and (ii) that
portion of such taxes for the Current Tax Period to 11 :59 p.m. on the Closing Date, whether or not
the same shall be payable prior to the Closing Date. The phrase "Current Tax Period" refers to the
fiscal year of the applicable taxing authority in which the Closing occurs. All tax prorations shall be
based upon the latest available tax statement. If the tax statements for the fiscal tax year during
which Agency Lot Escrow closes do not become available until after the Closing Date, then the rates
and assessed values of the previous year, with known changes, shall be used, and the parties shall re-
prorate said taxes outside of the Agency Lot Escrow following the Closing Date when such tax
statements become available. The Agency shall be responsible for and shall payor reimburse the
Developer upon demand for any real or personal property taxes payable following the Closing Date
applicable to any period of time prior to the Closing Date as a result of any change in the tax
assessment by reason of reassessment, changes in use of the Property, changes in ownership, errors
by the Assessor or otherwise.
(b) Possession. The Developer shall be entitled to exclusive possession of the Agency Lots
immediately upon the Close of Escrow.
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(c) Title Insurance Premium. Agencv Lot Escrow and Closing Costs. The Agency shall
pay the cost of the premium for a CL T A owner's extended coverage policy of title insurance on the
Agency Lots in the amount of the Agency Lot Purchase Price, together with all title charges
(including endorsements reasonably requested by the Developer to remove disapproved items shown
on the Preliminary Title Report or Survey pursuant to Sections 2.13 and 2.14 above), and the Agency
shall also pay any documentary or other transfer taxes payable on account of the conveyance of the
Agency Lots to the Developer, together with one-half ('i2) of the customary and reasonable escrow
fees which may be charged by the Agency Lot Escrow Holder in connection with the Close of
Escrow.
The Developer shall pay the additional cost of the Survey and requested CL T A survey policy
endorsements (to the extent such endorsements are unrelated to removal of any disapproved items
shown on the Preliminary Title Report or Survey pursuant to Sections 2.13 and 2.14 above) which
exceeds the premium for a CL T A owner's extended coverage policy of title insurance on the Agency
Lots plus the cost of recording the Agency Grant Deeds, together with one-half ('i2) of the cost of the
customary and reasonable escrow fees charged by Agency Lot Escrow Holder in connection with the
Close of Escrow.
Any other Escrow-related transaction expenses or escrow closing costs incurred by the Agency
Lot Escrow Holder in connection with this transaction shall be apportioned and paid for by the parties
to this Agreement in the manner customary in San Bernardino County, California.
No later than three (3) business days prior to the Closing Date, the Agency Lot Escrow Holder
shall prepare for approval by the Developer and the Agency a closing statement ("Closing Statement")
on the Agency Lot Escrow Holder's standard fonn indicating, among other things, the Agency Lot
Escrow Holder's estimate of all closing costs, pay-off amounts for the release and reconveyance of all
liens secured by the Agency Lots and prorations made pursuant to this Agreement. The Developer and
the Agency shall assist the Agency Lot Escrow Holder in detennining the amount of all prorations.
Section 2.22. Breach bv Either Party of the Provisions of this Article II; Limited Equitable
Remedv and Liquidated Damages.
(a) IN THE EVENT THAT THE AGENCY COMMITS A MATERIAL BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF THE AGENCY LOT
ESCROW WHICH IS NOT CURED AFTER NOTICE AND AN OPPORTUNITY TO CURE AS
PROVIDED HEREIN, THE DAMAGES THAT THE DEVELOPER WILL INCUR BY REASON
THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO
ASCERTAIN WHAT THE DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A
DEFAULT BY THE AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN
AMOUNT EQUAL TO THE SUM OF TWENTY -FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN THE
EVENT OF SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THE
AGREEMENT AND CANCELLATION OF THE AGENCY LOT ESCROW AS A RESULT OF
SUCH DEFAULT, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE
DEVELOPER'S SOLE AND EXCLUSIVE MONETARY REMEDY IN THE EVENT OF AND FOR
SUCH DEFAULT BY THE AGENCY. NOTWITHSTANDING THE FOREGOING LIMITATION
UPON THE AMOUNT OF DAMAGES WHICH MAYBE PAYABLE BY THE AGENCY TO THE
DEVELOPER IN THE EVENT OF DEFAULT OR MATERIAL BREACH OF ANY OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF THE AGENCY LOT
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ESCROW, THE DEVELOPER SHALL HAVE THE RIGHT TO SEEK THE EQUITABLE
REMEDY OF SPECIFIC PERFORMANCE AGAINST THE AGENCY WITH RESPECT TO A
DEFAULT BY THE AGENCY OF ANY OF ITS OBLIGATIONS UNDER THIS ARTICLE II
PRIOR TO THE CLOSE OF THE AGENCY LOT ESCROW, SPECIFICALLY INCLUDING,
WITHOUT LIMIT A TION, THE AGENCY'S OBLIGA nONS HEREUNDER TO CONVEY THE
AGENCY LOTS TO THE DEVELOPER. THE AGENCY AND THE DEVELOPER
ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS
THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Developer
Initials of Agency
(b) IN THE EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF
ITS OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF THE AGENCY LOT
ESCROW WHICH IS NOT CURED AFTER NOTICE AND AN OPPORTUNITY TO CURE AS
PROVIDED HEREIN, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON
THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO
ASCERTAIN WHAT THE AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A
DEFAULT BY THE DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN
AMOUNT EQUAL TO THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE EVENT
OF SUCH DEFAULT BY THE DEVELOPER UPON THE TERMINATION OF THE
AGREEMENT AND CANCELLATION OF THE AGENCY LOT ESCROW AS A RESULT OF
SUCH DEFAULT, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE
AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF
AND FOR SUCH DEFAULT BY THE DEVELOPER. WITHOUT LIMITING THE FOREGOING
PROVISIONS OF THIS PARAGRAPH, THE AGENCY WAIVES ANY AND ALL RIGHTS
WHICH THE AGENCY OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION
3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT PRIOR TO THE CLOSE OF THE
AGENCY LOT ESCROW. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND
AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS
SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Developer
Initials of Agency
Section 2.23. Representations and Warranties.
(a) Warranties and Representations by the Agency. The Agency hereby makes the
following representations, covenants and warranties and acknowledges that the execution of this
Agreement by the Developer has been made in material reliance by the Developer on such
covenants, representations and warranties:
(i) Warranties True. Each and every undertaking and obligation of the Agency
under this Agreement shall be performed by the Agency timely when due; and that all
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representations and warranties of the Agency under this Agreement and its exhibits shall be
true in all material respects as of the Effective Date.
(ii) Due Organization. The Agency is a community redevelopment agency, duly
fonned and operating under the laws of California. The Agency has the legal power, right and
authority to enter into this Agreement and to execute the instruments and documents referenced
herein, and to consummate the transactions contemplated hereby.
(iii) Requisite Action. The execution of this Agreement has been duly approved by
the governing body of the Agency.
(iv) Execution of Agreement. The persons executing any instruments for or on
behalf of the Agency have been authorized to act on behalf of the Agency in furtherance of the
implementation and fulfillment of the Agency commitments under this Agreement.
(v) Use of Agency Low and Moderate Income Housing Funds. The sole source of
funds, which the Agency has used to acquire any of the Agency Lots, and to provide the
Agency Down Payment Assistance, has been derived from the Agency Low and Moderate
Income Housing Funds of the Agency and from no other source of funds of the Agency or the
City of San Bernardino. The Agency understands that the Developer is relying on this
representation in detennining whether the Project is a "public work" under Labor Code Section
1720.
(b ) Warranties and Representations by the Developer. The Developer hereby, to the best of
its knowledge, makes the following representations, covenants and warranties and acknowledges that
the execution of this Agreement by the Agency has been made in material reliance by the Agency on
such covenants, representations and warranties:
(i) The Developer is a duly organized and validly existing California limited
liability company. The Developer has the legal right, power and authority to enter into this
Agreement and the instruments and documents referenced herein and to consummate the
transactions contemplated hereby. The persons executing this Agreement and the instruments
referenced herein on behalf of the Developer hereby represent and warrant that such persons
have the power, right and authority to bind the Developer.
(ii) The Developer has taken all requisite action and obtained all requisite consents
in connection with entering into this Agreement and the instruments and documents referenced
herein and the consummation of the transactions contemplated hereby, and no consent of any
other party is required for the Developer's authorization to enter into this Agreement.
(iii) This Agreement is, and all agreements, instruments and documents to be
executed by the Developer pursuant to this Agreement shall be, duly executed by and are or
shall be valid and legally binding upon the Developer and enforceable in accordance with their
respective tenns.
(iv) The Project Development Cost Pro Fonna as prepared by the Developer and
submitted to the Agency as of the Effective Date is to the best infonnation and belief of the
Developer, a fair and reasonable presentation of the costs, expenses and gross Completed New
Home sale proceeds which the Developer expects to incur as of the Effective Date with respect
to the development of the Project.
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(v) The books and accounting records of the Developer with respect to the
improvement of the Completed New Homes and performance of any of the work and the final
accounting for New Home Sales Cost Certificate for Completed New Homes, shaH conform to
the financial accountability standards of Office of Management and Budget Circular A-II 0, as
evidenced by a notarized statement by the certified public accountant.
(vi) Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby shaH result in a breach of or constitute a default under any
other agreement, document, instrument or other obligation to which the Developer is a party or
by which the Developer may be bound, or under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of any court or governmental body applicable
to the Developer.
(vii) The Developer represents and warrants to the Agency that the Developer shall
not accept any other financial assistance from any other public agency in connection with the
Project, including the City of San Bernardino, unless the Developer first complies with the
applicable provisions of Labor Code Section 1720 in connection with its acceptance of such
other assistance.
(viii) The representations and warranties of the Developer contained in this Section
2.23(b) shall be based upon the actual knowledge of only those employees of the Developer
who have participated in the negotiation of this transaction and preparation ofthis Agreement.
AH representations and warranties contained in this Section 2.24(b) are true and correct on the
date hereof and on the Effective Date.
(c) Change in Facts. If either party becomes aware of any act or circumstance which would
change or render incorrect, in whole or in part, any representation or warranty made by such party
under this Agreement, whether as of the Effective Date or any time thereafter and whether or not
such representation or warranty was based upon such party's knowledge and/or belief as of a certain
date, such party will give immediate written notice of such changed fact or circumstance to the other
party, but such notice shaH not release such party of its liabilities or obligations with respect thereto.
Section 2.24. Suitabilitv of Agency Lots, Damage, Destruction and Condemnation Prior to
Close ofan Agency Lot Escrow.
The Developer may determine during its Due Diligence Period that one or more Agency Lots
are unsuitable for the Project and the Developer may so indicate in its Due Diligence Approval
Certificate whereupon the particular Agency Lot shaH be deemed withdrawn from transfer to the
Developer under this Agreement. If an Agency Lot suffers damages as a result of any casualty prior to
the Close of Escrow, then the Agency shaH give written notice thereof to the Developer as promptly as
feasible after the occurrence of the casualty. The Developer may elect within five (5) calendar days
after its receipt of such a notice to reject the condition of the particular Agency Lot, whereupon, such
Agency Lot shall be withdrawn from transfer to the Developer and the parties shaH jointly issue a
written notice of cancellation to the Agency Lot Transfer Escrow Holder for the particular escrow,
whereupon, the parties shaH be mutuaHy released with respect to any further right or duty with respect
to such Agency Lot.
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ARTICLE III
DEVELOPMENT OF THE AGENCY LOTS
Section 3.01. Scope of Develooment bv Develooer.
(a) It is the intent of the parties that each Agency Lot shall be developed as follows: (i) the
construction by the Developer on each of the Agency Lots of single family detached residential
dwelling units two story, three (3) bedrooms, 2 Y2 bathrooms, two (2) car garage (e.g., each a
Completed New Home), containing a minimum interior living area (depending on the particular floor
plan) of approximately 1,407 and 1,456 square feet of interior space each, together with all on and
off-site improvements such as streets, curbs, sidewalks, storm drains, gutter, utilities, etc. Each New
Home constructed on an Affordable Lot shall be reserved for sale and occupancy by a Low or
Moderate Income Homebuyer. The specific components of the design construction and
improvement of each Completed New Home is more particularly set forth herein. The approval of
this Agreement by the Agency shall concurrently approve the Scope of Development. Any material
change to the Scope of Development (or a series of individual changes which are cumulatively
material) shall be subject to the prior review and approval of the Agency.
(b) The City's zoning ordinance and the City's building requirements will be applicable to
the development and use of the Completed New Homes on each Agency Lot. The Developer
acknowledges that the plan for development of the New Homes on an Agency Lot as set forth in the
Scope of Development shall be subject to the City's zoning ordinance and building requirements.
No action by the Agency or the City with respect to the consideration, review or approval of this
Agreement or related documents shall be deemed to constitute a waiver of any lawful City
requirements which are applicable to the improvement by the Development of any of the Agency
Lots or to any successor in interest of the Developer or any successor in interest pertaining to the
Agency Lots, except by modification or development variance as may specifically relate to such
proposed work of improvement by the Developer which is approved by the City.
(c) The Completed New Homes shall be constructed and improved on the Agency Lots in
conformance with the Scope of Development and any and all other plans, specifications and similar
development documents required by this Agreement, except for such changes as may be mutually
agreed upon in writing by and between the Developer and the Agency and the mutual approval of
any such change shall not be unreasonably conditioned, withheld or delayed. The approval by the
City of any element of the Project, which may be subject to the ministerial regulatory review of the
City, shall be deemed to be approved by the Agency.
(d) The approval of the Scope of Development by the Agency hereunder shall not be
binding upon the Common Council of the City or the Planning Commission of the City with respect
to any regulatory approvals relating to the improvement of the Completed New Homes and/or the
public improvements necessary for the development of the Project on each of the Agency Lots as
may be required by such other public agencies. If any material change of the Scope of Development
as previously approved by the Agency shall be required by another government official, agency,
department or bureau having jurisdiction over the development of the Agency Lots, the Agency shall
not unreasonably withhold or delay approval of such revisions to the Scope of Development as the
Developer may reasonably request.
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(e) Subject to the Developer's right to seek an appeal or modification of one or more
development conditions relating to the Project as may hereafter be imposed by the City or any other
regulatory agency with jurisdiction over the Project, the Developer agrees to accept and comply fully
with any and all lawful and reasonable final conditions of approval applicable to all permits and
other governmental actions affecting the improvement of each Agency Lot with a Completed New
Home.
(f) The Developer shall cause landscaping plans for the front yard only in connection with
improvement of a New Home on each Agency Lot to be prepared by a licensed landscape contractor
or architect. The Developer shall prepare and submit preliminary and final landscaping plans for the
front yard as part of the improvement of a New Home on each Agency Lot to the City for its
approval, which are consistent with City Code requirements. These plans shall be prepared,
submitted and approved within the times established therefore in the Schedule of Performance.
(g) The Developer shall prepare and submit development plans, construction drawings and
related documents for the improvement of a New Home on each Agency Lot consistent with the
Scope of Development and the Schedule of Performance to the City. The development plans,
construction drawings and related documents submitted by the Developer to the City shall be in the
form of final drawings, plans and specifications. Such final drawings, plans and specifications are
hereby defined as those, which contain sufficient detail necessary to obtain a building permit from
the City for the construction of a New Home on each Agency Lot.
(h) During the preparation of all drawings and plans in connection with the improvement of
the New Homes and the public improvements necessary for the improvement of each Agency Lot
with a Completed New Home, the Developer shall provide to the Agency regular progress reports to
advise the Agency of the status of the preparation by the Developer, and the submission to and
review by the City of construction plans and related documents. The Developer shall communicate
and consult with the Agency as frequently as is necessary to ensure that any such plans and related
documents submitted by the Developer to the City are being processed in a timely manner.
(i) The Agency shall have the right to review all plans, drawings and related documents
pertinent to the development of the improvement of a New Home on each Agency Lot in order to
ensure that they are consistent with this Agreement and with the Scope of Development.
(j) The Developer shall timely submit to the City for its review and approval any and all
plans, drawings and related documents pertinent to the development of the Project, as required by the
City. The Agency shall cooperate with and shall assist the Developer in order for the Developer to
obtain the approval of any and all development plans, construction drawings and related documents
submitted by the Developer to the City consistent with this Agreement as promptly as feasible
following the City's receipt of such plans. Any failure by the City to approve any of such plans or to
issue necessary permits for the development of the Project within sixty (60) calendar days following
submission by the Developer to the City of complete and correct plans shall constitute an enforced
delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond a
sixty (60) calendar day period in which the City approves said plans; provided, however, that in the
event that the City disapproves of any of such plans, the Developer shall within thirty (30) calendar
days after receipt of such disapproval revise and resubmit such plans in accordance with the City's
requirements and in such form and substance so as to obtain the City's approval thereof.
(k) [RESERVED - NO TEXT]
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(I) The Agency shall approve any modified or revised plans, drawings and related
documents to which reference is made in this Agreement as long as such modified or revised plans,
drawings and related documents are generally consistent with the Scope of Development, and do not,
in the reasonable opinion of the Interim Executive Director, require a material change or adjustment
in the estimated New Home Sale Costs shown in the Project Development Cost Pro Forma and are
consistent with the other plans for the improvement of the New Homes which have been approved by
the Agency. Upon any disapproval of such modified or revised plans, drawings or related
documents, including the Development Project Cost Pro Forma, the Agency shall state in writing the
reasons for such disapproval. The Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings or related documents in a manner
that addresses the reasons for disapproval and reasonably meets the requirements of the Agency in
order to obtain the Agency's approval thereof. The Developer shall resubmit such revised plans,
drawings and related documents to the Agency as soon as possible after its receipt of the notice of
disapproval and, in any event, no later than thirty (30) calendar days thereafter. The Agency shall
approve or disapprove such revised plans, drawings and related documents in the same manner and
within the same times as provided in this Section for approval or disapproval of plans, drawings and
related documents initially submitted to the Agency, and if no specific time for approval if specified
then the Agency shall so approve or disapprove the proposed modifications or revisions promptly
upon the written request of the Developer.
(m) If the Developer desires to make any material change in the final construction drawings,
plans and specifications or related documents, including the Project Development Cost Pro Forma
after their approval by the Agency and/or the City, the Developer shall submit the proposed change
in writing to the Agency and/or the City for approval. The Agency shall notify the Developer of
approval or disapproval thereof in writing within thirty (30) calendar days after submission to the
Agency. This thirty (30) calendar day period may be extended by mutual consent of the Developer
and the Agency. Any such change shall, in any event, be deemed to be approved by the Agency
unless rejected, in whole or in part, by written notice thereof submitted by the Agency to the
Developer, setting forth in detail the reasons therefore, and such rejection shall be made within said
thirty (30) calendar day period unless extended as permitted herein. The Agency shall use its best
efforts to cause the City to review and approve or disapprove any such change as provided in Section
3.01U) hereof.
(n) The Developer, upon receipt of written notice of disapproval of a proposed change in
construction drawings, plans and specifications by the Agency and/or the City, may revise such
portions of the proposed change in construction drawings, plans and specifications and related
documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or the City
for approval in the manner provided in Section 3.01(j) hereof.
(0) The Developer shall have the right during the course of construction to make changes in
construction concerning the interior design of the New Homes and "minor field changes" with
respect to the New Homes, and to make "minor field changes" to the public improvements necessary
for the development of the Project without seeking the approval of the Agency; provided, however,
that such changes do not materially affect the costs or income for the Project as presented in the
Project Development Cost Pro Forma or the ability of the City to approve the completion of
construction of the New Home for purposes of authorizing the lawful occupancy thereof, or the
acceptance by the City of the public improvements necessary for the development of the Project; and
further provided that the City has approved any such minor field change to either a New Home or the
public improvements necessary for the development of the Project in accordance with the standards
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and practices of the City Building Department and/or City Public Works Department, as applicable.
Said "minor field changes" shall be defined as those changes from the approved final construction
drawings, plans and specifications which have no substantial effect on the improvements and are
made in order to expedite the work of construction in response to field conditions. Nothing
contained in this subsection shall be deemed to constitute a waiver of or change in the City's
Building Code or Public Works Department requirements governing such "minor field changes" or
in any and all approvals by the City otherwise required for such "minor field changes".
(P) The cost of constructing the New Homes and all other improvements on the Project
shall be paid for by the Developer. To the extent that the owner of one or more of the Agency Lots
may be eligible to seek a credit which is generally available to any other similarly situated owner of
land on which a former residential dwelling unit has been demolished, for the payment of public
school capital facilities impact fees, in whole or in part upon the construction of a New Home on
such an Agency Lot, the Developer may seek and obtain such a credit from the San Bernardino
Unified School District.
(q) Developer shall pay the school capital facility development improvement fees as
required and at the time specified by the San Bernardino City Unified School District; provided that
the Developer may seek exemptions or modifications to the required fees, and the Agency shall assist
Developer in obtaining credits for previously existing housing units located on the Agency Lots. All
other development fees imposed by the City as a condition of issuance of any permit for the
development of the Project shall be paid by the Developer to the City at the time of issuance of each
such permit or, subject to the approval of the City in its discretion, at the close of each New Home
Escrow, pursuant to the terms of the City of San Bernardino's Development Fee Deferral program as
may then be in effect.
(r) The Developer shall at its expense cause to be prepared, and shall pay any and all fees
pertaining to the review and approval thereof by the City, all required construction, planning and
other documents reasonably required by governmental bodies pertinent to the development of the
Project hereunder including, but not limited to the public improvements necessary for the
development of the Project and to the specifications, drawings, plans, maps, permit applications, land
use applications, zoning applications and design review documents for the New Homes.
(s) The Developer shall pay for any and all costs, including but not limited to the costs of
design, construction, relocation, and securing of permits for utility improvements and connections,
which may be required in developing the Project. The Developer shall obtain any and all necessary
approvals prior to the commencement of applicable portions of the construction of the Project, and
the Developer shall take reasonable precautions to ensure the safety and habitability of surrounding
properties during the construction of the Project.
(t) The Developershall begin and complete all construction and development of the Project
and undertake all obligations and responsibilities of the Developer within the times specified in the
Schedule of Performance, or within such reasonable extensions of such times as may be granted by
the Agency or as otherwise provided for in this Agreement. The Schedule of Performance shall be
subject to revision from time to time as mutually agreed upon in writing by and between the
Developer and the Agency. Any and all deadlines for performance by the parties shall be extended
for any times attributable to delays, which are not the fault of the performing party and are caused by
the other party, other than periods for review and approval or reasonable disapprovals of plans,
drawings and related documents, specifications or applications for permits as provided in this
Agreement.
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(u) The Developer shall, at its own expense, secure or shall cause to be secured, any and all
permits, which may be required for the construction, development or work of the Project by the City
or any other governmental agency having jurisdiction thereof.
(v) Officers, employees, agents, or representatives of the Agency and the City shall have
the right of reasonable access to the Agency Lots, during normal business hours during the period of
construction for the purposes of monitoring the Developer's performance under this Agreement upon
not less than forty eight (48) hours prior written notice to the Developer.
Section 3.02. Insurance Coverage of Developer.
By no later than the date indicated in Section 1.05 the Developer shall furnish, or shall cause to
be furnished, to the Agency duplicate originals or appropriate certificates of public indemnity and
liability insurance in the amount of Two Million Dollars ($2,000,000.00) combined single limit,
naming the Agency, the City and the elected officers, officials, employees, attorneys and agents of
both of them, as additional insureds. Said insurance shall cover comprehensive general liability
including, but not limited to, contractual liability; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable; broad form property damage, and personal
injury including libel, slander and false arrest. In addition, the Developer shall provide to the Agency
adequate proof of comprehensive automobile liability insurance covering owned, non-owned and hired
vehicles, combined single limit in the amount of One Million Dollars ($1,000,000.00) each occurrence;
and proof of workers' compensation insurance. Any and all insurance policies required hereunder
shall be obtained from insurance companies admitted in the State of California and rated at least B+:
XII in Best's Insurance Guide, or in special circumstances, be pre-approved by both the Interim
Executive Director of the Agency and the Agency Counsel. All said insurance policies shall provide
that they may not be canceled unless the Agency and the City receive written notice of cancellation at
least thirty (30) calendar days prior to the effective date of cancellation. Any and all insurance
obtained by the Developer hereunder shall be primary to any and all insurance which the Agency
and/or City may otherwise carry, including self insurance, which for all purposes of this Agreement
shall be separate and apart from the requirements of this Agreement. Any insurance policies governing
the Agency Lots as obtained by the Agency shall not be transferred from the Agency to the Developer.
Appropriate insurance means those insurance policies approved by the Agency Counsel consistent with
the foregoing. Any and all insurance required hereunder shall be maintained and kept in force until the
"Release Date" as this term is defined in Section 4.10.
Section 3.03. Prohibition against Transfer Prior to Release Date.
(a) Prior to the Release Date, the Developer shall not, without prior written approval of the
Agency or except as permitted by this Agreement, (i) assign or attempt to assign this Agreement or
any right herein or (ii) make any total or partial sale, transfer, conveyance, lease, leaseback, or
assignment of any Agency Lot or permit to be placed on any Agency Lot any unauthorized
mortgage, trust deed, deed of trust, encumbrance or lien. This prohibition shall not apply to any of
the following: (I) the reasonable grant by the Developer of utility easements or permits to facilitate
the development of any Agency Lot; (2) the assignment of all of the Developer's rights and
obligations in this Agreement to a limited liability company of which the Developer and/or an
affiliate of the Developer is the managing member (and the assumption of such obligation by such
limited liability company); (3) any permitted construction financing interest under Section 3.04; and
(4) sales by the Developer of individual Completed New Homes, subject to the provision of Section
4.10.
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(b) In the absence of specific written agreement or approval by the Agency, no
unauthorized sale, transfer, conveyance, lease, leaseback, or assignment of an Agency Lot shall be
deemed to relieve the Developer or any other party from any obligations under this Agreement.
(c) Developer shall not lease or rent any Completed New Home for commercial or
residential occupancy by any person, pending final sale to a Homebuyer, or in the case of a
Completed New Home constructed on an Affordable Lot, pending final sale to a Low or Moderate
Income Homebuyer.
Section 3.04. Security Financing; Right of Holders.
(a) The words "mortgage" and "deed of trust" as used herein shall be deemed to include all
other customary and appropriate modes of financing real estate construction and land development.
Notwithstanding any provision of Section 3.03 to the contrary, mortgages, deeds of trust, or any
other form of lien required for any reasonable method of financing the construction and improvement
of the Project are permitted on any Agency Lot before the completion of the Project. The Developer
shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for
financing of the Project, which the Developer proposes to be secured by any Agency Lot before the
recordation of any such Project-related construction financing security interests. The Developer shall
not enter into any such conveyance for construction financing without the prior written approval of
the Agency, which approval the Agency shall grant if: (i) any such conveyance is given to a
responsible financial or lending institution including, without limitation, banks, savings and loan
institutions, insurance companies, real estate investment trusts, pension programs and the like, or
other acceptable persons or entities for the purpose of financing the construction of the New Homes
on the Agency Lots, and (ii) such loan contains customary construction lender disbursement controls.
(b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or other
refinancing, encumbrance or lien that has been created or attached thereto prior to completion of the
construction of the New Homes whether by voluntary act of the Developer or otherwise; provided,
however, that no notice of filing of preliminary notices or mechanic's liens need be given by the
Developer to the Agency prior to suit being filed to foreclose such mechanic's lien.
(c) The holder of any mortgage, deed of trust or other security interest authorized by this
Agreement shall in no manner be obligated by the provisions of this Agreement to construct or
complete the Project or to guarantee such construction or completion; provided, however, that each
surety under any completion and payment surety bond delivered by the Developer to the City of San
Bemardino, if any, under the terms of any off-site improvement permit issued by the City to the
Developer, shall not, by the virtue of any term of this Agreement, be deemed to be discharged from
its obligation to the City as arises under such surety.
(d) In the event of a default or breach by the Developer of a mortgage, deed of trust or other
security interest with respect to the Project or any Agency Lot prior to the completion of the Project
and the holder of such security interest has not exercised its option to complete the Project, the
Agency may cure the default of the Developer with respect to one or more of the Agency Lots, but is
under no obligation to do so prior to completion of any foreclosure. In the event that the Agency
may cure any such default by the Developer, the Agency shall be entitled to reimbursement from the
Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall
also be deemed to have a lien of the Agency as may arise under this Section 3.04(d) upon the Project
(or any Agency Lot) to the extent of such costs and disbursements. Any such lien shall be
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subordinate and subject to mortgage, deed of trust or other security instrument executed by the
Developer encumbering the applicable Agency Lots.
Section 3.05. Propertv Taxes and Assessments.
The Developer shaIl pay prior to the delinquency all real property taxes and assessments
assessed and levied on or against the Agency Lots between the time of the close of the Agency Lot
Escrow and prior to the close of each New Home Escrow. Nothing herein shaIl be deemed to prohibit
the Developer from contesting the validity or amounts of any tax assessment on an Agency Lot
foIlowing the close of the Agency Lot Escrow, encumbrance or lien, nor to limit the remedies available
to the Developer in respect thereto.
ARTICLE IV
USE AND DISPOSITION OF THE AGENCY LOTS BY THE DEVELOPER
Section 4.01. Uses of Agency Lots.
(a) The Developer covenants and agrees for itself, its successors, and assigns that at each
Agency Lot shaIl be developed, constructed, improved with a New Home as set forth in Section 3.01,
and each Completed New Home shaIl be reserved by the Developer for sale and occupancy by
Homebuyers, and in the case of each Affordable Lot the Completed New Home thereon shaIl be
reserved by the Developer for sale and occupancy by a Low or Moderate Income Homebuyer whose
Adjusted Family Income at the time of initial occupancy of a Completed New Home on an
Affordable Lot does not exceed the household income qualification limits of a Low Income
Household.
(b) The Developer shaIl cause to be recorded at the time of close of each New Home
Escrow for an Affordable Lot the fuIly executed form of the Affordability Covenant. The final form
of the Affordability Covenant shaIl be delivered to the New Home Escrow Holder for execution by
the Developer and the Low or Moderate Income Homebuyer at the time of close of each applicable
New Home Escrow. If the Low or Moderate Income Homebuyer may use Agency Downpayment
Assistance Funds for the purchase of the New Home from the Developer, the Low or Moderate
Income Homebuyer and the Agency shaIl execute a separate set of affordability covenants in favor of
the Agency to evidence the obligation of the Low or Moderate Income Homebuyer to the Agency
which arise by virtue of the Qualified Homebuyer's acceptance of Agency Downpayment Assistance
Funds under the Agency HAP program.
(c) The Developer further covenants and agrees for itself, its successors and assigns that
each of the Agency Lots shaIl be improved, developed and used in accordance with the Scope of
Development in Section 3.01. Developer covenants to develop and use the Agency Lots in
conformity with all applicable laws.
Section 4.02. Disposition of the Completed New Homes to Homebuvers and Special
Provisions for New Home Escrows for Affordable Lots.
(a) Each Completed New Home shaIl be transferred and sold to a Homebuyer through a
New Home Escrow.
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(b) Upon the completion of improvement of a New Home by the Developer on each
Affordable Lot, the Developer shall transfer and sell all of its right, title and interest in such
Completed New Home to a Low or Moderate Income Homebuyer designated by the Developer. The
gross sales price of each completed New Home will be set by the Developer at the time of sale to a
Homebuyer, based upon market conditions at the time of such sale to the particular Homebuyer;
provided, however that the Senior Purchase Money Mortgage amount and other housing cost payable
by such Low or Moderate Income Homebuyer for the Completed New Home in the case of a New
Home constructed on an Affordable Lot, shall be an amount which does not exceed an Affordable
Housing Cost for the Low or Moderate Income Homebuyer. The Completed New Home purchase
price payable by a Homebuyer for an Agency Lot, which is not subject to the affordability covenants
of this Agreement, shall not be subject to an Affordable Housing Cost sales price restriction or
limitation.
(c) The disposition of each Completed New Home to a Homebuyer shall take place through
a New Home Escrow to be administered by the New Home Escrow Holder. Each of the New Home
Escrows shall be deemed open ("Opening of New Home Escrow") upon delivery of a fully executed
copy of the Completed New Home sales contract by and between the Homebuyer and the Developer.
The Escrow Holder shall promptly confirm to the parties the escrow number and the title insurance
order number assigned to such escrow. The Escrow Holder shall b~ a title company or escrow
service as acceptable to the Developer and the Homebuyer. The Agency shall not be a party to any
such New Home Escrow. Notwithstanding the preceding sentence, the Developer shall instruct the
Escrow Holder to comply with the provisions of Section 4.02(f) of this Agreement and at the close of
each New Home Escrow, the Escrow Holder shall provide the Agency with a copy of both the
"seller' s" an~ the "buyer's" closing statement, together with a complete copy of the real estate sales
agreement between the Developer and the Homebuyer for the Completed New Home.
(d) In the case of a New Home Escrow for an Affordable Lot, the Developer shall deliver to
the Agency the information relating to each Low or Moderate Income Homebuyer described in
Section 2(e) of the Affordability Covenant, within five (5) calendar days following the Developer's
designation of such Low or Moderate Income Homebuyer as the prospective purchaser of the
Completed New Home. Concurrently, upon the Developer's delivery to the Agency of the
household income and occupancy information described in Section 2(e) of the Affordability
Covenant, the Developer shall also request that the Agency issue its Notice of Agency Concurrence
with respect to the Low or Moderate Income Homebuyer designated by the Developer. Within ten
(10) calendar days following its receipt of such written information and request from the Developer
relating to the Low or Moderate Income Homebuyer, the Agency shall provide the Developer with a
preliminary confirmation of the approval or rejection of the income and household occupancy
qualifications of the proposed Low or Moderate Income Homebuyer. In the event that the Agency
may request additional information relating to the confirmation of the matters described in the
preceding sentence with respect to the Low or Moderate Income Homebuyer, the Developer shall
cause such additional information to be provided to the Agency as promptly as feasible. The Interim
Executive Director of the Agency shall issue a preliminary determination of his concurrence of the
eligibility of the Low or Moderate Income Homebuyer within ten (10) calendar days following
receipt of such completed income and household occupancy information. Provided that the proposed
Low or Moderate Income Homebuyer also qualifies to obtain purchase money mortgage financing
for the purchase of the completed New Home with terms and costs not in excess of an Affordable
Housing Cost for such Low or Moderate Income Homebuyer, as evidenced by a written mortgage
lender's prequalification for such Low or Moderate Income Homebuyer, the Interim Executive
Director of the Agency shall issue a Notice of Agency Concurrence with respect to such Low or
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Moderate Income Homebuyer to the Escrow Holder. In the event that the Agency may later discover
that the written information provided to it in support of a request for issuance of a Notice of Agency
Concurrence is false or incorrect in any material respect, then in such event the Agency may exercise
all of its remedies to enforce the provisions of this Agreement and the Affordability Covenant, if
applicable, notwithstanding the fact that a Notice of Agency Concurrence may have been issued in
favor of a particular Low or Moderate Income Homebuyer.
(e) The Developer and the Agency mutually covenant and agree to execute all necessary or
appropriate written escrow instructions relating to the application of this Agreement to a particular
New Home Escrow as may be reasonably requested by the New Home Escrow Holder in connection
with the administration of a New Home Escrow.
(f) Each New Home Escrow shall close upon satisfaction of the applicable escrow
conditions by and between the Developer and such Homebuyer as consistent with this Agreement
when the New Home Escrow Holder confirms that:
(A) the New Home Escrow Holder has provided the Agency with a copy of the
buyer's and the seller's estimated settlement statements for the escrow;
(B) if the New Home Escrow relates to an Affordable Lot, then the New Home
Escrow Holder shall also provide/confirm to the Agency the following:
(i) it is in receipt of the Notice of Agency Concurrence for the Low or
Moderate Income Homebuyer in the case of a Completed New Home constructed on an
Affordable Lot;
(ii) it has received and is in a position to record a fully executed form of the
Affordability Covenant for the Completed New Home constructed on an Affordable
Lot;
(iii) It IS In a posItion to provide the Agency with assurance reasonably
satisfactory to the Agency that the Affordability Covenant shall, upon the close of the
New Home Escrow, be subject only to the lien for property taxes and the lien in the
Completed New Home of the senior purchase money mortgage lender to the Low or
Moderate Income Homebuyer;
(iv) the Low or Moderate Income Homebuyer has executed all of the Agency
HAP documents relating to the Agency Downpayment Assistance Funds, if any,
provided by the Agency to such Low or Moderate Income Homebuyer;
(v) it is in a position to comply with such other instructions of the
Developer, the Low or Moderate Income Homebuyer, the senior purchase money
mortgage lender and the Agency relating to the Completed New Home.
(g) In the event that after it is opened, a New Home Escrow may fail to close for any
reason, the Developer may cause such New Home Escrow to be cancelled without further notice of
instruction to the Agency. The Developer shall pay for all of the costs and expenses of such a
cancelled New Home Escrow and shall indemnify, defend and hold the Agency harmless from any
claim, loss or damage which may be asserted or arise against the Agency by a third party as a result
of the cancellation of any such escrow.
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.
(h) Within five (5) days following the close of each New Home Escrow, the Developer
shall provide the Agency with a true and correct copy of the final escrow settlement statement for the
buyer and the seller and a preliminary written estimate of the amount of the "New Home Profit'", as
this term is defined in Section 4.09, which is payable to the Agency. Within sixty (60) days
following the close of each New Home Escrow, the Developer shall deliver its New Home Sale
Costs Certificate to the Agency.
Section 4.03. Maintenance of the Agencv Lots.
The Developer covenants and agrees for itself, its successors, and assigns to maintain each of
the Agency Lots in a good condition free from any accumulation of debris or waste material, subject to
normal construction job-site conditions, and shall maintain in a neat, orderly, healthy and good
condition the landscaping on each Agency Lot required to be planted in accordance with the Scope of
Development in Section 3.01. In the event the Developer, or its successors or assigns, fails to perform
the maintenance as required herein, the Agency shall have the right, but not the obligation, to enter any
Agency Lot and undertake, such maintenance activities. In such event, the Developer shall reimburse
the Agency for all reasonable sums incurred by it for such maintenance activities. The obligation of
the Developer under this Section 4.03 with respect to the Agency Lots shall be discharged for each
Agency Lot on the applicable Delivery Date for each Completed New Home. The Developer's
maintenance obligation to the Agency as arises under this Section 4.03, with respect to the common
area of the Project (if any common area exists) will be discharged upon conveyance by the Developer
of any such common area to a homeowner's association, if any.
Section 4.04. Obligation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors, its assigns and every successor in
interest to each of the Agency Lots, that there shall be no discrimination against or segregation of any
person, or group of persons, on account of sex, marital status, race, color, religion, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of any
Agency Lot; nor shall the Developer, 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, sublessee, or vendees of the Agency
Lots.
Section 4.05. Form of Nondiscrimination and Nonsegregation Clauses.
The Developer covenants and agrees for itself, its successors,its assigns, and every successor
in interest to the Agency Lots, and each of therll, - or any part thereof, that the Developer, such
successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use,
occupancy, tenure or enjoyment of each of the Agency Lots and each of the New Homes, on the basis
of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds,
leases or contracts pertaining thereto shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its successors 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, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation with
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reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the
land".
(b) In leases: "The Lessee herein covenants by and for itself, its successors and assigns,
and all persons claiming under or through them, and this lease is made and accepted upon and
subject to the following conditions: 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, national
origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of
the premises herein leased nor shall the lessee itself, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants lessees, sublessee, subtenants, or
vendees in the premises herein leased".
(c) 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, national origin, or
ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sub lessees, subtenants, or
vendees of the premises herein transferred". The foregoing provision shall be binding upon and shall
obligate the contracting party or parties and any subcontracting party or parties, or other transferees
under the instrument.
Section 4.06. Effect and Duration of Covenants under Section 4.01 and Section 4.05.
(a) The covenants established under Section 4.05 against discrimination shall remain in
effect in perpetuity.
(b) The covenant of the Developer respecting use and occupancy of each Completed New
Home shall remain in effect until the Release Date is constructed on an Affordable Lot shall remain
in effect for the Qualified Residence Period of each such Completed New Home, and shall run with
the land and shall constitute equitable servitudes thereon, and shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its successors
and assigns and the City.
(c) The Agencx. is deemed the beneficiary of the terms and provisions of this 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. The Agency shall have the right, if such covenants are
breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity
or such other proper proceedings to enforce the curing of such breaches to which it or any other
beneficiary of such covenants may be entitled, including, without limitation, to specific performance,
damages and injunctive relief. The Agency shall have the right to assign all of its rights and benefits
hereunder to the City.
Section 4.07. Proiect Development Cost Pro Forma.
(a) As of the Effective Date of this Agreement, the Developer has presented the Agency
with a Project Development Cost Pro Forma, which is part of the Scope of Development. The
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.
Agency has agreed to sell the Agency Lots to the Developer based upon the Project Development
Cost Pro Forma presented by the Developer.
(b) The Developer shall maintain accounting books and records of Project development
costs, the New Home Sales Costs and all income and proceeds realized by the Developer from the
Project in accordance with generally accepted principles of business accounting. The Agency and its
accountants and auditors shall have the right to conduct, at its expense, an inspection and review of
the accounting books and records of the Developer relating to the Project upon the request of the
Agency. Provided the Agency has given the Developer at least ten (10) days prior written notice, the
Developer shall cooperate with the Agency in the production of its accounting books and records as
reasonably required by the Agency and its auditors to conduct an audit of actual New Home Sales
Costs and all income and proceeds realized by the Developer from the Project. Matters discovered
by the Agency shall not be disclosed to third parties unless required by law or unless otherwise
resulting from or related to the pursuit of any remedies or the assertion of any rights of the Agency
hereunder. The Developer shall also have the right at all reasonable times to inspect the books and
records of the Agency pertaining to the Agency Lots and/or the development thereof as pertinent to
the purposes of this Agreement.
(c) The Developer represents and warrants to the Agency, that as of the Effective Date, the
expected fair market value of each Competed New Home is not less than the sum indicated in the
Proforma submitted to the Agency for each New Home as shall be constructed by the Developer on
each Agency Lot.
Section 4.08. Agency Downpavrnent Assistance Funds.
(a) As of the Effective Date, the Agency shall appropriate and reserve the sum of Five
Hundred Fifty Thousand Dollars ($550,000) from the Agency Low and Moderate Income Housing
Funds to provide Agency Downpayment Assistance Funds for Low or Moderate Income
Homebuyers of Completed New Homes on the Affordable Lots as set forth in this Section 4.08.
Agency Downpayment Assistance may hereafter be provided to Low or Moderate Income
Homebuyers upon the close of each New Home Escrow for a Completed New Home on an
Affordable Lot, subject to the terms and conditions of the Agency HAP Program and the
underwriting and credit evaluation by the Agency of each such Low or Moderate Income
Homebuyer.
(b) Provided that a Low or Moderate Income Homebuyer is determined by the Agency to
be eligible for Agency Downpayment Assistance, as part of its acquisition of a Completed New
Home upon the close of the New Home Escrow, such Low or Moderate Income Homebuyer shall
execute a promissory note, deed of trust, and related Agency Downpayment Assistance loan
documents as the Agency may direct.
(c) The amount, if any, of the Agency Downpayment Assistance, which may be provided to
one or more Low or Moderate Income Homebuyers for any Affordable Lot shall not exceed forty
percent (40%) of the gross sales price of the particular Completed New Home ifit is sold to a "lower
income household" as this term is defined in Health and Safety Code Section 50079.5 and shalI not
exceed twenty percent (20%) of the gross sales price of the particular Completed New Home if it is
sold to a person or household whose income is greater than that of a lower income household, and
shall be disbursed for the account of such Low or Moderate Income Homebuyer through the
applicable New Home Escrow.
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.
"
(d) The Agency may, in its discretion, provide or make available, additional sums to pay
for Agency Downpayment Assistance in addition to the amount as specifically referred and set aside
under Section 4.08(a), above.
(e) Notwithstanding any other provision of this Section 4.08, the Agency shall have no
obligation to disburse any Agency Downpayment Assistance Funds to originate a mortgage loan for
a Low or Moderate Income Homebuyer of a Completed New Home on any Affordable Lot after
December 31, 2008.
Section 4.09. Agency Participation in New Home Profit.
(a) For the purposes of this Section 4.09, the words "New Home Profit" mean and refer to a
sum, which shall be determined in accordance with the following formula:
(Completed New Homes Purchase Price) - (New Homes Sales Costs) = New Home Profit
(b) The Developer hereby agrees to pay the Agency fifty percent (50%) of the New Home
Profit realized by the Developer upon the sale of all of the Completed New Homes to Homebuyers
on the "Release Date", as this term is defined in Section 4.1O(b). The New Home Profit payment of
the Developer to the Agency shall be an amount, which is in addition to the sum payable by the
Developer to the Agency as the Agency Lot Purchase Price.
(c) The Developer shall pay the Agency the applicable amount of the New Home Profit
within sixty (60) days of the close of the last of the New Home Escrows.
(d) The Developer shall prepare and deliver to the Agency its New Home Sales Costs
Certificate for all of the Completed New Homes within sixty (60) days following the close of the
New Home Escrow for the last of the Completed New Homes. The Agency shall have the right to
conduct and complete a financial audit of the information presented in the New Home Sales Costs
Certificate at the expense of the Agency in accordance with generally accepted accounting principles
as provided in Section 4.07. The Developer shall cooperate with the Agency and its agents in the
conduct of any such audit of the financial information set forth in the New Home Sales Costs
Certificate, including the delivery to the Agency upon request of underlying construction or service
contracts and invoices for services performed or products delivered to the Developer by third parties
relating to the Project.
Section 4.10. No Distribution of New Home Profit to Developer until Release Date.
(a) Subject to the provisions of Section 5.05, the obligations of the Developer as arise in
favor of the Agency under Article III and Article IV of this Agreement shall terminate thirty (30)
days after the date on which each of the following has occurred:
(i) the Developer has completed the construction of all of the New Homes on each
Agency Lot and caused each Completed New Home to be sold to a Homebuyer;
(ii) the New Home Escrow Holder has delivered to the Agency final copies of both
the buyer's and the seller's escrow settlement statements for each of the New Home Escrows;
(iii) the Agency has received a New Home Sales Costs Certificate which sets forth
the New Home Sales Costs and contains the Developer's provisional estimate of the amount of
New Home profit realized for the Project for each of the Completed New Homes;
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(iv) the Agency has completed such audit or review of the Developer's financial
records of the Project as it may in its discretion undertake in accordance with Section 4.07;
provided, however, that the Agency shall complete such audit within sixty (60) days of the later
date of the delivery of the New Home Sales Costs Certificate or the delivery of the final audited
financial statement under (v) of this Section 4.10(a);
(v) the Developer has delivered to the Agency a final audited financial statement of
all of the costs incurred and the income realized by the Developer for the Project and the
Developer has remitted to the Agency the full amount of the New Home Profit, if any, as due
the Agency;
(vi) the Developer is not in material default under this Agreement.
(b) The "Release Date" as this term is used in Section 4.09 and Section 4.10(c) shall occur
when the provisions of Section 4.1 O(a) have been satisfied.
(c) At the time when the Developer opens a New Home Escrow for the sale of the eleventh
(II th) Completed New Home to a Homebuyer, the Developer shall deliver a supplemental escrow
instruction in a form acceptable to the Agency Interim Executive Director, which instructs the New
Home Escrow Holder to establish a New Home Profit Reserve Escrow account in the amount of One
Hundred Thousand Dollars ($100,000) for the joint benefit of the Developer and the Agency. The
New Home Profit Reserve Escrow Account shall be funded by the New Home Escrow Holder using
the cash proceeds provided to it by the Homebuyer and the Developer, if necessary upon the close of
such New Home Escrow for the sale of the eleventh (11th) Completed New Home. The New Home
Escrow Hold"er shall hold and invest the balance of the New Home Profit Reserve Escrow in
accordance with the joint written instructions of the Developer and the Agency addressed to the New
Home Escrow Holder. The balance of the New Home Profit Reserve Escrow shall be used and
applied to pay a portion of the New Home Profit, if any, to the Agency in such amount as shall be
determined as of the Release Date. To the extent that the New Home Escrow Holder may not be
holding funds in the New Home Profit Reserve Escrow on the Release Date which are sufficient to
pay to the Agency the full amount of the New Home Profit as then due the Agency, the Developer
shall pay such additional amount to the Agency upon the distribution and payment by the New Home
Escrow Holder of the New Home Profit Reserve Escrow to the Agency.
ARTICLE V
ARTICLE V DEFAULTS, REMEDIES AND TERMINATION
Section 5.01. Defaults - General.
(a) Subject to the extensions of time set forth in Section 6.05 hereof, failure or delay by
either party to perform any term or provision of this Agreement shall constitute a default under this
Agreement; provided, however, that if a party otherwise in default commences to cure, correct or
remedy such default within thirty (30) calendar days after receipt of written notice specifying such
default and shall diligently and continuously prosecute such cure, correction or remedy to completion
(and where any time limits for the completion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), such party shall not be deemed to be in default
hereunder.
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(b) The injured party shall give written notice of default to the party in default, specifying
the default complained of by the non-defaulting party. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default.
(c) Any failure or delays by either party in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies. Delays by
either party in asserting any of its rights and remedies shall not deprive either party of its right to
institute and maintain any actions or proceedings, which it may deem necessary to protect, assert or
enforce any such rights or remedies.
Section 5.02. Legal Actions.
(a) In addition to any other rights or remedies, either party may institute legal action to
cure, correct or remedy any default, to recover damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Bernardino, State of California, in any other appropriate court in
that County, or in the Federal District Court in the Central District of California.
(b) The laws of the State of California shall govern the interpretation and enforcement of
this Agreement.
(c) In the event that any legal action is commenced by the Developer against the Agency,
service of process on the Agency shall be made by personal service upon the Interim Executive
Director or Chairman of the Agency, or in such other manner as may be provided by law.
(d) In the event that any legal action is commenced by the Agency against the Developer,
service of process on the Developer shall be made by personal service on any officer of Developer
(or such other agent for service of process and at such address as may be specified in written notice
to the Agency), or in such other manner as may be provided by law, and shall be valid whether made
within or without the State of California.
Section 5.03. Rights and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of
one or more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the other party.
Section 5.04. Default and Damages.
If either party defaults with regard to any provision of this Agreement following the Close of
the Agency Lot Escrow, the non-defaulting party shall serve written notice of such default upon the
defaulting party. If the defaulting party does not diligently commence to cure such default within
thirty (30) calendar days after service of the notice of default and promptly complete the cure of such
default within a reasonable time, not to exceed ninety (90) calendar days (or such shorter period as
may otherwise be specified in this Agreement for any specific default), after the service of written
notice of such default, the defaulting party shall be liable to the other party for damages caused by such
default.
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Section 5.05. Agencv Audit Costs.
In the event that based upon the results of its audit of the Developer's New Home Sales Costs
Certificate for one or more Completed New Homes under Section 4.09, the Agency may reasonably
determine that the amount of New Home Profit owed by the Developer, if any, to the Agency under
Section 4.09, is more than ten percent (10%) in excess of the aggregate amount stated by the
Developer at the time when such New Home Sales Costs Certificates are delivered to the Agency
under Section 4.1 O(a)(iii), then in such event in addition to any other sums as may then be payable by
the Developer to the Agency, the Developer shall also reimburse the Agency for the reasonable costs
of the Agency incurred in connection with the Agency's audit of such New Home Sales Costs
Certificates, within thirty (30) days following the Agency's written request for such reimbursement.
In the event that the Agency may incur third-party audit costs and expense after the date on
which final audited financial statement of the Developer for the Project under Section 4.l0(a)(vi) has
been submitted to the Agency, which Agency audit may indicate that additional sums of New Home
Profit are payable to the Agency which are not identified in such final audited financial statements
submitted by the Developer then in such event, in addition to the payment of the New Home Profit to
the Agency, the Developer shall also reimburse the Agency for its third-party accounting expenses
within thirty (30) days written demand therefore from the Agency.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices, Demands and Communications between the Parties.
(a) Any and all notices, demands or communications submitted by any party to another
party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, or by registered or certified United States mail, postage
prepaid, return receipt requested, to the principal office of the Agency and the Developer, as
applicable, as designated in Section 1.05( a) and Section 1.05(b) hereof. Such written notices,
demands and communications may be sent in the same manner to such other addresses as either party
may from time to time designate as provided in this Section. Any such notice, demand or
communication shall be deemed to be received by the addressee, regardless of whether or when any
return receipt is received by the sender or the date set forth on such return rect>ipt, on the day that it is
dispatched by messenger for immediate personal delivery, or two (2) calendar days after it is placed
in the United States mail as heretofore provided.
(b) In addition to the submission of notices, demands or communications to the parties as
set forth above, copies of all notices shall also be delivered by facsimile as follows:
to the Developer
with copy to:
TELACU Development, LLC
Attn.: Alex Hernandez
414 West 4th Street, Suite L
Santa Ana, California 92701
FAX: (714) 541-1005
Stradling Y occa Carlson & Rauth
Attn.: Jon Goetz
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
FAX: (949) 725-4100
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to the Agency:
with copy to:
Redevelopment Agency
of the City of San Bernardino
c/o Interim Executive Director
20 I North HE" Street, Suite 301
San Bernardino, California 92401
FAX: (909) 888-9413
Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
FAX: (909) 387-1138
Section 6.02. Conflict of Interest.
No member, official or employee of the Agency having any conflict of interest, direct or
indirect, related to this Agreement, or in the development of the Site, shall participate in any decision
relating to this Agreement. The parties represent and warrant that they do not have knowledge of any
such conflict of interest.
Section 6.03. Warranty against Payment of Consideration for Agreement.
The Developer warrants that it has not paid or given, and will not payor give, any third party
any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this
Section, shall not include persons to whom fees are paid for professional services if rendered by
attorneys, financial consultants, accountants, engineers, architects and the like when such fees are
considered necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and Employees.
No member, official or employee of the Agency shall be personally liable to the Developer, or
any successor in interest, in the event of any default or breach by the Agency or for any amount which
may become due to the Developer or to its successor, or on any obligations under the terms of this
Agreement, except for gross negligence or willful acts of such member, officer or employee.
Section 6.05. Enforced Delay: Extension of Time of Performance.
In addition to specific provisions of this Agreement, performance by either party hereunder
shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to
the force majeure events of war, terrorism, insurrection, strikes, lockouts, riots, floods, earthquakes,
fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight
embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor,
materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the
fault of the party claiming an extension of time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act of the City or Agency shall not
extend the time for the Agency to act hereunder except for delays associated with lawsuit or injunction
including but without limitation to lawsuits pertaining to the approval of the Agreement, and the like).
An extension of time for any such force majeure cause shall be for the period of the enforced delay and
shall commence to run from the date of occurrence of the delay; provided, however, that the party
which claims the existence of the delay has first provided the other party with written notice of the
occurrence of the delay within thirty (30) days of the commencement of such occurrence of delay.
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The inability of the Developer to obtain a satisfactory commitment from a construction lender
for the improvement of the Project or to satisfy any other condition of this Agreement relating to the
redevelopment of the Agency Lots, if applicable, shall not be deemed to be a force majeure event or
otherwise provide grounds for the assertion of the existence of a delay under this Section 6.05. The
parties hereto expressly acknowledge and agree that changes in either general economic conditions or
changes in the economic assumptions of any of them which may have provided a basis for entering
into this Agreement and which occur at any time after the execution of this Agreement, are not force
majeure events and do not provide any party with grounds for asserting the existence of a delay in the
performance of any covenant or undertaking which may arise under this Agreement. Each party
expressly assumes the risk that changes in general economic conditions or changes in such economic
assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or
hardship on the continued performance of such party under this Agreement, but that such
inconvenience or hardship is not a force majeure event and does not excuse the performance by such
party of its obligations under this Agreement.
Section 6.06. [RESERVED - NO TEXT]
Section 6.07. Approvals.
(a) Except as otherwise provided in this Agreement, approvals required of the Agency or
the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not
be unreasonably withheld and approval or disapproval shall be given within the time set forth in the
Schedule of Performance or, ifno time is given, within a reasonable time.
(b) The Interim Executive Director of the Agency is authorized to sign on his or her own
authority all escrow documents and other documents on behalf of the Agency as necessary for the
Agency to perform its obligations under this Agreement, and the Interim Executive Director is
further authorized to execute on behalf of the Agency amendments to this Agreement which are of
routine or technical nature, including minor adjustments to the Schedule of Performance.
Section 6.08. Real Estate Commissions.
The Agency shall not be liable for any real estate commissions, brokerage fees or finder fees,
which may arise or be purported to arise from or related to this AgJ;eement.
Section 6.09. Indemnification.
The Developer agrees to indemnify and hold the City, the Agency, andlhe elected officers,
officials, employees, attorneys and agents of either of them, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in
performing its obligations hereunder; provided, however, that such obligation of the Developer to
indemnify the City and the Agency and the elected officers, officials, employees, attorneys and agents
of either of them shall not apply to any matter arising from the negligence or willful misconduct of the
City or the Agency or the elected officers, officials, employees, attorneys or agents of either of them.
The Agency agrees to indemnify and hold the Developer and its officers, employees and agents,
harmless from and against all damages, judgments, costs, expenses and fees arising from or related to
any act or omission of the Agency in performing its obligations hereunder; provided, however, that
such obligation of the Agency to indemnify the Developer and its officers, employees, and agents shall
not apply to any matter arising from the negligence or willful misconduct of the Developer, its officers,
employees and agents.
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Section 6.10. Attorneys' Fees.
If either party hereto files any action or brings any action or proceeding against the other
arising out of this Agreement, or is made a party to any action or proceeding brought by the Escrow
Holder or a third party, then as between the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees
as fixed by the Court, in such action or proceeding or in a separate action or proceeding brought to
recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and
include, in the case of the Agency, salaries and expenses of the lawyers employed by the Office of
City Attorney (allocated on an hourly basis) who may provide legal services to the Agency in
connection with the representation of the Agency in any such matter.
Section 6.11. Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors and assigns.
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement.
(a) This Agreement shall be executed in three (3) originals each of which is deemed to be
an original. This Agreement includes forty-three (43) pages and four (4) Exhibits (See list of
Exhibits at Section 1.05), which constitute the entire understanding and Agreement of the parties.
(b) All waivers of the provisions of this Agreement and all amendments hereto must be in
writing and signed by the appropriate representations of the Agency and the Developer.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
dates set forth below.
AGENCY
Redevelopment Agency
of the City of San Bernardino
Date:
By:
Interim Executive Director
DEVELOPER
TELACU Development, LLC,
a California limited liability company
Date:
By:
Date:
By:
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the .
dates set forth below.
AGENCY
Redevelopment Agency
of the City of San Bernardino
Date:
By:
Interim Executive Director
22~;~
DEVELOPER
TELACU Development, LLC,
a California limited liability company
Date:
By:
Date:
By:
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
dates set forth below.
AGENCY
Redevelopment Agency
of the City of San Bernardino
Date:
By:
Interim Executive Director
APPROVED AS TO FORM:
DEVELOPER
TELACU Development, LLC,
a California limited liability company
Date:
By:
Date:
By:
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EXHIBIT "A"
LEGAL DESCRIPTIONS OF THE AGENCY LOTS
APN: 0154-126-24
LOT 4 IN BLOCK 19 OF TRACT 1834, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
26, PAGE(S) 52, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN: 0154-126-26
LOT 6 IN BLOCK 19 OF TRACT 1834, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
26, PAGE(S) 52, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN: 0154-126-27
LOT 7 IN BLOCK 19 OF TRACT 1834, SAN BERNARDINO HEIGHTS, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 26, P AGE(S) 52, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 0154-126-28
LOT 8 BLOCK 19 OF TRACT 1834, SAN BERNARDINO HEIGHTS, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 26, P AGE(S) 52, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 0154-126-29
LOT 9 IN BLOCK 19 OF TRACT 1834, SAN BERNARDINO HEIGHTS, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 26, P AGE(S) 52, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN's: 0154-125-08; 09; 10; AND 11
LOT(S) 3 THROUGH 6, IN BLOCK 20 OF TRACT 1834, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 26, PAGE(S) 52, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
4836.9079-0656.1 . 11/9/05 jmm
P\Agendas\Agenda AlIachmcntslAgrmts-Amc:nd 2005\05-11-21 Telacu 49th Sueet DDA doc 44
APN: 0154-125-12
LOT 2, BLOCK 20, TRACT NO. 1834, AS PER PLAT RECORDED IN BOOK 26 OF MAPS,
PAGE 52, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA
RECORDED JUNE 12, 1962 IN BOOK 5714, PAGE 543, OFFICIAL RECORDS,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 1; THENCE ALONG
THE NORTHWESTERLY LINE OF SAID LOTS 1 AND 2, BEING ALSO THE
SOUTHEASTERLY LINE OF ARROWHEAD BOULEY ARD 60 FEET WIDE, AS SHOWN
ON SAID MAP, NOW KNOWN AS SIERRA WAY, NORTH 49012'30" EAST 207.41 FEET
(RECORD 207.50 FEET) TO ITS INTERSECTION WITH THE NORTH LINE OF SAID LOT
2; THENCE ALONG SAID NORTH LINE NORTH 89042'57" EAST 27.50 FEET; THENCE
SOUTH 50015'08" WEST 211.99 FEET TO THE SOUTH LINE OF SAID LOT 1, DISTANT
ALONG SAID SOUTH LINE, BEING ALSO THE NORTH LINE OF FORTY-NINTH
STREET 60 FEET WIDE, AS SHOWN ON SAID MAP NORTH 89044'58" EAST 21.54 FEET
FROM THE POINT OF BEGINNING; THENCE ALONG SAID SOUTH LINE SOUTH
89044'58" WEST 21.54 FEET TO THE POINT OF BEGINNING.
APN: 0154-125-13
LOT 1 IN BLOCK 20 OF TRACT NO. 1834 IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, ST ATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 26, PAGE 52 OF MAPS, IN THE OFFICE OF THE COuNTY RECORDER OF
SAID COUNTY.
EXCEPTING THEREFROM, THA T PORTION CONVEYED TO THE STATE OF
CALIFORNIA BY DEED RECORDED JUNE 12, 1962, IN BOOK 5714, PAGE 543, OF
OFFICIAL RECORDS OF SAID COUNTY.
4836-9079-0656.\ - 11/9/05 jmm
P \Aaendas\Agenda Attachmems\Agmts-Amend 2005\05-11-21 Telacu 49th Slreet DDA doc 45
EXHIBIT "B"
FORMS OF AGENCY GRANT DEED
Fonn #1 Agency Lot - Homebuyer (covers 6 Agency Lots)
Fonn #2 Affordable Lot - Low or Moderate Income Homebuyer (covers 5 Agency
Lots/Affordable Lots)
4836-9079-0656.1 - 11/9/05 jmm
P\Agendas\Agenda Attachmenls\Agrmts-Amend 2005\05.11-21 Telacu 49th Street DDAdoc
46
RECORDING REQUESTED BY )
Redevelopment Agency )
of the City of San Bernardino )
)
AND WHEN RECORDED MAIL )
PROPERTY TAX BILL TO: )
)
TELACU Development, LLC )
414 West 4th Street, Suite L )
Santa Ana, CA 9270 I )
Attn.: Alex Hernandez )
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
PART A
THIS GRANT DEED OF A PUBLIC AGENCY (the "Grant Deed") transfers all of the right, title
and interest'of the Redevelopment Agency of the City of San Bernardino, a public body corporate
and politic (the "Agency") in certain real property situated at , San Bernardino,
California (the "Property") to TELACU Development, LLC, a California limited liability company
(the "Developer").
For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby grants
to the Developer, all of the right, title and interest of the Agency in the Property, as more particularly
described below:
(-- The Property--)
, on file in the Official Records of the Office of the
Recorder of San Bernardino County.
PART B
The grant by the Agency of the Property to the Developer is expressly subject to the following
community redevelopment covenant as set forth in that certain 2005 40th Street Redevelopment
Project Area Single Family Residential Development Agreement, dated as of November 21,2005,
(the "Agreement") by and between the Agency and the Developer. The Property shall be subject to
the following housing redevelopment covenant in perpetuity and the text, which appears in this Grant
Deed, shall be incorporated into the text of each grant deed or other instrument, which transfers the
Property to a successor in interest of the Developer:
4838-9178-85441
P:0-gendas\Agenda Anachments\Exhibits\200;\O;-ll.21 Telacu 49th 5t . Grant Deed Market Rale LoI (Exhibit 8-Form I) doc
"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, 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, estab-
lish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or
occupancy of any vendee in the land herein conveyed. The foregoing
covenants shall run with the land."
PART C
The provisions of this Grant Deed are expressly declared by the Agency to promote an increase,
improvement and preservation of the community's supply of housing. The transfer of the Property by
the Agency to the Developer for this purpose, and the recordation of this Grant Deed are authorized
by applicable law and actions of the Agency. Upon the delivery of this Grant Deed to the Developer,
the community redevelopment covenants as contained herein shall be covenants and restrictions
which affect the Property and shall run with the land and shall be enforceable by either the Agency or
by the City of San Bernardino, a municipal corporation against the Developer and each successor in
interest or assignee of the Developer in the Property. No person other than either the City of San
Bernardino or the Agency shall be deemed to be authorized to enforce any provision of this Grant
Deed as a covenant or restriction, which runs with the land and affects the Property.
THIS GRANT DEED is executed as ofthe date indicated below next to the authorized signatures of
the Interim Executive Director of the Agency.
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body corporate and politic
Dated:
By:
Interim Executive Director
4838-9178-8544.1
2
P\Agendas\Agenda Anachments\Exhibits\2005\OS-11-21 Telacu 49th St- Grant Deed Market Rale lot (Exhibit B-Form I)doc
ACCEPTANCE OF GRANT DEED BY THE DEVELOPER
TELACU Development, LLC a California limited liability company and the grantee of the
within instrument (the "Developer"), hereby accepts the delivery of the instrument identified above
as the "Grant Deed of a Public Agency" (the "Grant Deed"), and the transfer of the Property from the
Redevelopment Agency of the City of San Bernardino, subject to the conditions, covenants and
restrictions contained in the Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the Property in an "AS-IS",
"WHERE IS" and "SUBJECT TO ALL F AUL TS" condition and that the Developer is solely
responsible for causing the Property to be improved as set forth in the Agreement by and between the
Agency and Developer.
The Developer hereby further accepts and agrees to each of the community redevelopment
affordable housing use, improvement and occupancy conditions, covenants and restrictions contained
in the Grant Deed, which touch and concern the Property and are community redevelopment
covenants, which run with the land.
DEVELOPER
TELACU Development, LLC,
a California limited liability company
Dated:
By
Its:
By:
Its:
[NOTARY JURAT ATTACHED]
4838-9178-85441
3
P\AgendasV.genda Anachmtms\ExhibilS\200S\OS-II-2\ Telacu 49th St . Grant Deed Market Rate LOI {Exhibit B-Form I)doc
.
RECORDING REQUESTED BY )
Redevelopment Agency )
of the City of San Bernardino )
)
AND WHEN RECORDED MAIL )
PROPERTY TAX BILL TO: )
)
TELACU Development, LLC )
Attn.: Alex Hernandez )
414 West 4th Street, Suite L )
Santa Ana, CA 92701 )
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
AND
COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANT AND RESTRICTIONS
(AGENCY AFFORDABLE LOT)
P ART A
THIS GRANT DEED OF A PUBLIC AGENCY AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE F AMIL Y RESIDENTIAL HOUSING DEVELOPMENT, USE AND
OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS (the "Grant Deed") transfers
all of the right, title and interest of the Redevelopment Agency of the City of San Bernardino, a
public body corporate and politic (the "Agency") in certain real property situated at
San Bernardino, California (the "Property") to TELACU Development, LLC, a California limited
liability company (the "Developer"), subject to the community redevelopment affordable single
family housing conditions, covenants and restrictions contained in PART B hereof. The Agency is
the grantor in this Grant Deed, and the Developer is the grantee.
For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby grants
to the Developer, subject to the community redevelopment affordable single family housing
conditions, covenants and restrictions of this Grant Deed, all of the right, title and interest of the
Agency in the Property, as more particularly described below:
4833.5963.59681
P\Agendas\Agenda Altachments\Exhibils\~OO5\OS.II.21 Tclacu 49th St -Grant Deed AlTordable Lots (Exhibit B-Form 2) doc
.
.
(-- The Property--)
, on file in the Official Records of the Office of the
Recorder of San Bernardino County.
PART B
The grant by the Agency of the Property to the Developer is expressly subject to the satisfaction of
the following community redevelopment affordable single family housing conditions, covenants and
restrictions as arise under that certain 2005 40th Street Redevelopment Project Area Single Family
Residential Development Agreement, dated as of November 21, 2005, (the "Agreement") by and
between the Agency and the Developer:
1. the Property shall be reserved for use, improvement and occupancy for single family
residential purposes for a term of not less than fifty (50) years commencing on the
date ofrecordation of this Grant Deed; and
2. the Property shall be used, reserved, sold, transferred, granted, conveyed or otherwise
hypothecated for occupancy only to a person or a family who is a "Qualified
Homebuyer" for an "Affordable Lot", as these terms are defined in the Agreement,
for a term of forty five (45) years, beginning on the date of recordation of the
Affordability Covenant described in subparagraph 3, below. The words "Qualified
Homebuyer" as this term is defined in the Agreement, and is used in this Grant Deed
refer to any person or family who owns and occupies (or who declares their intention
to own and occupy) the Property as their principal residence, and whose adjusted
gross income during the twelve (12) months preceding the date of initial occupancy
of the Property by the Qualified Homebuyer does not exceed the household income
qualification limits for such Qualified Homebuyer, as referenced in the Agreement.
3. As a condition precedent to any transfer, sale, conveyance, grant or other
hypothecation by the Developer of the Property to a Qualified Homebuyer, the
"Affordability Covenant" (the "Affordability Covenant"), substantially in the form as
on file with the Agency Secretary, shall be fully executed by the parties in recordable
form by the Developer, the Qualified Homebuyer and the Agency and filed for
recordation affecting the Property as an official record of the Recorder of San
Bernardino County, all as set forth in the Agreement. The final form of the
Affordability Covenant shall be consistent with the terms and conditions of the
Agreement as applicable at the time of initial occupancy of the Property by a
Qualified Homebuyer.
4. The Property shall be subject to the following affordable housing redevelopment
covenant in perpetuity and the text, which appears in this Grant Deed shall be
incorporated into the text of each grant deed or other instrument, which transfers the
Property to a successor in interest of the Developer, and to each Qualified
Homebuyer:
4833-5963-59681 2
P'\Agendas\Agenda Anachmenls\Exhibils\2005\05-1 1-21 Tclacu 49th 51 -Grant Deed Affordable Lots (Exhibit B.Form 2) doc
.
"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, 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, estab-
lish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or
occupancy of any vendee in the land herein conveyed. The foregoing
covenants shall run with the land."
PART C
During the term of subparagraph 2 of PART B, but prior to the recordation of a Affordability
Covenant, executed by the Agency, the Qualified Homebuyer and the Developer, the Agency hereby
authorizes the Developer to conduct land improvement, home construction and home sales and
ancillary business activity on the Property associated with the improvement and sale ofthe Property
by the Developer, of an affordable single family dwelling unit on the Property to a Qualified
Homebuyer, pursuant to the Agreement. The provisions ofP ART C of this Grant Deed shall have no
further force or effect upon the Property after the date of the recordation of the Affordability
Covenant. Developer shall have no further obligations under this Grant Deed as of the date of the
recordation of the affordable covenant.
PART D
The provisions of this Grant Deed are expressly declared by the Agency to promote an increase,
improvement and preservation of the community's supply of low- and moderate-income housing.
The transfer of the Property by the Agency to the Developer for this purpose, and the recordation of
this Grant Deed, are authorized by Health and Safety Code Sections 33334.2 and 33334.3, and other
applicable law and actions of the Agency.
PART E
Upon the delivery of this Grant Deed to the Developer, the community redevelopment affordable
housing conditions, covenants and restrictions as contained herein shall be covenants and restrictions
which affect the Property and shall run with the land and shall be enforceable by either the Agency or
by the City of San Bernardino, a municipal corporation, as provided by Health and Safety Code
Section 33334.3(f)(2) against the Developer and each successor in interest or assignee of the
Participant in the Property, including, without limitation, any Qualified Homebuyer. No person other
than either the City of San Bernardino or the Agency shall be deemed to be authorized to enforce any
provision of this Grant Deed as a covenant or restriction, which runs with the land and affects the
Property.
4833-5963-59681 3
P \Agendas\Agenda Attachments\Exhibits\2005\05-11-21 Telacu 49th St -Grant Deed Affordable Lots (Ell:hibit 8.Form 2) doc
THIS GRANT DEED is executed as of the date indicated below next to the authorized
signatures of the Interim Executive Director of the Agency.
AGENCY
Redevelopment Agency of the City of
San Bernardino, a public body corporate and politic
Dated:
By:
Interim Executive Director
4833-5963-5968.1 4
P.\Age:ndas\Agenda Anachments\Exhibits\200S\05-11.21 Telacu 49th SI-Gran! Deed Affordable Lots (Exhibit B-Form 2) doc
ACCEPT ANCE OF GRANT DEED AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING DEVELOPMENT,
USE AND OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS
BY THE DEVELOPER
TELACU Development, LLC, a California limited liability company and the grantee of the
within instrument (the "Developer"). hereby accepts the delivery of the instrument identified above
as the "Grant Deed of a Public Agency and Community Redevelopment Affordable Single Family
Residential Housing Development, Use and Occupancy Conditions, Covenants and Restrictions"
(the "Grant Deed"), and the transfer of the Property from the Redevelopment Agency of the City of
San Bernardino, subject to the conditions, covenants and restrictions contained in the Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the Property in an "AS-IS",
"WHERE IS" and "SUBJECT TO ALL FAULTS" condition and that the Developer is solely
responsible for causing the Property to be improved and reserved for sale and occupancy by a
Qualified Homebuyer as set forth in the Agreement by and between the Agency and Developer.
The Developer hereby further accepts and agrees to each of the community redevelopment
affordable housing use, improvement and occupancy conditions, covenants and restrictions contained
in the Grant Deed, which touch and concern the Property and are community redevelopment
covenants, which run with the land.
DEVELOPER
TELACU Development, LLC,
a California limited liability company
Dated:
By
Its:
By:
Its:
[NOTARY JURAT ATTACHED]
4833-5963-5968.1 5
P\Agendas\Agenda Auachments\Exhibits\200S\05-11-2] Telacu 49th 51 .Grant Deed Affordable Lots (Exhibit B-Form 2) doc
EXHIBIT "C"
SCHEDULE OF PERFORMANCE
4836-9079-<l656.1 - 11/9/05 jmm
P\Agendas\Agenda AnachmenlS\Agmts-Amend 2005\05-11-2] Telacu 49th Street DDA doc 47
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EXHIBIT "D"
FORM OF AFFORDABILITY COVENANT
4836-9079-0656.] - 11/9105jmm
P IAgendas\Agenda AnachmemslAgrmls-Amcnd 2005\05-11-21 Telacu 49th Street DDA doc 48
GENERAL FORM OF HOMEBUYER ASSISTANCE PROGRAM (HAP)
AFFORDABLE HOUSING COVENANT
(Redevelopment Agency of the City of San Bernardino)
THIS DOCUMENT IS PRESENTED IN GENERAL FORM. The final form of this
Affordable Housing Covenant shall be completed and executed by the "Qualified
Homebuyer" and the Agency at the time of close of the "New Home Escrow," as each of
these items are defined in this Affordable Housinq Covenant.
4810-9032-2176.1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency
of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Attn.: Interim Executive Director
(Space Above Line Reserved For Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT LAW HOUSING
AFFORDABILlTY COVENANTS AND RESTRICTIONS
FOR THE AGENCY HOMEBUYER ASSISTANCE PROGRAM
( )
THESE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT AFFORDABLE HOUSING COVENANTS AND
RESTRICTIONS (the "Affordable Housing Covenant") is made and entered into as of
by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency"), and
(the "Qualified Homebuyer"),
and this Affordable Housing Covenant relates to the following facts set forth in Recitals:
--- RECITALS ---
A. The Qualified Homebuyer proposes to acquire a single-family residence
(the "New Home"), located within the City of San Bernardino (the "City"), from
, to be owned and occupied by the Qualified
Homebuyer as their principal residence. The legal description of the New Home is
attached hereto as Exhibit "A" and incorporated herein by this reference;
B. The Agency has entered into that certain Qualified Homebuyer Mortgage
Loan Assistance Agreement. dated , (the "Agency Loan Agreement")
with the Qualified Homebuyer, pursuant to which the Agency has agreed to provide the
Qualified Homebuyer with certain purchase money mortgage financing for the
acquisition of the New Home; subject to certain conditions. including the terms and
conditions of this Affordable Housing Covenant; and
4810-9032-2176.1
1
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C. The terms of the Agency Loan Agreement mandate that the acquisition,
use and occupancy of the New Home shall be restricted in certain respects for the term
as provided herein (the "Qualified Residence Period") in order to ensure that the New
Home will be used and occupied in accordance with the Agency Loan Agreement and
the affordable single family residential dwelling unit development goals and objectives of
the Agency.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND UNDERTAKINGS SET FORTH HEREIN, AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS
HEREBY ACKNOWLEDGED, THE QUALIFIED HOMEBUYER AND THE AGENCY DO
HEREBY COVENANT AND AGREE FOR THEMSELVES, THEIR SUCCESSORS AND
ASSIGNS AS FOLLOWS:
Section 1. Definitions of Certain Terms. As used in this Affordable Housing
Covenant, the following words and terms shall have the meaning as provided in the
Recitals or in this Section 1 unless the specific context of usage of a particular word or
term may otherwise require:
Adjusted Family Income. The words "Adjusted Family Income" mean "gross
income" as this term is defined in 25 California Code of Regulations Section 6914
for the total annual income of each individual or family residing or treated as
residing in the New Home.
Affordable Housing Cost. The words "Affordable Housing Cost" shall have the
meaning as set forth in Health and Safety Code Section 50052.5 as this section
may hereafter be amended from time-to-time by the State of California. At the
time of the close of the New Home Escrow, or later when a proposed Successor-
In-Interest acquires the New Home, the amount of the maximum Affordable
Housing Cost payable in connection with the acquisition of the New Home at any
time during the Qualified Residence Period shall be calculated as set forth in
Health and Safety Code 50052.5(b)(4).
Affordable Housing Covenant. The words "Affordable Housing Covenant"
mean these Redevelopment Agency of the City of San Bernardino Community
Redevelopment Law Housing Affordability Covenants-and Restrictions by and
between the Qualified Homebuyer, and the Agency pertaining to the New Home.
Code. The word "Code" means the Internal Revenue Code of 1986, as
amended, and any regulation, rulings, or procedures with respect thereto.
Delivery Date. The words "Delivery Date" mean the date of delivery of title and
possession of the New Home to the Qualified Homebuyer at the close of the New
Home Escrow.
4810-9032-2176.1
2
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Low-Moderate Income Household. The words "Low-Moderate Income
Household" mean and refer to persons and families whose income does not
exceed 120 % percent of area median income, adjusted for family size, as set
forth in Health and Safety Code Section 50093, as such section may be
amended from time to time.
New Home. The words "New Home" mean and refer to the affordable single-
family residential dwelling unit (including the land and landscape improvements
thereon) as acquired by the Qualified Homebuyer upon the close of the New
Home Escrow. A legal description of the New Home is attached to this
Affordable Housing Covenant as Exhibit "A."
New Home Escrow. The words "New Home Escrow" mean and refer to the real
estate conveyance transaction or escrow by and between the Qualified
Homebuyer and the seller of the New Home (or later, by and between the
Qualified Homebuyer and the Successor-In-Interest). The transfer of the New
Home to the Qualified Homebuyer (or later, by and between the Qualified
Homebuyer and the Successor-In-Interest) shall be accomplished upon the close
of the New Home Escrow.
Notice of Agency Concurrence. The words "Notice of Agency Concurrence"
mean and refer to the acknowledgment in recordable form in which the Agency
confirms that the proposed Successor-In-Interest of the Qualified Homebuyer
satisfies all of the Adjusted Family Income and other requirements of this
Affordable Housing Covenant for occupancy of the New Home by the Successor-
In-Interest at any time during the Qualified Residence Period.
Qualified Homebuyer. The words "Qualified Homebuyer" mean the purchaser
of the New Home (e.g.: all persons identified as having a property ownership
interest vested in the New Home at the close of the New Home Escrow). At the
close of the New Home Escrow, the Qualified Homebuyer shall: (i) have an
annual Adjusted Family Income which does not exceed the household income
qualification limits of a Low-Moderate Income Household; (ii) shall be a first-time
homebuyer, as this term is defined in Health and Safety Code Section 50068.5
unless this requirement has been waived by the Agency; and (iii) pay no more
than an Affordable Housing Cost for the New Home pursuant to the terms of the
purchase transaction for the New Home, including all sums payable by the
Qualified Homebuyer for its purchase money mortgage financing, insurance,
escrow and other fees and costs.
Qualified Residence Period. The words "Qualified Residence Period" mean the
period of time beginning on the Delivery Date and ending on the date, which is
forty-five (45) years after the Delivery Date.
Successor-In-Interest. The words "Successor-In-Interest" mean and refer to
the person, family, or household who may acquire the New Home from the
Qualified Homebuyer at any time during the Qualified Residence Period by
purchase, assignment, transfer or otherwise. The Successor-in-Interest shall
4810-9032-2176.1 3
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have an income level which does not exceed the maximum income level for a
Low-Moderate Income Family as applicable to the Qualified Homebuyer under
the Agency Loan Agreement and the Successor-In-Interest shall agree to occupy
the New Home as its principal residence. Upon acquisition of the New Home,
the Successor-In-Interest shall be bound by each of the covenants, conditions
and restrictions of this Affordable Housing Covenant.
The titles and headings of the sections of this Affordable Housing Covenant have
been inserted for convenience of reference only and are not to be considered a part
hereof and shall not in any way modify or restrict the meaning any of the terms or
provisions hereof.
Section 2. AcknowledQments and Representations of the Qualified
Homebuver.
The Qualified Homebuyer hereby acknowledges and represents that, as of the
Delivery Date:
(a) the total household income for the Qualified Homebuyer does not exceed
the maximum amount permitted as Adjusted Family Income for a Low-Moderate Income
Household;
(b) the Qualified Homebuyer intends to promptly occupy the New Home after
the Delivery Date as the principal place of residence for the term of the Qualified
Residence Period and the Qualified Homebuyer has not entered into any arrangement
and has no present intention to rent, sell, transfer or assign the New Home to any third
party during the Qualified Residence Period so as to frustrate the purpose of this
Affordable Housing Covenant;
(c) the Qualified Homebuyer has no present intention to lease or rent any
room or sublet or rent a portion of the New Home to any relative of the Qualified
Homebuyer or to any third person at any time during the Qualified Residence Period;
(d) the Qualified Homebuyer agrees to provide the Agency with the following
items of information for inspection by the Agency promptly upon written request of the
Agency:
(i) State and federal income tax returns filed by all persons who reside in the
New Home for the calendar year preceding the close of the New Home
Escrow for inspection of such State and federal income tax returns;
(ii) current wage, income and salary statements for all person residing in the
New Home at the close of the New Home Escrow;
(e) the Qualified Homebuyer acknowledges that this Affordable Housing
4810-9032-2176.1 4
P:\Agendas\Agenda Attac:tlments\Exhlblls\2005\05-11-21 AffOfdable Housing CC&R (Extubil D).dOC
,
Covenant imposes certain restrictions on the use and occupancy of the New Home
during the term of this Affordable Housing Covenant and that this Affordable Housing
Covenant imposes certain restrictions on the resale of the New Home during the
Qualified Residence Period, including without limitation, the "Resale Profit" payment to
the Agency as provided in Section 6 of this Affordable Housing covenant in the event
that the Qualified Homebuyer sells or transfers the New Home to a person or household
which does not qualify as a Successor-in-Interest to the Qualified Homebuyer. The
Qualified Homebuyer acknowledges and understands that the resale restrictions of this
Affordable Housing Covenant shall be applicable to the New Home and to any resale of
the New Home from the Delivery Date to the end of the Qualified Residence Period
which is
Dated:
Initials of Qualified Homebuyer
(f) the sum payable each month by the Qualified Homebuyer following the
close of the New Home Escrow as principal and interest due the First Mortgage Lender
referenced in Section 3, plus property taxes, and property casualty insurance for the
acquisition of the New Home does not exceed the Affordable Housing Cost for the
household.
Section 3. AcknowledQment of Subordination of the Provisions of Section
4. Section 6 and Section 7 of this Affordable HousinQ Covenant to the MortQaQe
Security Interest of the First MortQaQe Lender.
Concurrently, upon the execution and recordation of this Affordable Housing
Covenant the Qualified Homebuyer shall obtain certain purchase money mortgage
financing for the acquisition of the New Home from (the "First
Mortgage Lender") and a subordinate purchase money mortgage financing loan from
the Agency in the amount of Dollars
($ ). The subordinate loan of the Agency to the Qualified Homebuyer is
referred to in the Affordable Housing Covenant as the "Agency Loan". As of the
Delivery Date, Qualified Homebuyer has provided the Agency with a true and correct
copy of the loan agreement by and between the First Mortgage Lender and the
Qualified Homebuyer.
As a condition to providing its mortgage loan to the Qualified Homebuyer. the
First Mortgage Lender requires the Agency to agree that the provisions of Section 4,
Section 6 and Section 7 of this Affordable Housing Covenant shall be junior and
subordinate to the security interest of the First Mortgage Lender in the New Home of
even date herewith.
The Agency hereby acknowledges and agrees that the provisions of Section 4,
Section 6 and Section 7 of this Affordable Housing Covenant are subordinate and junior
to the security interest of the First Mortgage Lender in the New Home of even date
herewith. No breach or default by the Qualified Homebuyer of any provision of Section
4, Section 6 and/or Section 7 of this Affordable Housing Covenant, nor the exercise by
the Agency of any remedy it may have against the Qualified Homebuyer in the event of
4810-9032-2176.1 5
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~
such a breach or default under the Agency Loan or this Affordable Housing Covenant
shall affect or render invalid the lien of the First Mortgage Lender in the New Home.
Thus. the First Mortgage Lender and any good faith purchaser for value from the First
Mortgage Lender, its successors and assigns. including without limitation the United
States Secretary of Housing and Urban Development ("HUD") or the California Housing
Finance Agency ("CaIHFA"), if such mortgage has been assigned to the HUD or to
CaIFHA, as applicable, receiving title to the New Home through a trustee's sale, judicial
foreclosure sale, deed in lieu of foreclosure and any conveyance or transfer thereafter,
shall receive title to the New Home free and clear of the provisions of Section 4, Section
6 and Section 7 of this Affordable Housing Covenant.
Section 4. Covenant of the Qualified Homebuver to Maintain Affordabilitv
of the New Home Durina the Qualified Residence Period and Covenant Relatina to
Sale or Transfer of the New Home Durina the Qualified Residence Period to a
Successor-I n-I nterest.
(a) The Qualified Homebuyer, for itself, its heirs, successors and assigns,
hereby covenants and agrees that during the term of the Qualified Residence Period the
New Home shall be used and occupied by the Qualified Homebuyer as its principal
residence, and that the New Home shall be reserved for sale, use and occupancy by
the Qualified Homebuyer and/or for another Low-Moderate Income Household as a
Successor-In-Interest at an Affordable Housing Cost. The Qualified Homebuyer, for
itself, its heirs, successors and assigns, further covenants and agrees that, during the
Qualified Residence Period, the Agency shall have the right and duty as provided in this
Section 4 to verify that each proposed Successor-In-Interest of the Qualified
Homebuyer in the New Home satisfies the income requirements and Affordable
Housing Cost limitations of a Low-Moderate Income Household (based upon the
Adjusted Family Income of each household) and that the completion of any resale or
transfer of the New Home to a Successor-In-Interest shall be subject to the recordation
of the "Notice of Agency Concurrence" as provided in Section 4(d).
(b) The Qualified Homebuyer, for itself, its successors and assigns, hereby
covenants and agrees that during the term of the Qualified Residence Period the
Qualified Homebuyer shall not sell, transfer or otherwise dispose of the New Home (or
any interest therein) to a Successor-In-Interest without first giving written notice to the
Agency and without first obtaining the written concurrence of the Agency-as provided
herein. At least sixty (60) days prior to the date on which the Qualified Homebuyer
proposes to transfer title in the New Home to a Successor-In-Interest. the Qualified
Homebuyer shall send a written notice to the Agency as provided in Section 17 of the
intention of the Qualified Homebuyer to sell the New Home to a Successor-In-Interest
which includes the following true and correct information:
(i) name of the proposed Successor-In-Interest (including the identity
of all persons in the household of the Successor-In-Interest,
proposing to reside in the New Home) together with a completed
Agency HAP Program application, as applicable, executed by the
proposed Successor-I n-I nterest;
4810-9032-2176.1 6
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(ii) copies of State and federal income tax returns for the Successor-In-
Interest for the calendar year preceding the year in which the notice
of intention to sell the New Home is given to the Agency;
(iii) resale price of the New Home payable by the Successor-In-Interest,
including the terms of all purchase money mortgage financing to be
assumed, provided or obtained by the Successor-In-Interest.
escrow costs and charges, realtor broker fees and all other resale
costs or charges payable by either the Qualified Homebuyer or the
Successor-I n-I nterest;
(iv) name address, and telephone number of the escrow company
which shall coordinate the transfer of the New Home from the
Qualified Homebuyer to the Successor-in-Interest;
(v) appropriate mortgage credit reference for the Successor-In-Interest
with a written authorization signed by the Successor-In-Interest
authorizing the Agency to contact each such reference; and such
other relevant information as the Agency may reasonably request,
as provided in Section 4(c).
(c) Within thirty (30) days following receipt of the notice of intention described
in Section 4(b), the Agency shall provide the Qualified Homebuyer with either a
preliminary confirmation of approval or a preliminary rejection in writing of the income
and household occupancy qualifications of the Successor-in-Interest. The Agency shall
not unreasonably withhold approval of any proposed sale of the New Home to a
Successor-In-Interest who satisfies the Adjusted Family Income and the Affordable
Housing Cost requirements for occupancy of the New Home and for whom the other
information as described in Section 4(b) has been provided to the Agency. In the event
that the Agency may request additional information relating to the confirmation of the
matters described in Section 4(b), the Qualified Homebuyer shall provide such
information to the Agency as promptly as feasible.
(d) Upon its final confirmation of approval of the Adjusted Family Income and
Affordable Housing Cost eligibility of the Successor-In-Interest to acquire the New
Home, the Agency shall deliver a written acknowleagment and approval of the resale of
the New Home to the Successor-In-Interest in recordable form to the escrow holder
referenced in Section 4(b)(iv) above, and thereafter the Successor-In-Interest may
acquire the New Home subject to the satisfaction of the following conditions:
(i) the recordation of the Notice of Agency Concurrence executed by
the Successor-In-Interest and the Agency at the close of the resale
escrow;
(ii) the escrow holder shall have provided the Agency with a copy of the
customary form of the final escrow closing statement of the Qualified
Homebuyer and the final escrow closing statement for the
Successor-In-Interest; and
4810-9032-2176.1 7
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(iii) the other conditions of the resale escrow as established by the
Qualified Homebuyer and Successor-In-Interest shall have been
satisfied.
(e) The Qualified Homebuyer, for itself, its successors and assigns hereby
covenants and agrees that during the Qualified Residence Period the New Home shall
not be leased, subleased, or rented to any third person, except for a temporary period
(not to exceed 12 months) in the event of an emergency or other unforeseen
circumstance as may be expressly approved in writing by the Agency subject to
compliance during the temporary rental period with the reasonable temporary rental
occupancy conditions required by the Agency. The Qualified Homebuyer shall submit a
written request to the Agency prior to the commencement of the temporary occupancy,
as practicable, but in any event within not more than sixty (60) days following the
commencement of a temporary rental occupancy of the New Home by a third party,
which notice shall set forth the grounds on which the Qualified Homebuyer believes an
emergency or other unforeseen circumstance has occurred and that a temporary rental
occupancy is necessary.
Section 5. Maintenance Condition of the New Home. The Qualified
Homebuyer, for itself, its successors and assigns, hereby covenants and agrees that:
(a) The exterior areas of the New Home which are subject to public view (e.g.:
all improvements, paving, walkways, landscaping, and ornamentation) shall be
maintained in good repair and a neat, clean and orderly condition, ordinary wear and
tear excepted. In the event that at any time during the term of the Qualified Residence
Period, there is an occurrence of an adverse condition on any area of the New Home
which is subject to public view in contravention of the general maintenance standard
described above, (a "Maintenance Deficiency") then the Agency shall notify the
Qualified Homebuyer in writing of the Maintenance Deficiency and give the Qualified
Homebuyer thirty (30) days from the date of such notice to cure the Maintenance
Deficiency as identified in the notice. The words "Maintenance Deficiency" include,
without limitation, the following inadequate or non-confirming property maintenance
conditions and/or breaches of single family dwelling residential property use restrictions:
failureJo properly maintain the windows, structural elements, and painted
exterior surface areas of the dwelling unit in a clean and presentable
manner;
failure to keep the front and side yard areas of the property free of
accumulated debris, appliances, inoperable motor vehicles or motor
vehicle parts, or free of storage of lumber, building materials or equipment
not regularly in use on the property;
failure to regularly mow lawn areas or permit grasses planted in lawn
areas to exceed nine inches (9") in height, or failure to otherwise maintain
the landscaping in a reasonable condition free of weeds and debris;
4810-9032-2176.1
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parking of any commercial motor vehicle in excess of 7,000 pounds gross
weight anywhere on the property, or the parking of motor vehicles, boats,
camper shells, trailers, recreational vehicles and the like in any side yard
or on any other parts of the property which are not covered by a paved
and impermeable surface;
the use of the garage area of the dwelling unit for purposes other than the
parking of motor vehicles and the storage of personal possessions and
mechanical equipment of persons residing in the New Home.
In the event the Qualified Homebuyer fails to cure or commence to cure the
Maintenance Deficiency within the time allowed, the Agency may thereafter conduct a
public hearing following transmittal of written notice thereof to the Qualified Homebuyer
ten (10) days prior to the scheduled date of such public hearing in order to verify
whether a Maintenance Deficiency exists and whether the Qualified Homebuyer has
failed to comply with the provision of this Section 5(a). If, upon the conclusion of a
public hearing, the Agency makes a finding that a Maintenance Deficiency exists and
that there appears to be non-compliance with the general maintenance standard, as
described above, thereafter, the Agency shall have the right to enter the New Home
(exterior areas only) and perform all acts necessary to cure the Maintenance Deficiency,
or to take other action at law or equity the Agency may then have to accomplish the
abatement of the Maintenance Deficiency. Any sum expended by the Agency for the
abatement of a Maintenance Deficiency as authorized by this Section 5(a) shall become
a lien on the New Home. If the amount of the lien is not paid within thirty (30) days after
written demand for payment by the AgenCy to the Qualified Homebuyer, the Agency
shall have the right to enforce the lien in the manner as provided in Section 5(c).
(b) Graffiti which is visible from any public right-of-way which is adjacent or
contiguous to the New Home shall be removed by the Qualified Homebuyer from any
exterior surface of a structure or improvement on the New Home by either painting over
the evidence of such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed with solvents,
detergents or water as appropriate. In the event that graffiti is placed on the New Home
(exterior areas only) and such graffiti is visible from an adjacent or contiguous public
right-of-way and thereafter such graffiti is not removed within 72 hours following the time
of its application; then, in such event and without notice to the Qualified Homebuyer, the
Agency shall have the right to enter the New Home and remove the graffiti.
Notwithstanding any provision of Section 5(a) to the contrary, any sum expended by the
Agency for the removal of graffiti from the New Home as authorized by this Section 5(b)
shall become a lien on the New Home. If the amount of the lien is not paid within thirty
(30) days after written demand for payment by the Agency to the Qualified Homebuyer,
the Agency shall have the right to enforce its lien in the manner as provided in Section
5(c).
(c) The parties hereto further mutually understand and agree that the rights
conferred upon the Agency under this Section 5 expressly include the power to
establish and enforce a lien or other encumbrance against the New Home in the
manner provided under Civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the New Home to the maintenance standard required
4810-9032-2176.1 9
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under Section 5(a) or Section 5(b), including attorneys fees and costs of the Agency
associated with the abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such action. In any legal
proceeding for enforcing such a lien against the New Home, the prevailing path shall be
entitled to recover its attorneys' fees and costs of suit. The provisions of this Section 5,
shall be a covenant running with the land for the Qualified Residence Period and shall
be enforceable by the Agency in its discretion, cumulative with any other rights or
powers granted by the Agency under applicable law. Nothing in the foregoing
provisions of this Section 5 shall be deemed to preclude the Qualified Homebuyer from
making any alterations, additions, or other changes to any structure or improvement or
landscaping on the New Home, provided that such changes comply with the zoning and
development regulations of the City and other applicable law.
Section 6. Protection of AQency Investment of Moneys Derived From the
Low-and Moderate-Income Housina Fund in the New Home - AQency Investment
Reimbursement.
(a) For the purpose of this Section 6, the following terms shall have the
meaning as provided below:
"Agency Investment Reimbursement" mean and refer to a portion of the Resale
Profit, if any, which shall be payable to the Agency upon the sale or transfer of the New
Home during the Qualified Residence Period to a person or household which does not
qualify as a Successor-In-Interest to the Qualified Homebuyer. The formula for
calculation the amount of the Agency Investment Reimbursement-which may hereafter
be payable to the Agency during the Qualified Residence Period is set forth in this
Section 6. In the event that the application of the formula for determining the Agency
Investment Reimbursement in any particular year during the term of the Qualified
Residence Period may produce a sum which is Zero Dollars ($0) or less than Zero
Dollars ($0), then, in such event no Agency Investment Reimbursement amount shall be
payable by the Qualified Homebuyer to the Agency.
"Costs of Eligible Capital Improvements" mean and refer to any substantial and
permanent structural improvements to the New Home which are made to the New
Home completed and paid for by the Qualified Homebuyer after the Delivery Date which
satisfy all of the following conditions: (i) the improvements are made or installed ancr-
conform with all applicable provisions of the San Bernardino Municipal Code and for
which the City has issued building permits; (ii) the particular improvement is recognized
under the Code as a capital improvement; (iii) if the total amount of Eligible Capital
Improvements made by the Qualified Homebuyer exceeds the sum of Five Thousand
Dollars ($5,000) in any calendar year, the Qualified Homebuyer has given the Agency
prior written notice of its intention to make such capital improvements to the New Home;
(iv) the particular capital improvement shall exceed the sum of Two Thousand Dollars
($2,000) in value, as installed in the New Home; and (v) the Qualified Homebuyer has
provided suitably detailed written evidence to the Agency of the actual cost of the
particular capital improvement to the New Home.
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"Purchase Money Mortgage" means the original balance on the Delivery Date of the
New Home mortgage provided to the Qualified Homebuyer by the conventional
mortgage lender (e.g., the First Mortgage Lender identified in Section 3, above), plus
the original outstanding balance of the Agency Loan also identified in Section 3, above.
"Qualified Homebuyer Equity" means the down payment amount in cash paid by the
Qualified Homebuyer for the New Home on the Delivery Date (e.g.: the equity or "basis"
as defined under the Code, net of the Purchase Money Mortgage of the Qualified
Homebuyer in the New Home), plus the reduction, if any, of the outstanding principal
balance of the Purchase Money Mortgage secured by the New Home through the date
of the resale of the New Home.
"Resale Price" means the total consideration paid by the Successor-In-Interest,
including real estate broker fees and commissions for the purchase of the New Home,
but excluding escrow fees and mortgage financing costs payable or otherwise allocated
to the Successor-in-Interest in connection with the transfer of the New Home from the
Qualified Homebuyer to the Successor-In-Interest.
"Resale Profit" means the balance of the following calculation:
(Resale Price)-(Purchase Money Mortgage)-(Qualified Homebuyer
Resale Cost Adjustment Factor + Costs of Eligible
Improvements)=Resale Profit.
Equity +
Capital
A portion of the Resale Profit shall be payable to the Agency by the Qualified
Homebuyer in accordance with Section 5(b).
"Resale Cost Adjustment Factor" means one of the following sums determined by
reference to the number of years, which have elapsed between the Delivery Date and
the date on which the resale and transfer of the New Home to the Successor-In-Interest
occurs:
Date of Resale of New Home after the Resale Cost Adjustment Factor:
Delivery Date:
From the Delivery Date to the 5th $2,000
anniversary after Delivery Date
From and including the 5th anniversary $5,000
to the 10th anniversary after Delivery
Date
From and including the 10th anniversary $10,000
to the end of the Qualified Residence
Period
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(b) The Agency has used and applied certain moneys from the Low-and
Moderate-Income Housing Funds of the Agency to assist with the development of the
New Home. In the event that the New Home may be sold, assigned, conveyed or
otherwise transferred by the Qualified Homebuyer during the term of the Qualified
Residence Period to a person or household whose Adjusted Family Income at the time
of close of the New Home Escrow for such a person or family, exceeds the income level
for a Low or Moderate Income Household, a portion of the Resale Price of the New
Home in excess of the sum of the Qualified Homebuyer Equity, plus the applicable
Resale Cost Adjustment Factor, the Cost of Eligible Capital Improvements, after the
applicable amount of the Purchase Money Mortgage has been paid to the First
Mortgage Lender and the Agency (e.g.: the "Resale Profit" amount) shall be payable to
the Agency as the Agency Investment Reimbursement in accordance with Health and
Safety Code Section 33334.3(f), and as provided in this Section 6. No amount of
Resale Profit shall be payable to the Agency if the New Home is sold, assigned,
conveyed or otherwise transferred by the Qualified Homebuyer to a Successor-In-
Interest (a person or household whose Adjusted Family Income does not exceed the
income level for a Low or Moderate Income Household).
(c) In the event that, at any time during the Qualified Residence Period, the
Qualified Homebuyer (or any Successor-I n-I nterest) may sell, assign, conveyor
otherwise transfer the New Home to a person or household whose Adjusted Family
Income exceeds the income level for a Low or Moderate Income Household, a portion
of the Resale Profit realized by the Qualified Homebuyer shall be payable to the Agency
as the "Agency Investment Reimbursement" in the amounts as follows:
Date of Resale of New Home After
Delivery Date
From the Delivery Date to the 2nd
anniversary after the Delivery Date
From the 2nd anniversary to the 10th
anniversary after the Delivery Date
From the 1bth anniversary to end the
20th anniversary after the Delivery Date
From the 20th anniversary to the 30th
anniversary after the Delivery Date
From the 30th anniversary after the
Delivery Date to the end of the Qualified
Residence Period
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Portion of Resale Profit Payable to
Agency from Resale of New Home
90% of Resale Profit is
Agency as Agency
Reimbursement
payable to
Investment
75% of Resale Profit is payable to
Agency as Agency Investment
Reimbursement
50% of Resale Profit is payable to
Agency as Agency Investment
Reimbursement
25% of the Resale Profit is payable to
the Agency as Agency Investment
Reimbursement
10% of the Resale Profit is payable to
the Agency as Agency Investment
Reimbursement
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12
(d) Two (2) examples of the application of the formula described above as
"Resale Profit" to determine the amount of the Agency Investment Reimbursement
payable on the date of a hypothetical resale of the New Home are presented as follows:
EXAMPLE A: Resale to a purchaser whose Adjusted Family Income exceeds the
income level of a Low or Moderate Income Household or to a purchaser who will not live
in the New Home as a principal residence:
Assume that on the Delivery Date the purchase price of the New Home paid b~
the Qualified Homebuyer was $290,000 and that the resale occurs on the 7
anniversary following the Delivery Date;
Assume the Resale Price of the New Home is $400,000;
Assume that Qualified Homebuyer Equity as of the date of the resale is $23,500;
and
Assume that the Costs of Eligible Capital Improvements as of the date of the
resale is $6,000:
EXAMPLE A CALCULATION OF RESALE PROFIT: $400,0001 - $302,8502 - ($23,5003
+ $5,0004 + $6,0005) = $62,6506:Resale Profit (SEE ALSO FOOTNOTES, BELOW).
The Agency Investment Reimbursement amount under Example A payable at
close of the resale escrow in this hypothetical example is $46,988 (e.g., 75% of
$62,650)
1 The Resale Price of the New Home to the Successor-In-Interest in Example A.
2 The Purchase Money Mortgage amount ($200,000 conventional mortgage) plus $85,000
Agency HAP Program, plus $17,850 of deferred interest payable to the Agency under the Agency Loan
for seven (7) years following the Delivery Date.
3 The Qualified Homebuyer Equity in the New Home ($5,000 cash down payment plus a $10,000
reduction of outstanding principal balance on the First Mortgage Lender loan).
4 The Resale Cost Adjustment Factor in the ih year following the Delivery Date.
S The aggregate amount of Costs of Eligible Capital Improvements is $6,000 in this example.
6 The Resale Profit of $62,650 is subject to a 75% allocation to pay the Agency Investment
Reimbursement, or $46,988 payable to the Agency (as provided in Section 6(b)). The seller of this New
Home could retain only $15,662 of the "Resale Profit" in this example since the purchaser is not a Low or
Moderate Income person or household. However, the portion of the "Resale Profit," if any, allocated to
the seller in this example would be in addition to the seller's recapture of its equity in the New Home, plus
the Costs of Eligible Capital Improvements which in this particular example is a total sum of $34,500
payable to the seller. Thus in this example, the seller's total cash realized at time of this hypothetical sale
would be $50,162. (See also Footnote NO.3 and Footnote No.4, above)
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EXAMPLE B: Resale to a purchaser who the Agency has approved as a Successor-In-
Interest (e.g., a purchaser whose Adjusted Family Income DOES NOT exceed the
income level of a Low or Moderate Income Household and who will reside in the New
Home as their principal residence):
Assume same facts as in Example A and that the Successor-In-Interest also
pays no more than an Affordable Housing Cost for the New Home at a resale
price of $322,000 on the th anniversary date following the Delivery Date;
EXHIBIT B CALCULATION OF RESALE PROFIT:
No Agency Reimbursement is payable to Agency as the Successor-In-Interest is a Low
or Moderate Income Household in this hypothetical sale and pays to the Qualified
Homebuyer no more than Affordable Housing Cost for its purchase of the New Home.
In this example, the seller of the New Home could retain the full amount of the Resale
Profit. Also note that in this example, the Successor-In-Interest's "Qualified Homebuyer
Equity" will be an adjusted amount which reflects the Successor-In-Interest's new
mortgage and equity basis in the New Home based upon its $322,000 purchase price
for purposes of determining whether an Agency Reimbursement amount may be
payable by such Successor-In-Interest in any future resale transaction during the
remaining thirty eight (38) years of the term of the Qualified Residence Period.
(e) The sole source of funds of the Qualified Homebuyer to pay the Agency
the Agency Reimbursement Agreement, shall be from the Resale Profit amount, if any,
realized at the time of resale to a purchaser whose Adjusted Family Income exceeds
the income level of a Moderate Income Household. In the event that the applicable
amount of the Agency Loan is paid in full to the Agency at the time of resale of the New
Home to a person or household which does not qualify as a Successor-In-Interest, the
Agency shall cause to be recorded concurrently with the resale of the New Home to
such person, a notice of release of the following provisions of this Affordable Housing
Covenant:
Section 2,
Section 3,
Section 5
Section 7
Section 7. Foreclosure of Purchase Money Mortqaqe Loan of the First
Mortqaqe Lender and Aqency Riqht of First Refusal.
(a) During the Qualified Residence Period, the Agency shall have the right
(but not the obligation) to bid on the purchase the New Home at the time of any trustee
foreclosure sale or any judicial foreclosure sale.
(b) During the Qualified Residence Period, the Agency shall have the right of
first refusal to purchase the New Home from the Qualified Homebuyer on the same
terms, which the Qualified Homebuyer may propose to offer the New Home for resale to
a Successor-in-Interest. The Agency must exercise such a right of first refusal within
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thirty (30) days following written notification of the intention of the Qualified Homebuyer
to resell the New Home, and if the Agency accepts the offer in writing within such time
period, the Agency shall be bound to complete the purchase of the New Home strictly in
accordance with the offer. Thereafter, the Agency shall pay the "resale price" to the
Qualified Homebuyer and close an escrow for the transfer of the New Home to the
Agency within sixty (60) days following written notification of the intention of the
Qualified Homebuyer to resell the New House.
(c) In the event that the Agency may purchase the New Home under Section
7(b), the Agency shall cause the New Home to be reserved for sale and occupancy by a
Successor-In-Interest (e.g., an income qualified purchaser of the New Home who is a
person or household of Low- or Moderate-Income).
Section 8. Covenants to Run With the Land. The Qualified Homebuyer and
the Agency hereby declare their specific intent that the covenants, reservations and
restrictions set forth herein are part of a plan for the promotion and preservation of
affordable single family housing dwelling units within the territorial jurisdiction of the
Agency and that each shall be deemed covenants running with the land and shall pass
to and be binding upon the New Home and each Successor-In-Interest of the Qualified
Homebuyer in the New Home for the term provided in Section 10. The Qualified Home-
buyer hereby expressly assumes the duty and obligation to perform each of the
covenants and to honor each of the reservations and restrictions set forth in this
Affordable Housing Covenant. Each and every contract, deed or other instrument
hereafter executed covering or conveying the New Home or any interest therein shall
conclusively be held to have been executed, delivered and accepted subject to such
covenants, reservations, and restrictions, regardless of whether such covenants,
reservations and restrictions are set forth in such contract, deed or other instrument.
Section 9. Burden and Benefit. The Agency and the Qualified Homebuyer
hereby declare their understanding and intent that the burden of the covenants set forth
herein touch and concern the land in that the Qualified Homebuyer's legal interest in the
New Home is affected by the affordable single family dwelling use and occupancy
covenants hereunder. The Agency and the Qualified Homebuyer hereby further declare
their understanding and intent that the benefit of such covenants touch and concern the
land by enhancing and increasing the enjoyment and use of the New Home by the
intended beneficiaries of such covenants, reservations ana restrictions~ and by
furthering the affordable single family housing development goals and objectives of the
Agency and in order to make the New Home available for acquisition and occupancy by
the Qualified Homebuyer.
Section 10. Term.
(a) The provisions of Section 4 and Section 7 of this Affordable Housing
Covenant shall apply to the New Home and the Qualified Homebuyer and to each
Successor-in-Interest for forty-five (45) years after the Delivery Date.
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(b) Except as set forth in Section 10(a), all of the other provisions of this
Affordable Housing Covenant shall apply to the New Home for a term of forty-five (45)
years after the Delivery Date.
(c) Any provision or section of this Affordable Housing Covenant may be
terminated after the Delivery Date upon the written agreement by the Agency and the
Qualified Homebuyer (or the Successor-In-Interest in the New Home), if an opinion of
speciallegai counsei have been provided to the Agency that such a termination under
the termS and conditions approved by the Agency in its reasonable discretion will not
adversely affect the affordable single family housing and development goals and
obligations of the Agency.
Section 11. Breach and Default and Enforcement.
(a) Failure or delay by the Qualified Homebuyer to honor or perform any
materiai term or provision of this Affordabie Housing Covenant shall constitute a breach
hereunder; provided, however, that if the Qualified Homebuyer commences to cure,
correct or remedy the alleged breach within thirty (30) caiendar days after the date of
written notice specifying such breach and shall diligently complete such cure, correction
or remedy, the Qualified Homebuyer shall not be deemed to be in default hereunder.
The Agency shall give the Qualified Homebuyer written notice of breach
specifying the alleged breach which if uncured by the Qualified Homebuyer within thirty
(30) calendar days, shall be deemed to be an event of defauit. Delay in giving such
notice shall not constitute a waiver of any breach or event of default nor shall it change
the time of breach or event of default; provided, however, the Agen'cy shall not exercise
any remedy for an event of defauit hereunder without first delivering the written notice of
breach as specified in this Section 11.
Except with respect to rights and remedies expressly declared to be exclusive in
this Affordable Housing Covenant. the rights and remedies of the Agency are
cumulative with any other right or power of the Agency .or the City or other applicable
law, and the exercise of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other right or remedy for
the same breach or ev~J of default.
In the event that a breach of the Qualified Homebuyer may remain incurred for
more than thirty (30) calendar days following written notice, as provided above, an event
of default shall be deemed to have occurred. in addition to the remedial provisions of
Section 5 as related to a Maintenance Deficiency at the New Home, upon the
occurrence of any event of default the Agency shall be entitled to seek any appropriate
remedy or damages by initiating legal proceedings as follows:
4810-9032-2176.1
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(i) by mandamus or other suit. aelion or proceeding at law or in equity,
to require the Qualified Homebuyer to perform its obligations and
covenants hereunder. or enjoin any acts or things which may be
unlawful or in violation of the rights of the Agency; or
(ii) by other aelion at iaw or in equity as necessary or convenient to
enforce the obligations. covenants and agreements of the Qualified
Homebuyer to the Agency.
(b) Except as set forth in the next sentence. no third party shali have any right
or power to enforce any provision of this Affordable Housing Covenant on behalf of the
Agency or to compei the Agency to enforce any provision of this Affordable Housing
Covenant against the Qualified Homebuyer or the New Home. The Agency may assign
the right and power to enforce the provision of this Affordable Housing Covenant
against the Qualified Homebuyer or the New Home as the successor administration
agency of the Agency HAP Program to the City of San Bernardino.
Section 12. Governin" Law. This Affordable Housing Covenant shali be
governed by the laws of the State of California.
Section 13. Amendment. This Affordabie Housing Covenant may be amended
after the Delivery Date oniy by a writien instrument executed by the Qualified
Homebuyer (or the successor-in-Interest. as applicabie) and by the Agency.
Section 14. Attorney's Fees. in the event that the Agency brings an action to
enforce any condrtion or covenant. representation or warranty in this Affordabie Housing
Covenant or otherwise arising out of this Affordable Housing Covenant. the prevailing
party in such aelion shali be entilled to reCOver from the other party reasonabie
allomeys' fees to be fixed by the court in which a judgment is entered. as weli as the
costs of such suit. For the purposes of this Section 14. the words "reasonable
attorneys' fees" in the case of the Agency include the salaries. costs and overhead of
lawyers employed in the Office of the City Attorney of the City of San 8emardino.
Section 15. Severability. If any provision of this Affordable Housing Covenant
~hali be declared invalid. inoperative or unenforceabie by a final judgment or decree of
a court of competent jurisdielion, such invalidity or unenforceability of such provision
shali not affeel the remaining parts of this Affordabie Housing Covenant. which are
hereby declared by the parties to be severable from any other part which is found by a
court to be invalid or unenforceable.
Section 16. Time is of the Essence. For each provision of this Affordable
Housing Covenant which states a specific amount of time wrthin which the requirements
thereof are to be satisfied. time shall be deemed to be of the essence.
17
4810-9032-2176.1
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Section 17. Notice. Any notice required to be given under this Affordable
Housing Covenant shall be given by the AgenCY or by the Qualified Homebuyer. as
applicable, by personal delivery or by First Class Unrted States mail at the addresses
specified below or at such other address as may be specified in writing by the parties
hereto:
If to the Agency:
Redevelopment Agency
of the City of San Bernardino
201 North "E" Street, suite 301
San Bernardino, CA 92401
Attn.: Interim Executive Director
Phone: (909) 663-1044
If to the
Qualified Homebuyer:
San Bernardino, California
Attn:
Phone: L-)
Notice shall be'deemed given five (5) caiendar days after the date of mailing to the
party, or, it personallY delivered. when received by the interim Executive Director of the
Agency or tt1e Qualified Homebuyer, as applicable.
18
4810-9032-2176.1
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.
IN WITNESS WHEREOF. the Qualified Homebuyer and the Agency have
caused this Affordable Housing Covenant to be signed. acknowledged and attested on
their beha~ by duly authorized representatives in counterpart original copies which shall
upon execution by all of the parties be deemed to be one original document. The
recordation of this Affordabie Housing Covenant is authorized under Health and Safety
Code Section 33334.3(g).
QUALIFIED HOMEBUYER
By:
Date:
Printed By:
By:
Printed By:
AGENCY
Redevelopment Agency
of the City of San Bernardino
By:
Interim Executive Director
Dated:
(ALL SIGNATURES MUST BE NOTARIZEDl
Approved as to Form:
By:
Agency Special Counsel
4810-9032-2176.1
19
P:lAgeodaSlAgenda AltacturenlslExhib,ls\2005\o5.,1.21 Affordable Hou""ll CC&R (Exhib<1 D).dOC
.
EXHIBIT "An
Legal Description of the New Home
20
4810-9032-2176.1
p:lAgendaslAgenda Altatl1menlS\Exh'bIIS\2005105-1 ,-21 Affordable Hoo~ng CC&R (Exhibol D).dOC
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
/
I l., )(,c)
Item #
K :A ~ (It ) Resolution #
Abstain
~{)06-- 30c2
Absent
Meeting Date (Date Adopted):
Vote: Ayes 1-- '7
Nays
Change to motion to amend original documents 0
Companion Resolutions
Null/Void After: days /
Resolution # On Attachments: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
Note on Resolution of attachment stored separately: 0
By:
Date Sent to Mayor: / I - :J <) - C'; <(' /
/
Date of Mayor's Signature: \ \. )f~ ,C~
\, /
Date of Clerk/CDC Signature: \ \t "yi)" c';
.
Date Memo/Letter Sent for Signature:
I st Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
Animal Control
City Administrator
City Attorney
Code Compliance
Development Services
Others:
o
~
o
o
/1 J
Clc~ :U_":-j..~L.-
~
o
o
o
o
Reso. Log Updated: t
Seal Impressed: 6 /
Reso. # on Staff Report ~
Not Returned: 0
EDA
Facilities
Finance
Fire Department
Human Resources
Yes
Yes
//
By_
By_
By_
By_
By_
NO/,
No
NoJ
No---='
No
Yes
Yes
Yes
Information Services
o
o
o
o
o
Parks & Recreation
Police Department
Public Services
Water Department
Notes:
Ready to File:
Revised 12/18/03
//
Date: ~ \, c ')
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Mooting D,'e (D,'e Adop',d), l"')l ~"m # i!.)-1 Cif) R"olutinn #
Vote: Ayes / -7 Nays Abstain
Change to motion to amend original documents 0 Companion Reso]utions
Null/Void After: days /
Reso]ution # On Attachments: 0
C f) C/j006- '-1/
I
Absent
PUBLISH 0
RECORD W/COUNTY 0
By:
Note on Reso]ution of attachment stored separately: 0
POST 0
Date Sent to Mayor:
//-;):;)
Date of Mayor's Signature:
Date of C]erklCDC Signature:
c' ~ Reso. Log Updated: 0
Sea] Impressed: 0
Reso. # on Staff Report 0
Date Memo/Letter Sent for Signature:
151 Reminder Letter Sent:
Date Returned: Not Returned: 0
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Updated Prior Reso]utions (Other Than Be]ow):
Updated CITY Personnel Fo]ders (6413, 6429, 6433, ]0584, 10585, 12634):
Updated CDC Personnel Fo]ders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes No By_
Yes No By__
Yes No By_
Yes No By_
Yes No By_
Copies Distributed to:
Anima] Control 0 EDA 0 Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation 0
City Attorney 0 Finance 0 Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Deve]opment Services 0 Human Resources 0 Water Department 0
Others:
Notes:
Ready to File: _
Date:
Revised 12/18/03