HomeMy WebLinkAboutR34-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Maggie Pacheco, Director SUBJECT:
Housing and Community Development
DATE: S b 26 2000 0 r'" ' "., . H ~ L
eptem er , f I I ~: I I. d
DISPOSITION AND DEVELOPMENT
AGREEMENT (DDA) -1530 BASELINE
STREET, SAN BERNARDINO SENIOR
HOUSING, INC.
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Svnonsis of Previous Commission/Council/Committee Action(s):
In 1986, the Agency acquired the land located at 1530 Baseline Street, immediately to the east of the West Side Plaza,
(the "Site") within the Northwest Project Area. The Site is a vacant 5.5-acre parcel presently zoned Commercial
General (CG-2).
On April 5, 1999, the Commission approved in concept development of a senior housing project on the Site, and agreed
to set a public hearing for April 19, 1999 to consider entering into a Purchase Option Agreement for disposition and
development of the Site at a future date.
Svnonsis Continued to Next Pa!!e....
Recommended Motion(s):
(Community Develonment Commission)
MOTION A: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING THE
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING DISPOSITION AND DEVELOPMENT
AGREEMENT (THE "DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY AND SAN
BERNARDINO SENIOR HOUSING, INC., A CALIFORNIA NON-PROFIT PUBLIC BENEFIT
CORPORATION, FOR DEVELOPMENT OF A 75 UNIT SENIOR HOUSING COMPLEX
LOCATED AT 1530 BASELINE STREET, SAN BERNARDINO AND AUTHORIZING THE
AGENCY CHAIRPERSON AND AGENCY SECRETARY OF THE AGENCY TO EXECUTE THE
DDA ON BEHALF OF THE AGENCY (NORTHWEST PROJECT AREA).
Recommended Motion(s) Continued to Next Pa!!e....
Contact Person( s): Gary Van OsdellMaggie Pacheco
Project Area(s) Northwest Project Area
Phone:
663-1044
Six (6)
Ward(s):
Supporting Data Attached: 0 StatTReport 0Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $ 140,000
Source:
HOME Federal Funds
SIGNATURE:
2000-2001 Budget
ie Pac eco, Director
Housing and Community Development
Commission/Council Notes:
GVO:MP:lag:1O-02-oo 1530 Baseline
COMMISSION MEETING AGENDA
Meeting Date: 10/02/2000
Agenda Item Number: BM-
Synopsis of Previous Commission/Council/Committee Action(s) Continued:
On April 19, 1999, the Commission approved a Purchase Option Agreement (the "Agreement") by
and between the Redevelopment Agency and Cooperative Services, In., a non-profit corporation
("Developer") which gave the Developer the right to purchase the Site from the Agency subject to
approval of a HUD 202 Grant.
In December 1999, HUD informed the Developer that they were the successful candidate for a federal
202 housing grant in the approximate amount of $6.1 million for the development of a 75 unit senior
complex in the City of San Bernardino.
On June 20, 2000, the City Planning Commission approved the Conditional Use Permit (CUP#OO-
10), in accordance with the City's Development Code Section 19.06.030 (2)(Q) to allow for the
development of a 75 unit senior complex and also enumerate certain conditions and restrictions with
regard to the use of the Site.
Recommended Motion(s) Continued:
(Mavor and Common Council)
MOTION B: That the Mayor and Common Council of the City of San Bernardino authorize the
Redevelopment Agency to enter into the Disposition and Development Agreement
(DDA) with San Bernardino Senior Housing, Inc., relative to the sale and development
of the property located at 1530 Baseline Street, San Bernardino, California.
GVO:MP:1ag:10-02-00 1530 Baseline
COMMISSION MEETING AGENDA
Meeting Date: 10/02/2000
Agenda Item Number: .B.3!I..-
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
DisDosition and DeveloDment A!!reement (DDA) -1530 Baseline Street, San Bernardino
Senior HODsin!!, Inc.
BACKGROUND:
Cooperative Services, Inc., also known as "San Bernardino Senior Housing, Inc.", a non-profit
senior housing developer (the "Developer") was awarded a $6,195,000 Federal 202 Grant from
the U. S. Department of Housing and Urban Development (HUD) in December 1999 in order to
develop the Agency owned Site with a senior housing complex. Consequently, the Developer is
prepared to exercise their right to purchase the Site from the Agency, pursuant to the approved
Purchase Option Agreement, and at the appraised value of $275,000; thus, the need to present the
DDA to the Community Development Commission for consideration and approval.
The DDA between the Agency and Developer will require the Developer to construct a senior
citizen rental housing complex on the 5.51 acres consisting of seventy-four (74) one bedroom
rental units reserved for occupancy by senior citizens (62 years of age or older), and one (1) two
bedroom unit reserved for occupancy by the on-site management personnel (the "Project"). The
Project will include, but not be limited to: a 3,500 community center, 8 separate single story
buildings containing between 6 and 14 units, an office and reception area, board room, storage,
laundry facilities, common restrooms, kitchen and community room and related on-site parking.
Under the Conditional Use Permit (CUP#00-10, approved by Planning Commission on June 20,
2000), the Developer will be required to include approximately 103,000 square feet of
landscaping, including a 110 foot landscape buffer along the street frontage (Baseline Street).
The rear end of the Site will be used for tenant gardens (see Attachment B- Conceptual Site Plan
approved by Planning Commission). Although, the HUD 202 Grant is limited to $6,195,000,
the total Project costs are estimated at $6,497,825. Generally, HUD allows for the Grant to be
used for land acquisition and for basic, good quality housing construction. However, HUD does
not normally allow for the Grant proceeds to be used for upgrades or amenities that do not apply
to the long-term affordability or basic construction of the housing. Thus, the need for the
Developer to identifY additional resources to contribute to the Project and pay for the added
improvements particularly in San Bernardino's case, where the Developer is being required by
the Agency to buy all 5.5 acres, thus adding much more landscaping than normally needed. As
such, the Developer will be providing from its own resources about $162,000, while the Agency,
under the DDA, will provide the sum of $140,000. Collectively, this $6.4 million will be used
to develop the Site in accordance with the provisions of the DDA and the CUP #00-10.
GVO:MP:lag:1O-02-00 1530 Baseline
COMMISSION MEETING AGENDA
Meeting Date: 10/02/2000
Agenda Item Number: .11:J!:I-
Economic Development Agency Staff Report
DDA - 1530 Baseline
September 25, 2000
Page Number -2-
Under the DDA, the Developer will be required to submit plans, drawings and specifications to
the City and Agency in November 2000; to close escrow on the Site on or about July 2001, with
construction of the Project to commence sometime in August 2001. The Project is contemplated
to be completed within 12 months from the commencement date. The schedule may be
accelerated depending on how soon the Developer's plans and specifications are approved by the
City and the Project is placed out to bid and construction contract awarded. Moreover, the
Developer will use good faith efforts to cause the general contractor awarded the Project to
recruit local residents of the City to perform work and construction services relating to the
construction of the Project, and to hire residents of the City for available job openings in the
completed project for the duration of the Regulatory Agreement (i.e. 55 years minimum)
Per the Regulatory Agreement, an Exhibit to the DDA, the Developer will also be required to
reserve all units to seniors, age 62 or older, for a period of not less than 55 years, or consistent
with the terms of the CUP#00-10. Additionally, all 74 of the units will be set-aside for
occupancy at affordable rents by households earning not more than eighty percent (80%) of the
median income for San Bernardino County (i.e. farnily of2, is $30,350). In reality, for a period
of 40 years, the term of the HUD Grant, all units will be reserved for occupancy by persons at
50% of median income and below.
Accordingly, staff requests Community Development Commission approval of the DDA and
Mayor and Common Council approval on the sale of the Site to the Developer. The Agency
Chairperson and Secretary are authorized by the Resolution to make non-substantive changes to
the DDA, as approved by Agency Counsel, as long as the Agency's financial contribution does
not exceed $140,000.
FISCAL IMPACT ANALYSIS:
The proposed DDA will result in an Agency expenditure of $140,000 from the federal HOME
grant administered by the Agency. Moreover, the sale of the Site by the Agency to Developer
will create $275,000 in land proceeds to the Agency.
RECOMMENDATION:
That the Mayor and Common Council and the Community Development Commission adopt
Motions A and B.
'J1/. (?~
Maggie Pacheco, Director
Housing and Community Development
GYO:MP:lag:10-02-00 1530 Baseline
COMMISSION MEETING AGENDA
Meeting Date: 10/02/2000
Agenda Item Number: 1{3'
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RESOLUTION NO.:
2
3
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION APPROVING THE AFFORDABLE SENIOR CITIZEN
RENTAL HOUSING DISPOSITION AND DEVELOPMENT
AGREEMENT (THE "DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY AND SAN BERNARDINO SENIOR
HOUSING, INC., A CALIFORNIA NON-PROFIT PUBLIC BENEFIT
CORPORATION, FOR DEVELOPMENT OF A 75 UNIT SENIOR
HOUSING COMPLEX LOCATED AT 1530 BASELINE STREET, SAN
BERNARDINO AND AUTHORIZING THE AGENCY CHAIRPERSON
AND AGENCY SECRETARY OF THE AGENCY TO EXECUTE THE
DDA ON BEHALF OF THE AGENCY (NORTHWEST PROJECT
AREA).
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5
6
7
8
9
10
WHEREAS, the Community Development Commission of the City of San Bernardino
11
(the "Commission") on behalf of the Redevelopment Agency of the city of San Bernardino (the
12
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"Agency"), is a redevelopment agency, a public body of the State of California, organized and
existing pursuant to the Community Redevelopment Law (Part I of Division 24) commencing
14
with Section 33000 of the Health and Safety Code of the State of California (the "Act"); and
15
WHEREAS, the Redevelopment Plan provides for the redevelopment of real property
16
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pursuant to the Redevelopment Plan both within and outside of the redevelopment project area
which is subject to the Redevelopment Plan (the "Project Area") by owners thereof or by parties
18
seeking to acquire real property from the Agency; and
19
WHEREAS, Section 33391 of the Act provides that a redevelopment agency may acquire
20
any interest in real or personal property within a redevelopment project area or for the purpose 0
21
redevelopment and Section 33430 of the Act provides that a redevelopment agency may dispose
22
of any interest in real or personal property within a redevelopment project area or for the
23
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purposes of redevelopment; and
WHEREAS, the Agency and San Bernardino Senior Housing, a non-profit public benefit
25
corporation (the "Developer") desire to enter into a certain Affordable Senior Citizen Rental
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Housing Disposition and Development Agreement (the "DDA"), a copy of which is on file with
2 the City Clerk and the Agency and incorporated herein by this reference, pursuant to which,
3 among other matters, the Developer will acquire from the Agency certain real property located at
4 1530 Baseline Street (the "Site") which is located in the Project Area for the sum of $275,000.
5 The transaction is for the purposes of causing the redevelopment of the Site, including
6 construction thereon of75 rental senior housing development (the "Project"); subject to the
7 provisions of a Disposition and Development Agreement and the Conditional Use Permit (CUP)
8 #00- 10.
9 WHEREAS, the Agency and the City have previously conducted a public hearing in
10 accordance with the requirements of Health and Safety Code Sections 33431 and 33433
11 concerning the disposition of the Site by the Agency to the Developer pursuant to the approved
12 Purchase Option Agreement; and
13 WHEREAS, based upon evidence submitted to the Agency, it is reasonable and
14 appropriate for the Agency to approve the Disposition and Development Agreement (DDA).
15 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION,
16 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
17 BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
18 Section 1. The Agency finds and determines that the disposition and development of
19 the Site as described in the DDA is within the scope, terms and provisions of the Redevelopment
20 Plan, is consistent with the Agency's previously approved Implementation Plan and will help
21 eliminate blighting conditions in the Project Area by and creating affordable rental housing
22 opportunities for low and moderate income seniors.
23 Section 2. The Agency authorizes the Secretary of the Agency to appropriate and
24 expend the sum of $140,000 from federal HOME funds for the Developer to carry out the
25 Project, and the Agency Chairperson and Secretary are authorized to execute the DDA and to
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execute any such other documents as may be necessary to implement the DDA and to make any
2 necessary non-substantive changes in the Agreement as may be approved by Agency Special
3 Counsel, provided such changes do not increase the Agency's financial contribution of $140,000.
4 Section 3. A Program Environmental Impact Report was certified in connection with
5 the adoption of the Redevelopment Plan. The Agency finds that no new effects could occur in
6 connection with the Project and no new mitigation measures are required and therefore no new
7 environmental document is required pursuant to Section 15168 of the CEQA guidelines.
8 Furthermore, as part of the development process and upon submittal by Developer of a
9 Conditional Use Permit Application #00-10, the City of San Bernardino Planning Commission
10 has found the Project to be Categorically Exempt per CEQA Section 15332 and in compliance
11 with all CEQA guidelines.
This Resolution shall take effect upon the date of its adoption.
12 Section 4.
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I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
THE AFFORDABLE SENIOR CITIZEN RENTAL HOUSING DISPOSITION AND
2 DEVELOPMENT AGREEMENT (THE "DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY AND SAN BERNARDINO SENIOR HOUSING, INC., A
3 CALIFORNIA NON-PROFIT PUBliC BENEFIT CORPORATION, FOR DEVELOPMENT
OF A 75 UNIT SENIOR HOUSING COMPLEX LOCATED AT 1530 BASELINE STREET,
4 SAN BERNARDINO AND AUTHORIZING THE AGENCY CHAIRPERSON AND
AGENCY SECRETARY OF THE AGENCY TO EXECUTE THE DDA ON BEHALF OF
5 THE AGENCY (NORTHWEST PROJECT AREA).
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
9 j:;OMMISSION MEMBEE,~
10 ESTRADA
11 LIEN
12 McGINNIS
13 SCHNETZ
14 SUAREZ
IS ANDERSON
16 MCCAMMACK
17
18
,2000, by the following vote, to wit:
AYES.
NAyS.
ABSTAII'! ABSENT
-
.
Secretary
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,2000.
The foregoing Resolution is hereby approved this __ day of _
JUDITH V ALLES, Chairperson
Community Development Commission
of the City of San Bernardino
By:
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RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
Redevelopment Agency of the City )
of San Bernardino )
ATTN: Executive Director )
201 North -E" Street )
Suite 301 )
San Bernardino, California 92401 )
)
)
NO RECORDING FEE PURSUANT TO
GOVERNMENT CODE SECTION 27383
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGENCY REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
(HOME Program 24 Code of Federal Regulation
Part 92; Health and Safety Code Section 33334.2)
THIS AGENCY REGULATORY AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS (the -Agency Regulatory Agreement") is made
and entered into as of this day of , 200 , by and
between the Redevelopment Agency of the City of San Bernardino, a
body corporate and politic (the "Agency") and San Bernardino Senior
Housing, Inc., a California nonprofit public benefit corporation
(the -Developer").
--RECITALS--
A. The Agency and the Developer have entered into that
certain 2000 Affordable Senior Citizen Rental Housing Disposition
and Development Agreement, dated as of May 1, 2000 (the
-Agreement"). A copy of the Agreement is on file with the Agency
Secretary.
B. Pursuant to the terms of the Agreement, the Agency has
transferred the fee title interest in "Site" to the Developer for
improvement of the -Project" subject to the conditions of the -HUD
Capital Advance Documents", as these terms are more specifically
described in the Agreement, and the Agency has also agreed to
provide the Developer with the Agency Grant in support of the
Project, subject to certain conditions.
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C. In consideration for the acquisition of the Site and the
Agency Grant, the Developer has agreed to maintain a certain number
of the rental dwelling units in the Project as available at
"affordable rent" to low income Senior Citizen Households as these
terms are defined in the Agreement and the Agency Grant Deed for
the term of this Agency Regulatory Agreement and to further agree
to observe all the terms and conditions set forth below.
D. The Agency has agreed to provide the Agency Grant on the
condition that the Project be maintained and operated in
accordance with Health and Safety Code Sections 33334.2 and 33413
and in accordance with certain additional restrictions concerning
affordability, operation, and maintenance of the Project, as
specified in this Agency Regulatory Agreement.
E. In order to ensure that the proj ect will be used and
operated in accordance with these conditions and restrictions, the
Agency, and the Developer wish to enter into this Agency Regulatory
Agreement for themselves and their successors and assigns.
THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, ITS SUCCESSORS AND ASSIGNS AND SAN BERNARDINO SENIOR
HOUSING, INC., ITS SUCCESSORS AND ASSIGNS HEREBY COVENANT AND AGREE
AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.1 Definitions When used in this Agency Regulatory
Agreement, certain terms and phrases as denoted by an initially
capi tali zed letter shall have the same meaning as found in the
Agreement unless the specific context of the usage of a term or
phrase may otherwise require, and certain additional defined terms
which appear below in this Section 1.1 shall have the meaning in
this Agency Regulatory Agreement as ascribed below:
a. "Adjusted Income" shall mean the total anticipated annual
income of all persons in a household which occupies (or
is proposed to occupy) a Unit as calculated in accordance
with 25 California Code of Regulations Section 6914 or
pursuant to a successor state housing program regulation
that utilizes a reasonably similar method of calculation
of adj usted annual income. In the event that no such
program exists, the Agency shall provide the Developer
wi th a reasonably similar method of calculation of
adjusted income as provided in 25 California Code of
Regulations Section 6914.
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b. "Agreement" means that certain 2000 Affordable Senior
Citizen Rental Housing Disposition and Development
Assistance Agreement dated as of May 1, 2000, by and
between the Developer and the Agency. A copy of the
Agreement is on file with the Agency Secretary and is
incorporated herein oy this reference.
c.
"Certificate of
issuance by the
occupancy for the
Occupancy Date" means the date
City of the initial certificate
Project.
of
of
d. "City" shall mean the City of San Bernardino, California.
e. "Closing Date" shall mean the date of recordation of this
Agency Regulatory Agreement.
f. "HOME Assisted Units" shall mean the sixty (60) rental
Units in the Project.
g. "Management Agent" shall mean the experienced management
agent selected by the Developer for the management of
Project as provided in Section 5.2 of this Agency
Regulatory Agreement.
h. "Developer" shall mean San Bernardino Senior Citizen,
Inc., a California nonprofit public benefit corporation.
i. "Site" shall mean the real property described in Exhibit
"A" attached hereto and incorporated herein.
j.
"Agency Regulatory Agreement" shall mean
Regulatory Agreement and Declaration of
Covenants.
this Agency
Restrictive
k. "Rent" shall mean the total of each monthly payment by
the tenants of a Unit to the Developer for the following:
use and occupancy of the Unit and land and associated
facili ties, including parking (other than parking
services acquired by tenants on an optional basis); any
separately charged fees or service charges assessed by
the Developer which are required of all tenants, other
than security deposits; the cost of an adequate level of
service for utilities paid by the tenant, including
garbage collection, sewer, common area, water,
electricity, gas and other heating, and refrigeration
costs, but not telephone service; any other interest,
taxes, fees or charges for use of the land or associated
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facilities and assessed by a public or private entity
other than the Developer, and paid by the tenant.
1. URestricted Units" shall mean the sixty (60) Units which
are affordable Rent - restricted pursuant to this Agency
Regulatory Agreement.
m. uSenior Citizen Households" shall have the meaning as set
forth in the Agreement.
n. UTerm" shall mean the period of fifty-five (55) years,
beginning on the date of recordation of the Agency Grant
Deed and ending on the fifty fifth (55th) anniversary
following such date.
o. uLower Income" shall mean the annual income for lower
income households with an Adj~sted Income as established
and amended from time to tim~ pursuant to Section 8 of
the United States Housing Act or 1937, as amended, and as
published by the State or California Department of
Housing and Community Development.
p. uUnits" shall mean the seventy-four (74) Senior Citizen
Household rental dwelling units to be constructed on the
Site.
ARTICLE 2
SENIOR CITIZEN HOUSEHOLD RESTRICTED UNITS
RENT AND OCCUPANCY AFFORDABILITY COVENANTS
2.1 Occuoancy Reauirement. During the Term of this Agreement
each Unit shall be reserved for rental dwelling occupancy by a
Senior Citizen Household. During the Term of this Agreement not
less than sixty (60) of the Units (the "Restricted Units") shall be
rented and occupied by or, if vacant, available for rental and
occupancy by Lower Income Senior Citizen Households.
2.2 Allowable Rent for Restricted Units.
a. Subj ect to Section 2.3 below, the Rent charged the
occupants of the Restricted Units shall not exceed thirty percent
(30%) of one-twelfth of Lower Income, adjusted for household size.
b. In calculating the allowable Rent for the Restricted
Units, the household size shall be assumed to be one (1) person per
Uni t.
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c. At least one hundred eighty (180) calendar days prior to
increasing Rent on any Restricted Unit, the Developer shall submit
to the Agency for review and approval a written request for such
increase. Households occupying Units shall be given at least
ninety (90) days written notice prior to any increase in Rent.
Rent for a Restricted Unit may only be increased one time per
year and the Rent levels following an increase, or upon a new
occupancy, shall not exceed the applicable Rent levels set forth in
Section 2.2.a., above.
2.3 Increased Income of a Senior Citizen Household OccuDancy
of a Restricted Unit.
a. In the event, upon recertification of an occupant
household's income for a Restricted Unit, the Developer discovers
that a Lower Income Household no longer qualifies as a Lower Income
household, then such household shall not be required to vacate the
Project and the Rent Chargeable to that household shall be
increased to an amount of Rent which is the lesser amount of (i)
thirty percent (30%) of that household's actual monthly income; or
(ii) the amount payable by the tenant under State or local law.
However, when the Restricted Unit is vacated by that household or
another unrestricted Unit is vacated, the Unit shall be rented to
a Lower Income household at the Rent level allowed in Section 2.2
for a Restricted Unit as of the date of commencement of such a new
occupancy. Moreover, a Unit occupied by a Lower Income household
shall be deemed, upon the termination of such Lower Income
household's tenancy to be continuously occupied by a Lower Income
household until that Unit is reoccupied.
b. If the Project is subject to state or federal rules
governing low income housing tax credits, the provisions of those
rules regarding continued occupancy by, and Rent charged to,
households whose incomes exceed the eligible income limi ta tion
shall apply in place of the provisions set forth in Section 2.3.a.,
above.
2.4 Lease Provisions.
a. The Developer shall include in leases or rental
agreements for all Restricted Units provisions which authorize
owner to immediately terminate the tenancy of any household one or
more of whose members misrepresented any fact material to the
household's qualification as a Lower Income and/or Senior Citizen
household and for all Units (except the on-site manager's unit) any
misrepresentation relating to the Senior Citizen Household
qualification. Each lease or rental agreement for a Restricted
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Unit shall also provide that the household is subject to annual
certification in accordance with Section 4.1 below, and that, if
the household's income increases above the applicable limits for a
Lower Income household such household' s Rent may be subject to
increase to the lesser of (i) thirty percent (30%) of that
household's actual adjusted monthly income; or (ii) the amount
payable by the Tenant under the State or local law, or the
household may be required to vacate the Unit.
b. The leases for Restricted Units shall provide that if the
Project is subject to State or federal rules governing low income
housing tax credits, the provisions of those rules regarding
continued occupancy by, and increases in Rent for households whose
incomes exceed the eligible income limitation shall apply in place
of the provisions set forth in Section 2.4.a, above.
2.5 HUD Comoliance. During the period of time when the
,
HUD Capital Advance Documents are in affect with respect to the
Project, compliance by the Developer with the requirements of the
HUD Section 202 program and the HUD Capital Advance Documents shall
be deemed compliance by the Developer with requirements of this
ARTICLE 2, and Section 3.1, and ARTICLE 4, and in the event of a
conflict between any such provision of this Agreement and the HUD
Capital Advance Documents, the requirements of the HUD Capital
Advance Documents shall control.
ARTICLE 3
OPERATION AND MAINTENANCE OF THE PROJECT
3.1 Use as Senior Citizen Rental Housina. The Project shall
be operated only as rental housing for Senior Citizen Households,
except for not more than one (1) of the Units which may be used and
occupied by on-site resident manager(s) employed by the Developer
and! or the Management Agent. No part of the proj ect shall be
operated as transient housing.
3.2 Com91iance with the Aareement. The Developer shall
comply with all the terms and provisions of the Agreement.
3.3 rRESERVED--NO TEXTl
3.4 Taxes and Assessments. The Developer shall pay all real
and personal property taxes, assessments and charges and all
franchise, income, employment, withholding, sales, and other taxes
assessed against it, or payable by it, at such times and in such
manner as to prevent any penalty from accruing, or any lien or
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charge from attaching to the Site; provided, however, that the
Developer shall have the right to contest in good faith, any such
taxes, assessments, or charges. In the event the Developer
exercises its right to contest any tax, assessment, or charge
against it, the Developer, on final determination of the proceeding
or contest, shall immediately payor discharge any decision or
judgment rendered against it, together with all costs, charges and
interest.
3.5 Nondiscrimination. Except as otherwise required by the
rental requirements of the HUD Section 202 program and the HUD
Capital Advance Documents, all of the Units shall be available for
occupancy on a continuous basis to Senior Citizen Household members
of the general public (who are also income eligible with respect to
the Restricted Units). The Developer shall not give preference to
any particular class or group of persons in renting the Units.
There shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed,
religion, sex, sexual orientation, age, marital status, national
origin, or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of any Unit. Neither the Developer
nor any person claiming under or through the Developer, shall
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
loca tion, number, use, or occupancy, of tenants, lessees,
subiessees, subtenants, or vendees of any Unit or in connection
with the employment of persons for the operation and management of
any Unit. All deeds, leases or contracts made or entered into by
owner as to the Units or the Site or portion thereof, shall contain
covenants prohibiting discrimination as prescribed by the Agency
Grant Deed. The Developer shall include a statement in all
advertisements, notices and signs for the availability of Units for
rent to the effect that owner is an Equal Housing Opportunity
Provider.
ARTICLE 4
SENIOR CITIZEN HOUSEHOLD AND INCOME
CERTIFICATION AND REPORTING
4.1 Acre and Income Certification.
a. The Developer shall obtain and complete prior to initial
occupancy and thereafter maintain on file income certifications
from each tenant household renting any of the Restricted Units.
The Developer shall make a good faith effort to verify that the
income provided by an applicant or occupying Senior Citizen
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Household in an income certification is accurate by taking one or
more of the following steps as a part of the verification process:
(1) obtain an income tax return for the most recent tax year; (2)
conduct a credit agency or similar search; (3) obtain an income
verification form from the applicant's current employer; (4) obtain
an income verification form from the United States Social Security
Administration and/or the California Department of Social Services
if the applicant receives assistance from either of such agencies;
or (5) if the applicant is unemployed and has no such tax return,
obtain another form of independent verification. On the
anniversary of the occupancy of such Restricted Unit the Developer
shall recertify the household income of the Senior Citizen
Household occupying the Restricted Unit. Copies of tenant income
certification shall be available to the Agency upon request.
b. The Developer shall verify, prior to the occupancy of
each Unit, that the Senior Citizen Household satisfies the
.
requirements of a senior citizen household as provided in the
Agreement. Thereafter, the Developer shall annually verify that
the Senior Citizen Household retains its qualification as a Senior
Ci tizen Household. For purposes of this Section 4.1. b, the
Developer may conclusively rely upon the evidence of the age of the
occupant(s) of the Unit as presented in a valid California Driver's
License, other form of identification issued by the State or
federal government which includes a date of birth.
4.2 Annual Restricted Unit Rental Affordabilitv Reoort to
Aqencv. Commencing on the June 30 next following the Certification
of the Occupancy Date and on each June 30 thereafter during the
Term of the Agency Regulatory Agreement, the Developer shall submit
a report to the Agency, in a form approved by the Agency. The
annual report shall include for each Restricted Unit covered by
this Agency Regulatory Agreement, the Rent and the income and
family size of the Senior Citizen Household occupying the
Restricted Unit. The report shall also state the date the tenancy
commenced for each Restricted Unit and such other information as
the Agency may be required by law to obtain; provided, however,
that the Agency shall take reasonable steps to maintain the
confidential nature of the information contained therein relating
to any Restricted Unit.
4.3 Additional Information. The Developer shall provide any
add~tional information reasonably requested by the Agency,
including without limitation such Project-related income and
expense accounting information. The Agency shall have the right to
examine and make copies of all books, records or other documents of
Developer which pertain to any Unit; provided, however, that the
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Agency shall take reasonable steps to maintain the confidential
nature of the information contained therein.
4.4 Records. The Developer shall maintain complete, accurate
and current records pertaining to the Units, and shall permit any
duly authorized representative of the Agency (during business hours
and upon not less than seventy-two (72) hours notice) to inspect
records, including records pertaining to income and household size
of tenant households of Restricted Units; provided, however, that
the Agency shall take reasonable steps to maintain the confidential
nature of the information contained therein relating to any
household.
ARTICLE 5
PROPERTY MANAGEM~NT
5.1 Management ResDonsibilities. The Developer shall be
responsible for management of the Proj ect, including, without
limitation, the selection of tenants, certification and
recertification of household size, and income for the Restricted
Units and the age of the head of household of all Units, evictions,
collection of rents and deposits, maintenance, landscaping, routine
and extraordinary repairs, replacement of capital items, and
security. The Agency shall have no responsibility for the
management or operation of the Site or the Project.
5.2 Management Aaent. The Project shall at all times be
managed by an experienced management agent (the "Management Agent")
reasonably acceptable to the Agency, with demonstrated ability to
operate senior citizen residential rental facilities similar to the
Project in a manner that will provide decent, safe, and sanitary
housing. For the purposes he:::eof, if ;:he Developer directly
performs the functions of the Management Agency by its employees or
by means of a service contract with an entity owned or controlled
by the Developer, such a Management Agent shall be deemed approved
by the Agency. If the Management Agent is an entity or person
other than the Developer, its employees or an entity owned or
controlled by the Developer, the Developer shall submit for the
Agency's approval the identity of any proposed Management Agent,
together with additional information relevant to the background,
experience and financial condition of any proposed Management Agent
as reasonably requested by the Agency. If the proposed Management
Agent meets the standard for a qualified Management Agent set forth
above, the Agency shall approve the proposed Management Agent by
notifying the Developer in writing. Unless the proposed Management
Agent is disapproved by the Agency within thirty (30) days, which
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::It
disapproval shall state with reasonable specificity the basis for
disapproval, it shall be deemed approved. The Developer is hereby
approved by the Agency as the Management Agent for the Project.
Any Management Agent approved by HUD during the term of the HUD
Capital Advance Documents shall be deemed approved by the Agency.
5.3. Maintenance of the Site and the Proiect.
a. The Developer shall maintain the Site and the Project in
good repair and a neat, clean and orderly condition, ordinary wear
and tear excepted. In the event that, at any time during the term
of this Agency Regulatory Agreement, there is an occurrence of an
adverse condition on any area of the Site in contravention of the
general maintenance standard described above (a "Maintenance
Deficiency"), then the Agency shall notify the Developer in writing
of the Maintenance Deficiency and give the Developer (60) days from
receipt of such notice to cure the Maintenance Deficiency as
identified in the notice. In the event the Developer fails to cure
or commence to cure the Maintenance Deficiency wi thin the time
allowed, the Agency may conduct a public hearing following
transmi ttal of written notice thereof to the Developer ten (10)
days prior to the scheduled date of such public hearing in order to
verity whether a Maintenance Deficiency exists and whether the
Developer has failed to comply with the provision of this Section
5.3. a. If, upon the conclusion of a public hearing, the Agency
makes a finding that a Maintenance Deficiency exis~s and ~hat there
appears to be non-compliance with the general maintenance standard,
as described above, thereafter the Agency shall have the right to
enter the Site and perform all acts necessary to cure the
Maintenance Deficiency, or take other action at law or equity the
Agency may then have to accomplish the abatement of the Maintenance
Deficiency. Any sum expended by the Agency for the abatement of a
Maintenance Deficiency as authorized by this Section 5.3.a shall
become a lien on the Site. If the amount of the lien is not paid
within thirty (30) days after written demand for payment by the
City has been presented to the Developer, the Agency shall have the
right to enforce the lien in the manner as provided in Section
5.3. c.
b. Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Site shall be removed by the
Developer from any exterior surface of a structure or improvement
on the Site by either painting over the evidence of such vandalism
with a paint which has been color-matched to the surface on which
the paint is applied, or graffiti may be removed with solvents,
detergents or water as appropriate. In the event that graffiti is
place on the Site and such graffiti is visible from an adjacent or
contiguous public right-of-way and thereafter such graffi~i is not
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~
"-\""-:"::'1:
removed within 72 hours following the time of its application; then
in such event and without notice to the Developer, the Agency shall
have the right to enter the property and remove the graffiti.
Notwithstanding any provision of Section 5.3 to the contrary, any
sum expended by the Agency for the removal of graffiti from the
Site as authorized by this Section 5.b, shall become a lien on the
Site. If the amount of the lien is not paid within thirty (30)
days after written demand for payment by the Agency to the
Developer, the Agency shall have the right to enforce its lien in
the manner as provided in Section 5.3c.
c. The parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 5.3
expressly include the power to establish and enforce a lien or
other encumbrance against the Site, or any portion thereof, in the
manner provided under Civil Code Sections 2924, 2924b and 2924c in
the amount reasonably necessary to restore the Site to the
,
maintenance standard required under Section 5.3a, or Section 5.3.b,
including reasonable attorneys fees and costs of the Agency
associated with the abatement of the Maintenance Deficiency or
removal of graffiti and the collection of the costs of the Agency
in connection with such action. The provisions of this Section 5.3
shall be a covenant running wi th the land for the Term of the
Agency Regulatory Agreement and shall be enforceable by the Agency,
and its successors and assigns. Nothing in the foregoing
provisions of this Section 5.3 shall be deemed to preclude the
Developer from making any alternations, additions, or other changes
to any structure or improvement or landscaping on the Site,
provided that such changes comply with applicable law. No lien as
may arise under this Section 5.3 shall interfere with or be
superior to the security interest of any mortgage secured by the
Site.
d. Notwithstanding the foregoing provisions of this Section
5.3, during the term of the HUD Capital Advance Documents, the
Agency shall not enter the Site, except in an emergency, without
the prior written approval of HUD, and any lien of the Agency
authorized under the Section 5.3 shall also be subject to the prior
written approval of HUD.
5.4 Insurance Coverage. The Developer shall cause to have in
full force and effect during the term of this Agency Regulatory
Agreement insurance coverage as follows:
(i) If any building or improvements erected by the Developer
on the Site shall be damaged or destroyed by an insurable
cause, the Developer shall, at its own cost and expense,
diligently repair or restore the Site and the Project
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consistent with the original plans and specifications for
the Project. Such work or repair shall be conunenced
within One Hundred Twenty (120) days after the damage or
loss occurs and shall be completed within one year
thereafter. All insurance proceeds collected for such
damage or destruction shall be applied to the cost of
such repairs or restoration and, if such insurance
proceeds shall be insufficient for such purpose, the
Developer shall make up the deficience;
(ii) a policy of comprehensive general liability insurance
written on a per occurrence basis in an amount not less
than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.00) per currency, ONE
MILLION DOLLARS ($1,000,000.09) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(iii) a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for both the Developer, Agency, and the
City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any worker
employed by or any persons retained by the Developer in
the course of carrying out the activities in this Agency
Regulatory Agreement.
(iv) a policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less
than either (i) bodily injury liability limits of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) per person
and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per
occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the
aggregate or (ii) combined single limit liability of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy
shall include coverage for owned, non-owned, leased and
hired vehicles.
All of the above policies of insurance shall be primary
insurance and shall name the City and the Agency, and their
officers, employees, and agents as additional insureds. The insurer
shall waive all rights of subrogation and contribution it may have
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against the City and the Agency and their officers, employees and
agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or
canceled without providing thirty (30) days prior written notice by
registered mail to Agency. In the event any of said policies of
insurance are canceled, the Developer shall, prior to the
cancellation date, submit new evidence of insurance in conformance
with this Section to the Executive Director. No operation of the
Project shall commence until the Developer has provided Agency with
certificates of insurance or appropriate insurance binders
evidencing the above insurance coverages, and said certificates of
insurance or binders are approved by Agency.
The policies of insurance required by this Agreement shall be
satisfactory only if issued by companies qualified to do business
in California, rated at least "A(vii)" or better in the most recent
edition of Bests Insurance Rating Guide or an equivalent rating in
The Key Rating Guide or in the Federal Register unless such
requirements are modified or waived by the Executive Director of
the Agency due to unique circumstances.
Compliance by the Developer with the insurance requirements of
HUD under the HUD Capital Advance Documents shall be deemed to meet
the foregoing requirements during the period that the HUD Capital
Adva~ce Documents are in effect so long as the Agency, City and
their officers, employees, and agents as additional insureds on all
said policies as evidenced by certificates of insurance issued to
the City and the Agency.
The Developer agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which the
Developer may be held responsible for the payment of damages to any
persons or property resulting from the Developer's activities or
the activities of any person or persons for which the Developer is
otherwise responsible.
5.5 Hazardous Substances. During the term of the Agency
Regulatory Agreement, the Developer shall comply with all of the
obligations contained in the Agreement with respect to hazardous
substances.
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ARTICLE 6
MISCELLANEOUS AND PRIORITY OF HUD
CAPITAL ADVANCE DOCUMENTS
6.1 ~. The provisions of this Agency Regulatory Agreement
shall apply to the Site for the entire Term. This Agency
Regulatory Agreement shall bind any successor, heir or assign of
the Developer, whether a change in interest occurs voluntarily or
involuntarily, by operation of law or otherwise, with or without
the approval of the Agency, except as expressly released by the
Agency.
6.2 Priority of HUD CaDi tal Advance Documents. This Agency
Regulatory Agreement shall be subject to and subordinate to the
terms and provisions of the HUD Capital Advance Documents and any
other documents entered into by and betw~en the Developer and the
Secretary of Housing and Orban Developme'nt in connection with the
improvement or operation of the Project. Notwithstanding anything
contained herein to the contrary, in the event the Secretary of HUD
(Secretary) should take title to the Site through foreclosure, deed
in lieu of foreclosure, or otherwise as set forth in the HOD
Capital Advance Documents, all covenants, conditions and
restrictions set forth this Agency Regulatory Agreement shall cease
and terminate and be of no further force or effect.
Notwithstanding anything in this Agency Regulatory Agreement to the
contrary, in the event any provision in this Agency Regulatory
Agreement tends to contradict, modify, or in any way change the
terms of the HUD Capital Advance Documents, the term of the HUD
Capi tal Advance Documents shall prevail and govern; or if any
provision of this Agency Regulatory Agreement in any way tends to
limit the Secretary in its administration of the National Housing
Act of 1937, as amended, or the Housing Act of 1959, as amended, or
the regulations pursuant thereto, this Agency Regulatory Agreement
shall be deemed amended so as to comply with such acts, regulations
and HUD Capital Advance Documents.
6.3 rRESERVED--NO TEXTl
6.4 Non-Liabili tv of Officials. EmDlovees and Aaents. The
Agency shall not be personally liable to the Developer for any
obligation created under the terms of this Agency Regulatory
Agree~ent except in the case of actual fra~d or willful misconduct
by such person.
6.5 Covenants to Run With the Land.
provisions of Section 6.2, the Agency and the
declare their express intent that the covenants
Subject to the
Developer hereby
and restrictions
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14
set forth in this Agency Regulatory Agreement are affordable
redevelopment housing covenants and that each and every provision
of this Agency Regulatory Agreement shall run with the land, and
shall bind all successors in title to the Site and/or the Project;
provided, however, that on the expiration of the Term of this
Agency Regulatory Agreement said covenants and restrictions shall
expire. Each and every contract, deed or other instrument
hereafter executed covering or conveying the Site or any portion
thereof shall be held conclusively to have been executed, delivered
and accepted subject to such covenants and restrictions regardless
of whether such covenants or restrictions are set forth in such
contract, deed or other instrument, unless the Agency expressly
releases such conveyed portion of the Site from the requirements of
this Agency Regulatory Agreement.
6.6 Enforcement bv the Aaency. If the Developer fails to
perform any obligation under this AgencY,Regulatory Agreement, and
fails to cure the default within thirty~30) days after the Agency
has notified the Developer in writing of the default or, if the
default cannot be cured within thirty (30) days, fails to commence
to cure within thirty (30) days and thereafter diligently pursue
such cure, the Agency shall have the right to enforce this Agency
Regulatory Agreement by any or all of the following actions, or any
other remedy provided by law:
a. Action to Comnel Performance or for Damaaes. The Agency
may bring an action at law or in equity to compel the
performance of the obligations of the Developer under
this Agency Regulatory Agreement, and/or for damages.
b. Enforce Liens. The Agency may enforce and execute upon
the lien rights of the Agency as conferred under Section
5.3 of this Agency Regulatory Agreement; provided that
during the term of the HUD Capital Advance Documents, HUD
has consented to any such lien.
c.
Other Remedies Provided Under the Agencv Grant Deed.
Agency may exercise any other remedy provided under
Agency Grant Deed.
The
the
6.7 Attorneys' Fees and Costs. In any action brought to
enforce this Agency Regulatory Agreement, the prevailing party
shall be entitled to all costs and expenses of suit, includiCig
attorneys' fees. This section shall be interpreted in accordance
wi th California Civil Code Section 1717 and judicial decisions
interpreting that statute. For the purposes of this Section 6.7,
the salary, fringe benefits and overhead expenses of lawyers
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15
employed in the Office of City Attorney of the City of San
Bernardino shall be deemed to be attorney's fees.
6.8 Recordincr and Filincr. The Agency and the Developer shall
cause this Agency Regulatory Agreement, and all amendments and
supplements to it, to be recorded in the Official Records of the
County of San Bernardino, California.
6.9 Governing Law. This Agency Regulatory Agreement shall be
governed by the laws of the State of California, except those
provisions preempted by federal law.
6.10 Amendments. This Agency Regulatory Agreement may be
amended only by a written instrument executed by all the parties
hereto or their successors in title, and duly recorded in the real
property records of the County of San Bernardino, California;
provided however, that during the period of time when the
provisions of the HUD Capital Advance' Documents are in effect
without the prior written approval of the Secretary of HUD.
6.11 Notice. All notices given or certificates delivered
under this Agency Regulatory Agreement shall be deemed received on
the delivery or refusal date shown on the delivery receipt, if: (i)
personally delivered by a commercial service which furnishes signed
receipts of deli very or (ii) mailed by certified mail, return
receipt requested, postage prepa:.d, addressed as shown on the
signacure page. Any of the parties may, by notice given hereunder,
designate any further or different addresses to which subsequent
notices, certificates or communications shall be sent.
6.12 Severability. If any provision of this Agency Regulatory
Agreement shall be invalid, illegal or unenforceable, the validity,
legali ty and enforceability of the remaining portions of this
Agency Regulatory Agreement shall no~ in any way be affected or
impaired thereby.
6.13 fRESERVED NO TEXT.
6.14 Relationshio of Parties. The relationship between the
Agency and the Developer during the cerm of this Agency Regulatory
Agreement shall not be construed as a joint venture, equity
venture, or partnership. The Agency does not undertake nor assume
any responsibility or duty to the Developer or any third party with
respect to the ownership of the Site or the operation of the
Project or the actions of the Developer. The Developer shall have
no authority to act as an agent of the Agency or to bind the Agency
to any obligation.
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6.15 Waiver. Any waiver by the Agency of any obligation in
this Agency Regulatory Agreement must be in writing. No waiver
will be implied from any delay or failure by the Agency to take
action on any breach or default of the Developer or to pursue any
remedy allowed under this Agency Regulatory Agreement or applicable
law. Any extension of time granted to the Developer to perform any
obligation under this Agency Regulatory Agreement shall not operate
as a waiver or release from any of its obligations under this
Agency Regulatory Agreement. Consent by the Agency to any act or
omission by the Developer shall not be construed to be a consent to
any other or subsequent act or omission or to waive the requirement
for the Agency's written consent to future waivers.
6.17 Other Agreements. The Developer represents that it has
not entered into any agreements that would restrict or compromise
its ability to comply with the terms of this Agency Regulatory
Agreement. Except for the HUD Capital Advance Documents and any
other documents required by HUD under the HUD Section 202 program,
the Developer shall not enter into any agreements that are
inconsistent with the terms of this Agency Regulatory Agreement
without the express approval by the Agency in writing.
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IN WITNESS WHEREOF, the Agency and the Developer have for
themselves and their successors and assigns executed this Agency
Regulatory Agreement by duly authorized representatives in
counterpart original copies, all as of the date first written
above.
AGENCY
Redevelopment Agency of the City of
San Bernardino
Date:
By:
Judith Valles
Chair of the Community
Development Commission of the
City of San Bernardino
By:
Agency Secretary
APPROVED AS TO FORM:
Agency Counsel
DEVELOPER
San Bernardino Senior Housing, Inc.,
a California non-profit public
benefit corporation
Date:
By:
By:
[ALL OFFICER/PRINCIPAL
SIGNATURES TO BE NOTARIZED]
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r----
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
19
RECORDING REQUESTED BY
Redevelopment Agency of the
City of San Bernardino
AND WHEN RECORDED MAIL TO:
)
)
)
)
)
)
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
AND
HOME FUNDS COMMUNITY REDEVELOPMENT
AFFORDABLE SENIOR CITIZEN MOLTI-FAMILY RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANT AND RESTRICTIONS
THIS GRANT DEED OF A PUBLIC AGENCY AND HOME FUNDS COMMUNITY
REDEVELOPMENT AFFORDABLE SENIOR CITIZEN MULTI-Ffu~ILY RESIDENTIAL
HOUSING DEVELOPMENT, USE AND OCCUPANCY CONDITIONS, COVENANTS AND
RESTRICTIONS (the "Agency Grant Deed") hereby grants all of the
right, title and interest of the Redevelopment Agency of the City
of San Bernardino, a body corporate and politic (the "Agency") in
certain real property situated at , San Bernardino,
California (the "Property") to San Bernardino Senior Housing, Inc.,
a California non-profit public benefit corporation, (the
"Developer"), subject to the HOME Program (Title 24 Code of Federal
Regulations Part 92 ~ ~.) and 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 HOME Program and community redevelopment affordable senior
citizen multi-family housing conditions, covenants and restrictions
of this Agency Grant Deed, all of the right, title and interest of
the Agency in the Property, as more particularly described below:
SBEO/0001/DOC/4170-1
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Page 1 of 8
(-- The Property--)
file in the
of the Recorder
on
Official Records of the Office
of San Bernardino County.
PART B
The grant of the Property by the Agency to the Developer is
expressly subject to the satisfaction of the following HOME Program
and community redevelopment affordable senior citizen multi-family
housing conditions, covenants and restrictions as arise under that
certain agreement entitled "2000 Affordable Senior Citizen Rental
Housing Disposition and Development Agreement", dated as of May 1,
2000, (the "Agreement") by and between the Agency and the
Developer:
1. the Property shall be reserved for use, improvement and
occupancy for senior citizen household multi-family
residential purposes, as the term "Senior Citizen
Household" is defined below; and
2. the Developer shall reserve, for a term of fifty-five
(55) years commencing on the date of recordation of this
Agency Grant Deed, not less than eighty percent (80%) of
the multi-family rental housing units as shall hereafter
be constructed on the Property as set forth in the
Agreement for use and occupancy at "affordable rents" by
"lower income households" composed of Senior Citizen
Households, as the terms "affordable rents" and "lower
income households" are defined below; and
3. for the purpose of subparagraph 1 and 2, above the
following definitions of certain terms shall apply:
"affordable rents" means and refers to a sum of rent,
including a reasonable utility allowance, for a
particular Senior Citizen Household which occupies a
rental housing unit on the Property which is computed in
accordance with the provisions of Health and Safety Code
Section 50053 as may be amended from time to time;
"lower income households" means and refers to persons and
families whose income does not exceed the qualifying
limi ts for lower income families as established and
amended from time to time pursuant to Section 8 of the
United States Housing Act of 1937 at 80 percent of area
SBEO/0001/00C/4170-1
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Page 2 of 8
median income, adjusted for family size and revised
annually; and
"Senior Citizen Household" means and refers to a person
or family eligible to occupy a multi-family rental
dwelling unit on the Property under the "HUD Capital
Advance Documents", as this term is defined in the
Agreement, and after the expiration of the term of the
HUD Capital Advance Documents, the words Senior Citizen
Household shall mean and refer to a person or family who
is/are at the time of initial occupancy of the rental
dwelling unit by such person(s) :
(i) 62 years of age or older; and, if applicable
(ii) provided at least one (1) member of the family is
62 years of age or olde~, a "qualified permanent
resident", as this term ~s defined in Civil Code
Section 51.3(c) (2) and (3) as such section of the
Civil Code presently exists or may hereafter be
amended from time to time.
4. During the term of the HUD Capital Advance Documents,
compliance by the Developer with the HUD Capital Advance
Documents as relates to "Senior Citizen Households",
"affordable rents" and "lower income households" shall be
deemed compliance with the provisions of this PART B of
the Agency Grant Deed. During the term of such HUD
Capital Advance Documents, in the event of any conflict
between the provisions of PAR~ B of this Agency Grant
Deed and the HUD Capital Advancement Documents, the
provisions of the HUD Capital Advancement Documents shall
control.
PART C
Subject to the covenant of the Developer as provided in PART B,
Developer shall refrain from restricting the rental, sale, or lease
of any portion of the Property on the basis of race, color, creed,
religion, sex, marital status, age, physical or mental disability,
ancestry, or national origin of any person. All such deeds,
leases, or contracts shall contain or be subject to substantially
the following nondiscrimination or nonsegregation clauses:
(a) Deeds: In deeds the following language shall appear:
Except as specifically provided in the Regulatory
Agreement with respect to renting the units within the
Project to Senior Citizens, as such term is defined
therein and subject to the covenant in the Agency Grant
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Deed improved on the Property by the Redevelopment Agency
of the City of San Bernardino which reserves the Property
for use, improvement and occupancy by Senior Citizen
Households, as this term is defined in Recorded
Instrument No. the Developer herein covenants by
and for itself, its heirs, executors, administrators, and
assigns, and all persons claiming under or through them,
that there shall be no discrimination against or
segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status,
age, physical or mental disability, ancestry, or national
origin in the sale, lease, rental, sublease, transfer,
use, occupancy, tenure, or enjoyment of the land herein
conveyed, nor shall the Developer itself, or any persons
claiming under or through it, establish or permit any
such practice or practices of discrimination or
segregation with reference to the selection, location,
,
number, use, or occupancy. of tenants, lessees,
subtenants, sublessees, or vendees in the land herein
conveyed. The foregoing covenants shall run with the
land.
(b) Leases: In leases the following language shall appear:
The lessee herein covenants by and for itself, its heirs,
executors, administrators, successors, and assigns, and
all persons claiming under or through them and this lease
is made and accepted upon and subject to the following
conditions:
Subject to the covenant of the Developer as provided
improvement on the Property by the Redevelopment Agency
of the City of San Bernardino which reserves the Property
for the use, improvement and occupancy by Senior Citizen
Households, as this term is defined in Recorded
Instrument No. that there shall be no
discrimination against or segregation of any person or
group of persons on account of race, color, creed,
religion, sex, marital status, age, physical or mental
disability, ancestry, or national origin in the leasing,
subleasing, renting, transferring, use, occupancy,
tenure, or enjoyment of the land herein leased nor shall
the lessee itself, or any person claiming under or
through it, establish or permi: a!",y such practice or
practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of
tenants, lessees, sublessees, subtenants, or vendees in
the land herein leased.
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(c) Contracts: In contracts the following language shall
appear: Subj ect to the covenant of the Developer as
provided improvement on the Property by the Redevelopment
Agency of the City of San Bernardino which reserves the
Property for the use, improvement and occupancy by Senior
Citizen Households, as this term is defined in Recorded
Instrument No. , there shall be no discrimination
against or segregation of any person or group of persons
on account of race, color, creed, religion, sex, marital
status, age, physical or mental disability, ancestry, or
national origin in the sale, lease, rental, sublease,
transfer, use, occupancy, tenure, or enjoyment of the
land, nor shall the transferee itself, or any person
claiming under or through it, establish or permit any
such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees,
subtenants, sublessees, or vendees of the land.
The foregoing covenants shall remain in effect in perpetuity.
During the term of the HUD Capital Advancement Documents, in the
event of any conflict between the provisions of PART C of this
Agency Grant Deed and the HUD Capital Advancement Documents, the
provisions of the HUD Capital Advancement Documents shall control.
PART D
No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in PART B, PART C or PART F of
this Agency Grant Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by and approved by the
Agency pursuant to the Agreement; provided, however, that any
successor of Developer to the Property shal:" be bound by such
remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or
othenlise.
PART E
The terms and provisions of PART B, PART C and PART F of this
Agency Deed shall be subordinate to the terms and provisions of the
HUD Capital Advance Documents and any other documents entered into
by and between the Developer and the Secretary of Housing and Urban
Development in connection with the improvement of the Property.
Notwithstanding anything contained herein to the contrary, in the
event the Secretary of HUD (Secretary) should take title to the
Proper~y through foreclosure, deed in lieu of foreclosure, or
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otherwise as set forth in the HUD Capital Advance Documents, all
covenants, conditions and restrictions set forth in PART B, PART C,
PART D and PART F of the Agency Grant Deed shall cease and
terminate and be of no further force or effect. Notwithstanding
anything in this Agency Grant Deed to the contrary, in the event
any provision in this Agency Grant Deed tends to contradict,
modify, or in any way change the terms of the HUD Capital Advance
Documents, the term of the HUD Capital Advance Documents shall
prevail and govern; or if any provision of this Agency Grant Deed
in any way tends to limit the Secretary in its administration of
the National Housing Act of 1937, as amended, or the Housing Act of
1959, as amended, or the regulations pursuant thereto, this Agency
Grant Deed shall be deemed amended so as to comply with such acts,
regulations and HUD Capital Advance Documents. Notwithstanding
anything in this Agency Grant Deed to the contrary, no amendment to
PART B through PART F, inclusive of this Agency Grant Deed by the
Developer, or its successors or assign~ and the Agency shall be
effective at any time during the period of time when the HUD
Capital Advance Documents are in effect without the prior written
approval of the Secretary, its successors or assigns.
PART F
The provisions of this Agency Grant Deed are expressly declared by
the Agency to promote and increase, improvement and preservation of
the community's supply of low- and moderate-income housing. The
transfer of the Property by the Agency to the Developer for this
purpose and the recordation of this Agency Grant Deed is required
by the provisions of 24 Code of Federal Regulations Part 92, and is
also authorized by Health and Safety Code Sections 33334.2 and
33334.3, and other applicable law and actions of the Agency. Upon
the delivery of this Agency Grant Deed to the Developer, the EOME
Program and 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: (i) the Agency as HOME
Program regulatory covenants under 24 CFR Part 92, II ~., or
alternatively, (ii) enforceable by either the Agency or by the City
of San Bernardino, a municipal corporation, as community
redevelopment affordable housing conditions, covenants and
restrictions against the Developer and each successor in interest
or assignee of the Developer in the Property as provided in Health
and Safety Code Section 33334.3(f) (2). No person other tha:: the
Ci ty of San Bernardino or the Agency shall be deemed to be
authorized to enforce any provision of this Agency Grant Deed as a
covenant or restriction which runs with the land and affects the
Property.
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THIS AGENCY GRANT DEED is executed as of the date indicated below
next to the authorized signature of the Executive Director of the
Agency.
AGENCY
Redevelopment Agency of the City
of San Bernardino, a body
corporate and politic
Dated:
By:
Judith Valles, Chairperson of
the Community Development
Commission of the City of San
Bernardino, its governing body
By:
Agency Secretary
Approved As To Form:
Agency Counsel
[NOTARY JURAT ATTACHED]
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ACCEPTANCE OF AGENCY GlUWT DEED AND HOME FUNDS COMMONJ:TY
REDEVELOPMENT AFFORDABLE SENIOR CITIZEN HULTI-FAMILY RESIDENTIAL
HOUSING DEVELOPMENT, USE AND OCCUPANCY CONDITl:ONS,
COVENANTS AND RESTRICTl:ONS
BY THE DEVELOPER
The undersigned officers of San Bernardino Senior Housing, Inc., a
California non-profit public benefit corporation (the "Developer"),
hereby accepts the delivery of the instrument identified above as
the "Grant Deed of a Public Agency and HOME funds and Community
Redevelopment Affordable Senior Citizen Multi-family.Residential
Housing Development, Use and Occupancy Conditions, Covenants and
Restrictions" (the "Agency Grant Deed"), and the transfer of the
Property from the Redevelopment Agency of the City of San
Bernardino, subject to the conditions, covenants and restrictions
contained in the Agency Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the
Property in an "AS IS", "WHERE IS" and "SUBJECT TO ALL fAULTS"
condition and that the Developer is solely responsible for causing
the Property to be improved as set forth in the Agreement by and
between the Agency and the Developer.
The Developer hereby further accepts and agrees to each of the
communi ty redevelopment affordable senior citizen multi-family
residential housing use, improvement and occupancy conditions,
covenants and restrictions contained in the Agency Grant Deed touch
and concern the Property and are HOME Program and community
redevelopment covenants which run with the land, subject to the
provisions of PART E of the Agency Grant Deed during the period of
time when the HUD Capital Advance Documents are in effect.
DEVELOPER
San Bernardino Senior Housing, Inc.,
a California non-profit public
benefit corporation
Date:
By:
Its:
By:
I1:s:
[NOTARY JURAT ATTACHED]
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EXHIBIT "E"
Form of Certificate of Completion
57
EXHIBIT "F"
Agency Senior Citizen Housing Regulatory Agreement
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2000
AFFORDABLE SENIOR CITIZEN RENTAL HOUSING
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS 2000 AFFORDABLE SENIOR CITIZEN RENTAL HOUSING DISPOSITION
AND DEVELOPMENT AGREEMENT (Agreement) is dated as of May 1, 2000,
by and between THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and politic (the "Agency') and
SAN BERNARDINO SENIOR HOUSING, INC., a California nonprofit public
benefit corporation (the "Developer"). This Agreement is entered
into with respect to certain facts presented in these Recitals:
--RECITALS--
A. Agency, as optionor, and Cooperative-Services, Inc., a
Michigan nonprofit corporation, as optionee, previously entered
into that certain Option Agreement dated __, 1999, pursuant
to which Agency granted to Cooperative Services, Inc., an option to
acquire the Site (as described below), subj ect to the terms and
conditions as more specifically set forth in the Option Agreement.
A legal description and vicinity map of the Site is attached hereto
as Exhibit" A" .
B. Cooperative Services, Inc., has received a notification
from the Secretary of the United States Department of Housing and
Urban Development (herein "HUD") that the application of
Cooperative Services, Inc., for a fund reservation under Section
202 of the Housing Act of 1959 02 USC Section 1701q) for the
acquisition of the Site and the improvement thereon of the Project
(as described below) has been accepted by HUD.
C. Cooperati ve Services, In,c., shall assign its right to
acquire the Site from the Agency to San Bernardino Senior Housing
Services, Inc., who shall undertake the development of the Project
as a multi-family rental housing dwellings facility reserved for
occupancy by Senior Citizen Households, as set forth herein.
D. Cooperati ve Services, Inc., has previously given the
Agency written notice as provided in Section 2.2 of the Option
Agreement of the exercise of its election to acquire the Site from
the Agency.
E. Upon assignment of the interest of Cooperative Services,
Inc., under the Option Agreement to the Developer, the Developer
shall accept transfer of title to the Site from the Agency at the
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time of the closing and the initial disbursement of funds by HUD
for the Project, as provided herein.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET
FORTH HEREIN, THE AGENCY AND THE DEVELOPER HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS.
In addition to the meaning ascribed to certain words and
phrases as set forth in the Recitals of this Agreement, other words
and phrases shall have the meaning described below:
1.1 Agency Grant. The term ~Agency Grant" refers to a sum
not to exceed One Hundred Forty Thousand Dollars ($140,000.00)
which the Developer may use and apply during the course of the
improvement of the Project to pay for costs not included within the
HUD Capital Advance as provided in Section 4.9.
1.2 Certificate of Completion.
Completion" shall mean that certain
attached hereto as Exhibit ~E".
The term ~Certificate of
Certificate of Completion,
1. 3 Ci ty .
Bernardino, a
The term ~City" shall mean the City of
charter city, having its offices
, San Bernardino, California 91402.
San
at
1.4 Closing/Closing Date/Close of Escrow. The terms
~Closing", ~Closing Date" and ~Clo~e of Escrow" shall mean the date
on which the conditions for the completion of the performance of
the duties of the parties have been satisfied and the Agency Deed
and the Agency Regulatory Agreement are filed for record in the
Office of the County Recorder of San Bernardino County, California.
The Closing shall occur on or beIore the date provided in the
Schedule of Performance.
1.5 Agency Deed. The term ~Agency Deed" shall mean that
certain grant deed by which the Agency shall convey the Site to the
Developer in substantially the form attached hereto as Exhibit ~~'.
1.6 Escrow. The term ~Escrow' shall mean the land transfer
and construction financing transaction account by and among the
Developer, the Agency, and the escrow department of the Title
Company. For the purpose of this Agreement, the parties hereby
designate the escrow department of the Title Company to serve as
the "Escrow Agent".
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1.7 BUD Section 202 Grant. The term "HUD Section 202 Grant"
shall mean that certain grant of funds in the approximate amount of
Six Million One Hundred Ninety Five Thousand Nine Hundred Dollars
($6,195,900.00), to be made by HUD to the Developer for the
acquisition of the Site and improvement of the Project pursuant to
that certain Notification of Selection for Section 202 Fund
Reservation for Project No. 143-EE034-WAH-NP dated, December 17,
1999. The HUD Section 202 Grant is sometimes referred to herein as
the "HUD Capital Advance".
1.8 Hazardous Substances. The term "Hazardous Substances"
shall mean (i) any hazardous or toxic substance or material
including petroleum, petroleum-based products, asbestos and
asbestos containing materials (ACM) and lead-based paint (LBP), or
waste which is or becomes regulated by any local governmental
authority, the State of California or the United States Government
and/or (ii) any substance or material identified by the United
States Government, the State of California or any local
governmental authority as hazardous or toxic and which is included
on any list of such substances published by any such governmental
entity.
1.9 HUD. The term " HUD" shall mean the United States
Department of Housing and Urban Development.
1.10 BUD Capital Advance Documents. The term "HUD Capital
Advance Documents" shall mean the various documents by and between
HUD and the Developer which evidepce the terms and conditions of
the HUD Section 202 Grant to the Developer for the Project. The HUD
Capital Advance Documents include without limitation the HUD
regulatory agreement, the HUD deed of trust, the HUD use agreement
and HUD Capital Advance Agreement and the HUD Project Rental
Assistance Contract. .
1.11 Project. The term" proj ect" shall mean all of the work
of investigation, design, construction, improvement, modification,
and financing necessary in order for the Developer to acquire the
Site and construct and place in service thereon the affordable
senior citizen rental housing project consisting of seventy-four
(74) one (1) bedroom rental units reserved for occupancy by Senior
Citizen Households and one (1) unit with two (2) bedrooms reserved
for occupancy by on-site management personnel. The Project also
includes all related landscaping, driveways, utili ties, and any
improvements which may be required by the City on the Site or
within the public rights-of-way adjacent to the Site. The
functional elements of the Project are more particularly described
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in the Scope of Development and Site Improvement Plan Concept
attached as Exhibit "B" (the "Scope of Development").
1.12 Purchase Price. The term "Purchase Price" shall mean
that amount agreed upon by the parties as the payment to be made by
Developer to Agency for the purchase of the Site, which Purchase
Price shall be Two Hundred Seventy Five Thousand Dollars
($275,000.00) .
1.13 Redevelopment Plan. The term "Redevelopment Plan" shall
mean the Redevelopment Plan for Northwest Redevelopment Project.
A copy of the Redevelopment Plan is on file in the Office of the
City Clerk of the City. The Redevelopment Plan is incorporated
herein by this reference as though fully set forth herein.
1.14 Aqency Regulatory Aqreement. The term "Agency Regulatory
Agreement" shall mean that certain Low-Income Senior Citizen
Household rental housing regulatory agreement and declaration of
covenants and restrictions affecting the Site and the Project by
and between the Developer and the Agency in the form attached
hereto as Exhibit" F" .
1.15 Schedule of
Performance" shall mean
Exhibi t "C".
Performance. The term "Schedule of
that certain Schedule attached hereto as
1.16 Senior Citizen Household. The term "Senior Citizen
Household" shall mean and refer tq a person or family eligible to
occupy a rental dwelling unit at the Project under the HUD Capital
Advance Documents and the Agency Grant Deed, who is/are at the time
of initial occupancy of the rental dwelling unit by such person(s) :
(i) 62 years of age or older; and, if applicable
(ii) provided at least one (1) member of the family is 62
years of age or older, a "qualified permanent resident",
as this term is defined in Civil Code Section 51.3(c(2)
and (3).
During the term of the HUD Capital Advance Documents
compliance by the Developer with such documents as relates to
Senior Citizen Household occupancy shall be deemed compliance with
the definition as set forth in this Section 1.16.
1.17 Site. The term "Site" shall mean that certain unimproved
real property located within the Project Area in the City of San
Bernardino, County of San Bernardino, State of California,
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consisting of approximately ____ acres of land (more or less) and
more particularly described in the legal description attached as
Exhibi t "A".
1.18 Title Company. The term "Title
Chicago Title Insurance Company or such
mutually agreeable to Agency and Developer.
Company" shall mean
other title company
1.19 Low-Income Senior Citizen Household. The term "Low-
Income Senior Citizen Household" shall refer to a Senior Citizen
Household which has the household in come characteristics of a
"low-income family' as set forth at 42 United States Code Section
1437a (b) .
2 . PURPOSE OF AGREEMENT.
The purpose of this Agreement is to effectuate the
Redevelopment Plan by improving the Site as well as to assist in
providing affordable rental housing which is reserved for occupancy
by Senior Citizens Households and Low-Income Senior Citizen
Households. The redevelopment of the Project on the Site and the
fulfillment generally of this Agreement are in the best interests
of the City and the welfare of its residents and are in accordance
with the public purposes and provisions of applicable federal,
state, and local laws and regulations under which the Project has
been undertaken and is being assisted.
3. DISPOSITION OF THE SITE AND ESCROW.
3.1 Subject to the satisfaction of the terms and conditions
of this Agreement the Developer hereby agrees to purchase from
Agency and Agency agrees to sell to Developer the Site on the terms
hereinafter set forth.
3.2 The Developer and the Agency hereby agree to establish
the Escrow for the transfer of the Site from the Agency to the
Developer. The Developer and the Agency shall cause the Escrow to
be opened within thirty (30) days following the full execution of
this Agreement. This Agreement shall constitute the joint escrow
instructions of the Agency and the Developer, and a duplicate
original of this Agreement shall be delivered to the Escrow Agent
and the Escrow shall be deemed to be opened when the Escrow Agent
has received a fully executed copy of this Agreement and assigned
its escrow account transaction identification to this Agreement.
Escrow Agent is empowered to act under these instructions. Agency
and Developer shall cooperate with the Escrow Agent and promptly
prepare, execute, and deliver to the Escrow Agent such additional
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escrow instructions consistent with the terms herein as shall be
reasonably necessary. No provision of any additional escrow
instructions shall modify this Agreement and in the event of any
conflict between the provisions of this Agreement and such
additional escrow instructions, the provisions of this Agreement
shall prevail.
3.3 Conditions to Closing.
(a) The obligation of the Developer to purchase the Site and
to Close the Escrow shall be contingent upon the satisfaction, or
waiver by Developer, of each and all of the following conditions
(collectively, the ~Developer Conditions") by the dates set forth
herein:
(i) Agency has deposited into Escrow a certificate
(FIRPTA Certificate) in such form as may be required by the
Internal Revenue Service pursuant to Section 1445 of the
Internal Revenue Code and a California Form 590-RE (Residency
Certificate,) pursuant to Section 18805 of the California
Revenue and Taxation Code;
(ii) HUD has issued its ~Firm Commitment"
Developer for the Project as provided in 24 CFR Part
the Developer has approved the form of the HUD Capital
Documents for the Project;
to the
850 and
Advance
(iii) Agency has prepared and the Developer has approved
a legal description of the Site which shall be attached to the
Agency Deed when delivered to the Escrow Agent;
(iv) Developer has accepted the condition of the Site as
provided in section 3.8;
(v) Developer has obtained all necessary approvals from
governmental agencies with jurisdiction over the Project for
the issuance of all permits and other entitlements for the
construction of the Project, subject only to the submission of
final plans and the payment by the Developer of applicable
permit fees and public facilities capital improvement charges;
(vi) the Title Company has confirmed that it shall issue
a CLTA Owner's policy of title insurance for the Site in a
form acceptable to the Developer;
(vii) Agency has executed and delivered to the
Agent in recordable form the Agency Grant Deed,
Escrow
Agency
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Regulatory Agreement and all other documents required under
this Agreement in recordable form;
(viii) the HUD Capital Advance Documents have been
delivered to the Escrow Agent in recordable form, and the
Developer has received and the Escrow Agent has confirmed that
the proceeds of the HUD Section 202 Grant are immediately
available to the order and account of the Developer in an
amount sufficient to fund the Escrow and pay the Purchase
Price to the Agency together with all other payments and
disbursements approved by HUD to be made at the time of the
Closing; and
(ix) the Agency has deposited with the Escrow Agent the
full amount of the Agency Grant for use and application by the
Developer as provided in Section 4.9. The Agency acknowledges
that the Agency Grant funds are to pay for Project-costs not
included in the HUD Capital Advance and that the Agency Grant
funds are to be disbursed to pay for Project-costs before
funds under the HUD Capital Advance are disbursed for the
Project.
Any waiver of the satisfaction of the foregoing conditions by
the Developer must be express and in writing. In the event that the
foregoing conditions have not been satisfied wi thin the time
provided in the Schedule of Performance but not in all events by a
date not later than December 31, 2001, or in the event that the
Agency may be in default, the Developer may terminate this
Agreement by delivering a written notice in accordance with Section
3.10, subject to any cure rights provided therein. From time-to-
time during the period when the Escrow is open the Agency may send
written notices to the Developer which reference this Section
3.3(a), and within ten (10) days Eollowing the receipt of such a
notice the Developer shall provide the Agency with a suitably
detailed written report which describes the action, if any, which
the Developer believes may be necessary in order for any of the
Developer Conditions to the Closing to be satisfied.
(b) The obligation of the Agency to sell the Site to the
Developer and to Close the Escrow shall be contingent upon the
satisfaction, or waiver by the Agency, of each of the following
conditions (collectively, the ~Agency Conditions") by the date set
forth herein:
(i) Developer has provided the Agency with the
information set forth in Section 3.7, and the Firm Commitment
from HUD for the HUD Section 202 Capital Grant remains in full
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___I
force and effect without material modification or change, and
such other commitments as necessary to finance the acquisition
of the Site and development of the Proj ect or otherwise
provided Agency with financial statements or loan commitments
which evidence the Developer's capability to acquire the Site
and develop the Project remain in full force and effect
without material modification or change;
(ii) Developer has delivered its written notice of
acceptance of the condition of the Site to the Agency as
provided in Section 3.8;
(iii) Developer has not made or attempted to make a
Transfer in violation of Section 4.3 and no default by the
Developer exists under this Agreement;
(iv) Developer has deposited into Escrow the Purchase
Price and executed in recordable form the Agency Deed, the
Agency Regulatory Agreement and the other documents required
under this Agreement and delivered to the Escrow Agent any
other funds required to pay costs of the Developer to be paid
at time of Closing;
(v) Developer has accepted the condition of the Site and
shall have timely performed each and every other obligation of
Developer hereunder;
(vi) Developer has submitted the final building plans for
the Project for approval by the Agency as provided in Section
4.1 below and the Agency has approved such final building
plans;
(vii) the Developer and the Agency jointly approved a list
of Project-related improvement items for which the Developer
may apply the proceeds of the Agency Grant; and
(viii) Developer has obtained all other necessary
governmental approvals for the issuance of all permits and
other entitlement for the construction of the Project, subject
only to the submission of final plans and the payment of the
applicable permit fees and public capital improvement charges.
Any waiver of the satisfaction of the foregoing conditions by
the Agency must be express and in writing. In the event that the
foregoing conditions have not been satisfied within the time
provided in the Schedule of Performance, or in the event that the
Developer may be in default, the Agency may terminate this
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Agreement by delivering a written notice in accordance with Section
3.10, subject to any cure rights provided therein. From time-to-
time during the period when the Escrow is open the Developer may
send written notices to the Agency which reference this Section
3.2(b), and within ten (10) days following the receipt of such
notice the Agency shall provide the Developer with a suitably
detailed written report which describes the action, if any, which
the Agency believes is necessary in order for any of the foregoing
Agency Conditions to the Closing to be satisfied.
3.4 Tax Reporting and Miscellaneous Matters. Prior to the
Closing, Developer and Agency shall execute and deliver a
certificate (Taxpayer ID Certificate) in such form as may be
required by the IRS pursuant to Section 6045 of the Internal
Revenue Code, or the regulations issued pursuant thereto,
certifying as to the description of the Site, date of Closing,
gross price, and taxpayer identification number for Developer and
Agency. Prior to the Closing, Developer and Agency shall cause to
be delivered to the Escrow Agent such other items, instruments and
documents, and the parties shall take such further actions, as may
be necessary or desirable in order to complete the close of Escrow.
3.5 Escrow Procedures and Conveyance of the Site.
(a) The Closing shall occur upon satisfaction of the
Developer Conditions and the Agency Conditions as applicable;
provided however that notwithstanding any other provision of the
Schedule of Performance or Section 7.5 to the contrary, in the
event that the Closing has not occurred by a date not later than
, 2000, for any reason, then after such date, either
party who is not then in default may give its written notice of
termination of the Escrow which references this Section 3.5 (a) ,
whereupon, this Agreement shall te~minate and the Escrow shall be
canceled. The Escrow Agent shall return any documents or funds
then in its possession to the party who delivered such documents or
funds, and each party shall pay one-half (~) of the Escrow Agent's
reasonable cancellation charges, if any. Upon the payment of such
Escrow cancellation charges the parties shall be mutually released
from any further liability hereunder. The final date for the
Closing may be extended by the mutual written agreement of the
parties.
(b) Within ten (10) days prior to the estimated time of the
Closing, the Escrow Agent shall advise the Agency and the Developer
in writing of the approximate amount of the fees, charges, and
other costs necessary to Close the Escrow, and of any documents
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which have not been provided by said party and which must be
deposited in Escrow to permit Closing.
(c) On or before the third business day preceding the Closing
Date, Agency shall tender the Agency Grant in immediately available
funds to the Escrow Agent, if requested by the Developer under
Section 4.9, and the Agency shall execute, acknowledge and deposit
into Escrow: (i) the Agency Deed; (ii) the Agency Regulatory
Agreement; and (iii) the FIRPTA Certificate.
(d) On or before the the Closing, Developer shall execute and
acknowledge as may be required and deposit into Escrow: (i) the
Purchase Price; (ii) the acceptance of the Agency Deed; (iii) as
required by HUD, the HUD Capital Advance Documents; (iv) other
securi ty documents of a lender approved by Agency pursuant to
Section 3.7, if any; (v) the Agency Regulatory Agreement; and (Vi)
payment to the Escrow Agent of Developer's share of costs, if any,
as determined by the Escrow Agent pursuant to Section 3.9.
(e) Upon the completion by the Agency and Developer of the
deliveries and actions specified in these escrow instructions the
Escrow Agent shall be authorized to pay any documentary transfer
taxes and recording fees, if required by law, and thereafter cause
to be recorded in the appropriate records of San Bernardino County,
California, the Agency Deed, the HUD Deed of Trust, HUD Regulatory
Agreement, HUD Use Agreement, the Agency Regulatory Agreement and
the other instruments delivered or exchanged by the parties through
this Escrow. Concurrent with recordation, the Escrow Agent shall
deliver the Title Policy to Develdper. Following recordation, the
Escrow Agent shall deliver copies of said instruments to Developer
and Agency (including without limitation the delivery to the Agency
of a complete set of the final and fully executed copies of the HUD
Capital Advance Documents) and pro~ide the parties with copies of
the final Escrow closing statement of each party. In addition,
after deducting any sums specified in this Agreement, the Escrow
Agent shall disburse funds to the party entitled thereto.
3.6 Title Matters.
(a) At Closing, Agency shall convey fee title to the Site to
Developer subject only to: (i) the Senior Citizen Household use
restriction as set forth in the Agency Deed; (ii) the other
covenants, conditions and restrictions set forth in the Agency
Deed; (iii) the Agency Regulatory Agreement; (i v) nondelinquent
real property taxes and assessments; (v) utility easements; (vi)
public street easements; (vii) applicable zoning and development
regulation of the City as affects the Site; and (viii) covenants,
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conditions, and restrictions, easements, and other encumbrances and
title exceptions approved by Developer under Section 3.6(b) or
otherwise created or consented to by Developer and acceptable to
HUD under the terms of the HUD Capital Advance Documents
(collectively, the UPermitted Exceptions").
(b) Within fifteen (15) days after the Escrow is deemed
opened, the Agency shall deliver to the Developer a preliminary
title report issued by the Title Company, dated as of the opening
of Escrow, together with copies of all title exception/matters
referenced therein. Within thirty (30) days following its receipt
of the preliminary title report, the Developer shall deliver to
Agency written notice specifying in detail any exception (other
than those exceptions specifically listed in Section 3.6(a))
disapproved and the reason therefor. Wi thin fifteen (15) days
following its receipt of such written notice of the Developer the
Agency shall deliver written notice to the Developer as to whether
the Agency will or will not cause the disapproved exceptions to be
removed or to be endorsed with endorsements providing the Developer
with reasonable assurance with respect to the disapproved
exceptions. If Agency elects not to cure the disapproved
exceptions, Developer may terminate this Agreement, without any
liability of Agency to Developer by giving notice which references
this Section 3.6(b) and the parties shall be mutually released from
any further duty or responsibility. If Agency so elects to cure
the disapproved exceptions, Agency shall do so on or before the
Closing.
(c) Upon the Closing, the Title Company shall furnish
Developer with a CLTA owner's policy of title insurance insuring
Developer's fee interest in the Site subject only to the Permitted
Exceptions (the UTitle Policy"). The Agency aCknowledges that the
permitted Exceptions and the Titl~ Policy must also be in a form
acceptable to HUD under the HUD Capital Advance Documents. Agency
shall pay the premium charged by Title Company for the issuance of
the Title Policy. The Developer shall be responsible for obtaining
and paying for the cost of any title policy insuring the interest
of HUD or any other interested person in the Site and/or the
Project.
3.7 Developer Financing.
(a) Within the time set forth in the Schedule of Performance,
the Developer shall submit to the Executive Director of the Agency
(the UExecutive Director") for approval evidence reasonably
satisfactory to the Executive Director that the Developer has the
financial capability necessary for the acquisition of the Site,
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development of the Project and operation of the Senior Citizen
Household rental housing facility following its completion pursuant
to this Agreement. Such evidence of financial capability shall
include all of the following:
(i) reliable cost estimates for Developer's total cost
of acquiring the Site and developing the Project (including
both hard and soft costs);
(ii) a complete copy of the Firm Commitment for the HUD
Section 202 Capital Grant executed by HUD for the financing
and acquisition of the Site and development of the Project;
(iii) a financial statement and/or other documentation
reasonably satisfactory to the Executive Director sufficient
to demonstrate that Developer has adequate funds available and
committed (inclusive of the funds available to the Developer
following the Close of Escrow under the Agency Grant) to cover
the difference between the total acquisition and development
costs of the Project;
(iv) a copy of the proposed contract between Developer
and its general contractor for all of the improvement of the
Project certified by Developer to be a true and correct copy
thereof. The Executive Director shall also have the right to
review and approve any revisions that are made to the proposed
contract with the general contractor after its approval by the
Executive Director;
(v) evidence of the good faith efforts of the Developer
to implement a local resident employment history program
during the course of construction and improvement of the
Project as set forth in Section 4.7;
(vi) Project operating cost projections and a completed
Project management operations plan in a form reasonably
satisfactory to the Executive Director which demonstrates that
the Developer has an acceptable plan of operation and
management of the Project. Such a management operations plan
approved or accepted by HUD under the terms of the HUD Capital
Advance Documents shall be deemed acceptable to the Executive
Director.
(b) Developer covenants and agrees to take all action furnish
all information, give all consents and pay all sums required to
keep the Firm Commitment and the HUD Section 202 Grant in full
force and effect and shall comply with all conditions thereof, and
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shall promptly execute, acknowledge and deliver all applications,
credit applications and data, financial statements, and documents
in connection therewith, and shall actually draw upon and utilize
the full amount of HUD Section 202 Grant only for the costs of the
Project authorized under the HUD Capital Advance Documents
including but not limited to acquisition of the Site architectural,
engineering, legal, organizational, insurance, developer fees and
for paying for the cost of construction and improvement of the
Project.
(c) The Developer hereby authorizes the Agency to contact HUD
from time-to-time as the Agency may deem necessary or appropriate
to confirm information as relates to the HUD Section 202 Grant for
the proj ect.
3.8 Condition of Site.
(a) The Developer shall have the right to approve the
physical condition of the Site, including its soil and
environmental condition, based upon Developer's inspection of the
Site and the records of Agency. Developer shall at its sole cost
and expense retain the consultant or consultants of its choice to
assist the Developer in its review of any and all aspects of the
soils, environmental, geotechnical and other physical conditions of
the Site, including all information, reports and records of the
Agency pertaining to the physical condition of the Site. Developer
and its consultants shall also have the right to make any
inspection of the Site and to conduct any intrusive soil sampling
tests it deems appropriate with respect to either its geotechnical
soils investigations or soils investigations relating to the
potential presence of any Hazardous Substance on the Site.
Developer shall notify Agency at least seventy-two (72) hours in
advance of any entry onto the Site. pursuant to Section 3.8(c) and
in the event Developer or its consultant desires to conduct tests
involving the drilling, trenching or boring of the soils located on
the Site, Developer's consultant shall work with and cooperate with
the Agency to assure that all such tests are conducted in a manner
consistent with the highest industry standards and in a manner that
will not damage or injure the Site. Within the time provided in
the Schedule of Performance, the Developer shall conduct and
complete its own independent inspection and investigation of the
Site, and its investigation of all records and reports concerning
the physical condition of the Site, determine if the soils,
environmental, geotechnical and other physical conditions of the
Si te are sui table for the development and construction of the
Project on the Site. The Developer shall not rely on any statement
or representation by the Agency or the City relating to the
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conditions of the Site. Without limiting the foregoing, the Agency
makes no representation or warranty as to whether the Site
presently complies with environmental laws or whether the Site
contains any Hazardous Substance. By not later than the date
indicated in the Schedule of Performance, the Developer shall
deli ver a written notice to the Agency which references this
Section 3.8 and includes a statement that either: (i) the Developer
accepts the condition of the Site in its ~AS IS", ~WHERE IS" and
~ SUBJECT TO ALL FAULTS" conditions; or (ii) the Developer
disapproves the condition of the Site for the specific reason(s) or
grounds set forth in such notice. The Agency shall have no
obligation or liability to the Developer to correct, cure, remedy
or abate any soils, environmental, geotechnical or other physical
condition of the Site, including without limitation the remediation
of any Hazardous Substance thereon, which may provide the Developer
with a basis to disapprove the condition of the Site. If-Developer
notifies Agency in writing of its disapproval of the soils,
environmental, geotechnical and/or other physical conditions of the
Site, then this Agreement shall be subject to termination by either
party without liability to the other upon the giving of notice of
termination which references this Section 3.8, whereupon the
parties shall be mutually released from all further
responsibilities or liabilities.
(b) Developer shall take the Site in its ~AS IS", ~WHERE IS"
and ~SUBJECT TO ALL FAULTS" condition and the Developer shall be
responsible for any defects in the Site, whether patent or latent,
including, without limitation, the physical, environmental and
geotechnical condition of the S.i te, and the existence of any
contamination, Hazardous Substances, vaults, debris, pipelines,
abandoned wells or other structures located on, under or about the
Site. Agency makes no representation or warranty concerning the
physical, environmental, geotechn~cal or other condition of the
Site, the suitability of the Site for the Project, or the present
use of the Site, and specifically disclaims all representations or
warranties of any nature concerning the Site made by it, the City
and their employees, agents and representatives. The foregoing
disclaimer of the Agency includes, without limitation, topography,
climate, air, water rights, utilities, present and future zoning,
soil, subsoil, existence of Hazardous Substances or similar
substances, the purpose for which the Site is suited, or drainage.
The Agency shall not be responsible for grading the Site and makes
no representation nor warranty concerning the compaction of soil
upon the Site, nor of the suitability of the soil for construction.
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The Developer has specifically reviewed and accepts the
provisions of this Section 3.8 (b), and the provisions of this
Section 3.8(b) shall survive the Close of Escrow.
Initials of Developer
(c) Prior to the date specified in the Schedule of
Performance for the approval of the condition of the Site under
this Section 3.8 the Developer, its employees, agents or
contractors have the right at the Developer's sole cost and expense
to enter onto the Site to conduct soils, engineering, or other
tests and studies, to perform preliminary work or for any other
purposes to carry out the terms of this Agreement; provided
however, that no work of improvement of the Project shall commence
until the Escrow has Closed and the Developer has acquired the fee
title interest in the Site from the Agency. Developer shall
indemnify, defend and hold Agency harmless from and against any
claims, injuries or damages arising out of or involving any such
entry or activity as provided in Section 6.8. Any such activity
shall be undertaken by the Developer only after securing any
necessary permit from the appropriate governmental agencies and
delivering to the Agency certificates of insurance evidencing the
coverages required in Section 6.8.
3.9 Costs of Escrow.
(a) At Closing, the Escrow Agent is authorized to allocate
certain Escrow costs as follows: Agency shall pay (i) the
documentary transfer tax; (ii) recording fees for the Agency Deed
and the Agency Regulatory Agreement; (iii) the premium for the
Title Policy; and (iv) all of the customary service charges and
expenses of the Escrow Agent. . Developer shall pay (1) the
recording charges for all financing documents and other matters,
including the HUD Capital Advance Documents; (2) the price for any
endorsements or binders to the Title Policy as the Developer may in
its discretion request (including any separate policies of title
insurance in favor of HUD or third parties as may be necessary).
Each party shall pay its own attorneys' fees. Any other usual and
customary fees or costs which are not specifically allocated herein
shall be paid by the Agency provided however that the parties who
incur special messenger or overnight delivery charges shall be
solely responsible for such expenses of the Escrow Agent.
(b) Ad valorem taxes and assessments on the Site, if any, for
the current year shall be prorated by the Escrow Agent as of the
date of Closing, and the Agency responsible for any such taxes or
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assessments levied, assessed or imposed prior to Closing, and the
Developer responsible for those after Closing. If the actual taxes
are not known at the date of Closing, the proration shall be based
upon the most current tax figures. When the actual taxes for the
year of Closing become known, Developer and Agency shall, within
thirty (30) days after written notice, prorate the taxes in cash
between themselves outside of the Escrow.
(c) In the event that a party who is not then in default may
terminate this Agreement before the Closing, the parties shall each
pay one-half (~) of the Escrow Agent's fees, charges, and expenses,
including Title Policy cancellation charges, if any. In the event
that a party who is not in default may terminate this Agreement as
provided in Section 3.10, then the party who is in default shall be
responsible for paying for all of the Escrow Agent's fees, charges,
and expenses, including Title Policy cancellation charges, if any.
3.10 Cancellation of Escrow Prior to Closing Upon Failure of
Conditions Without Fault By Either Party, Default and Termination.
The Escrow may be canceled and this Agreement terminated prior to
the Closing upon the written notice of either party who then shall
have fully performed its obligations hereunder if: (i) either the
Developer Conditions or Agency Conditions have not occurred or have
not been approved, disapproved, or waived as the case may be, by
the approving party by the date established either in the Schedule
of Performance or herein for the occurrence of such condition; or
(ii) Escrow is not in a position to close by no later than December
31, 2001, for any reason. In the event of the foregoing, the
terminating party may demand, in' writing, return of its money,
papers, or documents from the Escrow Agent and shall deliver a copy
of such notice to the non-terminating party. Fifteen (15) days
after such notice has been delivered to the Escrow Agent and the
other party, this Agreement shall ~erminate and the Escrow Agent
shall cancel the Escrow without further instruction, whereupon the
parties shall be mutually released from any further obligation;
provided however, that the mutual representations of the parties
under Section 3.13 and the indemnity provisions of Section 3.8(c),
and Section 6.7 shall survive any such termination of this
Agreement.
3.11 Responsibilities of Escrow Agent.
. (a) All funds received in Escrow shall be deposited by the
Escrow Agent in an escrow account with any state or national bank
doing business in the State of California.
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(b) All communications from the Escrow Agent shall be
directed to the addresses and in the manner provided in Section 7.2
of this Agreement for notices, demands and communications between
Agency and Developer.
(c) The Escrow Agent is not to be concerned with the
sufficiency, validity, correctness of form, or content of any
document prepared outside of Escrow and delivered to Escrow. The
sole duty of the Escrow Agent is to accept such documents and
follow Developer's and Agency's instructions for their use.
(d) Upon the satisfaction of the Developer's Conditions and
the Agency's Conditions, the Escrow Agent shall comply with the
final written Escrow Closing instructions addressed to the Escrow
Agent by the Developer and by the Agency.
(e) The Escrow Agent shall in no case or event be liable for
the failure of any of the conditions to Closing, or for forgeries
or false impersonation, unless such liability or damage is the
result of negligence or willful misconduct by the Escrow Agent.
3.12 No Real Estate or Broker
mutually represent and warrant
commission or finder's fee is
connection with the transfer of
Developer.
Commission Payable. The parties
that no real estate broker
payable to a third party in
the Site by the Agency to the
4. DEVELOPMENT OF THE PROJECT BY DEVELOPER.
4.1 Scope of Development.
(a) Except for the work of technical investigation and
testing of soils as authorized unde~ Section 3.8, no other work of
improvement of the Project shall be undertaken on the Site prior to
the Closing. It is the intent of the parties that promptly
following the Close of the Escrow the Developer shall commence the
work of improvement of the Proj ect on the Site. The proj ect
consists of the elements set forth in the Scope of Development
(See: Exhibit -B").
(b) The City's zoning ordinance and the City's building
requirements will be applicable to the use of the Site and
development of the Project. The Developer acknowledges that the
plans for development of the Site as set forth in the Scope of
Development shall be subject to the City's zoning ordinance and
building requirements. No action by the Agency or the City with
reference to this Agreement or related documents shall be deemed to
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constitute a waiver of any City requirements which are applicable
to the Site or to the Developer or to any successor in interest of
the Developer except by modification or variance duly approved by
the City in accordance with applicable law in its sole and absolute
discretion.
(c) The Scope of Development set forth in Exhibit "B" is
hereby approved by the Agency upon its execution of this Agreement.
The Project shall be developed and completed in conformance with
the Scope of Development and any and all other plans,
specifications and similar development documents required by this
Agreement, except for such changes as may be mutually agreed upon
in writing by and between the Developer and the Agency. The
Executi ve Director of the Agency is authorized to approve the
preliminary and the final construction plans for the proj ect,
together with the preliminary and the final landscaping plans
provided that the Executive Director finds at the time of such
approval that such plans are reasonably consistent with the Scope
of Development.
(d) The approval of the Scope of Development by the Agency
shall not be binding upon the Mayor and Common Councilor the
Planning Commission of the City with respect to any approvals of
the Project required by such other bodies under applicable law. If
any revision of the Scope of Development is required by another
government official, agency, department or bureau having
jurisdiction over the development of the Site and the Project as a
result of development project permits reviews and approvals under
applicable law, the Developer and the Agency shall cooperate in
efforts to either modify the Scope of Development to accommodate
such regulatory requirements or obtain waivers or recommendation of
such revisions by the regulatory agencies. The Agency shall not
unreasonably withhold approval of ~uch revisions to the Scope of
Development as may be required by such regulatory approval powers.
(e) Notwithstanding any provision to the contrary in this
Agreement, the Developer agrees to accept and comply fully with any
and all reasonable conditions of approval applicable to all permits
and other governmental actions affecting the development of the
Site and the Project.
(f) The Developer shall at its sole cost and expense cause
landscaping plans in connection with development of the Project to
be prepared and submitted to the City by a licensed landscape
architect within the times provided in the Schedule of Performance.
The Developer shall prepare and submit to the City for its
approval, preliminary and landscaping plans for the Project which
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are consistent with City Code requirements. These plans shall be
prepared, submitted and approved wi thin the times respectively
established therefor in the Schedule of Performance as shown on
Exhibit UC" and shall be consistent with the Scope of Development.
(g) The Developer shall at its sole cost and expense prepare
and submit development plans, construction drawings and related
documents within the times provided in the Schedule of Performance
for the development of the proj ect. Such development plans,
construction drawings and related documents shall be prepared and
submitted in sufficient detail necessary to obtain all necessary
building permits from the City for construction of the Project.
The Agency shall cooperate with and shall assist the Developer in
order for the Developer to obtain the approval of any and all
development plans, construction drawings and related documents
submitted by the Developer to the City consistent with this
Agreement within thirty (30) calendar days following the City's
receipt of said plans. Any failure by the City to approve any of
such plans or to issue necessary permits for the development of the
Site within said thirty (30) calendar day period shall constitute
an enforced delay hereunder, and the Schedule of Performance shall
be extended by that period of time beyond said thirty (30) calendar
day period in which the City approves said plans; provided,
however, that in the event that the City disapproves of any of such
plans, the Developer shall within thirty (30) calendar days after
receipt of such disapproval revise and resubmit such plans in
accordance with the City's requirements and in such form and
substance so as to obtain the City's approval thereof.
(hI During the preparation of all drawings and plans in
connection with the development of the Project, the Developer shall
provide to the Agency regular progress reports to advise the Agency
of the status of the preparation by the Developer, and the
submission to and review by the City of construction plans and
related documents. The Developer shall communicate and consult
with the Agency as frequently as is necessary to ensure that any
such plans and related documents submitted by the Developer to the
City are being processed in a timely fashion.
(i) The Agency shall have the right of reasonable
architectural review and approval of building exteriors and design
of the structures to be constructed on the Site. The Agency shall
also have the right to review all plans, drawings and related
documents pertinent to the development of the Project in order to
ensure that they are consistent with this Agreement and with the
Scope of Development.
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(j) [RESERVED--NO TEXT]
(k) [RESERVED--NO TEXT]
(1) The Executive Director of the Agency shall approve any
modified or revised plans, drawings and related documents to which
reference is made in this Agreement within the times established in
the Schedule of Performance as long as such plans, drawings and
related documents are generally consistent with the Scope of
Development and any other plans which have been approved by the
Agency. Upon any disapproval of plans, drawings or related
documents, the Executive Director of the Agency shall state in
wri ting 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
Executive Director of the Agency shall approve or disapprove such
revised plans, drawings and related documents in the same manner
and within the same times as provided in this Section for approval
or disapproval of plans, drawings and related documents initially
submitted to the Agency.
(m) If the Developer desires to make any change in the
construction drawings, plans and specifications and related
documents after their approval by the Agency and/or the City, the
Developer shall submit the proposed change in writing to the
Executive Director of the Agency and/or the City for their
independent approval. The Executive Director of 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 Executive Director of the Agency.
Any such change shall, in any event, be deemed to be approved by
the Agency unless rejected, in whole or in part, by written notice
thereof submitted by the Executive Director of the Agency to the
Developer, setting forth in detail the reasons therefor, and such
rejection shall be made within said thirty (30) calendar day period
unless extended as permitted herein. The Agency shall use its best
efforts to cause the City to review and approve or disapprove any
such change as provided in Section 4.1(s) hereof.
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(n) The Developer, upon receipt of a notice of disapproval 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 their independent
approval in the manner provided in Section 4.1(g) hereof.
(0) The Developer shall have the right during the course of
construction of the Project to make changes in construction of
structures and "minor field changes" without seeking the approval
of the Agency; provided, however, that such changes do not affect
the type of use to be conducted within all or any portion of a
structure. Said "minor field changes" shall be defined as those
changes from the approved construction drawings, plans and
specifications which have no substantial effect on the improvements
and are made- in order to expedite the work of construction in
response to field conditions. Nothing contained in this Section
shall be deemed to constitute a waiver of or change in the City's
Building Code requirements governing such "minor field changes" or
in any and all approvals by the City otherwise required for such
"minor field changes".
(p) The cost of designing, constructing, installing and
equipping the Project, including the installation of all off-site
public improvements, shall be borne by the Developer provided
however that the Developer may use and apply the Agency Capital
Facility Credit as set forth in Section 4.7.
(q) [RESERVED--NO TEXT]
(r) The Developer shall pay for any and all costs, including
but not limited to the costs of design, construction, relocation
and securing of permits for utility improvements and connections,
which may be required in developing the Project. The Developer
shall obtain any and all necessary approvals for utility services
prior to the commencement of applicable portions of said
construction, and the Developer shall take reasonable precautions
to ensure the safety and stability of surrounding properties during
said construction.
(s) The Developer shall commence the work of improvements of
the Project on the Site within ninety (90) days following the Close
of Escrow, and thereafter shall diligently prosecute such
construction to completion. All construction and development
obligations and responsibilities of the Developer as related to the
Project shall be initiated and completed within the times specified
in the Schedule of Performance, or within such reasonable
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extensions of such times as may be granted by the Agency or as
otherwise provided for in this Agreement. The Developer shall
substantially complete the improvement of the Project by the date
set forth in the Schedule of Performance. During the course of the
construction of the proj ect the Schedule of Performance may be
revised from time-to-time as mutually agreed upon in writing by and
between the Developer and the Agency. Any and all deadlines for
performance by the parties shall be extended for any times
attributable to delays which are not the fault of the performing
party and are caused by the other party, other than periods for
review and approval or reasonable disapprovals of plans, drawings
and related documents, specifications or applications for permits
as provided in this Agreement. Following the commencement of the
work of improvement of the Project, all changes in construction
shall also require the prior written approval of HUD.
(t) During the period of construction of the Project, the
Developer shall submit to the Agency written progress reports when
and as reasonably requested by the Agency but in no event more
frequently than every four (4) weeks. The reports shall be in such
form and detail as may reasonably be required by the Agency, and
shall include a reasonable number of construction photographs taken
since the last such report submitted by the Developer. In
addition, the Developer will attend Agency meetings when requested
to do so by Agency Staff.
(u) Prior to the entry by the Developer to conduct limited
testing on the Site pursuant to Section 3.7, and following the
Closing before the commencement of-any construction by Developer of
the Project, Developer shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to Agency, during
the entire term of such entry or construction, the following
policies of insurance:
(i) a policy of comprehensive general liability
insurance written on a per occurrence basis in an amount not
less than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) per person, ONE MILLION
DOLLARS ($1,000,000.00) per currency, ONE MILLION DOLLARS
($1,000,000.00) products and completed operations and property
damage limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)
per occurrence and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)
in the aggregate.
(iil a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
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California and which shall indemnify, insure and provide legal
defense for both the Developer, Agency, and the City against
any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or
any persons retained by the Developer in the course of
carrying out the work or services contemplated in this
Agreement.
(iii) a policy of comprehensive automobile liability
insurance written on a per occurrence basis in an amount not
less than either (i) bodily injury liability limits of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) per person and
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per occurrence and
property damage liability limits of ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) per occurrence and ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) in the aggregate or (ii) combined single
limit liability of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00). Said policy shall include coverage for owned,
non-owned, leased and hired vehicles.
(iv) during the course of construction and improvement of
the Project a policy of builder's risk insurance covering the
full replacement value of the Project.
All of the above policies of insurance shall be primary
insurance and shall name the City and the Agency, and their
officers, employees, and agents as additional insureds. The insurer
shall waive all rights of subrogation and contribution it may have
against the City and the Agency and their officers, employees and
agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or
canceled without providing thirty (30) days prior written notice by
registered mail to Agency. In the event any of said policies of
insurance are canceled, the Developer shall, prior to the
cancellation date, submit new evidence of insurance in conformance
with this Section to the Executive Director. No work or improvement
of the Site or operation of the Project shall commence until the
Developer has provided Agency with certificates of insurance or
appropriate insurance binders evidencing the above insurance
coverages, and said certificates of ins'Jrance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be
satisfactory only if issued by companies qualified to do business
in California, rated at least "A(vii)" or better in the most recent
edition of Bests Insurance Rating Guide or an equivalent rating in
The Key Rating Guide or in the Federal Register unless such
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requirements are modified or waived by the Executive Director of
the Agency due to unique circumstances.
Developer shall provide in all contracts with contractors,
subcontractors, architects, and engineers who provide services in
connection with the improvement of the Project that such persons
shall maintain the same policies of insurance required to be
maintained by Developer pursuant to this Section, unless waived by
the Executive Director of the Agency.
Compliance by the Developer with the insurance requirements of
HUD for Section 202 projects shall be deemed to meet the foregoing
requirements during the period of the HUD Capital Advance Documents
so long as the Agency, City and their officers, employees, and
agents as additional insureds on all said policies as evidenced by
certificates of insurance issued to the City and the Agency.
The Developer agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which the
Developer may be held responsible for the payment of damages to any
persons or property resulting from the Developer's activities or
the activities of any person or persons for which the Developer is
otherwise responsible.
(v) The Developer for itself and its successors and assigns
agrees that in the construction of the Project, the Developer will
not discriminate against any employee or applicant for employment
because of sex, marital status, race, color, religion, creed,
national origin, or ancestry.
(wI The Developer shall carry out its construction of the
Project in conformity with the HUD Capital Advance Documents and
all applicable laws, including all applicable state labor standards
and requirements. .
(x) The Developer shall, at its own expense, secure or shall
cause to be secured, any and all permits which may be required for
such construction, development or work by the City or any other
governmental agency having jurisdiction. The Agency shall
cooperate in good faith with the Developer in the Developer's
efforts to obtain from the City or any other appropriate
governmental agency any and all such permits and, upon applicable
to the development of the Project.
(y) Officers, employees, agents or representatives of the
Agency shall have the right of reasonable access to the Site,
without the payment of charges or fees, during normal construction
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hours during the period of construction of the Project for the
purpose of verifying compliance by the Developer within the terms
of this Agreement. Such officers, employees, agents or
representatives of the Agency shall be those persons who are so
identified by the Executive Director. Any and all officers,
employees, agents or representatives of the Agency who enter the
Site pursuant hereto shall identify themselves at the job site
office upon their entrance on to the Site and shall at all times be
accompanied by a representative of the Developer while on the Site;
provided, however, that the Developer shall make a representative
of the Developer available for this purpose at all times during
normal construction hours upon reasonable notice from the Agency.
The Agency shall indemnify and hold the Developer harmless from
injury, property damage or liability arising out of the exercise by
the Agency and/or the City of this right of access, other than
injury> property damage or liability relating to the negligence of
the Developer or its officers, agents or employees.
(z) The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the terms
and conditions of this Agreement pertaining to development of the
Site.
4.2 Taxes, Assessments, Encumbrances and Liens. The
Developer shall pay prior to the delinquency all real property
taxes and assessments assessed and levied on or against the Site
subsequent to the Close of Escrow. The Developer shall not place
and shall not allow to be placed on the Site any mortgage, trust
deed, deed of trust, encumbrance or lien not otherwise authorized
by this Agreement. The Developer shall remove, or shall have
removed, any levy or attachment made on the Site, or shall assure
the satisfaction thereof. Nothing Qerein contained shall be deemed
to prohibit the Developer from contesting the validity or amounts
of any tax assessment, encumbrance or lien, nor to limit the
remedies available to the Developer in respect thereto. The
covenants of the Developer set forth in this Section relating to
the placement of any unauthorized mortgage, trust deed, deed of
trust, encumbrance or lien, shall remain in effect only until the
Certificate of Completion has been recorded with respect to
redevelopment of the Project.
4.3 Change in Ownership Management and Control of the
Developer -- Assignment and Transfer.
(a) Transfer as used in this Section 4.3, the term "Transfer'
means:
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(1) Any total or partial sale, assignment or conveyance,
or any trust or power, or any transfer in any other mode or
form, by the Developer of more than a 49% interest (or series
of such sales, assignments and the like which in the aggregate
exceed a disposition of more than a 49% interest) with respect
to its interest in this Agreement, the Site, or the Project,
or any part thereof or any interest therein or of the
improvements constructed thereon, or any contract or agreement
to do any of the same; or
(2) Any total or partial sale, assignment, conveyance,
or transfer in any other mode or form, of or with respect to
any ownership interest of the Developer, its nonprofit
corporation business organization (or series of such sales,
assignments and the like which in the aggregate exceeded a
disposition of more than a 49~interest); or
(3) Any merger, consolidation, sale or lease of all or
substantially all of the assets of the Developer in the
Agreement, the Site or the Project (or series of such sales,
assignments and the like which in the aggregate exceeded a
disposition of more than a 49% interest); or
(4) The leasing of part or all of the Site or the
Project except for the lease of the Project upon its
completion by the Developer to Low-Income Senior Citizen
Households.
(b) This Agreement is enter~d into solely for the purpose of
the redevelopment of the Site and the improvement of the Project
and the subsequent operation and use of the Site by the Developer
for renovated dwelling unit occupancy by Low-Income Senior Citizen
Households in accordance with the terms of this Agreement. The
Developer recognizes that the quafifications and identity of the
Developer are of particular concern to the Agency, in view of:
(1) the importance of the redevelopment of the Site to
the general welfare of the community; and
(2) the fact that a Transfer is
purposes a transfer or disposition of the
the Developer, as applicable, with
redevelopment of the Site and the Project.
for all practical
responsibilities of
respect to the
The Developer further recognizes and acknowledges that it is
because of the qualifications and identity of the Developer that
the Agency is entering into this Agreement with the Developer, and,
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as a consequence, Transfers are permitted only as provided in this
Agreement.
(c) The limitations on a Transfer as set forth in this
Section 4.3 shall apply until such time as a Certificate of
Completion is approved by the Agency and filed for recordation as
provided in Section 4.6. Except as expressly permitted in this
Agreement, the Developer represents and agrees that it has not
made nor shall it create or suffer to be made or created, any
Transfer, either voluntarily or by operation of law without the
prior written approval of the Agency until such time as a
Certificate of Completion has been recorded. Any Transfer made in
contravention of this Section 4.3 shall be voidable at the election
of the Agency and shall then be deemed to be a default under this
Agreement. After the date of recordation of a Certificate of
Completion, certain other provisions of this Agreement shall
nonetheless be applicable to subsequent conveyances of interest in
the Site, or portions thereof, as provided in the Agency Regulatory
Agreement.
(d) The following types of a Transfer shall be permitted and
approved by the Agency and are referred to herein as a UPermitted
Transfer" :
(1) Any Transfer by the Developer creating a uSecurity
Financing Interest" in the Site (including such a Transfer
under the HUD Capital Advance Documents) which conforms to the
provisions of Section 4.4;
(2) Any Transfer directly resulting from the foreclosure
of a Security Financing Interest created by the Developer in
the Site or the granting of a deed in lieu of foreclosure of
a Security Financing Interest;
(3) Any Transfer of any interest in the Developer,
irrespective of the percentage of ownership to any non-profit
affiliate of or other non-profit entity controlled by the
Developer, or to any other entity in which the Developer owns
a controlling interest;
(4) Any Transfer of the Site or the Project to HUD and
thereafter, to HUD's transferee.
(e) No Permitted Transfer of this Agreement or any interest
in the Site or the Project, by the Developer (other than a
Permitted Transfer created pursuant to a Security Financing
Interest under Section 4.3(d)) shall be effective unless, at the
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time of the Permitted Transfer, the person or entity to which such
Transfer is made, shall expressly assume the obligations of the
Developer under this Agreement and such person also agrees to be
subject to the conditions and restrictions to which the Developer
is subject under this Agreement. Such an assumption of obligation
shall be evidenced by a written instrument delivered to the Agency
in a recordable form which is satisfactory to the Agency.
(f) The Agency may, in its reasonable discretion, approve in
writing any other Transfer as requested by the Developer, provided
such proposed transferee can demonstrate successful and
satisfactory experience in the ownership, operation, and management
of a Low-Income Senior Citizen Household multi-family rental
housing facility operation similar to the Project. Any such
transferee for itself and its successors and assigns, and for the
benefit of the Agency shall expressly assume all of the obligations
of the Developer to the Agency under this Agreement. There shall
be submitted to the Agency for review all instruments and other
legal documents proposed to effect any such other Transfer; and the
approval or disapproval of the Agency shall be provided to the
Developer in writing within thirty (30) days of receipt by the
Agency of the Developer's request, and the Agency approval of a
transfer and shall not be unreasonably withheld or delayed upon
written notice to the Agency, and any Transferee approved by HUD
shall be deemed approved by the Agency; provided however such
Transferee shall assume the obligations of this Agreement.
(g) Following the issuance of a Certificate of Completion,
the Developer shall be released by the Agency from any liability
under this Agreement which may arise from a default of a successor
in interest occurring after the date of such a Transfer; provided,
however that the covenants of the Develo?er as set forth in the
Agency Regulatory Agreement shall run with the land for the term as
provided in the Agency Regulatory Agreement.
4.4 Security Financing; Right of Holders.
(a) Notwithstanding any provision of Section 4.3 to the
contrary, mortgages, deeds of trust, or any other form of lien
required for any reasonable method of financing the construction
and improvement of the Project, including without limitation the
HUD Section 202 Grant and any security interest or lien in the Site
arising under the HUD Capital Advance Documents, are permitted
before the recordation of the Certificate of Completion (referred
to in Section 4.6 of this Agreement). The Developer shall notify
the Agency in writing in advance of any mortgage, deed of trust, or
other form of lien for financing if the Developer proposes to enter
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into the same before the recordation of any Certificate of
Completion. The Developer shall not enter into any such other
conveyance for construction financing without the prior written
approval of the Agency, which approval the Agency shall grant if:
(i) such approval by the Agency is a condition of the disbursement
of the proceeds of the HUD Section 202 Grant to the Developer for
the Project; or (ii) any such other conveyance is permitted under
the HUD Section 202 Capital Grant for the Project and is given to
a responsible 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
constructing the Project on the Site.
(b) The Developer shall promptly notify the Agency of any
mortgage, deed of trust or other refinancing, encumbrance or lien
that has been created or attached thereto prior to completion of
the construction of the improvements,' on the Site whether by
voluntary act of the Developer or otherwise; provided, however,
that no notice of filing of preliminary notices or mechanic's liens
need be given by the Developer to the Agency prior to suit being
filed to foreclose such mechanic's lien.
(c)
shall be
modes of
The words -mortgage" and -deed of trust" as used herein
deemed to include all other customary and appropriate
financing real estate construction and land development.
(d) The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall in no manner
be obligated by the provisions of this Agreement to construct or
complete the improvement of the Site or to guarantee such
construction or completion.
(e) Whenever the Agency shall deliver any notice or demand to
the Developer with respect to any breach or default by the
Developer in the completion of construction of the Project, or any
breach or default of any other obligations which, if not cured by
the Developer, entitle the Agency to terminate this Agreement or
exercise its right to re-enter the Site, or a portion thereof under
the Agency Grant Deed, the Agency shall at the same time deliver to
each holder of record of any mortgage, deed of trust or other
securi ty interest authorized by this Agreement a copy of such
notice or demand. Each such holder shall (insofar as the rights of
the Agency are concerned) have the right, at its option, to
commence the cure or remedy of any such default and to diligently
and continuously proceed with such cure or remedy, within one
hundred twenty (120) calendar days after the receipt of the notice;
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and to add the cost thereof to the security interest debt and the
lien of its security interest. If such default shall be a default
which can only be remedied or cured by such holder upon obtaining
possession, such holder shall seek to obtain possession with
diligence and continuity through a receiver or otherwise, and shall
remedy or cure such default within one hundred twenty (120)
calendar days after obtaining possession; provided that in the case
of a default which cannot with diligence be remedied or cured, or
the remedy or cure of which cannot be commenced, within such one
hundred twenty (120) calendar day period, such holder shall have
such additional time as is reasonably necessary to remedy or cure
such default of the Developer. Nothing contained in this Agreement
shall be deemed to permit or authorize such holder to undertake or
continue the construction or completion of the Project (beyond the
extent necessary to conserve or protect the improvements or
construction already made) without first having expressly assumed
the Developer's obligations by written agreement satisfactory to
the Agency. The holder in that event must agree to complete, in
the manner provided in this Agreement, the improvements to which
the lien or title of such holder relates and must submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibility necessary to perform such obligations.
Any such holder completing such improvements in accordance herewith
shall be entitled, upon written request made to the Agency, to be
issued Certificate of Completion by the Agency.
Notwithstanding the preceding paragraph, the provisions of
this Section 4.4(e) shall not be applicable during the term of the
HOD Capital Advance Documents, unless such application of this
Section 4.4(e) is first approved in writing by HOD.
(f) In any case where, one hundred eighty (180) calendar days
after default by the Developer the holder of any mortgage, deed of
trust or other security interest creating a lien or encumbrance
upon the Site or any portion thereof has not exercised the option
to construct the applicable portions of the Project, or has
exercised the option but has not proceeded diligently and
continuously with construction, the Agency may purchase the
mortgage, deed of trust or other security interest by payment to
the holder of the amount of the unpaid debt, including principal,
accrued and unpaid interest, late charges, costs, expenses and
other amounts payable to the holder by the Developer under the loan
documents between holder and the Developer. If the ownership of
the Site has vested in the holder, the Agency, if may at its option
but not its obligation be entitled to a conveyance from the holder
to the Agency upon payment to the holder of an amount equal to the
sum of the following:
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(1) The unpaid mortgage, deed of trust or other security
interest debt, including principal, accrued and unpaid
interest, late charges, costs, expenses and other amounts
payable to the holder by the Developer under the loan
documents between the holder and the Developer, at the time
ti t1e became vested in the holder (less all appropriate
credits, including those resulting from collection and
application of rentals and other income received during
foreclosure proceedings.)
(2) All expenses, if any, incurred by the holder with
respect to foreclosure.
(3) The net expenses, if any (exclusive of general
overhead), incurred by the holder as a direct result of the
subsequent ownership or management of the Site, such as
insurance premiums and real estate taxes.
(4) The cost of any improvements made by such holder.
(5) An amount equivalent to the interest that would have
accrued on the aggregate on such amounts had all such amounts
become part of the mortgage or deed of trust debt and such
debt had continued in existence to the date of payment by the
Agency.
(6) After expiration of the aforesaid one hundred eighty
(180) calendar day period, the holder of any mortgage, deed of
trust or other security affected by the option created by this
Section, may demand, in writing, that the Agency act pursuant
to the option granted hereby. If the Agency fails to exercise
the right herein granted within sixty (60) calendar days from
the date of such written demand, the Agency shall be
conclusively deemed to have waived such right of purchase of
the or the mortgage, deed of trust or other security interest.
Notwithstanding the preceding paragraph, the provisions of
this Section 4.4(f) shall not be applicable during the term of the
HUD Capital Advance Documents, unless such application of this
Section 4.4(f) if first approved in writing by HUD.
(g) In the event of a default or breach by the Developer of
a mortgage, deed of trust or other security interest with respect
to the Site (or any portion thereof) prior to the issuance of a
Certificate of Completion for the Project (or any portion thereof),
and the holder has not exercised its option to complete the
development, the Agency may cure the default but is under no
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obligation to do so prior to completion of any foreclosure. In
such event, the Agency shall be entitled to reimbursement from the
Developer of all costs and expenses incurred by the Agency in
curing the default. The Agency shall also be deemed to have a lien
of the Agency as may arise under this Section 4.4(g) upon the Site
(or any portion thereof) to the extent of such costs and
disbursements; provided however, any such lien in favor of the
Agency as may arise under this Section 4.4(g), shall be subject to
the prior written approval of HUD. Any such lien shall be
subordinate and subject to mortgages, deeds of trust or other
security instruments executed by the Developer for the purpose of
obtaining the funds to construct and improve the Site as authorized
herein.
4.5 Right of the Agency to Satisfy Other Liens on the Site
after Conveyance of Tit1e to Deve1oper. After the conveyance of
title to the Site by the Agency to the geveloper and prior to the
recordation of the Certificate of Completion (referred to in
Section 4.6 of this Agreement), and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Site, the Agency shall after one
hundred twenty (120) calendar days prior written notice to the
Developer have the right, but not the obligation, to satisfy any
such liens or encumbrances; provided, however, that nothing in this
Agreement shall require the Developer to payor make provisions for
the payment of any tax, assessment, lien or charge so long as the
Developer in good faith shall contest the validity or amount
thereof, and so long as such delay in payment shall not subject the
Site, or any portion thereof, to forfeiture or sale.
4.6 Certificate of Comp1etion.
(a) Following the written request therefor by the Developer
and the completion of construction of the Project, excluding any
normal and minor building "punch-list" items to be completed by the
Developer, the Agency shall furnish the Developer with a
Certificate of Completion for the Site substantiated in the form
set forth in Exhibit "E".
(b) The Agency shall not unreasonably withhold the issuance
of a Certificate of Completion. A Certificate of Completion shall
be, and shall so state, that it is a conclusive determination of
satisfactory completion of all of the work of improvement of the
Project. After the recordation of the Certificate of Completion,
any party then owning or thereafter purchasing, leasing or
otherwise acquiring any interest in the Site shall not (because of
such ownership, purchase, lease or acquisition) incur any
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obligation or liability under this Agreement, except that such
party shall be bound by any covenants contained in the Agency Grant
Deed and the Agency Regulatory Agreement.
(c) Any Certificate of Completion shall be in such form as to
permit it to be recorded in the Recorder's Office of San Bernardino
County where the Site is located.
(d) If the Agency refuses or fails to furnish a Certificate
of Completion after written request from the Developer, the Agency
shall, within fifteen (15) calendar days of the written request or
within three (3) calendar days after the next regular meeting of
the Agency, whichever date occurs later, provide to the Developer
a written statement setting forth the reasons with respect to the
Agency's refusal or failure to furnish a Certificate of Completion.
The statement shall also contain the Agency's opinion of the action
the Developer must take to obtain a Certificate of Completion. If
the reason for such refusal is confined to the immediate
unavailability of specific items or materials fo~ construction or
landscaping at a price reasonably acceptable to the Developer or
other minor building "punch-list" items, the Agency may issue its
Certificate of Completion upon the posting of a bond, cash or
irrevocable letter of credit, reasonably approved as to form and
substance by the Agency Counsel and obtained by the Developer in an
amount representing a fair value of the work not yet completed as
reasonably determined by the Agency. For the purpose of the
preceding sentence, the words "minor building punch-list items"
refers to Project construction items which do not in the aggregate
exceed a total cost of ten percent (10%) of the amount of the HUD-
approved construction budget for the Project. If the Agency shall
have failed to provide such written statement within the foregoing
period, the Developer shall be deemed conclusively and without
further action of the Agency to have satisfied the requirements of
this Agreement with respect to the Site as if a Certificate of
Completion had been issued therefor.
(e) A Certificate of Completion shall not constitute evidence
of compliance with or satisfaction of any obligation of the
Developer to any holder of a mortgage, or any insurer of a mortgage
securing money loaned to finance the improvements described herein,
or any part thereof. A Certificate of Completion shall not be
deemed to constitute a notice of completion as referred to in
Section 3093 of the California Civil Code, nor shall it act to
terminate the continuing covenants or conditions subsequent
contained in the Agency Grant Deed attached hereto as Exhibit "C".
4.7 Developer Job Program.
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(a) The Developer will use good faith efforts to cause the
general contractor who shall be retained by the Developer to
construct the Project to recruit (and to encourage its
subcontractors to recruit) local residents of the City of San
Bernardino to perform work and construction services relating to
the improvement of the Project. Such good faith efforts covenant
of the Developer shall remain in effect during the course of the
construction and improvement of the Project. The Agency shall
consult with the Developer from time-to-time to assist the
Developer in formulating programs to implement the foregoing:
provided however that this covenant of the Developer is not
intended to require the Developer (or its general contractor and
subcontractors) to implement any program or engage in any pattern
or practice of recruitment or hiring at the Project which would
violate applicable law.
(b) Developer agrees to use goqd faith efforts to hire
residents of the City of San Bernardino for available job openings
in the completed Project. Such good faith efforts covenant of the
Developer shall remain in effect during the term of the Agency
Regulatory Agreement. The Agency shall consult with the Developer
from time to time to assist Developer in formulating programs to
implement the foregoing. The foregoing is not intended to require
Developer to implement any program or engage in any pattern or
practice of recruitment or hiring at the Proj ect which would
violate applicable law.
4.8 [RESERVED -- NO TEXT].
4.9 Agency Grant.
(a) The Agency hereby reserves a sum of One Hundred and Forty
Thousand Dollars ($140,000.00) to be used and applied to reimburse
the Developer for the cost of the design, construction and
installation of certain Project-related improvements acceptable to
the Agency which otherwise may not qualify as permitted development
costs under the HUD Capital Advance Documents. Improvements which
may be paid for, in whole or in part, using the proceeds of the
Agency'Grant included additional on-site exterior architectural
design amenities, additional landscape treatments and the like.
Such additional improvements shall be constructed by the Developer
in accordance with a plan of design and improvement acceptable to
the Agency. The Developer shall construct and install such
improvements concurrently with the improvement of the proj ect.
Prior to the Close of the Escrow the Developer and the Executive
Director shall jointly approve a list of Project-related cost items
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which the proceeds of the Agency Grant may be used and applied by
the Developer.
(b) The Agency shall tender the full amount of the Agency
Grant to the Escrow Agent at the time of the Close of the Escrow
for deposit into a joint escrow account of the Developer and the
Agency held and administered by the Escrow Agent for such purpose.
The proceeds of the Agency Grant shall be disbursed by the Escrow
Agent at the Close of Escrow to the order and account of the
Developer to pay for Project-related cost items as jointly approved
by the Developer and the Agency under Section 4.9(a). Provided that
the Developer is not in default under this Agreement, the Escrow
Agent shall disburse the proceeds of the Agency Grant at the Close
of Escrow for the account and credit of the Developer.
(c) All persons employed to construct the work of improvement
of the additional improvements, to be paid for in whole or in part
using the proceeds of the Agency Grant, /shall be paid compensation
for such work by the Developer, its general contractor and
subcontractors, as applicable, at the same rates as applicable to
persons who are employed to construct the Project as set forth in
the HUD Capital Grant Documents.
(d) The Developer is solely responsible for obtaining the
approval from the City of the design plans and specifications for
the additional improvements for the proj ect, to be. paid for in
whole or in part using the proceeds of the Agency Grant, prior to
commencement of any such work. In the event that the total cost
payable for the completion of the installation of such improvements
may exceed the amount of the Agency Grant, the Developer shall be
solely responsible for paying for such additional cost from other
sources of funds available to the Developer.
5. USE OF THE SITE.
5.1 Use of the Site. Developer hereby covenants and agrees,
for itself and its successors and assigns, that the Site shall be
developed, used and maintained as multifamily rental housing for
occupancy by Senior Citizen Households as more fully set forth in
the Agency Deed.
5.2 No Inconsistent Uses. Developer covenants and agrees
that it shall not devote the Site to uses inconsistent with the
Agency Regulatory Agreement. In the event of a conflict between
the application of the provisions of the Agency Regulatory
Agreement to the Site and the Project and the application of the
HUD Capital Advance Documents to the Site and the Project, such
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conflict shall be resolved in favor of the HUD Capital Advance
Documents.
5.3 Discrimination Prohibited. Except as provided in the HUD
Capi tal Advance Documents and the Agency Deed and the Agency
Regulatory Agreement with respect to the reservation of each of the
rental units in the Project for occupancy by Senior Citizen
Households, there shall be no discrimination against, or
segregation of, any persons, or group of persons, on account of
race, color, creed, religion, sex, marital status, familial status,
physical or mental disability, ancestry or national origin in the
rental, sale, lease, sublease, transfer, use, occupancy, or
enjoyment of the Site, or any portion thereof, nor shall the
Developer, or any person claiming under or through Developer,
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees,
subtenants, sublessees, or vendees of' the Site or any portion
thereof. The nondiscrimination and nonsegregation covenants
contained herein and in the Agency Deed shall remain in effect in
perpetuity.
5.4 Effect of Covenants. Subj ect to the provisions of
Section 7.15 hereof, the Agency is deemed a beneficiary of the
terms and provisions of this Agreement and of the restrictions and
community redevelopment and affordable rental housing covenants
running with the land, whether or not appearing in the Agency Deed
or the Agency Regulatory Agreement for and in its own right and for
the purposes of protecting the interests of the community in whose
favor and for whose benefit the covenants running with the land
have been provided. The community redevelopment and affordable
rental housing covenants in favor of the Agency shall run without
regard to whether Agency has been remains or is an owner of any
land or interest therein in the Site, and shall be effective as
both covenants and equitable servitudes against the Site. Agency
shall have the right, if any of the community redevelopment and
affordable rental housing covenants set forth in this Agreement
which are provided for its benefit are breached, to exercise all
rights ~nd remedies and to maintain any actions or suits at law or
in equity or other proper proceedings to enforce the curing of such
breaches to which it may be entitled. No other person or entity
shall have any right to enforce the terms of this Agreement under
a theory of third-party beneficiary or otherwise except the City as
the successor in regulatory function of the Agency as provided in
Health and Safety Code Section 33334.4, or other applicable law.
The covenants running with the land and their duration are set
forth in the Agency Deed and the Agency Regulatory Agreement.
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r--'"
Nothing in this Agreement or in the Agency Deed or the Agency
Regulatory Agreement shall be deemed to limit the power of the City
to enforce any provision of any development project permit which it
may approve in connection with the Project, or to otherwise enforce
any provision of law against the Developer and the Site and the
Project.
6 . ENFORCEMENT .
6.1
a) In the event that either the Developer Conditions or the
Agency Conditions have not been approved, disapproved or waived by
the parties, as the case may be, prior to the Closing by the
applicable date set forth in the Schedule of Performance, then the
remedies of the parties shall be as set forth in Section 3.10. In
the event that a breach or default may o9cur prior to the Close of
Escrow, and subject to the extension of'time set forth in Section
7.5 hereof, failure or delay by either party to perform any term or
provision of this Agreement shall constitute a default under this
Agreement; provided however, that if a party otherwise in default
commences to cure, correct or remedy such default within thirty
(30) calendar days after receipt of written notice specifying such
default and shall diligently and continuously prosecute such cure,
correction or remedy to completion (and where any time limits for
the completion of such cure, correction or remedy are specifically
set forth in this Agreement, then within said time limits), such
party shall not be deemed to be in default hereunder.
(b) From and after the Close of Escrow and subject to the
extensions of time set forth in Section 7.5 hereof, failure or
delay by either party to perform any term or provision of this
Agreement shall constitute a default under this Agreement;
provided, however, that if a party otherwise in default commences
to cure, correct or remedy such default within thirty (30) calendar
days after receipt of written notice specifying such default and
shall diligently and continuously prosecute such cure, correction
or remedy to completion (and where any time limits for the
complet"ion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), such party
shall not be deemed to be in default hereunder.
(c) The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
nondefaulting party. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of
default.
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(d) Any failure or delays by either party in asserting any of
its rights and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies. Delays by
either party in asserting any of its rights and remedies shall not
deprive either party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect,
assert or enforce any such rights or remedies.
(e) After the Close of Escrow, the Agency shall have no right
to terminate this Agreement without the prior written approval of
HUD.
6.2. Legal Actions.
(a) In addition to any other rights or remedies, either party
may institute legal action to cure, correct or remedy any default,
to recover damages for any default, or to obtain any other remedy
consistent with the purposes of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San
Bernardino, State of California, in any other appropriate court in
that County, or in the Federal District Court in the Central
District of California.
(b) The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
(c) In the event that any legal action is commenced by the
Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chair of the Agency, or in such other manner as may be provided by
law.
(d) In the event that any legal action is commenced by the
Agency against the Developer, service of process on the Developer
shall be made by personal service on (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.
6.3 Rights and Remedies are Cumulative. Except with respect
to any rights and remedies expressly declared to be exclusive in
Section 3.10 and Section 3.12 of this Agreement as relates to a
failure of conditions precedent occurring before the Close of
Escrow, the rights and remedies of the parties as set forth in this
Section 6 are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by
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it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
6.4. Damages. If either party defaults with regard to any
provision of this Agreement, the nondefaulting party shall serve
written notice of such default upon the defaulting party. If the
defaulting party does not diligently commence to cure such default
after service of the notice of default and promptly complete the
cure of such default within a reasonable time, not to exceed thirty
(30) calendar days (or such shorter period as may otherwise be
specified in this Agreement for default), after the service of
written notice of such a default. In the event that a default
relates to a matter arising after the Close of Escrow the
defaulting party shall be liable to the other party for damages
caused by such default.
6.5 [RESERVED--NO TEXT]
6.6 Right to Reenter,. Repossess and Revest.
(a) The Agency shall, upon thirty (30) calendar days notice
to the Developer which notice shall specify this Section 6.6, have
the right, at its option, to re-enter and take possession of all or
any portion of the Site, together with all improvements thereon,
and to terminate and revest in the Agency the estate conveyed to
the Developer hereunder, if after conveyance of title, the
Developer (or its successors in interest) shall:
(1) fail to commence construction of all or any portion
of the improvements as required by this Agreement for a period
of ninety (90) calendar days after written notice to proceed
from the Agency; provided that the Developer shall not have
obtained an extension or postponement to which the Developer
may be entitled pursuant to Section 7.5 hereof; or
(2) Abandon or substantially suspend construction of all
or any portion of the improvements for a period of ninety (90)
calendar days after written notice of such abandonment or
suspension from the Agency; provided that the Developer shall
not have obtained an extension or postponement to which the
Developer may be entitled to pursuant to Section 7.5 hereof;
or
(3) Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any involuntary
transfer, of the Site or the Project or any part thereof, in
violation of this Agreement, and such violation shall not have
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been cured within thirty (30) calendar days after the date of
receipt of written notice thereof from the Agency to the
Developer.
(b) The thirty (30) calendar day written notice specified in
this Section shall specify that the Agency proposes to take action
pursuant to this Section and shall specify which of the Developer's
obligations set forth in Subsections (1) through (3) herein have
been breached. The Agency shall proceed with its remedy set forth
herein only in the event that the Developer continues in default of
said obligation (s) for a period of thirty (30) calendar days
following such notice or, upon commencing to cure such default,
fails to diligently and continuously prosecute said cure to
satisfactory conclusion.
(c) The right of the Agency to reenter, repossess, terminate,
and revest shall be subject and subordinate to, shall be limited by
and shall not defeat, render invalid or limit:
(1) Any mortgage, deed of trust or other security
interest permitted by this Agreement;
(2) Any rights or interests provided in this Agreement
for the protection of the holders of such mortgages, deeds of
trust or other security interests;
(3) Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other recorded
documents applicable to the Site.
(d) The Agency Grant Deed shall contain appropriate
references and provisions to give effect to the Agency's right, as
set forth in this Section under specified circumstances prior to
the recordation of a Certificate of Completion with respect to such
portion, to reenter and take possession of such portion, or any
part thereof, with all improvements thereon, and to terminate and
revest in the Agency the estate conveyed to the Developer.
(e) Upon the reinvesting in the Agency of title to the Site,
or any part thereof, as provided in this Section, the Agency shall,
pursuant to its responsibilities under State law, use its best
efforts to resell the Site, or any part thereof, at fair market
value as soon and in such manner as the Agency shall find feasible
and consistent with the objectives of such law, to a qualified and
responsible party or parties (as determined by the Agency) who will
assume the obligations of making or completing the improvements, or
such other improvements in their stead as shall be satisfactory to
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the Agency and in accordance with the uses specified for the Site,
or any part thereof. Upon such resale of the Site, or any part
thereof, the proceeds thereof shall be applied:
(1) First, to make any payment made or necessary to be
made to discharge or prevent from attaching or being made any
subsequent encumbrances or liens due to obligations incurred
with respect to the making or completion of the agreed
improvements or any part thereof on the Site or any portion
thereof; next to reimburse the Agency on its own behalf or on
behalf of the City for all actual costs and expenses incurred
by the Agency and the City, including but not limited to
customary and reasonable fees or salaries to third party
personnel engaged in such action (but excluding the Agency's
or the City's general overhead expense), in connection with
the recapture, management and resale of the Site or any
portion thereof; all taxes, assess~ents and water and sewer
charges paid by the City and/or the Agency with respect to the
Site or any portion thereof; any amounts otherwise owing to
the Agency by the Developer and its successor transferee; and
(2) Second, to the extent that any and all funds which
are proceeds from such resale are thereafter available, to
reimburse the Developer, or its successor transferee, up to
the amount equal to the sum of: (1) the Purchase Price paid by
the Developer for the Site (or allocable to the applicable
part thereof); and (2) the costs incurred for the development
of the Site, or applicable part thereof, or for the
construction of the improvements thereon including, but not
limited to, costs of carry, taxes and items set forth in the
Developer's cost statement which shall be submitted to and
approved by the Agency.
(3) Any balance remalnlng after the foregoing
application of proceeds shall be retained by the Agency.
(f) Notwithstanding the provisions of subsection (a) through
subsection (e), inclusive, above, this Section 6.6 shall not be
applicable during the term of the HUD Capital Advance Documents,
unless such application of this Section 6.6 is first approved in
writing by HUD.
6.7 Mutual Indemnification. The Developer agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all claims for
liability for damages, judgments, costs, expenses and fees arising
from or related to any act or omissior. of the Developer in
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performing its obligations hereunder. The Agency agrees to
indemnify and hold the Developer and its officers, employees and
agents, harmless from and against all claims or liability for
damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
6.8 Attorneys' Fees. In the event of litigation between the
parties arising out of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys I fees and other
costs and expenses incurred, including such fees and costs incurred
on appeal, in addition to whatever other relief to which it maybe
entitled. As used in the preceding sentence, the words ~reasonable
attorney's fees" in the case of the Agency, include the salary and
benefi ts payable to lawyers employed in the Office of the City
Attorney of the City, who provide legal. counsel to the Agency in
such litigation as allocated on an hourfY basis.
7 . MISCELLANEOUS.
7.1 Governing Law. The laws of the State of California shall
govern the interpretation and enforcement of this Agreement.
7.2 Notices. Notices, demands, and communications between
Agency and Developer shall be sufficiently given if personally
delivered or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the following addresses:
If to Agency:
Redevelopment Agency
of the City of San Bernardino, California
201 North ~E" Street, Suite 301
San Bernardino, California 92401
Attn: Executive Director
If to Developer:
San Bernardino Senior Housing, Inc.
Attn:
Any notice shall be deemed to have been received as of the
earlier time of actual receipt by the addressee thereof or the
expiration of forty-eight (48) hours after depositing of such
notice in the United States Postal System in the manner described
in this Section. Such written notices, demands, and communications
may be sent in the same manner to such other addresses as a party
may from time to time designate by mail.
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7.3 Conflicts of Interest. No member, official, or employee
of Agency shall have any personal interest, direct or indirect, in
this Agreement nor shall any such member, official, or employee
participate in any decision relating to this Agreement which
affects his personal interests or the interests of any corporation,
partnership, or association in which he is, directly or indirectly,
interested.
7.4 Nonliability of Agency Officials and Employees. No
member, official, employee, or consultant of Agency or City shall
be personally liable to Developer, or any successor in interest of
Developer, in the event of any default or breach by Agency or for
any amount which may become due to Developer or to its successor,
or on any obligations under the terms of this Agreement.
7.5 Enforced Delay: Extension of Time of Performance. In
addition to specific provisions of this;Agreement, performance by
either party hereunder shall not be deemed to be in default, or
considered to be a default, where delays or defaults are due to the
force majeure events of war, insurrection, strikes, lockouts,
riots, floods, earthquakes, fires, casualties, acts of God, acts of
the public enemy, epidemics, quarantine restrictions, freight
embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of
any contractors, subcontractor or supplier, which are not
attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act
of the City or 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 ten
(10) days of the commencement of such occurrence of delay.
The inability of the Developer to obtain a satisfactory
commitment from HUD for the HUD Section 202 Capital Grant or to
satisfy any other condition of this Agreement relating to the
acquisition of the Site and the redevelopment of the Project shall
not be deemed to be a force maj eure event or otherwise provide
grounds for the assertion of the existence of a delay under this
Section 7.5. The parties hereto expressly acknowledge and agree
that changes in either general economic or regulatory conditions or
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changes in the economic or regulatory assumptions of any of them
which may have provided a basis for entering into this Agreement
and which occur at any time after the execution of this Agreement,
are not force majeure events and do not provide any party with
grounds for asserting the existence of a delay in the performance
of any covenant or undertaking which may arise under this
Agreement. Each party expressly assumes the risk that changes in
general economic or regulatory conditions or changes in such
economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the
continued performance of such party under this Agreement, but that
such inconvenience or hardship is not a force majeure event and
does not excuse the performance by such party of its obligations
under this Agreement.
7.6 Books and Records.
(a) Maintenance of Books and Records. Developer shall
prepare and maintain all books, records, and reports necessary to
substantiate Developer's compliance with the terms of this
Agreement or reasonably required by the Agency.
(b) Right to Inspect. The Agency shall have the right, upon
not less than seventy-two (72) hours notice, at all reasonable
times, to inspect the books and records of the Developer pertinent
to the purposes of this Agreement. Said right of inspection shall
not extend to documents privileged under attorney-client or other
such privileges.
7.7 Modifications. Any alteration, change or modification of
or to this agreement, in order to become effective, shall be made
by written instrument or endorsement thereon and in each such
instance executed on behalf of each party hereto.
7.8 Merger of Prior Agreements and Understandings. This
Agreement and all documents incorporated herein contain the entire
understanding among the parties hereto relating to the transactions
contemplated herein and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written
including without limitation, the Purchase Option Agreement dated
1999, are merged herein and shall be of no further
force or effect.
7.9 Representations and Warranties of Developer The
Developer hereby makes the following representations, covenants and
warranties and acknowledges that the execution of this Agreement by
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the Agency has been made in material reliance by the Agency on such
covenants, representations and warranties:
(1) The Developer is a duly organized and validly
existing. The Developer has the legal right, power and
authority to enter into this Agreement and the instruments and
documents referenced herein and to consummate the transactions
contemplated hereby. The persons executing this Agreement and
the instruments referenced herein on behalf of the Developer
hereby represent and warrant that such persons have the power,
right and authority to bind the Developer.
(2) The Developer has taken all requisite action and
obtained all requisite consents in connection with entering
into this Agreement and the instruments and documents
referenced herein and the consummation of the transactions
contemplated hereby, and no conseJ;lt of any other party is
required.
(3) This Agreement is, and all agreements, instruments
and documents to be executed by the Developer pursuant to this
Agreement shall be, duly executed by and are or shall be valid
and legally binding upon the Developer and enforceable in
accordance with their respective terms.
(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall
result in a breach of or constitute a default under any other
agreement, document, instrument or other obligation to which
the Developer is a party or by which the Developer may be
bound, or under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of any
court or governmental body applicable to the Developer or to
the Site.
All representations and warranties contained in this Section
7.9 are true and correct on the date hereof and on the Closing Date
and Developer's liability for misrepresentation or breach of
warranty, representation or covenant, wherever contained in this
Agreement, shall survive the execution and delivery of this
Agreement and the Close of Escrow.
7.10 Representations and Warranties of the Agency. The Agency
hereby makes the following representations, covenants and
warranties and acknowledges that the execution of this Agreement by
the Developer has been made and the acquisicion by the Developer of
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the Sites will have been made in material reliance by the Developer
on such covenants, representations and warranties:
(1) Each and every undertaking and obligation of the
Agency under this Agreement shall be performed by the Agency
timely when due; and that all representations and warranties
of the Agency under this Agreement and its exhibits shall be
true in all material respects at the Closing as though they
were made at the time of Closing.
(2) The Agency is a community redevelopment agency, duly
formed and operating under the laws of California. The Agency
has the legal power, right and authority to enter into this
Agreement and to execute the instruments and documents
referenced herein, and to consummate the transactions
contemplated hereby.
.
(3) The Agency 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.
(4) The persons executing any instruments for or on
behalf of the Agency have been authorized to act on behalf of
the Agency and that the Agreement is valid and enforceable
against the Agency in accordance with its terms and each
instrument to be executed by the Agency pursuant hereto or in
connection therewith will, when executed, be valid and
enforceable against the Agency in accordance with its terms.
No approval, consent, order or authorization of, or
designation or declaration of any other person, is required in
connection with the valid execution and deli very of and
compliance with this Agreement by the Agency.
(5) Prior to the Closing, the Agency will be the owner
of (and the Developer will acquire hereunder) the entire
right, title and interest in the Site to effectively vest in
the Developer good and marketable fee simple title to each of
the Site, that the Developer will acquire the Site free and
clear of all liens, encumbrances, claims, rights, demands,
easements, leases or other possessory interests, agreements,
covenants, conditions, and restrictions of any kind or
character (including, without limiting the generality of the
roregolng, liens or claims for taxes, mortgages, conditional
sales contracts, or other title retention agreement, deeds of
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trust, security agreements and pledges and mechanics lien)
except for the matters covered in Section 3.6(a).
(6) There are no pending or, to the best of the Agency's
knowledge, threatened claims, actions, allegations or lawsuits
of any kind, whether for personal injury, property damage,
property taxes or otherwise, that could materially and
adversely affect the value or use of the Site or prohibit the
sale thereof, nor to the best of the Agency's knowledge, is
there any governmental investigation of any type or nature
pending or threatened against or relating to the Site or the
transactions contemplated hereby.
(7) Between the date of this Agreement and
Escrow, the Agency will continue to manage,
maintain the Sites in the same manner as existed
execution of this Agreement.
the Close of
operate and
prior to the
(8) There are no contracts or agreements to which the
Agency is a party relating to the operation, maintenance,
service, repair, development, improvement or ownership of the
Site which will survive the Close of Escrow except as may be
set forth in the Agency Grant Deed.
(9) The Site [is]/[is not] located within a designated
earthquake fault zone pursuant to California Public Resources
Code Section 2621.9 and a designated area that is particularly
susceptible to ground shaking, liquefaction, landslides or
other ground failure during an earthquake pursuant to
California Public Resources Code Section 2694.
(10) The Agency has taken all appropriate action to
reserve the sum of One Hundred and forty Thousand Dollars
($140,000.00) for the Agency Grant for the Project as provided
in Section 4.9.
(11) For purposes of this Section 7.10, the terms "to the
best of the Agency's knowledge" or "to the Agency's knowledge"
shall mean the actual knowledge of
If the Agency becomes aware of any act or circumstance which
would change or render incorrect, in whole or in part, any
representation or warranty made by the Agency under this Agreement,
whether as of the date given or any time thereafter through the
Closing Date and whether or not such representation or warranty was
based upon the Agency's knowledge and/or belief as of a certain
date, the Agency will give immediate written notice of such changed
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fact or circumstance to the Developer, but such notice shall not
release the Agency of its liabilities or obligations with respect
thereto.
All representations and warranties contained in this Section
7.l0(a) are true and correct on the date hereof and on the Closing
Date and the Agency's liability for misrepresentation or breach of
warranty, representation or covenant, wherever contained in this
Agreement, shall survive the execution and delivery of this
Agreement and the Close of Escrow.
7.11 Binding Effect of Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto,
their legal representatives, successors, and assigns. This
Agreement shall likewise be binding upon and obligate the Site and
the successors in interest, owner or owners thereof, and all of the
tenants, lessees, sublessees, and occupants of such Site.
7.12 Assurances to Act in Good Faith. Agency and Developer
agree to execute all documents and instruments and to take all
action and shall use their best efforts to accomplish the purposes
of this Agreement. Agency and Developer shall each diligently and
in good faith pursue the satisfaction of any conditions or
contingencies subject to their approval.
7.13 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective
and valid under applicable law. If, however, any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
7.14 HUD Modifications. In the event HUD shall reasonably
request modifications to this Agreement and/or the exhibits hereto,
as a condition to the issuance of its Firm Commitment for the
disbursement of the proceeds of the HUD Section 202 Grant to the
Developer neither the Developer nor Agency will unreasonably
withhold their consent to such modification.
7.15 Rights of HUD.
(a) The terms and provisions of this Agreement and the Agency
Senior Citizen Housing Regulatory Agreement shall be subordinate to
the terms and provisions of the HUD Capital Advance Documents and
any other documents entered into by Developer in connection with
the HUD Section 202 Grant for the Project. Notwithstanding anything
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contained herein to the contrary, in the event the Secretary of HUD
(Secretary) should take title to the Project and the Site through
foreclosure, deed in lieu of foreclosure, or otherwise, all
covenants, conditions and restrictions set forth in this Agreement
shall cease and terminate and be of no further force or effect,
provided however, that nothing herein shall be deemed to prevent
the Agency from accepting a transfer in its sole and absolute
discretion of title in the Site and/or the Project from the
Secretary in any such event.
(b) Notwithstanding anything in this Agreement to the
contrary, in the event any provision in this Agreement contradicts,
modifies, or in any way changes the terms of the HUD Capital
Advance Documents, the terms of the HUD Capital Advance Documents
shall prevail and govern; or if any provision of this Agreement in
any way tends to limit the Secretary in its administration of the
National Housing Act of 1937, as amended, or the Housing Act of
,
1959, as amended, or the regulations pursuant thereto with respect
to the proj ect this Agreement shall be deemed amended by the
parties to the extent required by HUD so as to comply with such
acts, regulations and HUD Capital Advance Documents.
(c) Notwithstanding anything in this Agreement to the
contrary, no amendment to this Agreement shall be effective without
the prior written approval of the Secretary of HUD, its successors
or assigns.
7 . 16 Exh.ib.i ts . Exhibi t "A" through Exhibi t "F" incl us i ve
attached hereto, are incorporated herein as if set forth in full.
Exhibit "A"
Legal Description and Vicinity Map of the
Site
Exhibi t "E"
Scope of Development and Site Improvement
Plan Concept
Exhibit "C"
Schedule of Performance
Exhibit "D"
Form of Agency Grant Deed
Exhibi t "E"
Form of Certificate of Completion
Exhibi t "F"
Form of Agency Senior Citizen Housing
Regulatory Agreement
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49
IN WITNESS WHEREOF the Agency and Developer have executed this
Agreement as of the date first written above.
DEVELOPER
San Bernardino Senior Housing, Inc.,
a California non-profit public
benefit corporation
Dated:
, 2000
By:
Its:
By:
Its: '
AGENCY
Redevelopment Agency of the City of
San Bernardino, a body corporate
and politic
Dated:
, 2000
By:
Judith Valles,
Chairperson of the Community
Development Commission of the
City of San Bernardino
Approval As To Form:
By:
Agency Secretary
,Ll.lk '1 - ;n - ~
Agency-Special Counsel
SBEO/0001/OOC/401B-4
9/25/00 200 jrnw
50
IN WITNESS WHEREOF the Agency and Developer have executed this
Agreement as of the date first written above.
DEVELOPER
San Bernardino Senior Housing, Inc.,
a California non-profit public
benefit corporation
Dated:
, 2000
By:
Its:
By:
Its:/
AGENCY
Redevelopment Agency of the City of
San Bernardino, a body corporate
and politic
Dated:
, 2000
By:
Judi th Valles,
Chairperson of the Community
Development Commission of the
City of San Bernardino
Approval As To Form:
By:
Agency Secretary
A ency -Special Counsel
SBEO/0001/DOC/4018-4
9/25/00 200 jrnw
50
EXHIBIT "Au
Legal Description and Vicinity Map of the Site
SBEO/0001/DOC/4018-4
9/25/00 200 jrnw
51
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EXHIBIT "B"
Scope of Development and Site Improvement Plan Concept
/
SBEO/0001/DOC/4018-3
9/8/00 320 jmw
53
EXHIBIT "B"
Scope of Development and Site Improvement Plan Concept
SBEO/0001/DOC/4018-4
9/25/00 200 jrnw
52
'.
&xlii fltJ1/rJl;.. s:-'-".L'
02l:E1V;::' ~y
~.:.;~ ~-:V:::"":rME~T
SUMMARY
',"'v
CITY OF SAN BERNARDINO PLANNING DIviSION .
3
CASE:
AGENDA ITEM:
HEARING DATE:
WARD:
Conditional Use Permit No. 00-10
4
June 20, 2000
6
Ci~'( r F
!J~;1 :.":'j.j;M:\JIN.
OWNER:
City of San Bernardino
Economic Development Agency
201 No. "En Street, Suite 300
San Bernardino CA 92401
APPLICANT:
John D. Sharkey
Cooperative Services, Inc.
11100 Valley Blvd., Suite 212
El Monte CA 91731
REQUEST /LOCA TION:
The applicant request approval of a Conditional Use Permit under authority of Development Code
Section 19.06.030 (2)(Q), to construct a 75 unit senior citizen housing complex with a community
center. The proposed project is located on the north side of Baseline Street, approximately 600 feet
east of Medical Center Drive; in the CG-2, Commercial General land use district.
CONSTRAINTS/OVERLAYS:
None
ENVIRONMENTAL FINDINGS:
o Not Applicable
. Exempt, Section 15332, In-fill development
o No Significant Effects
o Potential Effects, Mitigated Negative Declaration and Mitigation Monitoring and Reporting
Program
STAFF RECOMMENDATION:
. Approval
. Conditions
o Denial
o Continuance to:
J
Conditional Use Permit No. 00-10
Meeting Date: June 10. 1000
Page 2
PROJECT DESCRIPTION
The applicant requests approval of a Conditional Use Permit under authority of Development Code Section
19.06.030 (2)(Q) to construct a 75 unit senior citizen housing complex with a community center. The
proposal includes 8 separate buildings containing between 6 and 14 units, and the community center. The
75 units are single story and are 600 square feet each. Each unit has a living room, kitchen with laundry
hook-ups, a bedroom and a bathroom. The proposal also includes a 3,500 square foot community center
with an office and reception area, board room, storage, laundry facilities, restrooms, kitchen and community
room (Attachment A & B).
SETTING/SITE CHARACTERISTICS
The proposed project site is 5.51-acres, rectangularly shaped and relatively flat. The site is located on
the north side of Baseline Street, approximately 600 feet ea~t of Medical Center Drive; in the CG-2,
Commercial General land use district. The surrounding usc;5 include residential to the east and north
in the CG-2, Commercial General and RS, Residential Suburban, landuse districts, the Westside
Plaza to the west, and commercial uses to the south, in the CG-2, Commercial General land use
district.
BACKGROUND
The Development Review Committee reviewed the project on May 25, 2000 and cleared it to Planning
Commission.
FINDINGS AND ANALYSIS
1. Is the proposed use conditionally permitted within, and would not impair the integriry
and character of the subject land use district, and does it comply with all of the
applicable provisions of this Development Code?
Yes, pursuant to Development Code Section 19.06.030.2.Q, a Senior Citizen housing project is an
allowed use in the CG-2, Commercial General land use district, subject to approval of a Conditional
Use Permit. The proposed project complies with all applicable provisions of the Development Code
and General Plan except as noted in Table A below:
Conditional Use Permit No. 00-10
Meeting Date: June 20. 2000
Page 3
TABLE A - Develooment Code/General Plan Conformance
CATEGORY PROPOSAL DEVELOPMENT GENERAL PLAN
CODE
Pennined Use Senior Citizen/Congregate Pennined subject to N/A
Care Housin~ Conditional Use Permit
Height 17 feet maximum 30 foot maximum N/A
Setbacks
- Front 120 feet 10 feet N/A
- Side 55 feet 10 feet N/A
- rear 100 feet 10 feet N/A
Landscaping 103,880 square feet
- Total 100 square feet per N/A
43% unit/7,5oo square feet .
Lot Coverage 19.7% 50% N/A
Parking
- Standard 62 spaces* 90 spaces N/A
- Handicao 4 soaces 4 spaces
Density 13.6 du/ac 18 du/ac N/A .
*
The applicant has submitted a parking analysis of similar projects to justify the reduced parking
requirement. See discussion under Finding No.5
2.
Is the proposed use consistent with the General Plan?
General Plan Policy 1.22.13 states that it is the policy of the City of San Bernardino to:
Permit low-rise medium density residential in locations between commercial centers along
Baseline Street in areas designated as CG-2, Commercial General.
General Plan Policy 1.22.14, states that it is the policy of the City of San Bernardino to:
Permit senior citizen housing in locations between commercial centers, provided that they are
adequately buffered.
The proposed project will promote and implement these General Plan policies. The project proposes a
density of 13.6 dwelling units per acre and the Development Code allows 18 dwelling units per acre.
The proposed project has 103,880 square feet of landscaping, including a lID-foot landscape buffer
along the street frontage. The rear or north end of the property will be used for tenant gardens. The
Conditional Use Permit No. 00-10
Meeting Date: June 20. 2000
Page 4
site is located on the east side of a retail commercial center, which is convenient for the residents, but
is separated by a six high solid fence to provide buffering from the center.
3. Is the approval of the Conditional Use Permit for the proposed use in compliance with
the requirements of the California Environmental Quality Act and Section 19.20.030(6)
of the Development Code?
Yes, the proposed project was found to be exempt from the California Environmental Quality Act per
Section 15332 Class 32 - In-fill Development Projects.
4. Are there potentiaLLy significant negative impacts upon environmental quality and
natural resources that could not be properly mitigated and monitored?
No, as identified in Finding #3 above the proposed project was found to be exempt from the
California Environmental Quality Act per Section 15332 Class 32 - In-fill Development Projects.
5. Are the location, size, design, and operating characteristics of the proposed use
compatible with the existing and future land uses within the general area in which the
proposed use is to be located and will it create significant noise, traffic or other
conditions or situations that may be objectionable or detrimental to other permitted uses
in the vicinity or adverse to the public interest, health, safety, convenience, or welfare
of the City?
Yes, the applicant proposes to construct and operate a senior housing project with 75 residential units
and a community center. The proposed project complies with Development Code/General Plan
Conformance Standards as defined in Table A except for the number of parking spaces required, and the
applicant has submitted a parking analysis of similar projects to justify the reduced parking requirement
(Attachment E). The analysis includes nine similar projects. The parking provided for the submitted
projects ranged from 39% to 63% of the required parking for that use in each jurisdiction. In each case
there were vacant parking spaces ranging from I space to 19 spaces. This project is providing 68% of
the required parking. The 68% is more than is provided at other similar projects, and all of the projects
have unused parking spaces. Development Code 919.24.030 (II) allows senior citizen apartment
parking requirement adjustments on an individual project basis. The adjustment is based on the
proximity to medical office, shopping areas and mass transit. The Westside Plaza, located adjacent to
the project site provides these uses. This project is providing .8 I-parking spaces per dwelling unit
The project will not create significant noise, traffic, or other conditions or situations that may be
objectionable or detrimental to other permitted uses in the vicinity or adverse to the public interest,
health, safety, convenience or welfare of the City. The project proposes less residential density than is
allowed by the Development Code, exceeds the landscaping requirements and proposes to install a solid
six foot fence around the project site. There will be no impact to traffic because there is a 36' wide
driveway with immediate access to an off street parking area and a 210 foot drive asile ahead of the entry
gate.
Conditional Use Permit No. 00-10
Meeting Date: June 20. 2000
Page 5
6. Is the subject site physically suitable for the type and density/intensity of use being
proposed?
The site is physically suitable for the type and density/intensity of the project being proposed as
evidenced by project compliance with all applicable Development Code Standards as noted above in
Table 'A' and as described in Setting and Site Characteristics.
7. Are there adequate provisions for public access, water, sanitation, and public utilities
and services to ensure that the proposed use would not be detrimental to public health
and safety?
All agencies responsible for reviewing access, and providing water, sanitation and other public
services have all had the opportunity to review the proposal, and none have indicated an inability to
serve the project. The proposal will not be detrimental t<I the public health and safety in that all
applicable Codes will apply to the construction of this project.
CONCLUSION
The proposal meets all necessary Findings of Fact for approval of Conditional Use Permit No. 00-10.
RECOMMENDATION
Staff recommends the Planning Commission:
1. Approve Conditional Use Permit No. 00-10 based upon the Findings of Fact contained in this
Staff Report and subject to the Conditions of Approval (Attachment C) and Standard
Requirements (Attachment D).
~e~l~ Submitted,
~'f #1JJ
Michael E. Hays
Director of Development Services
r /.).,/
~ '-J-<'./Aa.....~--/
(~landi
Associate Planner
Attachment A
Attachment B
Attachment C
Attachment D
Attachment E
Location Map
Site Plan, Elevations, Floor Plans, Landscape Plans
Conditions of Approval
Standard Requirements
Applicant's parking analysis
I
ATTACHMENT A
CITY OF SAN BERNARDINO PROJECT: CUP No. 00-10
PLANNING DIVISION
LOCATION MAP
LAND USE DISTRICTS HEARING DATE: 06/20/00
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Conditional Use Permit No. 00-/0
Meeting Date: June 20. 2000
Page 8
A TT ACHMENT C
CONDITIONS OF APPROVAL
Conditional Use Permit No. 00-10
1. Within two years of development approval, commencement of construction shall have
occurred or the permit/approval shall become null and void. In addition, if after
commencement of construction, work is discontinued for a period of one year, then the
permit/approval shall become null and void. Phasing of project construction/development
shall be as follows:
Project: Conditional Use Permit No. 00-10
Expiration Date: June 20,..io02
2. The review authority may, upon application being filed 30 days prior to the expiration date
and for good cause, grant a one-time extension not to exceed 12 months. The review
authority shall ensure that the project complies with all current Development Code
provisions.
3. In the event that this approval is legally challenged, the City will promptly notify the
applicant of any claim or action and will cooperate fully in the defense of the matter. Once
notified, the applicant agrees to defend, indemnify, and hold harmless the City, the
Economic Development Agency, their affiliates officers, agents and employees from any
claim, action or proceeding against the City of San Bernardino. The applicant further
agrees to reimburse the City and the Economic Development Agency of any costs and
attorneys' fees which the City or the Economic Development Agency may be required by a
court to pay as a result of such action, but such participation shall not relieve applicant of
his or her obligation under this condition.
4. Construction shall be in substantial conformance with the plan(s) approved by the Director,
Development Review Committee, Planning Commission or Mayor and Common Council.
Minor modification to the plan(s) shall be subject to approval by the Director through a
minor modification permit process. Any modification which exceeds 10% of the following
allowable measurable design/site considerations shall require the refiling of the original
application and a subsequent hearing by the appropriate hearing review authority if
applicable:
a. On-site circulation and parking, loading and landscaping;
b. Placement and/or height of walls, fences and structures;
5.
6.
Conditional Use Permit No. 00-10
Meeting Date: June 20. 2000
Page 9
No vacant, relocated, altered, repaired or hereafter erected structure shall be occupied or no
change of use of land or structure(s) shall be inaugurated, or no new business commenced as
authorized by this permit until a Certificate of Occupancy has been issued by the Department.
A temporary Certificate of Occupancy may be issued by the Department subject to the
conditions imposed on the use, provided that a deposit is filed with the Department of Public
Works prior to the issuance of the Certificate, if necessary. The deposit or security shall
guarantee the faithful performance and completion of all terms, conditions and performance
standards imposed on the intended use by this permit.
This permit or approval is subject to all the applicable provisions of the Development Code in
effect at the time of approval. This includes Chapter 19.20 - Property Development Standards,
and includes: dust and dirt control during construction and grading activities; emission control
of fumes, vapors, gases and other forms of air pollution; glare control; exterior lighting design
and control; noise control; odor control; screening; signs, off-street parking and off-street
loading; and, vibration control. Screening and sign regulations compliance are important
considerations to the developer because they will delay the issuance of a Certificate of
Occupancy until they are complied with. Any exterior structural equipment, or utility
transformers, boxes, ducts or meter cabinets shall be architecturally screened by wall or
structural element, blending with the building design and include landscaping when on the
ground.
7.
The applicant shall identify the wall of each building with 6 inch high letters or numbers.
The residential occupancy shall be limited to single persons over 60 years of age or married ~
couples of which one spouse is over 60 years of age and shall be recorded as an easement on the ]1\
deed.
*8.
9.
This permit or approval is subject to the attached conditions or requirements of the following
City Departments or Divisions:
a. Public Works Division
b. Plan Check Division
c. Fire Department
d. Public Services Department
* Amended per Planning Commission on 6/20100
ATTACHMENT 0
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCA TION:_6001 East of Medica/ Center Drive
Architect/Masoon Mian And North of Base Line
. NOTE TO APPLICANT: Where separate Engineering plans are required, the applicant is
responsible for submitting the Engineering plans directly to the Engineering Division. They
may be submitted prior to submittal of Building Plans.
1. Drainaae and Flood Control
a) A local drainage study will be required for the project. Any drainage
improvements, structures or storm drains needed to mitigate downstream
impacts or protect the development shall be designed and constructed at
the developer's expense, and right-of-way dedicated as necessary.
b) All drainage from the development shall be directed to an approved public
drainage facility. If not feasible, proper drainage facilities and easements
shall be provided to the satisfaction of the City Engineer.
c) If site drainage is to be outletted into the public street, the drainage shall
be conveyed through a parkway culvert constructed in accordance with
City Standard No. 400. Conveyance of site drainage over the Driveway
approaches will not be permitted.
d) Applicant shall mitigate on-site storm water discharge sufficiently to
maintain compliance with the City's NPDES Storm Water Discharge
Permit Requirements. A "Notice of Intent (NOI)" shall be filed with the
State Water Quality Control Board for construction disturbing 5 acres of
more of land.
e) The City Engineer, prior to grading plan approval, shall approve an
Erosion Control Plan. The plan shall be designed to control erosion due
to water and wind, including blowing dust, during all phases of
construction, including graded areas which are not proposed to be
immediately built upon.
Page 1 of 9 Pages
6/1312000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wolett LOCATION:_6001 East of Medical Center Drive
Architect/Masoon Mian And North of Base Line
2. Gradina and Landscaoina
a) If more than l' of fill or 2' of cut is proposed, the site/plot/grading and
drainage plan shall be signed by a Registered Civil Engineer and a
grading permit will be required. The grading plan shall be prepared in
strict accordance with the City's "Grading Policies and Procedures" and
the City's "Standard Drawings", unless otherwise approved by the City
Engineer.
b) If more than 5 trees are to be removed from the site, a tree removal permit
conforming to the requirements of Section 19.28.090 of the Development
Code shall be obtained from the Department of Development Services-
Planning Division prior to issuance of any grading or site development
permits.
c) If more than 5,000 cubic yards of earthwork is proposed, a grading bond
will be required and the grading shall be supervised in accordance with
Section 7012(c) of the Uniform Building Code.
d) If more than 1,000 cubic yards of earth is to be hauled on City Streets
then a special hauling permit shall be obtained from the City Engineer.
Additional conditions, such as truck route approval, traffic controls.
bonding, covering of loads, street cleaning, etc. may be required by the
City Engineer.
e) An on-site Improvement Plan is required for this project. Where feasible,
this plan shall be incorporated with the grading plan and shall conform to
all requirements of Section 15.04-167 of the Municipal Code (See
"Grading Policies and Procedures").
Page 2 of 9 Pages
6/1312000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCATION:_6001 East of Medica/ Center Drive
Architect/Masoon Mian And North of Base Line
f) A refuse enclosure constructed in accordance with City Standard Drawing
No. 508. The minimum size of the refuse enclosure shall be 8 feet x 15
feet, unless the Public Services Department, Refuse Division, approves a
smaller size, in writing.
g) The Refuse Division shall approve tne number and placement of refuse
enclosures. '
h) Retaining walls, block walls and all on-site fencing shall be designed and
detailed on the On-site Improvement Plan. This work shall be part of the
On-site Improvement permit issued by the City Engineer.
i) The on-site improvement plan shall include details of on-site lighting,
including light location, type of poles and fixtures, foundation design,
conduit location and size, and the number and size of conductors.
Photometry calculations shall be provided which show that the proposed
on-site lighting design will provide 1 foot-candle of illumination uniformly
distributed over the surface of the parking lot during hours of operation
and 0.25 foot-candles security lighting during all other hours.
j) The design of on-site improvements shall also comply with all
requirements of The California Building Code, Title 24, relating to
handicap parking and accessibility, including retrofitting of existing
building access points for handicap accessibility, if applicable.
k) A handicap accessible path of travel shall be provided from the public way
to the building entrance. All pathways shall be concrete paved and shall
provide a minimum clear width of 4 feet. Where parking overhangs the
pathway, the minimum paved width shall be 6 feet.
I) Where the handicap accessible path of travel crosses drive aisles, it shall
be delineated by striping or textured/colored concrete pavement.
Page 3 of 9 Pages
6/13/2000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCATION:_6001 East of Medical Center Drive
Architect/Masoon Mian And North of Base Line
m) The project Landscape Plan shall be reviewed and approved by the City
Engineer prior to issuance of a grading permit. Submit 5 copies to the
Engineering Division for Checking.
n) The public right-of-way, between the property line and top of curb (also
known as "parkway") along adjoining, streets shall be landscaped by the
developer and maintained in perpetuity by the property owner. Details of
the parkway landscaping shall be included in the project's on-site
landscape plan, unless the parkway area is included in a landscape
maintenance district, in which case, a separate landscape plan shall be
provided.
0) An easement and covenant shall be executed on behalf of the City to
allow the City to enter and maintain any required landscaping in case of
owner neglect. The Real Property Section for execution by the property
owner and shall ensure that, if the property owner or subsequent owner(s)
fail to properly maintain the landscaping, the City will be able to file
appropriate liens against the property in order to accomplish the required
landscape maintenance. A document processing fee in the amount of
$200.00 shall be paid to the Real Property Section to cover processing
costs. The property owner, prior to plan approval, shall execute this
easement and covenant unless otherwise allowed by the City Engineer.
3. Utilities
a) Design and construct all public utilities to serve the site in accordance with
City Code, City Standards and requirements of the serving utility,
including gas, electric, telephone, water, sewer and cable TV (Cable TV
optional for commercial, industrial, or institutional uses).
b) Backflow preventers shall be installed for any building with the finished
floor elevation below the rim elevation of the nearest upstream manhole.
Page 4 of 9 Pages
6/1312000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCATION:_6001 East of Medical Center Drive
Architect/Masoon Mian And North of Base Line
c) Sewer main extensions required to serve the site shall be constructed at
the Developer's expense.
d) This project is located in the sewer service area maintained by the City of
San Bernardino therefore, any necessary sewer main extension shall be
designed and constructed in accordance with the City's "Sewer Policy and
Procedures" and City Standard Drawings.
e) Utility services shall be placed underground and easements provided as
required.
f) A street cut permit, from the City Engineer, will be required for utility cuts
into existing streets where the street is not being repaved as part of the
required improvements.
g) All existing overhead utilities adjacent to or traversing the site on either
side of the street shall be undergrounded in accordance with Section
19.20.030 (non-subdivisions) or Section 19.30.110 (subdivisions) of the
Development Code.
h) Existing Utilities which interfere with new construction shall be relocated at
the Developer's expense as directed by the City Engineer, except
overhead lines, if required by provisions of the Development Code to be
undergrounded. See Development Code Section 19.20.030 (non-
subdivisions) or Section 19.30.110 (subdivisions). .
Page 5 of 9 Pages
6/13/2000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No.
00-10
APPLICANT: Wo/ett
Architect/Masoon Mian
DESCRIPTION: 75 One Story Apartments and
Community Center for Senior Citizens
LOCATION:_6001 East of Medical Center Drive
And North of Base Line
i) As an alternative to undergrounding required by Section 19.20.030 (non-
subdivision) or Section 19.30.110 (subdivisions).of the Development
Code, the developer will provide a letter of agreement for participation in
an assessment district, if one is formed, to fulfill the requirement for
undergrounding utilities. Prior to recordation of a map or issuance of
building permit subdivider/developer shall have the letter of agreement
recorded with the deed. .
j) Sewers within private streets or private parking lots will not be maintained
by the City but shall be designed and constructed to City Standards and
inspected under a City On-Site Construction Permit. A private sewer plan
designed by the Developer's Engineer and approved by the City Engineer
will be required. This plan can be incorporated in the grading plan, where
practical.
4. Street ImDrovement and Dedications
a) All public streets within and adjacent to the development shall be
improved to include combination curb and gutter, paving, handicap ramps,
street lights, sidewalks and appurtenances, including, but not limited to
traffic signals, traffic signal modifications, relocation of public or private
facilities which interfere with new construction, striping, shall be
accomplished in accordance with the City of San Bernardino "Street
Improvement Policy" and City "Standard Drawings", unless otherwise
approved by the City Engineer. Street lighting, when required, shall be
designed and constructed in accordance with the City's "Street Lighting
Policies and Procedures". Street lighting shall be shown on street
improvement plans except where otherwise approved by the City
Engineer.
Page 6 of 9 Pages
6/1312000
STANDARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICESIPUBLIC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Apartments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCATION:_6001 East of Medical Center Drive
Architect/Masoon Mian And North of Base Line
b) For the streets listed below, dedication of adequate street right-of way
(R.W.) to provide the distance from street centerline to property line and
placement of the curb line(C.L.) in relation to the street centerline shall be
as follows:
Street Name Right of Wavlft.) Curb Line(ft)
Base Line Street 50 ft. (exist 41.25 ft.) 32 ft.
c) Construct sidewalk adjacent to the site in accordance with City Standard
No. 202, Case "A" (6' wide adjacent to curb).
d) Construct Driveway Approaches per City Standard No. 204, Type II,
including Handicap by-pass. Remove existing driveway approaches that
are not part of the approved plan and replace with full height curb & gutter
and sidewalk.
e) Install Street Lights adjacent to the site in accordance with City Standard
Nos. SL-1 and SL-2.
5. Reguired Engineering Permits
a) Grading permit (If applicable.).
b) On-site improvements construction permit (except buildings - see
Development Services-Building Division), including landscaping.
c) Off-site improvements construction permit.
Page 7 of 9 Pages
6/13/2000
STA~DARD REQUIREMENTS
DEPARTMENT OF DEVELOPMENT SERVICES/PUBLIC WORKS DIVISION
CASE NO: C.U.P. No.
00-10
APPLICANT: Wo/ett
Architect/Masoon Mian
DESCRIPTION: 75 One Story Apartments and
Community Center for Senior Citizens
LOCA TION:_6001 East of Medica/ Center Drive
And North of Base Line
6. Aoolicable Enaineerina Fees!
a) Plan check and inspection fees for off-site improvements - 4% and 4%,
respectively, of the estimated construction cosf of the off-site
improvements.
b) Plan check and inspection fees for on-site improvements (except buildings
- See Development Services-Building Division) - 2% and 3%, respectively,
of the estimated construction cost' of the on-site improvements, including
landscaping.
c) Plan check and inspection fees for grading (If permit required) - Fee
Schedule available at the Engineering Division Counter.
d) Drainage fee in the approximate amount as follows based on $0.419 per
square foot for the first 3,000 square feet of impervious lot area (estimated
as 85% of the net lot area), then $0.143 per square foot of remaining
impervious lot area or fraction thereof: $20,296.00
e) Traffic system fee in the estimated amount of $6.893.00. Based on 413
trips per day @ $16.689 per new trip generated by the project. The City
Traffic Engineer shall determine exact amount at time of application for
Building Permit.
I All Fees are subject to change without notice.
'Estimated Construction Cost for Off-Site Improvements is based on a list of standard unit prices on file with
the Public Works Division.
) Estimated Construction Cost for On-Site Improvements Is based on a list of standard unit prices on file with
the Public Works Division.
Page 8 of 9 Pages
6/13/2000
STANDARD REQUIREME~
DEPARTMENT OF DEVELOPMENT SERVlCES/PUBLlC WORKS DIVISION
CASE NO: C.U.P. No. DESCRIPTION: 75 One Story Aparlments and
00-10 Community Center for Senior Citizens
APPLICANT: Wo/ett LOCA T10N:_6001 East of Medical Center Drive
Architect/Masoon Mian And North of Base Line
f) Sewer Connection fee in the approximate amount as follows based on
$296.90 per bedroom: $22,267.50.
g) Sewer inspection fee in the estimated amount as follows based on $19.98
per connection: $1,498.50.
h) Street or easement dedication processing fees in the amount of $ 200.00
per document.
Page 9 of 9 Pages
6/1312000
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May 25, 2000
RESIDENTIAL
PLAN SUBMITTAL CHECKLIST
The following is a list of items required by the City of San Bernardino for all
residential development projects: CUP 00-10 Medical Center Drive
BtlllIDlNG'J>ERMrr rSSUAN"CE:
1. Site plan with all standard conditions, Development Plan, or C.U.P.
approvals. .
2. Grading plan signed and grading permit issued by City Engineer. Plan must
have the address (assigned by Engineering).
Note: The grading permit requires a separate application submitted to Public
Works/City Engineering.
3. Landscape drawings approved by Public Works/Engineering.
Note: Landscape plans require a separate submittal to Public Works/City
Engineering.
4. Fire Department approvals for all on-site improvements. Fire sprinkler
plans must be submitted directly to the Fire Dept. for plan check, approval,
& permit. Contact the Fire Marshals Office at 909-384-5388.
5. Title to property if permit is issued as Owner/Builder. A list of all sub-
contractors must be submitted to the City Clerk's office.
6. All Contractors must have a current State License and a City Business
Registration at time of permit issuance. The Contractor must furnish the
information on the workers' compensation carrier & policy number at the
time of permit issuance. The City does not keep certificates on file.
7. A receipt from the applicable school district. San Bernardino Unified is
located at 777 N. F St. phone 909-381-1238.
8. Sewer capacity fee receipt from the City of San Bernardino Water
Department located on the 5th floor. Contact Neil Thompson/909-384-5093.
9. Additional Impact fees wiII be assessed by Public Works or
resolution/ordinance and payable on the building permit for:
a. Sewer connection
b. Storm drain
c. Traffic system
d. Parks & Recreation fees (varies according to type of project)
e. State of California strong motion fee (0.00010 x valuation)
f. Planning Department zoning verification
10. If project requires a Parcel Map, it must include:
a. The assessors parcel number for each developed lot and the
required setbacks.
b. Address & sequence list for tract & multi-family projects
~
--.-. ._-
a. 4 complete sets of plans, draw!! to scale (minimum 18" x 24")
(5 sets are required for expeditious review)
b. 2 sets energy calculations
c. 2 sets signed/stamped engineering
d. 2 sets ofsigned/stamped truss calculations
e. 1 copy of soils report .
f. 4 copies of C.U.P., DPI,& DPII conditions of approval
NOTE: PLAN CHECK TIME ON THESE TYPES OF PROJECTS IS
APPROXIMATELY 5-6 WEEKS FOR 1ST CORRECTIONS.
EXPEDITIOUS REVIEW IS 10-15 WORKING DAYS.
CITY OF ~_ .N BERNARDINO FIRE Dl ARTMENT
STANDARD REQUIREMENTS
Case:
c>c' - It>
Date: ?"- 25--C.'C'
Reviewed By: 11</'1
tNERAL REQUIREMENTS:
Provide one additional set of construction plans to Building and Safety for Fire Department use at time of plan check.
o Contact the City of San Bernardino Fire Department at 1909) 384-.5388 for specific detailed requirements.
o The developer shall provide for adequate fire flow as computed by the Fire Prevention Bureau. Minimum fire flow requirements shall be based
on square footage. construction features. and exposure information supplied by the developer and !!!SI.I1 be available mim to placing combustible
materials on site.
WATER PURVEYOR FOR FIRE PROTECTION:
J(. Tt}e fire protection water service for the area at this project is provided by:
1Z San Bernardino Municipal Water Department. Engineering 19091 3B4~5391
/C East Valley Water District - Engineering (909) 888-8986
C Other Water Purveyor:
Phone:
PJ.lBLlC FIRE PROTECTION FACILITIES:
,.... Public fire hydrants are required along streets at intervals not to exceed 300 feet for commercial and multi-residential areas and at intervals not
~ to exceed 500 feet for residential areas.
?'{ Fire hydrant minimum flow rates of 1,500 gpm at a 20 psi minimum residual pressure are required for commercial and multi-residential areas.
Minimum fire hydrant flow rates of 1,000 gpm at a 20 psi minimum residual pressure are required for residential areas.
o Fire flow requirements may be met from the combined flow of two adjacem fire hydrants. Fire flow requirements may be adjusted. as deemed
- appropriate by the Fire Department, based on individual site specific conditions and available mitigations.
~ Fire hydrant type and specific location shall be jointly determined by the City of San Bernardino Fire Department in conjunction with the water
. purveyor. Fire hydrant materials and installation shall conform to the standards and specifications of the water purveyor.
"if Public fire hydrants, fire services, and public water facilities necessary to meet Fire Department requirements are the developer's financial
r responsibility and shall be installed by the water purveyor or by the developer at the water purveyor's discretion. Contact the water purveyor
indicated above for additional information.
ACCESS:
o Provide two separate, dedicated routes of ingress/egress to the property entrance. The routes shall be paved, all weather.
)i( Provide an access road to .ach building for fire apparatus. Access roadway shall have an all-weather driving surface of not less than 20 feet
of unobstructed width.
o Extend roadway to within 150 feet of all portions of the exterior wall of all single story buildings.
Extend roadway to within 50 feet of the exterior wall of all muttiple-story buildings.
Provide "NO PARKING" signs whenever parking of vehicles would possibly reduce the clearance of access roadways to Jess than the required
width. Signs are to read 'FIRE LANE, NO PARKING - M.C. See 15.1S".
.... Dead-end streets shall not exceed 500 feet in length and shall have a minimum 40 foot radius turnaround.
o The names of any new streets (public or private) shall be submitted to the Fire Department for approval.
~TE:
All access roads and streets are to be constructed and usable prior to combustible construction.
Private fire hydrants shall be installed to protect each building located more than 150 feet from the curb line. No fire hydrants should be within
40 feet of any exterior wall. The hydrants shall be Wet Barrel type, with one 2'/1 inch and 4 inch outlet, and approved by the Fire Department.
Fire hydrants shall be designated as a "NO PARKING" zone by painting an 8 inch wide, red stripe for 15 feet in each direction in front of the
hydrant in such a manner that it will not be blocked by parked vehicles.
,BUILDINGS:
-. Address numerals shall be installed on the building at the front or other approved location in such a manner as to be visible from the frontage
/', street. Commercial and multi family address numerals shall be 6 inches tall, single family address numerals shall be 4 inches tall. The color
\.." of the numerals shall contrast with the color at the background.
A Identify each gas and electric meter with the number of the unit it serves.
)( Fire Extinguishers must be installed prior to the building being occupied. The minimum rating for any fire extinguisher is 2A 10B/C. Minimum
distribution of fire extinguishers must be such that no interior part of the building is over 75 feet travel distance from a fire extinguisher.
o Apartment houses with 16 or more units, hotels (motels) with 20 or more units, or apartments or hotels (motels) three stories or more in height
shall be equipped with automatic fire sprinklers designed to NFPA standards.
"" All buildings, other than residential, over 5,000 square. fe~t~J?llill be equipped with an automatic fire sprinkler system designed to NFPA
standards. This includes existing buildings vacant over. 365 days.
.s Submit plans for the fire protection system to the Fire Department prior to beginning construction of the system.
o Tenant improvements in all sprinkJered buildings are to be approved by the Fire Department prior to start of construction.
o Provide fire alarm (required throughout!. Plan must be approved by the Fire Department prior to start of installation.
')t Fire Department connection to lsprinkler system/standpipe system) shall be required at Fire Department approved location.
,
FPB 170 (1 '-94)
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CITY OF SAN BERNARDINu
PUBUC SERVICES DEPARTMENT - REFUSE & RECYCUNG DMSION
STANDARD DEVELOPMENT REQUIREMENTS
300 North D Street - 4th Floor CA 92418-0001
909-384-5335
---
Project Number .) ~ .~ . .' ) -' .
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Project DescriplionIBusiness Name ___I.... 1,->".1- ': '.
Project Location/Address /~'-.!..
Reviewed By i \ . , ,
[Office Use Only: City Service Application No.
COMMERCIAl
....L- 1. Est!lblish .t+- commercial re~ enclosu'e(s) according to City Pubic: Works Standard 508 with a width of
(.. '.... ' and a length of i Ie:: I. " . Location and orientation of encIosu"e(s), gates, and compactor unil(s) shal
be shown on S~e Plans, labeled with dimensions and specifications to meet Pubic Works Standard 508.
~ 2. Locate refuse enclosure(s) and compactor IA'lit(s) to be safely accessible for service vehicles and without
obstruction to drive aisles, driveways, loading zones, parking, or handicap access. Enclosure must be at least 5'
from combustible wals, eave lines, or openings [98 CA F.... Code 11 03.2.2J. Minimum radii of 040' for al drive turns
along the main ingress to and egress from enclosu'es and compactor pads.
...b..:t. 3. InstaD _ compactor unil(s) with a minimum capacity of _ cubic yards for each un~. Roll-off box unil(s)
shaH meet Public Works Standard 510.
V'
~ 4. Refuse and recycling service to this location shaH be provided by the City of San Bemardino unless otherwise
noted. New accounts require a completed Service Application with a fuR deposit returned to the City of San
Bemardino Refuse & Recycling Division prior to issuance of the final Certificate of Occupancy.
L 5. City front-load coUection services shaD be established at the folowing minimum levels:
.-
Project Planner ~,L
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Review Date _< I 'J.'!., I ( -
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Date Completed Application Returned _I_~
REFUSE SERVICE
QTY BIN DAYS I WEEK
1.2CY
~ 3CY ,
4CY
6CY
RECYCUNG SERVICE
QTY BIN DAYS I WEEK
1-2CY
/- 3CY
4CY
6CY
ORGANICS SERVICE
QTY BIN DAYS/WEEK
1-2CY
3CY
4CY
6CY
~
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6. Sealed compactor unil(s) shaH be inslaKed with a recommended minimum 30 cubic yard roll-off box:
unil(s) for refuse, unil(s) for commingled dry recyclables, and unil(s) for organics.
7. AppHcant shaH subm~ a completed Integrated Waste Management Survey to the Pubtic Services Department
Refuse and Recycling Division a minimum of 5 City work days for approval prior to issuance of any City permB.
Contact 909-3804-55049 , phone or 909-3804-5190 fax.
RESIDENTIAL
-1:1::::" 1. Residential refuse and recycling services are to be provided by the City of San Bemardino Refuse & Recycling
Division. The City shal provide one set of a blue, green, and black 96 or 604-gaHon automated service carts to each
single family UM OR one set to every two-unil multiple family dweling up to six units.
2, Residential units shaH have a minimum 3 feet by 9 feet concrete pad located out of view of public right-of-way
for storage of each set of three automated carts. Minimum gate openings shal be 3 feet, and the path of travel
from the storage pad to curtl shaH be continuously paved.
3. A minimum 12-foot space along the CUlb on the street must be clear for residential automated service carts,
including a minimum 2-foot setback of al structures, fences, and raised landscaping.
04. Day of automated cart service shan be: M T W Th
ADDITIONAL CONDITIONS OR NOTES
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(WIIite-AppIc.nt] {YoIow-Pflnnillg] [Pjnk.RefIJ.. & Recyclng (CSRs)] [GoIdenrr>>DERC FIe]
Re_ 3.8.2000
ATTACHMENT E
Joe:
Below is a list of projects denoting number of total units in that project, the percentage
of parking to units, and the number of vacant spaces:
South Park Manor 126 Units
Number of parking spaces: 60
Percentage of parking/units: 48%
Number of vacant spaces: 10
Meadowlark Manor 74 Units
Number of parking spaces: 34
Percentage of parking/units: 46%
Number of vacant spaces: 4 .
Casa Victoria 50 units
Number of parking spaces: 32
Percentage of parking/units: 64%
Number of vacant spaces: 3
Magnolia Towers 200 Units
Number of parking spaces: 104
Percentage of parking/units: 52%
Number of vacant spaces: 19
South Bay Co-op 56 Units
Number of parking spaces: 25
Percentage of parking/units: 45%
Number of vacant spaces: 2
Vista del Monte 52 Units
Number of parking spaces: 33
Percentage of parking/units: 63%
Number of vacant spaces: 1
Vista Serena 60 Units
Number of parking spaces: 38
Percentage of parking/units: 63%
Number of vacant spaces: 2
.
Beaumont Terrace 50 Units
Number of parking spaces: 24
Percentage of parking/units: 50%
Number of vacant spaces: 2
Colton Palms 101 Units
Number of parking spaces: 39
Percentage of parking/units: 39%
Number of vacant spaces: 1
SEP-07-00 08,28 PROM,Ci~y of SBdno Plng/Bldg
10,9093845080
PACE
2/2
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CITY OF SAN BERNARDINO
DEVEWPMENT SERVICES DEPARTMENT
NOTICE OF EXEMPTION
PROM:
CITY OF SAN BERNARDINO
DevelopmeDt Servil:es
300 North "OW Street
San Bemardi;Do. CA 92418
TO: 0
OFFICE OF PLANNING AND RESEARCH
1400 Temh Street. Room 121
SamaIellro. CA 95814
~ COUNTY ('T J'>>K
Caumy of San Be.mardino
385 North AmlWbead Avenue
San Benwdillo. CA 92415
Project Title: Conditional Use Permit No. 00-10
Project LocaIion (Specific): NOIth side of BaseIiDe Stteet. apptOltimaIely 600 feet east of Medical Cemer Drive
Project Location (City): San Bemardino
Project LO".,;nn (Caumy): SaIl Bemardillo
Description of Project: 15 unit low income senior citizen housing ptOject, with a 3.500 square foot community cemer
Name of Public Agency AWtO\ling Project: City of San Bernardino
Exempt Stams: (check one)
o Ministerial (Sec. 21080(B)(1); 15268);
o Declared E=gency (Sec. 2108O(b)(3); 15269(a));
o Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
l8J Categorical Exemptiou- Section 15332:
o StatutOry Exemptioos. State Code number:
o ~eral Rule - No! subject to CEQA
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Name of P= or Agency Canying Out Project: Cooperative Services Inc.
Reasons why ptOject is exempt: in-fill Development
Lead Agency
Contact Person: Joe J3--11.nrli
Arlla Codeffelephoae/'E.xtcDsion: 909-384-5057
If filed by applicanL:
1. Attach certified doc:ument of e;wmplion finding.
2. Has a notice of exemption been filed by the public agem:y approving the ptOject? 0 Yes 0 No
_'~ ceu;/__Al.-, _"Ia/co --GZ"..... P~-,.)
I8ISigoed y Lea ~ency 0 Signed by AWliCllllI t' ;ate received for filing at OPR:
SBEO/0001/DOC/4018-4
9/25/00 200 jmw
EXHIBIT "C"
Schedule of Performance
53
,'- .\
C.
EXHmIT /=
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE
1. Developer prepares and Estimated September 15, 2000
submits to City and Agency
plans, drawings and
specifications and City and
Agency commence approval
process.
2. Developer to obtain Draft Firm On or before J~ne, 2001
Commitment from HUD.
3. Escrow Agent to advise of Within five (5) business days of the
fees, costs and required Closing Date.
documents.
4. Delivery by Agency and On or before I :00 p.m. on the last
Developer of notice of failure business day preceding Closing
of conditions to Closing. Date.
5. Agency and Developer may Within thirty (30) days of receipt
cure any condition to Closing of notice.
disapproved or may cure
default.
6. Closing Date. Estimated July, 20010r as may be
extended by HUD.
7. Developer to submit proof of Prior to commencing any
Insurance. inspections and work on the
Project
8. Developer to commence On or before the date that is thirty
construction of Project. (30) days after the Closing Date.
9. Developer to complete Within 365 days of commencement
construction of Project. or the period aIlowed by the HUD
Capital Advance Agreement,
whichever last occurs; provided,
EXH. \= - Page I
. '"
~
however, that construction shall be
completed no later than 600 days
of commencement.
It is understood that this Schedule of Performance is subject to all of the terms and conditions
of the text of the Agreement. The summary of the items performance in this Schedule of Performance
is not intended to supersede or modify the more complete description in the text; in the event of any
conflict of or inconsistency between this Schedule of Performance and the text of the Agreement, the
text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by
written agreement signed by both the Participant and the Agency. The Executive Director of the
Agency shall have the authority to approve extensions of time without action of the Board of
Directors of the Agency not to exceed a cumulative total qf 180 days.
.
EXH. A :;; - Page 2
SBEO/0001/DOC/4018-4
9/25/00 200 jrnw
EXHIBIT "D"
Form of Agency Grant Deed
54
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 10'-7,-o::J
Vote: Ayes i- f) Nays
Change to motion to amend original documents:
Item # Y,?A;
..e-
Abstain
Reso. # On Attachments: 1
Contract term:
---
Date Sent to Mayor: JD- 4--0() Date Returned from Mayor:
Date o~rk's Signature: 1>-5 -OC) Reso. Log Updated:
\0 A-CD
,/
DateJ\4aHlo Sent to Department ~ignature; Ib-(,,-oO
Resolution #
C (")017(ni - :~
,
-f7
Absent e-
NulllVoid After: -
Date of Mayor's Signature:
Seal Impressed:
I o-L\ -cD
See Attached; - Date Returned: ..:l '/5-0 I
--
Date Letter Sent to Outside Party for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached; -= Date Returned;
See Attached: -
See Attached: -
---
Note on Resolution of Attachment stored separately:-=-
Direct City Clerk (circle I): PUBLISH, POST, RECORD W ICOUNTY Date:
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:
City Attorney
Parks & Rec.
Code Compliance Dev. Services
Police Public Services Water
Notes:
- See Attached:
-
Yes / No By
Yes No / By
Yes No ./ By
Yes No v By
Yes No / By
EDA
./
MIS
Finance
Others:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File; ~
Date: J- 15-01