HomeMy WebLinkAboutR01-RDA Item
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
1m: Kenneth J. Hendersont Director
Su bject:
ORANGEWOOD ESTATES - PHASE II
Dept: Comrrunity Development
Date:
Synopsis of Previous Council action:
On April 9, 1990, the Comrr.unity Development Commission approved financial
assistance to Duke-Dukes and Associates for the build-out of the Orangewood
Estates Subdivision. The Agency Counsel was directed to prepare the appro-
priate agreement.
Recommended motion:
(COMMUNITY DEVELOPMENT COMMISSION)
ADOPT RESOLUTION OF THE COMMUNITY DEVELOPMENT CCMMISSION OF THE CITY OF
SAN BERNARDINO AUTHORIZING TnE EXECUTION OF A JOINT DEVELOPMENT AGREEMENT
BETWEEN DUKES-DUKES AND ASSOCIATES AND THE COMMUNITY DEVELOPMENT CCMMISSION,
FOR THE CONSTRUCTION OF 114 SINGLE FAMILY HOMES, COMMONLY REFERRED TO AS
ORANGEWOOD ESTATES.
-~<Ol
Contact person: KEN HENDERSON/ROBERT TEMPLE
Phone: 5065/5081
Supporting data attached: STAFF REPORT
Ward:
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FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.)
(Acct. Description) Low to Modp.T~tP. Tnr..omf'lo HmHdng 'Fnnn
Finance:
,ncil Notes:
Rs- -~
C I T Y 0 F 3 A N B ERN d R DIN 0
COMMUNITY DEVELOPMENT DEPARTMENT
INTEROFFICE MEMORANDUM
9004-1302
TO: Redevelopment Committee
FROM: Kenneth J. Henderson
Director of Community Development
SUBJECT: Orangewood Estates - Phase II
DATE: April 4, 1990
COPIES: Mayor Holcomb; City Administrator; Director of
Finance; Executive Director, RDA; Community
Development Specialist; City Treasurer
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On October 2, 1989, the Mayor and Common Council selected
Dukes - Dukes and Associates to build out the remaining
seventy-six (76) lots of Orangewood Estates. Dukes - Dukes
was to finance the project in its entirety at no further cost
to the City or the Redevelopment Agency.
Because Dukes - Dukes was not able to readily identify
construction financing, the Community Development Commission,
at a subsequent meeting, appropriated $1.6 million to payoff
the assessment district bonds, reimburse the City General
Fund for advances made to keep the bondholders whole and
protect the City's credit rating and to reimburse the Commu-
nity Development Department for its acquisition and weed
abatement costs. The effect of this action was to stop the
interest clock from running on the assesment bonds and limit,
to the extent possible, future costs to the project.
After months of contacts with various lenders, Dukes - Dukes
was able to elicit support from Life Savings and Loan if the
Agency contributed an additional $800,000 of construction
financing. This amount would be added to the $750,000 Life
was prepared to lend to the project. Life would also admi-
nister the combined construction loan for a 1% - 1.5% fee.
After discussions among staff, the Mayor and representatives
from Dukes - Dukes, it was decided to try a better, more
cost-efficient approach.
Staff and Gene Wood from Wood-Husing Associates met to
discuss various alternatives, and at a subsequent meeting
with John Dukes, developed the attached deal points which are
summarized as follows:
1. Agency to sell land to Dukes - Dukes for $1.9 million
($25,000 per lot), with $300,000 profit to be split
between Agency and Community Development Department.
INTEROFFICE MEMORANDUM: 9004-1302
Orangewood Estates - Phase II
April 4, 1990
Page 2
2. The project is to be constructed in three (3) phases (27,
38, and 49 units) with Phase I to be built in two groups,
thirteen (13) and fourteen (14) units, respectively. The
timing of Phases II and III will be based upon experi-
ences derived from Phase I.
3. Agency to make construction loan of $1,156,115 for first
13 homes at 1.5 points over prime (floating), with Dukes
-Dukes to pay 1.5 points for loan fee and disbursement
administration. The cost of the three models, $275,000,
will be amortized over the entire 114 unit project, or
$2,412 per home.
4. At close of escrow for each home in Phase lA, Dukes -
Dukes will pay $88,112 to Agency.
5. Agency to make second construction loan for the remaining
14 homes in Phase lB. Dukes - Dukes to pay 1.5 points
over prime (floating), with 1.5 points for loan fee and
disbursement administration to be paid up front.
6. At close of escrow, Dukes Dukes will pay to Agency
$86,925, per home or $1,216,950.
7. Phases II and III will be structured similar to Phase I,
taking into account experiences of Phase I.
8.
Under
(10%)
Phases
loan disbursements, there will be a ten percent
retention in lieu of a completion bond throughout
I, II and III.
The deal as described above secures RDA's interest with a
mortagage against each lot, limits the Agency's and Dukes -
Dukes' financial exposure, provides the developer a normal
rate of return and adheres to commercial norms for risk, rate
of return and security.
I recommend the Committee recommend approval to the Community
Development Commission of the deal points as described herein
and in the attached proposal. If approved by the Committee
and Commission, staff recommends Agency Counsel be directed
to prepare the appropriate agreement.
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KENNETH J.
Director
Development
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1 RESOLUTION NO. 90-142
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A JOINT DEVELOPMENT AGREEMENT BY AND BETWEEN THE
3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CITY OF
SAN BERNARDINO, CALIFORNIA AND DUKES - DUKES AND ASSOCIATES,
4 INC., A CALIFORNIA CORPORATION REGARDING ORANGEWOOD ESTATES.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor is hereby authorized and directed to
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execute on behalf of said City a Joint Development Agreement by
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and between the Redevelopment Agency of the City of San
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Bernardino, the City of San Bernardino, California and Dukes-
Dukes and Associates, Inc., a California Corporation regarding
Orangewood Estates, a copy of said agreement is attached hereto,
marked Exhibit "A", and incorporated herein by reference as fully
as though set forth at length.
SECTION 2.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the
agreement fail to execute it within sixty (60) days of the
passage of this resolution.
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DAB/ses/Dukes-l.res 1
April 13, 1990
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A JOINT DEVELOPMENT AGREEMENT BY AND BETWEEN THE
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CITY OF
SAN BERNARDINO, CALIFORNIA AND DUKES - DUKES AND ASSOCIATES,
3 INC., A CALIFORNIA CORPORATION REGARDING ORANGEWOOD ESTATES.
4
5 I HEREBY CERTIFY that the foregoing resolution was duly
6 adopted by the Mayor and Common Council of the City of San
7 Bernardino at an adiourned regulaIllleeting thereof, held on the 19th
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, 1990, by the following vote, to wit:
day of
April
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Council Members:
NAYS
AYES
ABSTAIN
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ESTRADA
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REILLY
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FLORES
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MAUDSLEY
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MINOR
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POPE-LUDLAM
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MILLER
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"~,4.("/??:'.t~#,
Ci"ty Clerk
The foregoing resolution is hereby approyed this ~~~AC day
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of
1990. /_
- /."'t/..'t~/l / ../ .
., I'" }
A/" /
<. ,; R~ ;frI~~~:rr;- ~~yor
City 0f San Bernardino
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April
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24 Approved as to
form and legal content:
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JAMES F. PENMAN,
City Attorney
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DAB/ses/Dukes-1.res
April 13, 1990
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2 Recording Requested By:
3 REDEVELOPMENT AGENCY
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4 When Recorded Mail to:
5 REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
6 300 North "D" Street, Fourth Floor
San Bernardino, California 92418-0001
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JOINT DEVELOPMENT AGREEMENT
By and Between
THE REDEVELOPMENT AGENCY OF THE CITY
of SAN BERNARDINO, the CITY OF SAN BERNARDINO,
CALIFORNIA,
and
DUKES - DUKES AND ASSOCIATES, INC.
A California Corporation
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JOINT DEVELOPMENT AGREEMENT
THIS AGREEMENT, made this day of , 1990,
by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, (the "Agency"), THE CITY OF SAN BERNARDINO, a charter
City duly organized and existing pursuant to the Constitution of
the state of California (hereinafter referred to as "City"), and
DUKES - DUKES AND ASSOCIATES, INC., a California Corporation
(hereinafter referred to as "Dukes").
SECTION 1. Recitals.
1.1 The Agency, through the City's Community Development
Department (hereinafter "CDD"), administers various housing
programs, including programs, projects and activities funded by
the Agency's Low to Moderate Income Housing Fund (hereinafter the
"Fund" ) . Using money obtained from the Fund, the CDD provides
attractive financing, with varying terms and conditions, to
persons seeking to develop or rehabilitate housing within the
City.
1.2 DUKES is the owner of certain real property located
entirely within the City, the legal description of which is
attached to this Agreement as Exhibit "A" (the "Dukes property").
1. 3 City is the owner of certain real property located
entirely within the City, the legal description of which is
attached to this Agreement as Exhibit "B" (The "City property")
which consists of approximately twenty-one (21) acres.
1.4 In 1981, the City of San Bernardino issued a three
million dollar (53,000,000.00) public improvement bond for the
DAB/ses/Dukes.agr 2
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2 purpose of providing funds for infrastructure and site
3 improvements for Assessment District Number 5861.
4 1.5 A developer acquired certain property including the
5 City property and proceeded to build one hundred, twenty-three
6 (123) homes in a subdivision called "Orangewood Estates." These
7 homes were sold during the period from 1983 through 1986. The
8 development was not completed and on January 24, 1989, the City
9 took title to the City property through a Chapter 8 tax sale.
10 SECTION 2. Actions, Covenants, and Performance by Dukes
11 2.1 City hereby agrees to convey the City property to
12 Dukes for the purchase price of One Million Nine Hundred Thousand
13 Dollars ($1,900,000.00) payable in Twenty Five Thousand Dollar
14 increments upon the sale of each of the completed homes on the
15 City property on phases I and III. Such purchase price will be
16 evidenced by a promissory note substantially in the form of
17 Exhibit C, and secured by a Deed of Trust substantially in the
18 form of Exhibit D covering the units in the City property, which
19 will be released as to each lot upon close of escrow for the sale
20 of the completed home constructed on that lot.
21 2.2 In Phase I the 27 units will be built in two groups.
22 Group A will be composed of 13 units (shown on Exhibit E)
23 including 3 models. Group B (shown on Exhibit F) will be
24 composed of 14 units. Construction of Group B shall commence on
25 or before 6 units have been sold in Group A, but not later than
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27 2.3 In Phase II the 38 units on the Dukes property will be
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2 built in three groups. Group A will be composed of 13 units
3 (shown on Exhibit G), Group B will be composed of 13 units
4 (shown on Exhibit H) and Group C will be composed of 12 units
5 (shown on Exhibit I). Construction of Group A will commence on
6 or before 9 units have been sold in Group B of Phase I but not
7 later than Construction of Group B shall commence
8 on or before 9 units have been sold in Group A, but not later
9 than Construction of Group C shall commence on or
10 before 8 units have been sold in Group S, but not later than
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12 2.4 In Phase III the 49 units will be built in four
13 groups. Group A will be composed of 12 units (shown on Exhibit
14 J), Group S will be composed of 12 units (shown on Exhibit K),
15 Group C will be composed of 12 units (shown on Exhibit L), and
16 Group D will be composed of 13 units (shown on Exhibit M).
17 Construction of Group A will commence on or before 8 units in
18 Group C of Phase II have been sold but not later than
19 Construction of Group B shall commence on or before 8
20 units have been sold in Group A, but not later than
21 Construction of Group C shall commence on or
22 before 8 units have been sold in Group B, but not later than
23 Construction of Group D shall commence on or
24 before 8 units have been sold in Group C but not later than
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26 2.5 The development schedule described in Sections 2.2,
27 2.3 and 2.4 herein may be accelerated in response to market
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demand but may not be later than the specified time deadlines
without the written approval of the Director of CDD and the
Executive Director of the Agency.
2.6 In the development of the units Dukes shall comply
with the development standards of the Verdemont Area Plan
approved by the Mayor and Common Council in November, 1986 or
such other standards applicable to the property, whichever is
greater. A copy of a summary of the Verdemont Area development
standards is attached hereto as Exhibit N.
2.7 On the Effective Date, Dukes will sign, execute and
deliver to the City for recordation, covenants running with the
land pursuant to California Civil Code Section 1468 covering at
least the following item:
2.7.1 A covenant to adhere to Redevelopment Agency
Twenty Percent (20%) Set-Aside Affordability Covenants and
Restrictions for a period of not less than Ten (10) years from
the first day of which at least fifty percent (50%) of all the
Units in the project are first sold; and ending on the date which
is Ten (10) years thereafter. A copy of such covenant is
attached hereto as Exhibit 0 and incorporated by reference as
though fully set forth at length.
SECTION 3. Actions by the Agency
3.1 On the Effective Date, the Redevelopment Agency will
loan to Dukes the sum of $1,156,115.00, as a temporary
construction loan for construction of the homes in Group A of
Phase I.
Dukes will pay CDD 1.5% of such loan prior to receipt
DAB/ses/Dukes.agr
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2 of the loan funds for a loan fee and for disbursement
3 administration. Said loan shall be subject to a floating
4 interest rate of 1.5 points over prime as determined by Bank of
5 America. Said loan will be evidenced by a promissory note
6 substantially in the form of Exhibit C, and secured by a Deed of
7 Trust substantially in the form of Exhibit 0, which shall be
8 partially released as each home is sold upon the payment of the
9 proportional amount due for that unit including the unit's share
10 of the cost of the models as described in paragraph 3.1.2. Said
11 Deed of Trust shall be junior to that Deed of Trust described in
12 paragraph 2.1.
13 3.1.1 In lieu of a completion bond the COD shall
14 retain 10% of the loan proceeds until completion of construction
15 as determined by the appropriate City departments.
16 3.1.2 The portion of the loan attributable to the
17 3 models or $275,000 will be repaid at the sale of the other 111
18 homes in proportionate amount of the remaining principal and
19 interest. It is anticipated that the models will be the last 3
20 homes sold.
21 3.2 Upon commencement of construction of the units in
22 Group B the Agency will loan to Dukes a second temporary
23 construction loan in the amount of $1,216,950 to build the 14
24 homes in Group B. Dukes will pay COD 1.5 % of such loan prior
25 to receipt of the loan funds for a loan fee and for disbursement
26 administration. Said loan shall be subject to a floating
27 interest rate of 1.5 points over prime as determined by Bank of
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2 America. Said loan will be evidenced by a promissory note
3 substantially in the form of Exhibit C, and secured by a Deed of
4 Trust substantially in the form of Exhibit D, which shall be
5 released as each home is sold upon the payment of the
6 proportional amount of the remaining principal and interest due
7 for that unit, including the unit's share of the cost of the
8 models. Said Deed of Trust will be junior to that Deed of Trust
9 described in paragraph 2.2.
10 3.2.1 In lieu of a completion bond the CDD shall
11 retain 10% of the loan proceeds until completion of construction
12 as determined by the appropriate City departments.
13 3.3 Upon commencement of construction of the units in
14 Group A of Phase II the Agency will loan to Dukes a third
15 temporary construction loan in the approximate amount of
16 $1,142,053 to build the 13 homes in Group A. Dukes will pay COD
17 1.5% of such loan prior to receipt of the loan for a loan fee
18 and for disbursement administration. Said loan shall be subject
19 to a floating interest rate of 1.5 points over prime as
20 determined by Bank of America. Said loan will be evidenced by a
21 promissory note substantially in the form of Exhibit C, and
22 secured by a Deed of Trust substantially in the form of Exhibit
23 D, which shall be partially released as each home is sold upon
24 the payment of the proportional amount due of the remaining
25 principal and interest for that unit, including the unit's share
26 of the cost of the models.
27 3.3.1 In lieu of a completion bond the CDD shall
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retain lOt of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.4 Upon commencement of construction of the units in
Group B of Phase II the Agency will loan to Dukes a fourth
temporary construction loan in the approximate amount of
$1,142,053 to build the 13 homes in Group B. Dukes will pay CDD
1.5% of such loan prior to receipt of the loan for a loan fee and
for disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount due of the remaining principal and
interest for that unit, including the unit's share of the cost of
the models.
3.4.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.5 Upon commencement of construction of the units in
Group C of Phase II the Agency will loan to Dukes a fifth
temporary construction loan in the approximate amount of
$1,055,230 to build the 12 homes in Group C. Dukes will pay CDD
1.5% of such loan prior to receipt of the loan for a loan fee and
for disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
DAB/ses/Dukes.agr
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2 Bank of America. Said loan will be evidenced by a promissory
3 note substantially in the form of Exhibit C, and secured by a
4 Deed of Trust substantially in the form of Exhibit D, which
5 shall be partially released as each home is sold upon the payment
6 of the proportional amount due of the remaining principal and
7 interest for that unit, including the unit's share of the cost of
8 the models.
9 3.5.1 In lieu of a completion bond the CDD shall
10 retain 10% of the loan proceeds until completion of construction
11 as determined by the appropriate City departments.
12 3.6 Upon commencement of construction of the units in
13 Group A of Phase III the Agency will loan to Dukes a sixth
14 temporary construction loan in the approximate amount of
15 $1,055,230 to build the 12 homes in Group A. Dukes will pay CDD
16 1.5% of such loan prior to the receipt of the loan for a loan
17 fee and for disbursement administration. Said loan shall be
18 subject to a floating interest rate of 1.5 points over prime as
19 determined by Bank of America. Said loan will be evidenced by a
20 promissory note substantially in the form of Exhibit C, and
21 secured by a Deed of Trust substantially in the form of Exhibit
22 D, which shall be partially released as each home is sold upon
23 the payment of the proportional amount of the remaining principal
24 and interest due for that unit, including the unit's share of the
25 cost of the models. Said Deed of Trust will be junior to that
26 Deed of Trust described in paragraph 2.2.
27 3.6.1 In lieu of a completion bond the CDD shall
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2 retain 10\ of the loan proceeds until completion of construction
3 as determined by the appropriate City departments.
4 3.7 Upon commencement of construction of the units in
5 Group B of Phase III the Agency will loan to Dukes a seventh
6 temporary construction loan in the amount of $1,055,230 to build
7 the 12 homes in Group B. Dukes will pay CDD 1.5\ of such loan
8 prior to the receipt of the loan for a loan fee and for
9 disbursement administration. Said loan shall be subject to a
10 floating interest rate of 1.5 points over prime as determined by
11 Bank of America. Said loan will be evidenced by a promissory
12 note substantially in the form of Exhibit C, and secured by a
13 Deed of Trust substantially in the form of Exhibit D~ which
14 shall be partially released as each home is sold upon the payment
15 of the proportional amount of the remaining principal and
16 interest due for that unit, including the unit's share of the
17 cost of the models. Said Deed of Trust will be junior to that
18 Deed of Trust described in paragraph 2.2.
19 3.7.1 In lieu of a completion bond the CDD shall
20 retain 10% of the loan proceeds until completion of construction
21 as determined by the appropriate City departments.
22 3.8. Upon commencement of construction of the units in
23 Group C of Phase III the Agency will loan to Dukes an eighth
24 temporary construction loan in the amount of $1,055,230 to build
25 the 12 homes in Group C. Dukes will pay CDD 1.5% of such loan
26 prior to the receipt of the loan for a loan fee and for
27 disbursement administration. Said loan shall be subject to a
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floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount of the remaining principal and
interest due for that unit, including the unit's share of the
cost of the models. Said Deed of Trust will be junior to that
Deed of Trust described in paragraph 2.2.
3.8.1 In lieu of a completion bond the CDD shall
retain 10% of the loan proceeds until completion of construction
as determined by the appropriate City departments.
3.9 Upon commencement of construction of the units in
Group D of Phase III the Agency will loan to Dukes a ninth
temporary construction loan in the amount of $1,142,053 to build
the 13 homes in Group D. Dukes will pay CDD 1.5% of such loan
prior to the receipt of the loan for a loan fee and for
disbursement administration. Said loan shall be subject to a
floating interest rate of 1.5 points over prime as determined by
Bank of America. Said loan will be evidenced by a promissory
note substantially in the form of Exhibit C, and secured by a
Deed of Trust substantially in the form of Exhibit D, which
shall be partially released as each home is sold upon the payment
of the proportional amount of the remaining principal and
interest due for that unit, including the unit's share of the
cost of the models.
Said Deed of Trust will be junior to that
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2 Deed ot Trust described in paragraph 2.2.
3 3.9.1 In lieu of a completion bond the CDD shall
4 retain 10% of the loan proceeds until completion of construction
5 as determined by the appropriate City departments.
6 SECTION 4. The Parties Intent
7 4.1 It is the intent of the parties that the units to be
8 developed and sold pursuant to this Agreement will be owner-
9 occupied and not used as rentals. On the Effective Date, Dukes
10 will sign, execute and deliver to the City for recordation a
11 covenant running with the land pursuant to California Civil Code
12 Section 1468 providing that for the period described in paragraph
13 2.6.1 such properties must be owner occupied and may not be
14 rented. The parties agree that the amount of damages for a
15 breach of such provision is very difficult to ascertain and
16 therefore agree that as liquidated damages City has a right to
17 all of the rentals paid in violation of this provision. The
18 Agency and/or the City have the right but not the obligation to
19 enforce this restriction. For the purposes of this paragraph
20 both a lease or rental with an option to buy and a sales
21 contract are to be considered as rentals.
22 SECTION 5. Anti-Discrimination.
23 5.1 Dukes covenants by and for itself and any successors
24 in interest that there shall be no discrimination against or
25 segregation of any person or group of persons on account of race,
26 color, creed, religion, sex, marital status, age, handicap,
27 national origin or ancestry in the sale, lease, sublease,
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2 transfer, use, occupancy, tenure or enjoyment of the Property,
3 nor shall Dukes itself or any person claiming under or through it
4 establish or permit any such practice or practices of
5 discrimination or segregation, with reference to the selection,
6 location, number, use or occupancy of tenants, lessees,
7 subtenants, sublessees or vendees of the Property. The foregoing
8 covenants shall run with the land.
9 5.2 Participant shall refrain from restricting the rental,
10 sale or lease of the Property on the basis of race, color, creed,
11 religion, sex, marital status, handicap, national origin or
12 ancestry of any person. All such deeds, leases or contracts
13 shall contain or be subject to substantially the following non-
14 discrimination or non-segregation clauses:
15 5.2.1 In deeds: "The grantee herein covenants by
16 and for himself or herself, his or her heirs, executors,
17 administrators and assigns, and all persons claiming under or
18 through them, that there shall be no discrimination against or
19 segregation of, any person or group of persons on account of
20 race, color creed, religion, sex, marital status, age, handicap,
21 national origin or ancestry in the sale, lease, sublease,
22 transfer, use, occupancy, tenure or enjoyment of the land herein
23 conveyed, nor shall the grantee himself or herself or any person
24 claiming under or through him or her, establish or permit any
25 such practice or practices of discrimination or segregation with
26 reference to the selection, location, number, use or occupancy of
27 tenants, lessees, subtenants, sub1essees or vendees in the land
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herein conveyed.
land. .
The foregoing covenants shall run with the
5.2.2 In leases: "The lessee herein covenants by
and for himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and
subject to the following conditions:
"There shall be no discrimination against or
segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, handicap, age
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself,
or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
5.2.3 In contracts: "There shall be no
discrimination against or segregation of, any person, or group of
persons on account of race, color, creed, religion, sex, marital
status, age, handicap, ancestry or national origin, in the sale,
lease, sublease, transfer, use occupancy, tenure or enjoyment of
the premises, nor shall the transferee himself or herself or any
person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation
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2 with reference to the selection, location, number, use or
3 occupancy of tenants, lessees, subtenants, sub lessees or vendees
4 of the premises."
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SECTION 6.
Anti-Kickback Provisions; Equal Employment
Opportunity.
6
All contracts for construction or repair using Funds
7
provided under this Agreement shall include a provision for
8
9
compliance to the Copeland "Anti-Kickback Act" (18 U.S.C. 874) as
supplemented in Department of Labor Regulations (29 CFR, part 3).
This Act provides that each contractor or subcontractor shall be
prohibited from inducing, by any means, any person employed in
the construction, completion or repair of public work, to give up
any part of the compensation ~o which he/she is otherwise
entitled.
Dukes shall report all suspected violations to the
City.
All contracts in excess of $10,000.00 entered into by
Dukes using Funds provided under this Agreement shall contain a
provision complying with Equal Employment Opportunity provisions
established by Executive Order Number 11246, as amended.
SECTION 7.
Hold Harmless.
7.1 Dukes agrees to indemnify, save and hold harmless the
City, Agency and their employees and agents from all liabilities
22
and charges, expenses (including counsel fees), suits or losses,
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however occurring, or damages, arising or growing out of the use
of, or receipt of, funds paid under this Agreement and all
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operations under this Agreement.
Payments under this Agreement
26
are made with the understanding that the City and Agency are not
27
involved in the performance of services or other activities of
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2 Dukes. Dukes and its employees and agents are independent
3 contractors and not employees or agents of the City or Agency.
4 7.2 Dukes shall defend, assume all responsibility for and
5 hold the Agency, the City and their respective officers, agents
6 and employees, harmless from, all claims or suits for, and
7 damages to, property and injuries to persons, including
8 accidental death (including attorneys fees and costs), which may
9 be caused by any of Dukes' activities under this Agreement,
10 whether such activities or performance thereof be by Dukes or
11 anyone directly or indirectly employed or contracted with by
12 Dukes and whether such damage shall accrue or be discovered
13 before or after termination of this Agreement. Dukes shall take
14 out and maintain a comprehensive liability and property damage
15 policy in the amount of One-Million Dollars ($1,000,000) combined
16 single limit policy, including contractual and public liability,
17 as shall protect Dukes, City and Agency from claims for such
18 damages until two (2) years after the issuance of a Certificate
19 of Completion for all of Dukes' improvements.
20 7.3 Dukes shall furnish a certificate of insurance
21 countersigned by an authorized agent of the insurance carrier on
22 a form of the insurance carrier setting forth the general
23 provisions of the insurance coverage. This countersigned
24 certificate shall name the City and Agency and their respective
25 officers, agents, and employees as additional insureds under the
26 policy. The certificate by the insurance carrier shall contain a
27 statement of obligation on the part of the carrier to notify City
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and the Agency of any material change, cancellation or
termination of the coverage at least thirty (30) days in advance
of the effective date of any such material change, cancellation
or termination. Coverage provided hereunder by Dukes shall be
primary insurance and not contributing with any insurance
maintained by City or Agency, and the policy shall contain such
an endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of the City and Agency.
7.4 Dukes shall also furnish or cause to be furnished to
Agency and City evidence satisfactory to Agency and City that any
contractor with whom it has contracted for the performance of
work on the property or otherwise pursuant to this Agreement
carries Workers' Compensation insurance as required by law.
SECTION 8. Amendment.
This Agreement may be amended or modified only by written
agreement by all parties, and failure on the part of any Party to
enforce any provision of this Agreement shall not be construed as
a waiver of the right to compel enforcement of any provision or
provisions.
SECTION 9. Assiqnment.
This Agreement shall not be assigned by Dukes without the
prior written consent of the City and Agency, which consent will
not be unreasonablY withheld.
SECTION 10. Notices.
All notices herein required shall be in writing and
DAB/ses/Dukes.agr
17
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2 delivered in person or sent certified mail, postage prepaid,
3 addressed as follows:
4
As to City/Agency
As to Dukes
6
Director
Community Development Department
City Hall, Fifth Floor
300 North "D" Street
San Bernardino, CA 92418-0001
John Dukes
Dukes - Dukes and Associates
Inc.
1875 West Highland Avenue
San Bernardino, CA 92405
5
7
8 Notice is effective seventy-two (72) hours after delivery
9 by United States mail.
10
SECTION 11.
Cooperation.
11 Each of the Parties agrees to cooperate with each and every
12 other Party in doing all acts contemplated or required under this
13 Agreement including, without limitations, the processing of all
14 applications.
15
SECTION 12.
Entire Agreement.
16 This Agreement and any document or instrument attached
17 hereto or referred to herein integrates all terms and conditions
18 mentioned herein or incidental hereto, and supercedes all
19 negotiations and prior writing with respect to the subject matter
20
hereof.
In the event of conflict between the terms, conditions
21 or provisions of this Agreement, and any such document or
22 instrument, the terms and conditions of this Agreement shall
23 prevail. Should suit be brought to enforce or interpret any part
24 of this Agreement, the prevailing party shall be entitled to
25 recover as element of costs of suit and not as damages,
26
reasonable attorneys' fees to be filed by the court.
The
27 prevailing party shall be the party entitled to recover his/her
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costs of suit, regardless of whether such suit proceeds to final
judgment. A party not entitled to recover his/her costs shall
not be entitled to recover attorneys' fees.
SECTION 13. Exhibits.
By this reference, each of the Exhibits described below are
incorporated into and made a part of this Agreement as though
fully set forth at length, and each of the Parties agrees to
perform under and take the action required by any Exhibit.
The Exhibits are:
SECTION 14. Third Party Beneficiaries.
No third party shall be deemed to have any rights hereunder
against any of the parties hereto as a result of this Agreement.
The filing of third party lawsuits against any Party relating to
the Property of this Agreement or to other development issues,
will not be a reason to delay or stop the development, processing
of any applications, construction, the issuance of building
permits, or issuance of certificates of occupancy unless the
third party obtains a court order preventing the activity. No
Party hereto will stipulate to the issuance of any such court
order.
SECTION 15.
Effective Date.
The Effective Date of this Agreement is , 1990.
/ / /
/ / /
/ / /
/ / /
DAB/ses/Dukes.agr 19
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2 IN WITNESS WHEREOF, the Parties hereto have executed this
3 Agreement on the day and year first hereinabove written.
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ATTEST:
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City Clerk
ATTEST:
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Robert J. Temple,
Secretary
Approved as to form
15 and legal content:
16 JAMES F. PENMAN,
City Attorney
17
18 BY:
19 Approved as to form
and legal content:
20
21 BY:
Agency Counsel
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DAB/ses/Dukes.agr
CITY OF SAN BERNARDINO:
BY:
W.R. Holcomb, Mayor
REDEVELOPMENT AGENCY/COMMUNITY
DEVELOPMENT COMMISSION
BY:
W.R. Holcomb, Chairman
DUKES - DUKES AND ASSOCIATES, INC.
BY:
20
1
2 STATE OF CALIFORNIA )
)ss.
3 COUNTY OF SAN BERNARDINO )
4 On this day of , in the year
, before me, the undersigned, a Notary Public in and for
5 the State of California, personally appeared W.R. Holcomb
personally known to me (or proved to me on the basis of
6 satisfactory evidence) to be the person who executed this
instrument as the Mayor of the City of San Bernardino and
7 acknowledged to me said City executed it.
8
Signature of Notary Public
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10 (SEAL)
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2 STATE OF CALIFORNIA )
)ss.
3 COUNTY OF SAN BERNARDINO )
4 On this day of , in the year
, before me, the undersigned, a Notary Public in and for
5 the State of California, personally appeared W.R. Holcomb
personally known to me (or proved to me on the basis of
6 satisfactory evidence) to be the person who executed this
instrument as the Chairman of the Community Development
7 Commission of the City of San Bernardino and acknowledged to me
said Commission executed it.
8
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Signature of Notary Public
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11 (SEAL)
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2 STATE OF CALIFORNIA )
)ss.
3 COUNTY OF SAN BERNARDINO )
4
On before me, the
undersigned, a Notary Public in and for said State, personally
appeared
satisfactory evidence to be the person
within instrument as the President and the
of the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the same.
5
,
who executed the
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WITNESS my hand and official seal.
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DAB!ses!Dukes.agr
LBGAL DESCRXPTXOH
LOTS 25 AND 26, MOUNT VERNON ORANGE GROVE AND FRUIT COMPANY I S
LANDS, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNAR-
DINO, AS PER PLAT RECORDED IN BOOK 12 OF MAPS, PAGE 16,
RECORDS OF SAID COUNTY, AND PORTION OF 16TH STREET TO BE
VACATED.
EXCEPTING THEREFROM, THE WEST 30 FEET OF LOT 25, AS CONVEYED
TO THE COUNTY OF SAN BERNARDINO, A BODY CORPORATE AND POLITIC
OF THE STATE OF CALIFORNIA, BY DEED RECORDED ON MARCH 30,
1956, IN BOOK 3898, PAGE 566 OF OFFICIAL RECORDS.
EXJUBXT "A"
LEGAL DESCRXPTXOH
LOTS 12 THROUGH 39, TRACT NUMBER 11259, AS PLAT RECORDED PER
MAP BOOK 156, PAGES 50 THROUGH 52, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA.
LOTS 3 THROUGH 17 AND LOTS 22 THROUGH 46, TRACT NUMBER 11261,
AS PLAT RECORDED PER MAP BOOK 156, PAGES 57 THROUGH 59,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA.
LOTS 1, 2, 18 AND 19, TRACT NUMBER 11261, AS PLAT RECORDED
PER MAP BOOK 156, PAGES 57 THROUGH 59, COUNTY OF SAN BERNAR-
DINO, STATE OF CALIFORNIA.
LOTS 20, 21, 47, 48 AND 49, TRACT NUMBER 11261, AS PLAT
RECORDED PER MAP BOOK 156, PAGES 57 THROUGH 59, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA.
EXEXBIT "B"
lab/3872
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2
EXHIBIT NO. C
3
PROMISSORY NOTE SECURED BY DEED OF TRUST
4
$
Place:
Redevelopment Agency
300 North "D" Street
San Bernardino, CA 92418
5
6
Date:
7
FOR VALUE RECEIVED, the undersigned jointly and severally
8 promises to pay to the Redevelopment Agency of the City of San
9 Bernardino (the "Agency") or its successors, the sum of
10
($
), and to pay interest on
11 the unpaid principal amount of this Note from the date hereof, at
12 the floating rate of 1.5 points over prime as determined by the
13
Bank of America, per annum, until paid.
Principal and interest
14 payments shall be made as each home is sold, in proportionate
15 amounts of the remaining principal and interest with all
16 principal and interest due and payable , in lawful
17 money of the United States at the principal office of the Agency,
18 300 North "D" Street, Third Floor, City Hall, San Bernardino, CA
19 92418, or at such other place as may from time to time be
20
designated by the Agency in writing.
This Note shall become
21 immediately due and payable in the amount of unpaid principal,
22 with interest, upon transfer of title of the property described
23 in the Deed of Trust securing this Note to any person, firm or
24 corporation other than the undersigned and except as provided in
25 said Deed of Trust, whether such transfer of title be voluntary,
26 involuntary, or by operation of law.
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The undersigned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note
shall be applied first to the interest due on the Note and then
to the principal due on the Note, and the remaining balance shall
be applied to late charges, if any. Except as provided below,
all quarterly payments on this Note shall be credited as of the
due date thereof without adjustment of interest because paid
either before or after such due date.
IN THE EVENT the undersigned shall fail to pay any payment
when due, and if such failure be subsisting Thirty (30) days
thereafter, the unpaid principal amount of this Note, together
with accrued interest and late charges, shall become due and
payable, at the option of the City, without notice to the
undersigned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. No default shall exist
by reason of nonpayment of any required payment so long as the
amount of optional prepayments already made pursuant hereto
equals or exceeds the amount of the required payments.
If the
payments on this Note are not paid within Ten (10) days of the
due date, the undersigned shall pay to the Agency a late charge
of 4% per calendar month, or fraction thereof, on the amount past
due and remaining unpaid. If this Note be reduced to judgment,
such judgment shall bear the statutory interest rate on
judgments.
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In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the state of California.
If suit is instituted by the Agency to recover on this
Note, the undersigned agrees to pay all costs of such collection
including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date, duly
filed for record in the office of the County Recorder of the
County of San Bernardino, State of California.
DEMAND, protest and notice of demand and protest are hereby
waived and the undersigned hereby waives, to the ~xtent
authorized by law, any and all homestead and other exemption
rights which otherwise would apply to the debt evidenced by this
Note.
IN WITNESS WHEREOF, THIS NOTE has been duly executed by the
undersigned, as of its date.
(witness)
Page 3 of 3
DAB/ses/Dukes.agr
1
2 EXHIBIT NO. D
3 Deed of trust with assignment of rent
4 Deed of trust made on , 1990, by Dukes - Dukes
5 and Associates, Inc., a California Corporation, hereinafter
6 called trustor, whose address is 1875 West Highland Avenue, San
7 Bernardino, CA 92405 to First American Title Insurance Company, a
8 California Corporation, hereinafter referred to as trustee, whose
9 business address is in favor of the
10 Redevelopment Agency of the City of San Bernardino, hereinafter
11 referred to as beneficiary, whose business address is 300 North
12 "D" Street, City Hall, San Bernardino, CA 92418.
13 Trustor irrevocably grants, transfers, and assigns to
14 trustee in trust, with power of sale, all that property,
15 including all easements and rights of way used in connection
16 therewith or as a means of access thereto, in the City of San
17 Bernardino, County of San Bernardino, State of California,
18 described as follows: ;
19 Together with the rents, issues, and prof its thereof,
20 subject however to the right reserved by trustor in Paragraph B-
21 16 hereof to collect and apply such rents, issues, and profits,
22 prior to any default hereunder;
23 For the purpose of securing payment of the indebtedness
24 evidenced by a promissory note executed by trustor, dated
25 , 1990, in the principal sum of
26 payable to beneficiary or order, and
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each extension thereof; and performance of each agreement of
trustor incorporated herein by reference or contained herein.
A. To protect the security of this deed of trust, trustor
agrees:
1. To maintain the property in good condition and repair;
not to remove or demolish any building or improvement thereon; to
complete promptly in workmanlike manner any improvement hereafter
constructed thereon and to restore promptly in workmanlike manner
any improvement thereon that is damaged or destroyed, and to pay
when due all costs incurred therefor or in connection therewith;
to comply with all laws, ordinances, regulations, covenants,
conditions, and restrictions affecting the property; not to
commit or permit any waste thereof or any act upon the property
in violation of law or of covenants, conditions, or restrictions
affecting the property.
2. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers
of beneficiary or trustee; and also, if at any time beneficiary
or trustee is a party to or appears in any such action or
proceeding, or in any action or proceeding to enforce any
obligation hereby secured, to pay all cost and expenses paid or
incurred by them or either of them in connection therewith,
including, but not limited to, cost of evidence of title and
attorneys' fees in a reasonable sum.
3. To pay (a) at least 10 days before delinquency, all
taxes and assessments affecting the property, all assessment upon
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water company stock, and all rents, assessments, and charges for
water appurtenant to or used in connection with the property; (b)
when due, all encumbrances, charges, and liens, with interest, on
the property or any part thereof, which appear to be prior or
superior hereto; and (c) all costs, fees, and expenses of this
trust.
4. If trustor fails to make any payment or to do any act
as herein provided, then beneficiary or trustee (but without
obligation so to do, and with or without notice to or demand upon
trustor, and without releasing trustor from any obligation
hereof) may (a) make or do the same in such manner and to such
extent as either deems necessary to protect the security hereof,
beneficiary or trustee being authorized to enter upon the
property for such purpose; (b) appear in or commence any action
or proceeding purporting to affect the security hereof or the
rights or powers of beneficiary or trustee; (c) pay, purchase,
contest, or compromise any encumbrance, charge, or lien that, in
the judgment of either, appears to be superior hereto; and in
exercising any such power, beneficiary or trustee may incur
necessary expenses, including reasonable attorneys' fees.
5. To pay immediately and without demand all sums
expended hereunder by beneficiary or trustee, with interest from
date of expenditure at 1.5 points over prime as determined by the
Bank of America per annum.
B. It is mutually agreed that:
1. Any award of damages made in connection with the
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1
2 condemnation for public use of or injury to the property or any
3 part thereof is hereby assigned and shall be paid to beneficiary,
4 who may apply or release such moneys received therefor upon any
5 indebtedness secured hereby in such order as beneficiary
6 determines, or at the option of beneficiary the entire amount so
received or any part thereof may be released to trustor.
Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant
to such notice.
2. The acceptance by beneficiary of any payment less than
the amount then due shall be deemed an acceptance on acco~t only
and shall not constitute a waiver of the obligation of trustor to
pay the entire sum then due or of beneficiary's right either to
require prompt payment of all sums then due or to declare
default. The acceptance of payment of any sum secured hereby
after its due date will not waive the right of beneficiary either
to require prompt payment when due of all other sums so secured
or to declare default for failure so to pay.
NO waiver of any
default shall be a waiver of any preceding or succeeding default
of any kind.
3. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
beneficiary and presentation of this deed and the secured note
for endorsement, and without effecting the personal liability of
any person for payment of the indebtedness secured hereby or the
effect of this deed upon the remainder of the property, trustee
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may reconvey any part of the property, consent to the making of
any map or plat thereof, join in granting any easement, or join
in any extension agreement or any agreement subordinating the
lien or charge thereof.
4. upon written request of beneficiary stating that all
sums secured hereby have been paid, surrender of this deed and
the note to trustee for cancellation and retention, and payment
of its fees, trustee shall reconvey, without warranty, the
property then held hereunder. The recitals in such reconveyance
shall be conclusive proof of the truthfulness thereof. The
grantee may be designated in such reconveyances as "the person or
persons legally entitled thereto."
5. Additional portions of the property subject to the
lien of this deed of trust, selected by trustor, shall be
released from the lien hereof from time to time on payment
against the outstanding principal balance of the proportional
amount of the remaining principal and interest due for the parcel
to be released, including the parcel's proportionate share for
the cost of construction of the model homes.
Regardless of whether trustor prepays any part of the
principal of the secured debt, partial release shall be granted
upon the payment of the proportional amount of the remaining
principal and interest due for the parcel to be released,
including the parcel's proportionate share for the cost of
construction of the model homes. If trustor sells a lot or
lots, or a portion or portions of the property encumbered hereby,
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2 and gives written notice of such fact to beneficiary, beneficiary
3 will be deemed to have agreed that it will execute a partial
4 release of such property from the lien hereof whenever the
5 release amount computed as specified above is paid to
6 beneficiary. Trustor may give such notice to beneficiary at any
7 time before there is a trustee's sale of the property. At any
8 time trustor is in default in payments to be made to beneficiary
9 hereunder, any amounts paid to and received by beneficiary for
10 execution of releases pursuant to the terms of this paragraph
11 after notice of default and election to sell has been recorded
12 shall not, unless the requirements of Section 2924c of the Civil
13 Code are fully met by or on behalf of trustor, waive the right of
14 beneficiary to continue its plans to have the property sold, nor
15 shall they have any effect on the exercise by beneficiary of the
16 acceleration privilege contained herein, except to entitle the
17 person effecting such payment to the release of the property for
18 which the release amount was paid, and, insofar as beneficiary is
19 concerned, to constitute a credit against the secured debt.
20 Beneficiary acknowledges that the ability of trustor
21 to procure releases promptly is of the utmost importance.
22 Therefore, beneficiary will at all times maintain at its
23 principal place of business a person who is authorized to execute
24 such releases on behalf of beneficiary, and such releases will be
25 executed and delivered, when sought in compliance with the
26 provisions contained herein, not later than ten days after
27 written demand for such release has been made on beneficiary.
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6. If trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this deed
of trust, trustor or such owner shall pay to beneficiary in
advance on the first day of each month a reasonable rental for
the premises so occupied.
On failure to pay such reasonable
rental, trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
7.
If default is made in payment of any indebtedness or
12 in performance of any agreement hereby secured, then beneficiary,
13 with or without notice to trustor, may declare all sums secured
14 hereby immediately due and payable by instituting suit for the
15 recovery thereof or for the foreclosure of this deed, or by
16 delivering to trustee a written declaration of default and demand
17 for sale, as well as a written notice of default and of election
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to cause the property to be sold, which notice trustee shall
cause to be filed for record. If such declaration is delivered
to trustee, beneficiary also shall deposit with trustee this
deed, the secured note, and all documents evidencing
expenditures secured hereby.
8. Should trustor, without the consent in writing of
beneficiary, voluntarily sell, transfer, or convey his interest
in the property or any part thereof, or if by operation of law,
it be sold, transferred, or conveyed, then beneficiary may, at
27 its option, declare all sums secured hereby immediately due and
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payable. Consent to one such transaction shall not be deemed to
be a waiver of the right to require such consent to future or
successive transactions.
9. After the time then required by law has elapsed after
recordation of such notice of default, and notice of sale having
been given as then required by law, trustee, with or without
demand on trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as trustee determines, at public
auction, to the highest bidder, for cash in lawful money of the
United states, payable at time of sale. Trustee may postP9ne
from time to time sale of all or any portion of the property by
public announcement at the time and place of sale originally
fixed or at the last preceding postponed time. Trustee shall
deliver to the purchaser its deed conveying the property sold,
but without any covenant or warranty, express or implied. The
recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Trustor, trustee,
beneficiary, or any other person may purchase at the sale.
10. After deducting all costs, fees, and expenses of
trustee and of this trust, including cost of evidence of title
and reasonable attorney fees in connection with sale, trustee
shall apply the proceeds of sale to payment of (a) all sums
expended under the terms hereof and not theretofore repaid, with
accrued interest at the floating rate of 1.5 points over prime as
determined by the Bank of America per annum, and (b) all other
Page 8 of 14
1
2 sums then secured hereby in such order as beneficiary, in the
3 exercise of its sole discretion, directs. The remainder, if
4 any, shall be paid to the person or persons legally entitled
5 thereto.
6 11. Before trustee's sale, beneficiary may rescind such
7 notices of default and of election to cause the property to be
8 sold by delivering to trustee a written notice of rescission,
9 which notice, when recorded, shall cancel any prior declaration
10 of default, demand for sale, and acceleration of maturity. The
11 exercise of such a right of rescission shall not constitute a
12 waiver of any default then existing or subsequently occ"rring,
13 or impair the right of beneficiary to deliver to trustee other
14 declarations of default and demands for sale or notices of
15 defaul t and of election to cause the property to be sold, or
16 otherwise affect any provision of the secured note or of this
17 deed or any of the rights, obligations, or remedies of
18 beneficiary or trustee hereunder.
19 12. Beneficiary may from time to time, as provided by
20 statute, or by a writing signed and acknowledged by him and
21 recorded in the office of the county recorder of the county in
22 which the land or such part thereof as is then affected by this
23 deed of trust is situated, appoint another trustee in place and
24 stead of trustee herein named; and thereupon, the trustee herein
25 named shall be discharged, and the trustee so appointed shall be
26 substituted as trustee hereunder with the same effect as if
27 originally named trustee herein.
28 Page 9 of 14
1
2 13. If two or more persons are des~gnated as trustee
3 here~n, any or all powers granted here~n to trustee may be
4 exerc~sed by any of such persons if the other person or persons
5 ~s unable, for any reason, to act. Any rec~tal of such inability
6 in any instrument executed by any of such persons shall be
7 conclusive against trustor, his heirs and assigns.
8 14. All leases now or hereafter affecting the property are
9 hereby assigned and transferred to beneficiary by trustor.
10 Trustor hereby covenants that none of such leases will be
11 modified or terminated without the written consent of
12 beneficiary.
13 15. When requested so to do, trustor shall give such
14 further written assignments of rents, royalties, issues, and
15 profits; of all security for the performance of leases; and of
16 all money payable under any option to purchase, and shall give
17 executed originals of all leases, now or hereafter on or
18 affecting the property.
19 16. Trustor reserves the right, prior to any default in
20 payment of any indebtedness or performance of any obligation
21 secured hereby, to collect all such rents, royalties, issues, and
22 profits, as but not before they become due. upon any such
23 default, trustor's right to collect such moneys shall cease, not
24 only as to amounts accruing thereafter, but also as to amounts
25 then accrued and unpaid. In the event of default, beneficiary,
26 with or without notice and without regard to the adequacy of
27 security for the indebtedness hereby secured, either in person or
28 Page 10 of 14
1
2 by agent, or by a receiver to be appointed by the court, (a) may
3 enter upon and take possession of the property at any time and
4 manage and control it in beneficiary's discretion and, (b) with
5 or without taking possession, may sue for or otherwise collect
6 the rents, issues, and profits thereof, whether past due or
7 coming due thereafter, and apply the same, less costs and
8 expenses of operation and collection, including reasonable
9 attorney's fees, upon any obligation secured hereby and in such
10 order as beneficiary determines. None of the aforesaid acts
11 shall cure or waive any default hereunder or invalidate any act
12 done pursuant to such notice. Beneficiary shall not be required
13 to act diligently in the care or management of the property or in
14 collecting any rents, royalties, or other profits that it is
15 hereby authorized to collect, and shall be accountable only for
16 sums actually received.
17 17. Without affecting the liability of trustor or of any
18 other party now or hereafter bound by the terms hereof for any
19 obligation secured hereby, beneficiary, from time to time and
20 with or without notice, may release any person now or hereafter
21 liable for performance of such obligation, and may extend the
22 time for payment or performance, accept additional security, and
23 alter, substitute, or release any security.
24 18. In any action brought to foreclose this deed or to
25 enforce any right of beneficiary or of trustee hereunder, trustor
26 shall pay to beneficiary and to trustee attorneys' fees in a
27 reasonable sum, to be fixed by the court.
28 Page 11 of 14
1
2 19. No remedy hereby given to beneficiary or trustee is
3 exclusive of any other remedy hereunder or under any present or
4 future law.
5 20. The pleading of any statute of limitations as a
6 defense to any and all obligations secured by this deed is hereby
7 waived, to the full extent permissible by law.
8 21. In the event of default in the payment of any
9 indebtedness secured hereby, and if such indebtedness is secured
10 at any time by any other instrument, beneficiary shall not be
11 obligated to resort to any security in any particular order; and
12 the exercise by beneficiary of any right or remedy with respect
13 to any security shall not be a waiver of or limitation on the
14 right of beneficiary to exercise, at any time or from time to
15 time thereafter, any right or remedy with respect to this deed.
16 22. Trustor shall, upon request made by beneficiary,
17 furnish the beneficiary with annual statements covering the
18 operations of the property.
19 23. Beneficiary may collect a "late charge" not to exceed
20 an amount equal to four per cent (4%) per calender month, or
21 fraction thereof, on the amount past due and remaining unpaid on
22 any instalment that is not paid within ten (10) days from the due
23 date thereof, to cover the extra expense involved in handling
24 delinquent payments.
25 24. This deed applies to, inures to the benefit of, and
26 binds, all parties hereto, their heirs, legatees, devisees,
27 administrators, executors, successors, successors in interest,
28 Page 12 of 14
1
2
and assigns.
The term "beneficiary" means the owner and holder,
3 including pledgees, of the note secured hereby, whether or not
4 named as beneficiary herein. In this deed, whenever the context
5 so requires, the masculine gender includes the feminine and
6 neuter, and the singular number includes the plural, and all
7 obligations of each trustor hereunder are joint and several.
8
25. Trustee accepts this trust when this deed, duly
9 executed and acknowledged, is made a public record as provided by
10
law.
Trustee is not obligated to notify any party hereto of
11 pending sale under any other deed of trust or of any action or
12 proceeding in which trustor, beneficiary, or trustee is . party
13 unless brought by trustee.
14 Trustor requests that a copy of notice of default and
15 of any notice of sale hereunder shall be mailed to him at the
16 address set out opposite his name, immediately below.
17 MAILING ADDRESS FOR NOTICES
18 John Dukes
Dukes - Dukes and Associates, Inc.
19 1875 West Highland Avenue
San Bernardino, CA 92405
20
Executed at San Bernardino, California on the date first above
21 written.
22 [Signature]
23
24
25
Trustor
26
27
28
Page 13 of 14
10
11
12
1
2
STATE OF CALIFORNIA
)
)ss.
)
3
COUNTY OF SAN BERNARDINO
4
On before me, the
5 undersigned, a Notary Public in and for said State, personally
appeared ,
6 personally known to me or proved to me on the basis of
satisfactory evidence to be the person who executed
7 the within instrument as the President and the
of the corporation that executed the within instrument, and
8 acknowledged to me that such corporation executed the same.
9 WITNESS my hand and official seal.
13 (SEAL)
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 14 of 14
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Pha se III. Group D (map)
CXTY OP SAN BBRNARDXNO
COIlJlmtXTY DEVl!lLOPllBHT DBPARTMBHT
S_ary of the Verd_ont Area Plan
Development Standard.
1. All residential structures (houses, garages, barns) shall
have clay tile or concrete tile roofs.
2. Minimum front setback requirements:
~lla
Minimum
Setback
7,200 sq. ft.
25 feet
3. Landscaping shall be provided at the intersections of all
arterial and collector streets and a maintenance district
established prior to the release of improvement bonds.
4.
Landscaping shall be provided for all open space fronting
parkways, arterials and collector thoroughfares prior to
the release of improvements bonds.
"
..
5. Every residential zoned property shall include front yard
landscaping and front yard street trees as a requirement
of bond release.
6. All developments opening onto an arterial or collector
street shall provide an entry treatment.
7. All developments having perimeter fencing shall use slump
stone, split face block, river rock or concrete block
with stucco color coating only. Wood and/or chain link
fencing shall not be allowed on the perimeter of or
corner lots within any developments.
8. CC&R's: All developments shall include restrictions
covering screening of satellite dishes, equestrian/hiking
trails, screening of storage, recreation vehicle storage,
repair of motor vehicles and other matters approved by
Council.
lab/3100
3/1989
Exhibit "N"
EXHIBIT NO. 0
RECORDING REQUESTED BY:
Redevelopment Agency
of the City of San Bernardino
WHEN RECORDED RETURN TO:
Redevelopment Agency
of the City of San Bernardino
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
AFFORDABILITY COVENANTS AND RESTRICTIONS
Relating to
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
HOUSING CONSTRUCTION LOAN PROGRAM
THESE AFFORDABILITY COVENANTS AND RESTRICTIONS made
this day of , 1990 between the Redevelopment
Agency of the City of San Bernardino a body, corporate and
politic, being a redevelopment agency duly organized and existing
under the Constitution and laws of the State of California (the
" Agency" ), and
Dukes - Dukes and Associates, Inc. (herein the "Borrower")
whose address is
1875 West Highland Avenue, San Bernardino, CA 92405
PREAMBLE
WHEREAS, the Borrower proposes to construct one-
hundred, fourteen (114) single family residences in San
Bernardino, California, described as:
(the "Residences") located within the City of San Bernardino (the
"City") and the redevelopment project area of the Agency known as
Page 1 of 15
DAB/ses/Dukes-O.agr
the Northwest Redevelopment Project:
(the "Project Area") to be
occupied by individuals of low- and moderate-income within the
meaning of Health and Safety Code Section 33000, et seq., of the
state of California (the "Act"); and
WHEREAS, pursuant to the Act, the Agency proposes to make a
Housing Construction Loan to the Borrower (the "Housing
Rehabilitation Loan") as follows
PRINCIPAL AMOUNT:
Phase 1A: $1,156,115
Phase IB: $1,216,950
Phase IIA:$1,142,053
Phase 1IB:$1,142,053
Phase I1C:$1,055,230
Phase IlIA: $1,055,230
Phase IIIB: $1,055,230
Phase IIIC: $1,055,230
Phase IIID: $1,142,053
DOLLARS; and
WHEREAS, the Act prescribes that the financing, use and
operation of the Residences be restricted in certain respects and
in order to ensure that the Residences will be financed, used and
operated in accordance with the Act, regulations and rulings, the
Agency and the Borrower have determined to enter into these
Affordability Covenants and Restrictions.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and other good and valuable
Consideration, the receipt and sufficiency of which is hereby
acknowledged, the Agency and the Borrower do hereby contract and
agree as follows:
AGREEMENT
Section 1.
Definitions and Interpretation.
Unless otherwise expressly provided herein or unless the
context clearly requires otherwise, the following terms shall
Page 2 of 15
DAB/ses/Dukes-O.agr
have the respective meanings set forth below for all purposes of
these Affordability Covenants and Restrictions:
"Act" shall mean Health and Safety Act Section 33000, et
~ of the State of California.
"Adjusted Family Income" shall mean the anticipated total
annual income of individuals or families residing or treated as
residing in one residential unit, as calculated in accordance
with Treasury Regulation 1.167(k)-3(b)(3) under the Code as shall
be adjusted for family size.
"Affordability Covenants and Restrictions" shall mean these
Affordability Covenants and Restrictions by and between the
Agency and the Borrower pertaining to the Residences.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any regulations, rulings or procedures with respect
thereto.
"Delivery Date" shall mean the date of delivery of the Note.
"Housing Construction Loan" shall mean the Housing
Construction Loan in the amount as listed herein, secured by a
deed of trust, to be made by the Agency.
"Housing Construction Loan Documents" means the documents
pertaining to a particular Housing Construction Loan including
the Joint Development Agreement between the parties dated
"Low- or Moderate-Income Resident" shall mean the individual
or family occupying or treated as occupying the Residence whose
Page 3 of 15
DABjsesjDukes-O.agr
aggregate Adjusted Family Income does not exceed one hundred
twenty percent (120%) of the Median Gross Income for the Area.
If all the occupants are students (as defined in Section
15l(e)(4) of the Code), no one of whom is entitled to file a
joint return under Section 6013 of the Code, such occupants shall
not qualify as Low- or Moderate-Income Resident. The
determination of an occupant's status as a Low- or Moderate-
Income Resident shall be made at the commencement of such
occupant's occupancy of a unit in the Residences.
A person other than the Borrower who is liable on a Note
secured by a Mortgage need not meet such requirements provided
that such person executes and provides the Program Administrator
with his or her declaration under penalty of perjury or affidavit
that (i) he or she is executing the Note solely for purposes of
providing additional security, (ii) he or she has no other
financial or ownership interest in the property subject to the
Housing Construction Loan, and (iii) he or she has no intention
to, and will not, occupy the premises subject to the Mortgage at
any time.
"Median Gross Income for the Area" shall mean the median
household income as determined by the Program Administrator.
"Mortgage" shall mean the deed of trust, mortgage or other
similar instrument creating a lien on real property and the
improvements thereon securing a Housing Construction Loan.
"Note" means the joint development agreement, promissory
Page 4 of 15
DAB/ses/Dukes-o.agr
note, or other document or documents executed by a Borrower to
evidence such Borrower's obligation to repay a Housing
Construction Loan.
"Program Administrator" means the Community Development
Department of the City of San Bernardino or any other qualified
entity that may assume all or any portion of the duties and
responsibilities of the Program Administrator.
"Qualified Residence Period" means a period beginning on the
Delivery Date, and ending on the date which is ten years after
the Delivery Date.
Section 2. Low- or Moderate-Income Residents.
To the end of satisfying the requirements of the Act for the
full Qualified Residence Period, the Borrower hereby represents,
warrants, covenants and agrees as follows:
(a) Throughout the Qualified Residence Period, the
Residences shall be occupied by Qualified Residents, who shall
meet the qualifications as a Low- or Moderate-Income Resident at
the time the Housing Construction Loan is made, and the
provisions of this paragraph shall terminate upon the expiration
of the Qualified Residence Period;
(b) The Qualified Resident intends to occupy the
Residence as his or her principal place of residence for a period
of at least two (2) years; and who has no present intention to,
and has not entered into any arrangement to, rent, sell, assign
or transfer the Residence. The following shall not be considered
Page 5 of 15
DAB/ses/Dukes-O.agr
to be a principal place of residence and shall not be financed
with a Housing Construction Loan: a residence used as investment
property; or a residence used as a recreational home. In
addition, the Residences and land appurtenant thereto must not be
in excess of that which reasonably maintains the basic liability
of the Residences and must not provide a source of income to the
Qualified Resident;
(c) The Borrower acknowledges that Program
Administrator shall exercise due diligence to establish such
procedures as are necessary to reasonably assure the compliance
of each Housing Construction Loan, Residence and Borrower with
the requirements of these Affordability Covenants and
Restrictions, and the Act. Such procedures shall include,
without limitation, reviewing and examining the Mortgage Loan
application of each potential Borrower, and performing the other
verification procedures set forth herein, to determine whether
such person, the Residence being purchased by such person and
financed, and the Housing Construction Loan meet the
requirements of these Affordability Covenants and Restrictions,
and the Act. In addition, Borrower acknowledges that the Program
Administrator shall establish such other procedures and conduct
such other investigations as are necessary to reasonably assure
said Program Administrator of the accuracy and veracity of the
information contained in the Mortgage Loan application of such
potential Borrower, and to otherwise assure the Program
Page 6 of 15
DAB/ses/Dukes-O.agr
Adminis~ra~or ~ha~ said requiremen~s are met; and
Cd) The Borrower acknowledges that the Agency has
appointed the Program Administrator, and the Program
Administrator has agreed to act, as the Agency's agent in
accordance with the provisions of the Ac~ for ~he purposes of
reviewing and examining all affidavits, certificates, tax re~urns
and other information submitted pursuant to and in accordance
with these Affordability Covenants and Restrictions in order to
de~ermine compliance of the Housing Construction Loan, ~he
Borrower and the Residences with all requirements of the Act as
agent of the Agency, the Program Administrator shall take all
steps necessary or appropriate to assure that the Mor~gage Loans,
the Residences financed thereby, and the Borrowers, meet all the
requirements of the Act before the Mortgages are executed or
assumed, and to correct as provided herein any failure to meet
such requirements as soon as possible after discovery of such
failure.
Section 3. Sale or Transfer of Residence.
(a) During the Qualified Residence Period the Borrower
hereby covenants and agrees not to sell, transfer or otherwise
dispose of the Residence or any interest therein (other than the
making of leases to members of the general public) without
obtaining the prior written consent of the Agency, which shall be
conditioned solely upon either:
(i) receipt of evidence satisfactory to the Agency that the
Page 7 of 15
DAB/ses/Dukes-o.agr
Borrower's purchaser or transferee has assumed in writing
and in full the Borrower's duties and obligations under
these Affordability Covenants and Restrictions and the
Housing Construction Loan Documents, or
(ii) receipt by the Agency, as provided in these
Affordability Covenants and Restrictions, on or before the
date of sale or transfer of the Residences, a sum which
equals fifty percent (50%) of the sales profits attributable
to the Housing Construction Loan (the "Sales Profits") which
are received by Borrower.
(b) Sales Profits shall be calculated by the Agency and
shall mean:
(i) Borrower's gross receipts from the sale of the
Residences less the sum of the following:
(aa) The appraised value of the Residence at the time
the Note is executed by the Borrower (the "Fair
Market Value");
(bb) All sale costs, transfer fees, brokerage fees,
finder's fees and commissions, escrow fees,
release fees, title insurance policy premiums and
other similar, ordinary and customary sales
expenses which are paid or otherwise incurred by
Borrower which relate to the Residence; and
(cc) All capital contributions of Borrower which are
in furtherance of the ownership, development and
Page 8 of 15
DAB/ses/Dukes-O.agr
sale of the Residence;
(ii) multiplied by a number the numerator of which is the
principal amount of the Housing Construction Loan and
the denominator of which is the Fair Market Value.
(c) Borrower shall make full disclosure to the Agency of
all material facts with respect to the sale of the Residences.
The reasonableness of all deductions which are chargeable against
gross receipts in determining Sales Profits shall be determined
by the Agency. Any sale, transfer or other disposition of the
Residences in violation of this Section shall be ineffective to
relieve the Borrower of its obligations under these Affordability
Covenants and Restrictions. Not less than twenty (20) days prior
to consummating any sale, transfer or disposition of any interest
in the Residences, the Borrower shall deliver to the Agency a
notice in writing.
Section 1. Covenants to Run With the Land.
For the Qualified Residence Period, the Borrower hereby
subjects the Residence to the covenants, reservations and
restrictions set forth in these Affordability Covenants and
Restrictions. The Agency and the Borrower hereby declare their
specific intent that the covenants, reservations and restrictions
set forth herein shall be deemed covenants running with the land
and shall pass to and be binding upon the Borrower's successors
in title to the Residences; provided, however, that on the
termination of these Affordability Covenants and Restrictions
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said covenants, reservations and restrictions shall expire.
Each and every contract, deed or other instrument hereafter
executed covering or conveying the Residences or any portion
thereof shall conclusively be held to have been executed,
delivered and accepted subject to such covenants, reservations
and restrictions, regardless of whether such covenants,
reservations and restrictions are set forth in such contract,
deed or other instruments.
Section 5. Burden and Benefit.
For the Qualified Residence Period, the Agency and the
Borrower hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the
land in that the Borrower's legal interest in the Residences is
rendered less valuable thereby. The Agency and the Borrower
hereby further declare their understanding and intent that the
benefit of such covenants touch and concern the land by enhancing
and increasing the enjoyment and use of the Residences by the
intended beneficiaries of such covenants, reservations and
restrictions, and by furthering the public purpose for which the
Housing Construction Loan was made by the Agency.
Section 6. Term.
These Affordability Covenants and Restrictions shall become
effective upon their execution and delivery. Except as provided
in the immediately following paragraph and as otherwise provided
in Section 7 hereof, these Affordability Covenants and
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Restrictions shall remain in full force and effect for so long as
the Housing Construction Loan is outstanding but in any case no
longer than the Qualified Residence Period.
Notwithstanding any other provisions of these Affordability
Covenants and Restrictions, this entire agreement, or any of the
provisions or Sections hereof, may be terminated upon agreement
by the Agency and the Borrower if there shall have been received
an opinion of special counsel to the Agency that such termination
will not adversely affect the Agency.
Section 7. Events of Default; Enforcement.
If the Borrower defaults in the performance or observance ~f
any covenant, agreement or obligation of the Borrower set forth
in these Affordability Covenants and Restrictions, and if such
default remains uncured for a period of forty-five (45) days
after notice thereof shall have been given by the Agency to the
Borrower (or for a period of sixty (60) days after such notice if
such default is curable but requires acts to be done or remedied
within such 45-day period, and if the Borrower commences to
remedy the default within such 45-day period and thereafter
diligently and continuously prosecutes the same to completion
within such 60-day period), or such longer period as may be
approved by special counsel to the Agency, then the Agency may
declare that an Event of Default has occurred hereunder and may
take anyone or more of the following steps, at its option:
(a) By mandamus or other suit, action or proceeding at
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law or in equity, require the Borrower to perform its obligations
and covenants hereunder, or enjoin any acts or things which may
be unlawful or in violation of the rights of the Agency or the
Trustee hereunder;
(b) Take whatever other action at law or in equity may
appear necessary or desirable to enforce the obligations,
covenants and agreements of the Borrower hereunder; and
(c) Declare a default under the Mortgage, accelerate
the Housing Construction Loan, and proceed with foreclosure and
the exercise of all other rights and remedies under the Mortgage
if such indebtedness is not paid. ..
Notwithstanding any provision to the contrary contained
herein, the Agency shall have the right to enforce these
Affordability Covenants and Restrictions and require curing of
defaults in such shorter periods than specified above as it may
reasonably deem necessary to insure compliance with the Act.
No delay in enforcing the provisions hereof as to any breach
or violation shall impair, damage or waive the right of any party
entitled to enforce the same or to obtain relief against or
recover for the continuation or repetition of such breach or
violation or any similar breach or violation thereof at any later
time or times.
Section 8. Payment of Agency's Fees.
In the event that a party to these Affordabili ty Covenants
and Restrictions brings an action against any other party to
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these Affordability Covenants and Restrictions, or otherwise
arising out of these Affordability Covenants and Restrictions,
the prevailing party in such action shall be entitled to recover
from the other reasonable attorneys' fees to be fixed by the
court which shall render a judgment, as well as the costs of
suit.
IN WITNESS WHEREOF, the Agency and the Borrower have caused
these Affordability Covenants and Restrictions to be signed,
acknowledged and attested on their behalf by duly authorized
representatives, all as of the date first written hereinabove.
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By:
Executive Director
BORROWER
By:
Dukes-Dukes and Associates
By:
Dukes-Dukes and Associates
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
BEFORE ME, the undersigned notary public in and for
said State, on this day personally appeared ,
, Executive Director of the Redevelopment
Agency of the City of San Bernardino, a body corporate and
politic, being a redevelopment agency, duly organized and
existing under the Constitution and laws of the State of
California, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me
that he or she executed the same for the purposes and
consideration therein expressed, in the capacities therein
stated, and as the act and deed of said Agency.
day of
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this
, 19
Notary
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
On before me, the
undersigned, a Notary Public in and for said State, personally
appeared ,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person who executed
the within instrument as the President and the
of the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the same.
WITNESS my hand and official seal.
(SEAL)
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