HomeMy WebLinkAboutR36-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Maggie Pacheco, Deputy Director/Director SUBJECT:
Housing & Community Development
OR'....'.' ~L
December 10, 2001 " i \..111 ~ Ii
ANR INDUSTRIES, INC. - INFILL
SINGLE-F AMIL Y HOUSING
PROPOSAL-NEIGHBORHOOD
INITIATIVE PROGRAM (NIP) TARGET
AREAS #1 AND #4
DATE:
Svnopsis of Previous Commission/Council/Committee Action(s):
On November 8, 2001, the Redevelopment Committee recommended thaI this item be senl to the Community
Developmenl Commission for approval.
Recommended Motion(s):
(Community Development Commission)
MOTION:
Resolution of the Community Development Commission approving and authorizing
execution of the Development Agreement between the Redevelopment Agency and
ANR Industries, Inc. for Ihe construction of six (6) new single-family homes within
Neighborhood Initiative Program (NIP) Target Areas # I and #4,
Contact Person(s): Gary Yan Osdel/Maggie Pacheco
Project Area(s)
Phone:
663-1044
Ward(s):
2&3
Supporting Data Attached: [{I Staff Report [{I Resolution(s) [{I Agreement(s)/Contract(s) [{I Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $ 124,000
Source:
Low-Moderate Income Housing Funds
SIGNATURE:
2002-2003 Budget
(
Maggie P 0, Deputy Direclor/Director
Housing 8< Community Development
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GYO:MP:sj:12-17-01 ANR Gap Financing COMMISSION MEETING AGENDA
Meeting Date: 12/17/2001
Agenda Item Number:
R3~
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
ANR Industries. Inc. - Infill Affordable Housinl! ProDosal In Connection With The
Nei~hborhood Initiative Prol!ram (NIP) Tarl!et Areas #1 And #4
BACKGROUND
On March 13,2001, Amendment #1 to the Cooperative Agreement between the County of San
Bernardino and the Redevelopment Agency of the City of San Bernardino was approved
amending the Agreement entered into on September 21, 1999. The principle reason for the
Amendment #1 was to require and obligate the Agency to purchase all NIP/Asset Control Area
(ACA) HUD properties in an AS IS condition at the price set forth by HUD and County and to
close escrow within 45 days from the date of notification of property availability. Under the
Agreement and Amendment #1, the Agency has purchased approximately 139 properties
scattered throughout NIPI ACA areas 1 and 6. In turn, the Agency concurrently sells these
properties to pre-approved ARR Contractors. To date, the ARR Contraclors have committed and
invested in excess of $ 6.3 million (only includes acquisition and rehabilitation/construction
costs) in these areas.
CURRENT ISSUE
A large majority of the HUD properties the Agency has purchased from the County are in severe
distressed and dilapidated condition. Some of the properties the County has purchased from
Hun are in such poor condition that HUD/County have resorted to demolishing the structures
and thus, leaving behind vacant residential lots to be purchased by the Agency. A specific case in
point, are the six (6) vacant lots located at:
NIP/ACA#1 (see attached MaD)
248-52 Wabash, 249 Wabash, 168-70 Wesll3th Street,
248 West 13th Street and 138 Magnolia Avenue
NIP/ACA#4 (see attached MaD)
115 9 West Rialto
GVO:MP:sj:12-17-01 ANR Gap Financing
COMMISSION MEETING AGENDA
Meeting Date: 12117/2001
Agenda Item Number: A3fo
Economic Development Agency Staff Report
ANR Industries - GAP Financing
November 28, 2001
Page Number -2-
Given the fact thai the Agency is required to buy the HUD/County properties within a very short
timeframe, upon being notified by the County of these six vacant lots, staff immediately
proceeded to solicit proposals from all pre-approved ARR Partners. The total expected purchase
price for all six parcels is $63,000, plus closing and related escrow fees. The ARR Partners
inspected the lots and provided either a response of interest or no interest for specific reasons so
stated. For the most part, all but one ARR Partner replied that they were unable to undertake the
development of infill housing at this time because of monetary or market constraints, thus ANR
Industries, Inc. was the only tangible and timely submitted proposal.
Accordingly, ANR Industries, Inc. is proposing to purchase the six (6) lots from the Agency at
the purchase price of $63,000 plus related closing and escrow costs. Although our review of sale
comparables in the area concludes that some of the lots are overpriced for the area, under the
Amendment #1, there is no mechanism for the Agency to dispute the purchase price. In fact, the
major contention between the County and Agency at the time of negotiating Amendment #1 was
that the County wanted assurances from the Agency that they would be one hundred percent
compensated for their real estate purchases incurred with HUD. In order to facilitate and
expedite the acquisition of the properties from the County, back in November 2000, the
Commission allocated the sum of $300,000 to help bridge the financial gap the ARR Partners
experienced in the purchase, rehab and resale of these properties. This $300,000 has been used
in the form of grants to the ARR Partners upon completion of the rehabilitation of the houses
purchased under the program.
ANR is proposing to develop six (6) single-family homes consisting of about 1250 square feet,
containing 3 bedrooms and two baths each at a estimated cost of $750,000 (excludes land and
related costs) with a potential resale value of $690,000 (the "Project"). ANR would construct
and complete the Project within 120 days commencing upon plan approval by the City. (Note:
ANR has constructed the same house plan at 1376 Poplar Street. This was one of the properties
ANR purchased from the Agency under the $1 Good Neighbor Program and because of the
condition of the structure, ANR was forced 10 demolish lhe existing structure and construcl a
new home on the property. Due to these unforeseen circumstances, ANR is constructing this
home at a loss of $34,000). For the development of the six vacant parcels, given the fixed
acquisition costs and projected development costs, there is a shortfall of approximately $124,000
to build the Project.
ANR Industries, Inc. has been an active and successful participant in the ARR Program and has
committed their resources to establishing their local ARR office in the City of San Bernardino.
Since inception of their ARR Contract with the Agency in 1999, ANR has purchased 118
properties, rehabbed and sold 77 to first time homebuyers, II are pending escrow closure and 30
properties are completely rehabilitated and available for sale. ANR has invested over $6 million
in acquisition and rehabilitation/construction costs and has created in excess of $11 million in
GYO:MP:sj:12-17-01 ANR Gap Financing
COMMISSION MEETING AGENDA
Meeting Date: 12/17/2001
Agenda Item Number: J{ 3(0
Economic Development Agency Staff Report
ANR Industries - GAP Financing
November 28,2001
Page Number -3-
real estate investments in the City. ANR has not only located their offices in the City, but has
improved and increased property values in San Bernardino, averaged a profit of 5.8% per real
estate transaction and created numerous job opportunities in the community. Under the ARR
Program, the ARR Partners are capped at the amount of profit they can earn, which is 10%. They
are also required to sell the properties at affordable prices and to families whose incomes do not
exceed 115% of area median income. These two requirements will also apply to the
development of the six (6) parcels.
In closing, staff proposes to provide financial assistance to ANR in the amount of not too exceed
$124,000. ANR's a profit will not exceed 8.5% for developing the Project. ANR would be
required to buy the six parcels, construct the six homes within the time frame set forth above,
and advance all funds necessary to enable the timely completion of the Project. Upon
completion of the Project, the Agency would be obligated to pay ANR the sum of $124,000.
This repayment is expected to occur around the beginning of the Agency fiscal year, July I,
2002.
ENVIRONMENTAL
Pursuant to Section 15332, Class 32, the Project is categorically exempt from California
Environmental Quality Act (CEQA) requirements.
FISCAL IMPACT
Approval of this action will obligate the Agency to pay ANR Industries, Inc., the sum of
$124,000 from its Housing Fund (low/moderate income housing fund-2002 budget year).
RECOMMENDATION
That the Community Development Commission adopt the attached Resolution.
----....
Deputy DirectorlDirector
munity Development
GVO:MP:sj:12-17-01 ANR Gap Financing
COMMISSION MEETING AGENDA
Meeling Date: 12/17/2001
Agenda Item Number: R. 3iO
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RESOLUTION NO:
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
APPROVING AND AUTHORIZING EXECUTION OF THE
DEVELOPMENT AGREEMENT BETWEEN THE REDEVELOPMENT
AGENCY AND ANR INDUSTRIES, INC. FOR THE CONSTRUCTION OF
SIX (6) NEW SINGLE-FAMILY HOMES WITHIN NEIGHBORHOOD
INITIATIVE PROGRAM (NIP) TARGET AREAS #1 AND #4.
RECITALS
WHEREAS, the Agency is required to purchase certain properties from the County
of San Bernardino (the "County") located in certain Neighborhood Initiative Program
Target Areas within the City of San Bernardino pursuant to that Certain Cooperation
Agreement by and between the County and the Agency (the "Agreemenl"); and
WHEREAS, pursuant to said Agreement, lhe County will sell to the Agency the
properties localed at 248-52 Wabash, 249 Wabash, 168-70 West 13th Street, 248 West 13th
Street, 138 Magnolia Avenue and 1159 West Rialto, Neighborhood Initiative Program
("NIP") Target Area No. I and 4 (the "Sites"), at the fair market value, less the applicable
discount price, and the Agency will concurrently sell the Sites to ANR Industries, Inc. (the
"Developer") who will in turn develop six (6) new single-family homes on the Siles (the
"Project") subject to the Agency providing financial assistance; and
WHEREAS, the Project has been determined to be categorically exempt from the
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California Environment Quality Act (CEQA) requirements, per Section 15332, Class 32;
and
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WHEREAS, under Section 33333.4 of the California Community Redevelopment Law,
the Agency is authorized to utilize low and moderate income housing funds ("Agency Housing
Fund") to provide housing opportunities to families and individuals whose income do not exceed
120% of the area median income for San Bernardino County; and
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WHEREAS, the Developer and Agency desire to develop the Sites in accordance with
the provisions of the Developmenl Agreement (the "Agreement").
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING
ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section I. The Chairperson or hislher designee is hereby authorized and directed to
execute on behalf of said Commission the Agreement between the Agency and Developer in
order to effectuate the provisions of Agreement and development of the Sites.
Section 2c The Chairperson or hislher designee is hereby authorized to reimburse the
Developer upon completion ofthe Project no more than one hundred twenty-four thousand
($124,000) from the Agency's Housing Fund (2002 Budget Year).
Section 3. The Chairperson or hislher designee is authorized to make changes to the
Agreement, provided said changes are not substantive in nature, and as approved by Agency
Special Counsel.
Section 4, The authorization to execute the above-referenced Agreement is rescinded if
the parties to the Agreement fail to execute it within sixty (60) days of the passage of this
resolution.
Section 5. The Community Development Commission has determined that the Project is
"categorically exempt" pursuant 10 CEQA, Section 15332, Class 32, guidelines.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
APPROVING AND AUTHORIZING EXECUTION OF THE
DEVELOPMENT AGREEMENT BETWEEN THE REDEVELOPMENT
AGENCY AND ANR INDUSTRIES, INC. FOR THE CONSTRUCTION OF
SIX (6) NEW SINGLE-FAMILY HOMES WITHIN NEIGHBORHOOD
INITIATIVE PROGRAM (NIP) TARGET AREAS #1 AND #4.
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I HEREBY CERTIFY that the foregoing resolution was duly adopled by Community
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Development Commission of the City of San Bernardino at a
meeting
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thereof, held on
day of
,2001 by the following vote,
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to wit:
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COMMISSION MEMBERS: AYES
ESTRADA
LIEN
MCGINNIS
SCHNETZ
SUAREZ
ANDERSON
MC CAMMACK
ABSENT
NAYS
ABSTAIN
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Secretary
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The foregoing resolution is hereby approved this
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day of
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Judith Valles, Chairperson
Community Development Commission
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Approved as to form an Legal Content:
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By:
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Development Agreement - Infill Housing (Neighborhood Initiative
Program Target Areas #1 and #4)
By and Between
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
And
ANR INDUSTRIES, INC
DECEMBER 17,2001
SBE02001:37147.1
Development Agreement - Infill Housing
(Neighborhood Initiative Program Target Areas #1 and #4)
THIS DEVELOPMENT AGREEMENT (the "Agreement") dated as of December 17,
2001 by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO (the "Agency") and ANR INDUSTRIES, INC., a California Corporation (the
"Developer"). This Agreement is entered into in light of the facts set forth in the following
paragraphs ofthe Recitals:
RECITALS
WHEREAS, Agency is a community redevelopment agency whose functions include
providing assistance to qualified developers of land in order to increase, improve and preserve
the supply of affordable housing in the City of San Bernardino (the "City"); and
WHEREAS, the United States Department of Housing and Urban Development
("HUD"), the County of San Bernardino Department of Economic and Community Development
("ECD"), and the City have designated certain areas within the City as "Asset Control Areas"
(ACA's) or commonly referred 10 as Neighborhood Initiative Program (NIP) Target Areas (the
"NIP Target Areas") for the purpose of acquiring and rehabilitating or improving properties
owned by HUD in the NIP Target Areas pursuant to an agreement entitled "Cooperative
Agreement" (the "COOP Agreement") dated September 9, 1999, as amended by and between
ECD and the Agency. The Agency is required under the COOP Agreement to insure that the
affordable housing units and lands with NIP Target Areas which are transferred by HUD to the
ECD for disposition by ECD 10 the Agency, are ultimately rehabilitated, constructed and
reserved for sale and occupancy by families or individuals whose incomes do not exceed 115%
of the area median income ("Qualified Homebuyers"); and
WHEREAS, pursuant to this Agreement, six (6) parcels of land, as generally described
below (each a "HUD Property") shall be purchased by the ECD from HUD which the ECD will
in turn transfer to the Agency under the COOP Agreement for disposition to the Developer under
this Agreement;
WHEREAS, the six (6) parcels of land which are collectively referred to herein as the
"HUD Properties" are more particularly identified as follows:
(I) 138 West Magnolia Avenue;
(2) 168-170 West 13th Street;
(3) 248-252 West Wabash Street;
(4) 249 West Wabash Street;
S82001 :37147.1 I
(5) 248 West 13th Street; and
(6) 1159 West Rialto Avenue.
Each of the HUD Properties is more specifically depicted on Exhibit "A" and each is
legally described in Exhibit "B"; and
WHEREAS, in order to implement the COOP Agreement, the Agency shall transfer each
of the HUD Properties conveyed to HUD 10 the ECD to the Developer for development and
improvement by the Developer of six (6) single family homes (each a "New Home") for use and
occupancy by Qualified Homebuyers as provided in Ihis Agreement. A summary or outline of
this transaction is presented as follows:
a. Agency will buy the six (6) HUD Properties from ECD at the appraised value, less
the appropriate discount as set forth in the COOP Agreement, on the condition that
Developer will purchase the same HUD Properties from the Agency at such fair
market value, less Ihe discount price established by ECD. The Agency and
Developer will open an escrow (the "Agency Escrow") for the transfer of the HUD
Properties to the Developer. The Agency Escrow shall close concurrently with the
separate escrow(s) between HUD and the ECD for the transfer of the HUD
Properties; and
b. Promptly following the Agency's transfer of each HUD Property to the Developer,
the Developer shall construct and install six (6) New Homes (one New Home on
each HUD Property) and each such New Home will include approximately 1250
square feet of interior housing area, and a two (2) car garage together with related
on and off site improvements in accordance with the Scope of Developmenl
attached hereto as Exhibit "C"; and
c. The Developer shall market and sell each completed New Home to eligible low to
moderate income buyers referred to as a "Qualified Homebuyer" whose household
income does not exceed 115% of median income for San Bernardino County, as set
forth in Exhibit "D"; and
d. Prior to close of escrow for the transfer of litle in the HUD Properties 10 the
Developer under the Agency Escrow the Developer shall provide satisfactory
evidence 10 the Agency Ihat all financing is in place for the Developer to complete
the acquisition of the HUD Properties and to construct thereon each of the New
Homes, which shall include financing for acquisition, payment of development and
ancillary fees, construclion costs, on and off-site improvements, if any, etc;
WHEREAS, Developer is a well established housing provider that has the experience and
qualifications to undertake the development of the Sites pursuant to Ihe lerms of this Agreement.
SB2001:37147.1
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NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND PROMISES OF THE PARTIES AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE AGENCY AND THE DEVELOPER AGREE AS FOLLOWS:
Section 1.1 Pumose of Agreement
The purpose of this Agreement is to effectuale the affordable housing development and
preservation goals of the Agency under various redevelopment plans for the Agency by
providing for Agency assistance to Developer in connection with the acquisition, development
and disposition of the HUD Properties hereinafter sel forth. The acquisilion, development and
resale of the HUD Properties pursuant to Ihis Agreement is in the vital and best interests of the
Agency and the City and the health, safety and welfare of its residenls, and in accord with the
public purposes and provisions of applicable state, federal and local laws. The Community
Development Commission, as the governing board of the Agency, has determined that the
acquisition, developmenl, resale and uses contemplated by this Agreement will benefit the low-
and moderate-income housing needs of the City and assist the Agency in fulfilling its housing
objectives pursuant to redevelopment law, the various redevelopment project areas of the City,
and assist the City with the implementation of the Housing Element goals and objectives.
Section 1.2 Parties to the Agreement
1. The Agencv
The Agency is a public body, corporate and politic, exercising governmental functions
and powers organized and existing under Chapter 2 of Ihe Community Redevelopment Law of
the State of California (Health and Safety Code Section 33020, et sea.). The principal office of
the Agency is located at 201 North "E" Street, San Bernardino, California 92401 phone number
(909) 663-1044. The word "Agency", as used in this Agreement, means and includes the
Community Development Commission of the City of San Bernardino, the Economic
Development Agency of the City of San Bernardino, the Redevelopment Agency of the City of
San Bernardino, and any assignee of or successor 10 Iheir rights, powers and responsibilities.
2. The Developer
The Developer is a California Corporation and is licensed to do business in the City and
is qualified and eligible to do business in the State of California. The principal office and
mailing address of the Developer for purposes of this Agreemenl is: 10702 Hathaway Drive,
Unit I, Santa Fe Springs, California 90670, phone number is: (562) 777-7807.
3. Neither the City nor the ECD are parties to this Agreement.
Section 1.3 Prohibilion Against Change in Ownership. Management and Control of the
Developer
The qualifications and identity of the Developer are of particular concern to the Agency.
It is because of those qualifications and identity that the Agency has entered into this Agreement
SB2001:37147.1
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with the Developer. No voluntary or involuntary successor in interest of the Developer shall
acquire any rights or powers under this Agreement except as expressly set forth herein. The
Developer shall not assign all or any part of this Agreement or any rights hereunder without the
prior written approval of the Agency, which approval the Agency may grant, withhold or deny al
its sole discretion. In the event that such a transfer or assignment may be permitted by the
Agency, the assignee shall expressly assume the obligalions of the Developer pursuant to this
Agreement in writing satisfactory to the Agency. In the absence of specific written agreement by
the Agency, no such transfer, assignment or approval by the Agency shall be deemed to relieve
the Developer or any other party from any obligation under this Agreement. All of the terms,
covenants and conditions of this Agreement shall be binding upon and shall inure for the benefit
of the Agency. Whenever the term "Developer" is used herein, such term shall include any other
permitted successors and assigns as herein provided. The restrictions of Ihis Section 1.3 shall
terminate with respecl to HUD Properties at the close of the "New Home Escrow" as this term is
defined in Section 2.3 for that particular HUD Property. Nothing in this Section 1.3 shall act to
restrict the sale of any New Home to a Qualified Homebuyer, if such sale is otherwise in
compliance with the terms of this Agreement.
Section 1.4 Benefits ofProiect
The Agency has determined that the Developer's purchase of each of the HUD Properties
and the development and sale of the New Homes to Qualified Homebuyers in accordance with
this Agreement (the "Project") will eliminate blight, provide needed low- and moderate-income
housing 10 the City and benefit Ihe various project areas of the Agency, and also increase
homeownership opportunilies for low- to moderate income households thereby stabilizing Ihe
community and decreasing rental housing in Ihe City.
Section 2.1 Developer Agreement to Purchase the HUD Properties and Construct. Improve
and Sell the New Homes to Oualified Homebuvers.
Subject to the terms and conditions of this Agreement, the Agency hereby agrees to
transfer such interest as it may acquire in the HUD Properties from the ECD to the Developer
and the Developer hereby agrees to purchase the HUD Properties from the Agency for the same
consideralion payable by the Agency 10 lhe ECD for lhe HUD Properties under the COOP
Agreement, and the Developer further agrees to design, construct and install a New Home on
each HUD Property in accordance with the Scope of Development, and upon completion of each
such New Home, sell each of the HUD Properties, as improved, 10 a Qualified Homebuyer, all
on terms and conditions ofthis Agreement.
S€i::tion 2.2 Agencv Assistance
I. In order to assist in the development of the Project, the Agency agrees to provide
certain financial assistance (the "Agency Assistance") to the Developer in Ihe amount of not to
exceed $124,000 to assist with the sale of completed New Homes to Qualified Homebuyers as
provided in Section 3.2 of this Agreement. Such Agency Assistance shall be allocated on a per
unit basis for each New Home, and provided no default by the Developer then exists under this
Agreemenl, such Agency Assistance shall be payable to the Developer within sixty (60) days
S8200U7147.1
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following the completion of the Project. As used in this Agreement, the words "completion of
the Project" mean and refer to the date on which the Developer has caused to close a tolal of six
(6) of the New Home Escrows. The parties presently anticipate that the completion of the
Project shall occur by a date no later than March 31, 2003.
2. The Agency hereby agrees to appropriate the sum of $124,000 from the Agency
fiscal year 2002-03 low- and moderate-income housing redevelopment funds of the Agency for
the Project. No other source of funds of the Agency is available or shall be committed by the
Agency for the Project.
3. Within thirty (30) days following the completion of Ihe Project, the Developer
shall submit a final written accounting for the Project and the Project Costs incurred by
Developer to the Agency as provided in Ihe Scope of Development. The Agency shall review
the final written accounting for the Project, and within thirty (30) days of its receipt. The
Agency shall pay Ihe indicaled amount of the Agency Assistance to the Developer within thirty
(30) days following its receipt ofthe final written accounting for the Project.
Section 2.3 The Agencv Escrow and New Home Escrows
I. The Agency and Developer shall open an escrow the "Agency Escrow" for the
disposition of the HUD Properties to the Developer within ten (10) days from the approval of
this Agreement by the Community Development Commission, and shall proceed to close the
Agency Escrow no later than 45 days from the date of opening. . Por the purposes hereof the
Agency Escrow shall be deemed "opened" when the Developer and the Agency have each
executed the NIP Target Area Unit Purchase Agreement in the form attached hereto as Exhibil
"E". It is the intent of the parties that the Agency and the ECD shall, pursuant to the COOP
Agreement open simultaneous escrows (e.g., HUD, ECD and Agency, Agency and Developer) to
provide for the acquisition by the Agency of Ihe HUD Properties which the Developer has
agreed to purchase from the Agency. The parties shall execute the escrow instructions and
documents as may be necessary to accomplish the foregoing as reasonably requested by
Arrowhead Escrow or such other escrow holder acceplable to the ECD for the purposes of
accomplishing such simultaneous escrow closing.
2. As used herein, the words "New Home Escrow" means and refers to each of the
real estate conveyances, lransactions or escrows by and between an individual Qualified
Homebuyers and the Developer through which the fee title interest in each New Home shall be
transferred by Ihe Developer upon its completion and sale to the Qualified Homebuyer.
The Developer and the New Homebuyer, as applicable, shall be solely responsible for
causing a New Home Escrow to be opened and for the execution of all documents required by
the escrow holder under the New Home Escrow, to perform its duties. The Agency shall not be a
party to any New Home Escrow. The Developer shall inslruct the escrow holder of the New
Home Escrow to cause the final and fully executed form of the Agency Affordable Housing
Covenant, substantially in the form as attached to the Agency Deed (See also Exhibit "P" ofthis
Agreement) 10 be recorded upon the close of each New Home Escrow, and the Developer and
the Qualified Homebuyer shall each provide such escrow holder with written authorization to
SB200U7147.1
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deliver a complete set of Qualified Homebuyer mortgage loan documents, escrow instructions
and disclosure statements to the Agency promptly following the close of each such New Home
Escrow.
Seclion 2.4 Affordable Housing Cost and Maximum Sales Price of Each New Home
For the purposes of complying with this Agreement, all of the HUD Properties shall be
reserved for sale and occupancy by low- and moderate-income households whose incomes do
not exceed one hundred and fifteen (115%) percent of area median income for San Bernardino
County adjusted for family or household size (e.g., Qualified Homebuyers) at affordable housing
costs as such term is defined in Health and Safety Code Section 50052.5, or Section 8, (24 CFR
813). The Developer agrees to be bound by all limitations for Qualified Homebuyers as set forth
and in each Agency Deed for the HUD Properties. The form of the Agency Deed is included as
an attachment to Exhibit "E" to this Agreement. The maximum sales price payable by a
Qualified Buyer of each completed New Home shall not exceed one hundred and ten percent
(110%) of the then current area median sales price for new single-family dwelling units.
At the time of sale of each New Home to a Qualified Homebuyer, the Developer shall be
responsible for ensuring that all documents reasonably required by the Agency to confirm the
eligibility of such person or household as a "Qualified Homebuyer" 10 be delivered to the
Agency through the "New Home Escrow" for such New Home as provided in Section 2.3.
Section 3.1
Scope of Development
Developer and Agency agree thai one of the fundamental purposes of this Agreement it to
provide for quality development of the New Homes on each oflhe HUD Properties in a manner
consistent with the terms and slandards of this Agreement. The Developer shall construct a New
Home on each of the HUD Properties in accordance with the Scope of Development, Exhibit
"C", attached hereto and incorporated herein.
Any changes or amendments to the Scope of Development shall be submitted to the
Agency Executive Director or his/her designee for approval. The Agency may inspect the New
Homes during the course of construction to insure Developer is performing the Scope of
Development pursuant to said approved plans and specifications and pursuant to Ihis Agreement.
The Developer agrees that upon its acquisition of the HUD Properties from the Agency and no
later than 30 days from Ihe date of such acquisition, the Developer shall promptly commence and
thereafter diligently complete the improvement of a New Home on each HUD Property. Unless
a longer period of time is approved by the Agency in its sole discretion, Ihe Developer shall
complete the construction and improvement of a New Home on each of the HUD Properties
within one hundred eighty days (180) days following Ihe close of the Agency Escrow.
With respect to each New Home, the Agency shall submit to the Executive Director for
approval in writing the final form of specifications and plans for each New Home prior 10 the
issue by the City of the appropriate building permits therefor, including, but not limited to
landscaping plans, designs, and specifications (the "Plans") and such approval by the Executive
Director shall not be unreasonably withheld, conditioned or delayed. The Executive Director
S82001:37147.\
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shall approve said Plans within 30 days from such submission and if the Executive Director may
fail to approve such plans within the prescribed time frame, the Plans shall be deemed approved
by the Agency. No provision of this Agreement shall be deemed to waive any building or
development regulation of the City and the City reserves its discretion and regulatory authority 10
approve, conditionally approve or reject any such Plans.
Section 3.2 Proiect Costs and Agencv Assistance
The cost of undertaking the Project ("Project Costs" as defined in Section 3.3) including
the costs of acquisition, development fees, school fees, ancillary fees, and construction of the
New Homes on and off site improvements, including but not limited to, marketing and sales of
each New Home shall be borne solely by Developer. Upon completion of Project, the Agency
shall be obligated to pay to the Developer the Agency Assistance the sum of not to exceed One
Hundred Twenty Four Thousand Dollars ($124,000), (the "Agency Assistance"). The Agency
Assistance is predicated on total Projecl Costs presently estimated at $814,000, less anticipated
New Home sale proceeds of $690,000 (the "Project Budget"). Should the Project Costs decrease
at the time of completion of the Project the Agency Assistance of $124,000 will be reduced
accordingly. Any costs in excess of the Project Budget shall be borne by the Developer. The
Developer will be eligible for payment of the Agency Assistance upon completion the Project
and the submission by the Developer of the Project Cost accounting information to Ihe Agency
as set forth in the Scppe of Development.
Section 3.3 Maximum Permitted Profit of Developer for the Proiect
The Developer acknowledges and agrees that the "profit of the Developer", if any, to be
made by Developer in connection with the Developer's completion of the Project shall be limited
to no more than eight and five tenths percent (8.5%) of the aggregate amount of the gross sales
price of the New Homes to Qualified Homebuyers as such gross sales price is completed at the
close of each of the New Home Escrows. Any profit of the Developer in excess of such amount
shall be credited to Ihe amount of the Agency Assistance as would otherwise be payable to the
Developer.
The words "profit of lhe Developer" as used in the first paragraph of this Section 3.3
means and refers to the gross amount realized by the Developer (not to exceed 8.5% of the gross
sales price of the New Home) upon the sale or transfer of its inlerest in a New Home at the time
of close of a New Home Escrow, after deducling the "Project Costs" incurred by the Developer
in connection with the Project and further deducling the amount of the Agency Assistance paid
to the Developer.
The words "Project Costs" as used in the second paragraph of this Section 3.3 mean and
refer to the aggregate of the following customary and commercially reasonable costs incurred by
the Developer in connection with acquisition of the HUD Properties and development of Ihe
Project including the costs of the sale of each New Home 10 a Qualified Homebuyer:
(A) the Purchase Price for the HUD Properties paid 10 Developer at Ihe close of the
Agency Escrow;
SB2001:37147.1 7
(B) the cost of preparation of each HOD Property for construction oflhe New Homes;
(C) architectural, engineering, legal, accounting, consulting and other fees paid by the
Developer in connection with the planning, execution and financing of the
Project;
(D) the costs of other necessary studies, surveys, plans not included in (C) above, and
the cost of building and development permits charged or levied by public agencies
a the time of issuance of building permits for the New Homes (exclusive of any
such costs eligible for reimbursement to the Developer as Agency Assistance);
(E) the cost of insurance, interest and financing paid by the Developer for the
construction of the New Homes, surety and completion bonds, property taxes, and
special assessment costs incurred during the course of construclion of the Projecl
(exclusive of any such costs eligible for reimbursement to the Developer as
Agency Assistance);
(F) the cost of labor and construction materials and mechanical equipment
incorporated into the improvement of each New Home;
(G) the cost of all other improvements to the HUD Properties, including landscaping,
fencing, site preparation and the off-site installation of streets, sewers, utilities and
other off-site improvements related to the improvement of the HOD Properties
with New Homes;
(H) reasonable and customary indirect costs of the Developer for the construction of
the New Homes, including the cosl of a conslruction superintendent and
construction security by private patrol services;
(1) reasonable and customary New Home sales marketing and advertising costs and
the cost payable by the Developer as escrow cosls, fees and charges upon the sale
of each New Home to a Qualified Home Buyer, plus real estate sales commissions
paid by the Developer to third-party real estate brokers, at the close of each New
Home Escrow;
(1) a developer overhead and Project administration fees payable to Ihe Developer of
three and two tenths percent (3.2%) of the gross selling price paid by the
Qualified Homebuyer for each New Home at the close of each New Home
Escrow.
The Developer shall provide the Agency with a suitably detailed written accounling of its
Project Costs, prepared in accordance with generally-accepted accounting principles upon the
completion of the Project as set forth in the Scope of Development. The Agency shall have the
right to inspect all of the business and financial records of the Developer relating to the Project,
the HOD Properties and the New Homes, for the purpose of verifying the amount of the Project
SB2001 :37147.\
8
Costs claimed by the Developer. The Developer shall provide the Agency (and its auditors or
accountants) with access to such business records, upon reasonable prior notice from the
Agency.
Section 3.4 Disposition of Sites and Oualified Homebuver Eligibilitv
The Developer will cause the marketing of the HUD Properties and the New Home to
prospective income eligible purchasers. Developer will screen prospective purchaser to insure
that Ihey meet the applicable income guidelines in accordance with Exhibit "D" and forward the
pre-eligible purchaser to the appropriate mortgage lender for qualification and mortgage loan
approval. Developer shall make all reasonable attempts to dispose of the New Homes upon
completion of said construction, but not later than 180 days from the date the City issues a
Certificate of Occupancy for each such New Home. At the close of the New Home Escrow, the
Affordability Covenanl shall be fully executed by the Developer and the Qualified Homebuyer
and filed for recordation. The form of the Affordability Covenant shall be provided by the
Agency. Developer is responsible for ensuring HUD-I Final Settlement Statements are sent to
Agency within ten (10) days of the close of each New Home Escrow.
Section 3.5 Liabilitv and Permanent Insurance Requirements
(I) The Developer shall maintain in full force and effect, at all times during the term
of the Agreement, the following insurance:
(i)
(ii)
(iii)
S82001:37147.\
Commercial general liability insurance coverage, including, but not
limited to, premises-operations, contractual liability insurance (specifically
concerning the indemnity provisions of the Agreement), products-
completed operalions hazards, personal injury (including bodily injury and
dealh), and property damage for liability arising out of the construction of
the New Homes and/or the Developer's operation of the Project. Said
insurance coverage shall have minimum limits for bodily injury and
property damage liability of ONE MILLION DOLLARS ($1,000,000)
each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate.
Automobile Liability Insurance against claims of personal injury
(including bodily injury and death) and property damage covering all
owned, leased, hired and non-owned vehicles used by Developer with
minimum limils for bodily injury and property damage of ONE MILLION
DOLLARS ($1,000,000) each occurrence and ONE MILLION
DOLLARS ($1,000,000) aggregate. Such insurance shall be provided by
a business or commercial vehicle policy.
If the Developer hires a consultant to provide design services, such as
architectural or engineering services in connection with the New Homes,
Developer shall require such consultant to provide professional liability
(errors and omissions) Insurance, for liabilily arising out of, or in
9
connection with, the performance of such design services, with limits of
not less than ONE MILLION DOLLARS ($1,000,000).
(iv) Upon acceptance of the New Homes by the Developer, or any portion
thereof, from each contractor, the Developer shall maintain fire and
extended coverage insurance on each New Home on a blanket basis or
with an agreed amount clause in amounts nolless than 100% of each New
Home's replacement value.
(v) Developer shall furnish or cause to be furnished to Agency evidence
salisfactory 10 Agency that any contractor with whom it has contracted for
the performance of Scope of Development of each of the Sites or
otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law.
(2) The commercial general liability insurance required in sub-paragraph I (i), above
shall include an endorsement naming the City, the Agency and the members of the Agency's
governing board and the Agency's officers, agents, and employees as additional insureds for
liability arising out of the Agreement and any operation related thereto.
(3) If any of the insurance coverages required under the Agreement or the is written
on a claims-made basis, such insurance policy shall provide an extended reporting period
continuing through the fifth (5th) anniversary following Ihe date of acceptance of the New Home
by the Developer.
" (4) Prior to the close of the Agency Escrow referenced in Seclion 2.3, evidence of
insurance in compliance with Ihe requirements above shall be furnished to Agency by the
Developer, as evidenced by a Certificate of Insurance and a copy of the policy of such insurance.
Receipt of evidence of insurance that does not comply with the above requirements shall not
constitute a waiver of the insurance requirements set forth above.
(5) Cancellation of Insurance -- The above stated insurance coverages required to be
maintained and/or provided by Developer shall be mainlained unlil the complelion of all of
Developer's obligations under the Agreement, and shall not be reduced, modified, or canceled
without thirty (30) days prior written notice to Ihe Agency. Also, phrases such as "endeavor to"
and "but failure 10 mail such notice shall impose no obligalion or liability of any kind upon the
company" shall not be included in the cancellation wording of all Certificates of Insurance or
any coverage for the Agency and the Agency's board members, their officials, agents, and
erllployees. Developer shall immediately obtain replacement coverage for any insurance policy
that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon
insolvency of the insurer that issued the policy.
(6) All insurance shall be issued by a company or companies listed in the current
"Best's Key Rating Guide" publication with a minimum of a "B+;V" rating and be a California
admitted insurance company, or in special circumstances, be pre-approved by both the Executive
Director of the Agency and the Agency General Counsel.
S82001:37147.1
10
(7) All insurance afforded by the Developer pursuant to the Agreemenl shall be
primary to and not contribuling to any other insurance maintained by the Agency.
(8) Insurance coverage in the minimum amounts set forth herein shall not be
construed to relieve the Developer for any liability, whether within, outside, or in excess of such
coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor
shall it preclude the Agency from taking such other actions as are available to it under any other
provision of the Agreement or otherwise in law.
(9) Failure by Ihe Developer to maintain all such insurance in effect at all times
required by the Agreement shall be an Event of Default by the Developer. The Agency, at its
sole option, may exercise any remedy available to it in connection with such an Event of Default.
Section 3.5 Rights of Access
For the purpose of assuring compliance with this Agreement, representatives of Agency
and the City as designated by the Director shall have the right of access to each Site, without
charge or fee, at normal construction hours during the period of work for Ihe purposes of the
inspection of the Scope of Development being performed. The Agency shall hold the Developer
harmless from any bodily injury or related damages arising out of the activities of Agency and
the City as referred to in this Section 3.5 resulting from the gross negligence or willful
misconduct of the City or Agency while on the HUD Properties. .This Section 3.5 shall not be
deemed to diminish or limit any right which the City or Agency may have by operation of law
irrespective of the Agreement. Nothing in Ihis Section 3.5 shall be deemed to make either the
City or the Agency a guarantor oflhe work of Scope of Development oflhe HUD Properties.
Section 3.6 Local. Stale and Federal Laws
Developer shall carry out the Project and all related activities on the HUD Properties in
conformity with all applicable laws, including all applicable federal and state labor standards as
applicable; provided, however, Developer and its contractors, successors, assigns, transferees,
and lessees are nol waiving their righls 10 contest any such laws and rules or standards.
Section 3.7 Anti-Discrimination During Construction
Developer for itself and successors and assigns, agrees that in the development of the
HUD Properties provided for in this Agreement, Developer shall not discriminate against any
employee or applicant for employment because of race, color, creed, religion, age, sex, marital
status, handicap, national origin or ancestry.
Section 3.8 Taxes. Assessments. Encumbrances and Liens
Prior to the issuance of a Certificate of Occupancy by the City for each of the New
Homes, Developer shall not place or allow to be placed on the HUD Properties any mortgage,
trust deed, encumbrance or lien other than as expressly approved by the Agency in writing or as
S8200U7147.1
II
otherwise described in this Agreement. Developer shall remove or have removed any levy or
attachment made on the HUD Properties, or provide the Agency with assurance of the
satisfaction thereof within a thirty (30) days from the time, but in any event prior to a Qualified
Homebuyer purchasing the HUD Property and the New Home.
Section 3.9 Prohibition Against Transfer of the HUD Properties and Assignment of
Agreement Prior the Close of All New Home Escrows
I. Prior to the close of each of the New Home Escrows, Developer shall not, except
as permitted by this Agreement, without the prior written approval of Agency, make any total or
partial sale, transfer, conveyance, assignment or lease of whole or any part of any of the HUD
Properties. This prohibition shall not be deemed 10 prevent a transfer of the HUD Property, as
improved with a completed New Home to a Qualified Homebuyer or the granting of temporary
or permanent easemenls on any such HUD Property to facilitate the construction oflhe Project.
2. Upon obtaining a Certificate of Occupancy from the City for a completed New
Home on a HUD Property, the Developer shall sell such New Home to a Qualified Homebuyer
in accordance with and subject to the restrictions set forth in this Agreement.
3. The deed or other instrument of transfer by the Developer to any Qualified
Homebuyer of the New Home shall require Ihat the New Home be owner occupied by persons
living in the units as their principal residences and shall further require that such New Home
shall remain available at affordable housing costs to the families of low- and moderate-income
for a period of not less than ten (10) years, subject to any other exceptions as may be provided by
the Agency.
4. The Developer may not rent or lease any HUD Property of any completed New
Home thereon to a third party, and during the time that the Developer may hold title 10 a HUD
Property, no person may use Ihe HUD Property for any non -residential dwelling purpose.
Section 3.10 Mortgage. Deed of Trust. Sale and Financing; Rights of Holders
No Encumbrances Exceot Mortgages. Deeds of Trust or Sale for Rehabilitation -
Mortgages, deeds of trust other encumbrances on the HUD Properties are permitted before
completion of the Scope of Development of each New Home but only for the purpose of
securing construction loan funds 10 be used by the Developer for financing the acquisition and
development of the HUD Properties and the New Home. Developer shall not enter into any
other conveyance or lien for financing without the prior written approval of Agency, which
approval Agency agrees to give if any such conveyance or lien for financing is given to a bank,
savings and loan association, or other similar lending institution and the terms of said financing
are reasonably acceplable 10 Agency. The form of approval by Agency shall be in wriling which
references in this Section 3.10, executed by the Executive Director. In the event that the Agency
fails 10 accept or reject such lender in writing within fifteen (15) days after written notice thereof
is received by the Agency, such lender shall be deemed approved.
SB2001 :37147.1
12
Section 3.11 Right of Agencv to Salisfv Other Liens on the HUD Properties
Prior to the completion of the Scope of Development on the HUD Properties, and after
Developer has had written notice and has failed after a reasonable time, but in any event not less
than thirty (30) days, to challenge, cure, adequately bond against, or satisfy any liens or
encumbrances on each HUD Property, which are not otherwise permitted under this Agreement,
Agency shall have the right, but not the obligation, 10 satisfy any such lien or encumbrance.
Section 4.1
Uses - Covenants Running with the Land
Developer covenants and agrees for itself, its successors, its assigns, and every successor
in interest to the HUD Properties, lhat for the period of time set forth in the Agency Deed, each
of the HUD Properties acquired by Developer shall be devoted to and available for sale solely to
persons or families with an income which are very low, low and moderate, as those terms are
defined in Health and Safety Code Sections 50093 (Iow- and moderate-income) and 50105 (very
low income), with sales costs of each residential unit to be at an affordable housing cost (as such
term is defined in Health and Safety Code Section 50052.5,but under no circumstance shall the
income of the buyer exceed one hundred and fifteen percent (115%) of the median income for
San Bernardino County (Exhibit "D").
The Developer further covenants and warrants that Developer shall undertake the Scope
of Development on the HUD Properties in accordance with the standards set forth in this
Agreement. Developer covenants to obtain all necessary permits from the regulatory agencies
wilh jurisdiction and develop each of the HUD Properties with a New Home in conformity with
all applicable laws. Failure to obtain all necessary permits shall be a default under this
Agreement.
Developer covenants by and for itself and any successors in interest that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, age, handicap, national origin or ancestry in the sale, lease,
sublease, lransfer, use, occupancy, tenure or enjoyment of any HUD Property and any New
Home thereon, nor shall Developer ilself or any person claiming under or through it establish or
permit any such praclice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublenants, sub-lessees or
vendees of any of the Sites.
The foregoing covenants shall run with the land. These covenants shall be expressly
incorporated in the Agency Deed from the Agency 10 the Developer.
Section 4.2 Maintenance of the HUD Properties
Between the date of the close of the Agency Escrow and the date of the close of each
New Home Escrow the Developer for itself, its successors and assigns hereby covenants and
agrees that:
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13
(i) The areas of each the HUD Properties and the New Homes which are subject to
public view (including all improvements, paving, walkways, landscaping, exterior signage and
ornamentation) shall be maintained in good repair and a neat, clean and orderly condition,
ordinary wear and tear excepted. In the event that at any time following the date of close of
Agency Escrow, there is an occurrence of an adverse condition on any area of the HUD
Properties which is subject to public view 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 thirty (30) days from receipt of
such notice to cure the Maintenance Deficiency as identified in the notice. In the event Ihe
Developer fails to cure or commence to cure the Maintenance Deficiency within the time
allowed, the Agency may conduct a public hearing following transmittal of written notice thereof
to the Developer ten (10) days prior to the scheduled date of such public hearing in order to
verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply
with the provision of this Seclion. If upon the conclusion of a public hearing, the Agency makes
a finding that a Maintenance Deficiency exists and Ihat there appears to be non-compliance with
the general maintenance slandard, described above, thereafter the Agency shall have the right to
enter the HUD Properties descried in the notice and perform all acts necessary to cure the
Maintenance Deficiency, or to take other action at law or equity the Agency may then have to
accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for
Ihe abalement of a Maintenance Deficiency on the HUD Properties authorized by this Section
shall become a lien on the HUD Properties. 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 the lien in the manner as provided in Subsection(c), below.
(ii) Graffiti, as this term is defined in Government Code Section 38772, which has
been applied to any exterior surface of a structure or improvement on the HUD Properties which
is visible from any public right-of-way adjacent or contiguous to Ihe HUD Properties, shall be
removed by the Developer by either painting over Ihe 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 such graffiti may
become visible from an adjacent or contiguous public right-of-way but is not removed within 72
hours following the time of such application, the Agency shall have the right to enler the HUD
Properties and remove the graffiti without nolice to the Developer. Any sum expended by Ihe
Agency for the removal of such graffili from the HUD Properties authorized by this Subsection
(b) in an amount not to exceed $250.00 per entry by Ihe Agency, shall become a lien on the HUD
Properties. If the amount of Ihe lien is not paid within thirty (30) days after written demand for
payment by the Agency 10 the Developer, the Agency shall have the right to enforce its lien in
the manner as provided in Subsection(c), below.
(iii) The parties hereto further mutually understand and agree that the rights conferred
upon the Agency under this Section expressly include the power to establish and enforce a lien or
other encumbrance against the HUD Properties, in the manner provided under Civil Code
Sections 2924, 2924b and 2924c in the as amount reasonably necessary to restore the HUD
Properties to the maintenance standard required under Subsection (a) or Subsection (b),
including Agency attorneys fees and costs (including salaries and wages of the legal staff of
Agency Counsel) as may be associated with the abatement of the Maintenance Deficiency or
S82001:37147.1
14
removal of graffiti and the collection of the costs of the Agency in connection with such action.
The provisions of this Section, shall be a covenant running with Ihe land, and the HUD
Properties, and shall be enforceable by the Agency.
Section 4.3 Effect of Viola lion oflhe Terms and Provisions of this Agreement After
Completion of Proiect
The covenants established in this Agreement shall, without regard to technical
classificalion and designalion, be binding for the benefit and in favor of Agency, its successors
and assigns, as 10 those covenants, which are for its benefit. The covenants contained in this
Agreement with respect to the HUD Properties shall remain in effect for the term as set forth in
the Agency Deed. The covenants against racial discrimination shall remain in perpetuily.
Agency is deemed the beneficiary of the terms and provisions of this Agreement and of
the covenants running with the land, for and in its own rights and for the purposes of prolecting
the interest of the community and other parties, public or private, in whose favor and for whose
benefit this Agreement and the covenants running with the land have been provided. Agency
shall have the right, if the Agreement or covenants are breached, to exercise all rights and
remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and
covenants may be entitled.
Section 5.1
Default. Breach. Termination. Remedies
I. Termination Without Default or Breach. This Agreement may be terminated for
the convenience of by either party who is not then in default upon Ihirty (30) days notice to the
other party; provided however, that the parties have completed their obligations and
responsibilities with regard to the development oflhe HUD Properties.
2. Defaults and Breach - General. Failure or delay by either party 10 perform any
material term or provision of this Agreement shall constitute a default under this Agreement;
provided however, that if the party who is otherwise claimed to be in default by the other party
commences 10 cure, correcl or remedy the alleged default within lhirty (30) calendar days after
receipt of written notice specifying such default and shall diligently complete such cure,
correction or remedy, such party shall not be deemed to be in default hereunder.
The party which may claim that a default has occurred shall give written notice of default
to the party in default, specifying the alleged default. Delay in giving such notice shall nol
constitute a waiver of any default nor shall it change the time of default; provided, however, the
injured party shall have no right to exercise any remedy for a default hereunder without
delivering the written default notice as specified herein.
Any failure to delay by a 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 rights or remedies associated with a default.
Excepl with respect to rights and remedies expressly declared to be exclusive in this Agreement,
the rights and remedies of the parties are cumulative and the exercise by either party of one or
SB200U7\47.\
15
more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for Ihe same default or any other default by the other party.
In the event that a default of eilher party may remain uncured for more than thirty (30)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred. In the event of a breach, the party who is not in default shall be entitled to terminate
this agreement and seek any appropriate remedy or damages by initialing legal proceedings, if
necessary.
3. Notwithstanding any other term of this Agreement, neither the City or the
Agency, or the officers, employees or agents of eilher of them, shall be liable to the Developer or
to any third party for any loss of use, loss of business goodwill, interruption of business or for
indirect, incidental, special or consequential damages (including lost revenues or profits) or
similar damages based on tort (including without limitation, negligence or strict liability),
contract or other legal or equitable grounds, even if the City or the Agency has been advised by
the Developer or had reason to know of the possibility of such damages.
4. In the event that a party may bring a legal action to enforce any provision of this
Agreement, the prevailing party in such action shall be entitled to recover from the other party
reasonable attorney fees to be fixed by the court in which a judgment is entered, as well as the
costs of such action. In the case of the Agency, Ihe words "reasonable attorneys fees" refer to
the salaries and benefits 0 lawyers employed by the Office of the City Attorney, compuled on an
hourly basis, who provide legal services to the Agency in connection with any such action.
5. This Agreement shall be governed by the laws of the State of California.
6. Any legal proceeding initiated by a party to enforce any provision of this
Agreement shall be initiated in the Superior Court of San Bernardino County or in the United
Sales District Court Central District of California.
7. If any provision of this Agreement may be declared invalid or unenforceable by a
final judgment or order of a court of competent jurisdiction, such invalidily shall not affect the
remaining parts of this Agreement, which are hereby declared by lhe parties 10 be severable from
any other part which is found by a court to be invalid or unenforceable.
Section 5.2 Notice
1 Any notice, demand, request, consent, approval or communication thai either party
desires or is required to give to the other party under this Agreement shall be in writing and shall
be delivered to the appropriate party by personal service or U.S. Mail al its address as follows:
Developer:
ANR Industries, Inc.
10702 Hathaway Drive, Unit I
Sanla Fe Springs, California 90670
(562) 777-7807
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16
Agency:
Economic Development Agency
201 North "E" Street, Suite 301
San Bernardino, California 92401
(909) 663-1044
Section 5.3
Conflicts of Interest; Nonliabilitv
No member, official or employee of Agency or the City shall have any personal interest,
direct or indirect, in Ihis Agreement. No member, official or employee shall participate in any
decision relating to the Agreement which affects his personal interests or the interests of any
corporation, partnership or association in which he is directly or indirectly interested. No
member, official or employee of Agency or the City shall be personally liable to Participate, or
any successor in interest, in the event of any default or breach by Agency or Developer, or for
any amount which may become due to Developer or its successor or on any obligations under the
terms of this Agreement.
Developer represents and warrants Ihat it has not paid or given, and shall not payor give,
any third party any money or other consideration for obtaining this Agreement.
Section 5.4 Inspection of Books. Records and Reports
Agency has the right at all reasonable times to inspect the books and records of
Developer pertaining the Sites as pertinent to the purposes of this Agreement. Developer has the
right at all reasonable times to inspect the public records of Agency pertaining to Ihe Sites as
pertinent 10 the purposes of the Agreement.
Section 5.5 Indemnification
The Developer shall indemnify and hold harmless the Agency and the City and the
Agency's and the City's members, officials, employees and agents from and against any and all
claims or liability arising from Developer's actions under this Agreement or from the conduct of
Developer's business or from any activity, work or things done, permitted or suffered by
Developer and shall further indemnify and hold harmless the Agency and City and their officers,
employees and agents from and against any and all claims arising from any breach or default in
the performance of any obligalion of Developer under the terms of this Agreement arising from
any negligent or wrongful act or omission of the Developer or Developer's agents, contractors,
employees or invitees and from and against all costs, attorneys' fees, expenses and liability
incurred in the defense of any such claim or any action or proceeding brought thereon.
Developer's agreement to indemnify and hold the Agency and City harmless shall extend to any
claims or liabilities, including but not limited to claims pertaining to environmental conditions,
that may arise as a result of the Agency's acquisition and/or ownership of any HUD Property thai
is the subject of the Agreement.
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17
Section 6.1 Submission of Documents to Agencv for Approval
Whenever lhis Agreement requires Developer to submit any document to Agency for
approval, which shall be deemed approved if not acted on by Agency wilhin the specified time,
said document shall be accompanied by a letler stating that it is being submitted and will be
deemed approved unless rejecled by Agency within the stated time. If there is not a time
specified herein for such Agency action, Developer may submit a letler requiring Agency
approval or rejection of documents within thirty (30) days after submission to Agency or such
documents shall be deemed approved.
Section 6.2 Successors in Interesl
The terms, covenants, conditions and restriction of this Agreement shall extend to and
shall be binding upon and inure to Ihe benefit of the heirs, executors, administrators, successors
and assigns of Developer.
Section 6.3 Exhibits to Agreement.
Each of the exhibits identified below is incorporated by this reference as part of this
Agreement:
EXHIBIT "A"
Vicinity Map Depicting Location of Each of the HUD
Properties
EXHIBIT "B"
Legal Description of the HOD Properties
EXHIBIT "C"
Scope of Development
EXHIBIT "D"
Income Qualifications For New Homebuyers
EXHIBIT "E"
Site Purchase and Sale Agreement and Escrow Instructions
EXHIBIT "F"
Form of Affordable Housing Regulatory Agreement
Section 6.4 [RESERVED - NO TEXTl
Section 6.5 [RESERVED - NO TEXTl
Section 6.6 Execution of Agreemenl
This Agreement is executed in Ihree (3) triplicate originals, each of which is deemed to
be an original. This Agreement includes Exhibit "A" through Exhibit "F", which together with
this Agreement constilute the entire understanding and agreement of the parties.
No private entity shall be deemed to be a third party beneficiary with respect 10 any
provisions of this Agreement.
SB2ool:37147.1
18
This Agreement integrates all of the terms and condilions menlioned herein or incidental
hereto, and supersedes all negotiations or previous agreements among the parties or Iheir
predecessors in interest wilh respect to all or any part oflhe subject matter hereof.
If any part or provision of this Agreement is in conflict or inconsistent with applicable
provisions of federal, state, or city statues, or it is otherwise held to be invalid or unenforceable
by any court of competent jurisdiction, such part or provision shall be suspended and superseded
by such applicable law or regulations, and the remainder of this Agreement shall not be affected
thereby.
All waivers of the provisions of this Agreement must be in writing by the Executive
Director of Ihe Agency or the Developer, and all amendments thereto must be in writing by the
Executive Director of the Agency or the Developer, except that Ihe Executive Director may only
agree to non-substantive changes hereto with concurrence by Agency Counsel. Substantial
changes to this Agreement shall require the prior approval of the governing body of the Agency.
Each individual signing below represents and warrants that he or she has the authority to
execute this Agreement on behalf of and bind the party helshe purports to represent.
Section 6.7 Time for Acceptance
This Agreement, when execuled by Developer and delivered to Agency, must be
authorized by the governing body of the Agency and executed and delivered on behalf of the
Agency by its undersigned officers on or before thirty (30) days after signing and delivery of this
Agreement by Developer or this Agreement shall be void, except to the extent thai Developer
shall consent in writing to a further extension of time for the authorization, execution and
delivery of this Agreement. This Agreement shall be dated as of December 17, 200 I.
III/
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582001:37147.1
19
IN WITNESS WHEREOF, Agency and Developer have executed this Agreement on the
day and date first above shown.
"AGENCY"
Redevelopment Agency of the
City of San Bernardino
By:
Approved as to Form:
By:
"DEVELOPER"
ANR Industries, a California Corporation
By:
Agustin N. Rodriguez,
President
By:
SB2001:37147.1
20
582001:37147.1
EXHIBIT "A"
Vicinity Map Depicting Location of Each of the HUD Properties
21
EXHIBIT "A"
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EXHIBIT "B"
Legal Descriplion of the HUD Properties
168 West 13th Street
Lot 5, 33 Subdivision: RANCHO SAN BERNARDINO in Map 7, Page 2 of County Recorder's
office of San Bernardino County.
248 West 13th Street
Lot 50, Subdivision: HART TRACT in Map 5, Page 54 of County Recorder's office of San
Bernardino County.
138 Magnolia Avenue
Lot 2, 33 Subdivision: RANCHO SAN BERNARDINO in Map 7, Page 2 of County Recorder's
office of San Bernardino County.
1159 West Rialto Avenue
Lot 9, 3 Subdivision: WOODS SUBDIVISION in Map 15 Page 95 of County Recorder's office
of San Bernardino County.
248 West Wabash Street
Lot 6 & 7, Subdivision: EDELEN TRACT in Map 5 Page 35 of County Recorder's office of San
Bernardino County.
249 West Wabash Street
Lot 61, Subdivision: HART TRACT in Map 5 Page 54 of County Recorder's office,
SB2001;37147.1
22
EXHIBIT "C"
Scope of Development
NOTE: ADDITIONAL TEXT OF THE SCOPE OF DEVELOPMENT SETTING
FORTH FINAL PROJECT ACCOUNTING AND CLOSE-UP PROCEDURES FOR
THE PROJECT AND PAYMENT OF AGENCY ASSISTANCE TO DEVELOPER AT
COMPLETION OF THE PROJECT SHALL CONFORM TO THIS AGREEMENT
SB2001 :37147.1
23
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SCOPE OF DEVELOPMENT
12/10/2001 16:46
5627777808
ANR INDUSTRIES INC
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Standard Spel:;ifications
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3 Bedroom, 2 Bath
2 Car Attached Garage
Finishes
A. Interior
1. Gypsum Wallboard
a. Bullnose comers
b. Light Orange Peel finish
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2. Ceramic Tile :
a. 4 Yo" X 4 Yo" WHITE ceramic tile thin set ove I Yz" wonderboard in all
kitchen and bathroom countertops. I '
b. 12" X 12" ceramic tile entry. i
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a. European style f rame/ess kitch~n and bathro~, cabinetry. Prefinished
in fruitwood finish with recessec! panel doors.,
b. All cabinets include 6 way adjustable conceal: ' hinges.
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a. Interior doors to be HC Colonist ~ix panel doo
b. Stanley Solid Core steel entry dQor with raise anel embossed finish
and distinctive Glass Lite enhancements. ,
c. Faultless Door locks with brass finish. Entry la' , set to be Lexington
style handle with dead bolt. Hou$e/garage doo, . garage man door to
have Saturn style handle with daadbolt. Interi : : passage and, privacy
doors to have Saturn style handle. ,
d. Garage door to be sectional ste~1 roll up door' 'ith decorative window
panels. '
B. Exterior Finish
1. Roof- 25 year warranty fiberglass sl1ingle roof wit, 0 layers of 15Jb
underlayment. Ridge shingles.
2. Stucco- One layer of Grade D paper, under exteri ,finish areas. Three
coat
stucco system with 20/20 sand finis~.
3. Windows- Dual glazed WHITE fram~d vinylwindo' . Where grids are
noted, lites to be 3H4W.
"EXHIBIT c"
SCOPE OF DEVELOPMENT
12/10/2001 16:46
ANR INDUSTRIES INC
5627777808
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PAGE 06
1. 2.5 T central heating and cooling system with 50! OOBTU Rhetilm or equal
furnace. '
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5. All exterior doors and windows pre iwired for ala system.
D. Landscaping-Automatic front yard irrigati~n system.
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Income Qualifications For New Homebuyers
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EXHIBIT "En
Site Purchase and Sale Agreement and Escrow Instructions
SB2001 :37147.1
25
NIP TARGET AREA UNIT PURCHASE AND SALE AGREEMENT
Property Address:
THIS NIP TARGET AREA UNIT PURCHASE AND SALE AGREEMENT (the
"Agreement") is dated for identification purposes only, as of ,2001, and is made
and entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO (the "Agency") and ANR INDUSTRIES, INC., a California Corporation
(the "Developer"), with reference to the following:
RECITALS
A. WHEREAS, the Agency and the County of San Bernardino Department of
Economic and Community Development (the "ECD") are expected concurrently herewith to
enter into that certain sales contract under the "Neighborhood Initiative Program" for the
disposition of certain land (herein the "HUD Property") by the ECD to the Agency for affordable
housing use and development under a program administered by the United States Secretary of
the Department of Housing and Urban Development (the "Secretary"). A legal description of the
HUD Property is attached hereto as Exhibit "A"; and
B. WHEREAS, subject to the terms and conditions of that certain agreement entitled
Development Agreement Infill Housing dated December 17, 2001, (the "Development
Agreement"), by and between the Developer and the Agency and this Agreement, Agency
desires to sell the HUD Property to the Developer and the Developer desires to purchase the
HUD Property from the Agency at the close of the "HUD/ECD Escrow" as set forth herein.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS SET
FORTH HEREIN, THE DEVELOPER AND THE AGENCY AGREE AS FOLLOWS:
1. Warrantv of Authority bv Developer. The Developer warrants that it is a California
Corporation under the laws of the State of California, and is authorized to execute this
Agreement and all of the documents and instruments contemplated hereby, including, without
limitation, supplemental escrow instructions and the Acceptance of the Agency Deed; and that
this transaction has been approved by [resolution of its board of directors] if applicable. A
certified copy of that [resolution] which remains in effect, will be delivered to Agency before the
close ofthe HUD/ECD Escrow as set forth herein.
2. Al!reement to Sell and to Purchase. Subject to the terms and conditions of this
Agreement, the Agency agrees to sell and the Developer agrees to purchase the HUD Property.
3. Purchase Price. The "Purchase Price" for the HUD Property payable by the Developer
is the same sum in cash or immediately available funds in United States Currency as the
discounted purchase price which the ECD has agreed to pay the Secretary pursuant to the
HUD/ECD Escrow for the HUD Property. The Purchaser Price shall be payable by the
Developer's delivery of the full amount to the escrow holder in cash or by wire transfer of
I
SB2001 :37086.1
immediately available funds at least one (1) business day before the concurrent close of the
HUD/ECD Escrow and the Agency Escrow or by cashier's check during business hours at least
three (3) business days before the close the HUD/ECD Escrow and the Agency Escrow.
4. HUDIECD Escrow Costs. In addition to the Purchase Price, the Developer hereby
agrees to pay all of the costs of the escrow holder in the HUD/ECD Escrow, including all
amounts charged to the account of the Secretary and the ECD. The escrow holder is hereby
instructed to collect such costs and charges from the Developer at the concurrent close of the
HUD/ECD Escrow and the Agency Escrow as provided in Section 7, below.
5. Conditions for the Benefit ofthe Al!encv. The obligation of the Agency to perform this
Agreement is subject to the satisfaction of the following conditions, which are for the Agency's
benefit only:
(a) if the Secretary and/or the ECD have not heretofore executed all documents and
instructions necessary to close the HUD/ECD Escrow Contract that the Secretary and the ECD
execute such documents within fifteen(15) days after the date hereof;
(b) that the Secretary and the ECD each perform under the HUD/ECD Escrow and
the title of the HUD Property actually be in a condition to be transferred from HUD to the ECD
within forty-five(45) days after the date hereof subject only to the close of the Agency Escrow;
( c) the Agency shall have received, in form and substance satisfactory to the
Executive Director, a certificate evidencing the insurance required pursuant to Section 16 of this
Agreement;
(d) that the Developer has duly executed and delivered to the escrow holder, In
recordable form the Acceptance ofthe Developer of the Agency Deed.
(e) that the Developer not otherwise be in default under its other obligations to the
Agency under the Development Agreement.
The conditions set forth above are for the Agency's benefit only and the Executive Director of
the Agency (the "Executive Director") may waive all or any part of such rights by written notice
to the Developer and escrow holder. If any of said conditions are not satisfied within the time
provided, or within such longer time as may be allowed by the Executive Director, the Agency
may thereafter terminate this Agreement without any liability on the part of the Agency by
giving written notice of termination to the escrow holder, with a copy to the Developer. Escrow
holder shall thereupon, without further consent from the Developer, return to each party the
documents, if any, deposited by them.
6. Conditions for Developer's Benefit. The obligation of the Developer to perform this
Agreement is subject to the satisfaction of the following conditions, which are for the
Developer's benefit only:
2
SB2001:37086.1
(a) if the Secretary and/or the ECD or either of them has not heretofore executed the
HUD/ECD Escrow, that the Secretary and/or the ECD execute said HUD/ECD Escrow within
fifteen (15) days after the date hereof; and
(b) that the Secretary and the ECD each perform under the HUD/ECD Escrow and
the HUD Property actually transfers from HUD to the ECD within forty-five (45) days after the
date hereof subject only to the concurrent close of the Agency Escrow.
The conditions set forth above are for the Developer's benefit only and the Developer may waive
all or any part of such rights by written notice to the Agency and the escrow holder. If any said
conditions are not satisfied within the time provided, or within such longer time as may be
allowed by the Developer, subject to the approval of the ECD and the Agency, the Developer
may thereafter terminate this Agreement without any liability on the part of the Developer by
giving written notice of termination to the escrow holder, with a copy to the Agency. Escrow
holder shall thereupon, without further consent from the Agency, return to each party the
documents, if any, deposited by them.
7. Al!encv Escrow. The transfer of the HUD Property to the Developer shall be
consummated through an escrow established with the escrow agent engaged by the Agency with
the consent of the ECD to handle the transfer of the HUD Property from the Agency to the
Developer concurrently upon the close of the HUD/ECD Escrow. Such escrow (the "Agency
Escrow") shall be opened on a schedule coordinated with the closing or the transfer of the HUD
Property between the Secretary and the ECD under the HUD/ECD Escrow. This Agreement
shall constitute the escrow instructions to the escrow holder of the Developer and the Agency
with respect to the HUD Property. The Agency and the Developer shall execute such additional
escrow instructions as may be reasonably required by the escrow holder under the Agency
Escrow.
8. Term of Al!encv Escrow. The Agency Escrow shall close concurrently with the close of
escrow under the HUD/ECD Escrow. "Opening Escrow" shall mean the date upon which a fully
executed copy of this Agreement is delivered to the escrow holder under the Agency Escrow.
"Close of Escrow" shall mean the date upon which the Agency Deed transferring the HUD
Property to the Developer is recorded in the Office of the County Recorder of the County of San
Bernardino, California.
9. Condition of Title. The Agency shall convey to the Developer by deed all of the right,
title and interest in the HUD Property which the Agency receives from the ECD under the
HUD/ECD Escrow. The form of the Agency Deed is attached hereto as Exhibit "B" and
incorporated herein by this reference.
10. Title Insurance. The Agency shall not be responsible for providing any title insurance
to the Developer in connection with the transfer of title in the HUD Property to the Developer.
Any title insurance desired by the Developer shall be ordered and paid for by the Developer at its
sole cost and expense.
3
SB2oo1:37086.1
11. Prorations. All assessments, including improvement assessments which are available
for payment without interest or penalty for advance payment, taxes, rent, and ground rent, if any,
shall be prorated as of the Close of Escrow. In as much as the Agency Escrow will close
concurrently with the HUD/ECD Escrow, through which escrow such items will be prorated
between the Secretary and the ECD and the Agency, the parties acknowledge and agree that the
Developer shall be charged for such prorations in precisely the same amount as the Agency is
charged under the HUD/ECD Escrow.
12. HUDIECD Escrow and Al!encv Escrow Closinl! Costs. The Developer shall pay all
escrow closing costs of all parties to the HUD/ECD Escrow and the Agency Escrow, including,
without limitation, all escrow and recording fees and transfer taxes. Additionally, the Developer
shall pay all closing costs and expenses charged to the Agency by the ECD in the escrow by
which HUD transfers the HUD Property to the ECD and in time, the ECD transfers such
property to the Agency.
13. Closinl!. At the Close of Escrow, (a) the Agency shall deliver to the Developer through
escrow a the Agency Deed conveying the HUD Property to the Developer, (b) the Developer
shall deliver to the Agency through the Agency Escrow the acceptance of the Agency Deed, and
(c) the escrow holder shall collect and pay the sums indicated for the transfer of the HUD
Property under the HUD/ECD Escrow and this Agreement and deliver such other documents to
the parties in accordance with the instructions of each of them.
At the Close of Escrow, the escrow holder shall cause the Agency Deed to be recorded in
the Official Records of the County of San Bernardino, California.
14. Condition of the HUD Property. The Agency makes no representation or warranty to
the Developer or to any third party concerning the condition of the HUD Property, including,
without limitation, compliance with code, zoning or building requirements and the Agency will
make no improvements to the HUD Property either before or after execution of this Agreement.
The Developer understands that the Agency does not guarantee or warrant that the HUD
Property is free of visible or hidden defect, or any other condition that may render the HUD
Property uninhabitable or otherwise usable. Developer acknowledges responsibility for taking
such action and conducting such investigation of the condition of the HUD Property as it
believes necessary to satisfy itself that the HUD Property is in a condition acceptable to it and
the Developer agrees to accept the HUD Property in the same condition delivered to the Agency
by the ECD, in an "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS" condition.
15. Possession; Improvements. The Developer may not perform improvements nor take
possession of the HUD Property until the Agency Escrow is closed. At the close of the Agency
Escrow, the Developer may take possession of the HUD Property and promptly commence the
work of improvement as required for the HUD Property under the Development Agreement.
4
SB2oo1 :37086.1
16. Insurance. Prior to the Close of Escrow, the Developer shall obtain and shall thereafter
maintain in full force and effect at all times the insurance policies required in Section 3.5 of the
Development Agreement.
17. Assil!nment. The Developer and the Agency each agree that this Agreement shall be
binding upon their respective, heirs, executors, administrators, successors or assigns and is not
assignable by the Developer unless the written consent of the Executive Director is first
obtained, which consent the Executive Director may withhold in his or her sole and absolute
discretion.
18. Notices. All notices, demands and requests which may be given by either party to the
other or to the escrow holder shall be in writing and shall be deemed to be given upon personal
delivery or forty-eight (48) hours after deposit in the United States mail, certified, return receipt
requested, postage prepaid, addressed to the party to be notified at the address following the
party's signature or if addressed to the escrow holder, at the address set forth in the supplemental
escrow instruments signed by the parties. Either party may designate by written notice to the
other party in the manner set forth in this Agreement another address for notice.
19. Miscellaneous Provisions.
19.1 Waiver. The waiver of any provisions of this Agreement shall be invalid unless
evidenced by a writing signed by the party to be charged therewith. The waiver of, or failure to
enforce, any provision of this Agreement shall not be a waiver of any further breach of such
provision hereof. The waiver by either or both parties of the time for performing an act shall not
be a waiver of the time for performing any other act or acts required hereunder.
19.2 Modifications. No change or addition to this Agreement or any part hereof
shall be valid unless in writing and signed by each of the parties.
19.3 Governinl! Law. This Agreement shall be governed by California law.
19.4 Headinl!s. The headings in this Agreement are for convenience only and shall
not be used to interpret this Agreement.
19.5 Further Acts. Each party agrees to take such further action and to execute and
deliver such further documents as may be necessary to carry out the purposes of the Developer
Agreement with respect to the HUD Property and this Agreement.
19.6 Attornevs' Fees. If either party incurs attorneys' fees to enforce this Agreement
or because of a breach of this Agreement by the other party, the prevailing party shall be entitled
to recover reasonable attorneys' fees as set by the court from the other party. In the case of the
Agency, the words "reasonable attorney's fees" mean and refer to the salaries and expenses of
the lawyers employed by the Office of City Attorney of the City of San Bernardino, computed on
an hourly basis, who provide legal services to the Agency in connection with the enforcement of
the rights of the Agency hereunder.
5
SB2oo1 :37086.1
19.7 No Real Estate Brokers Commission Pavable Bv the Al!encv. The Agency
shall not be responsible for the payment of any real estate brokers commission or finders fee in
connection with the escrow or the transfer of the HUD Property to the Developer.
19.8 Time. Time is ofthe essence with respect to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated:
By:
Executive Director
DEVELOPER
ANR Industries, Inc., a California
Corporation
By:
Its:
By:
Its:
6
SB2001 :37086.1
EXHIBIT "A"
Legal Description ofthe HUD Property
7
SB200 I :37086.1
EXHIBIT "B"
RECORDING REQUESTED BY )
Redevelopment Agency of the )
City of San Bernardino )
)
AND WHEN RECORDED MAIL )
PROPERTY TAX BILL TO: )
)
)
ANR Industries, Inc. )
)
)
)
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
AND
COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANT AND RESTRICTIONS
PART A
THIS GRANT DEED OF A PUBLIC AGENCY AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING DEVELOPMENT, USE AND
OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS (the "Grant Deed")
transfers 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 ANR Industries, Inc., a California
Corporation, (the "Developer"), subject to the community redevelopment affordable single
family housing conditions, covenants and restrictions contained in PART B hereof. The Agency
is the grantor in this Grant Deed, and the Developer is the grantee.
For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby
grants to the Developer, subject to the community redevelopment affordable single family
housing conditions, covenants and restrictions of this Grant Deed, all of the right, title and
interest of the Agency in the Property, as more particularly described below;
8
SB2001:37091.1
(-- The PropertYn)
, on file in the Official Records ofthe
Office of the Recorder of San Bernardino County.
PARTB
The grant by the Agency of the Property to the Developer is expressly subject to the satisfaction
of the following community redevelopment affordable single family housing conditions,
covenants and restrictions as arise under that certain agreement entitled "Development
Agreement - Infill Housing (Neighborhood Initiative Program)" dated as of December 17, 2001,
(the "Development Agreement") by and between the Agency and the Developer:
1. the Property shall be reserved for use, improvement and occupancy for single
family residential purposes for a term of thirty (30) years commencing on the
date ofrecordation of this Grant Deed; and
2. the Property shall be used, reserved, sold, transferred, granted, conveyed or
otherwise hypothecated for occupancy only to a "person" or a "family" who is a
"Qualified Homebuyer" for a term of ten (10) years, beginning on the date of
recordation of the Development Agreement and Covenant described in
subparagraph 3, below. The words "Qualified Homebuyer" refer to any person
or family who owns and occupies (or who declares their intention to own and
occupy) the Property as their principal residence and who also satisfy the
requirement of being a "Qualified Homebuyer," as these terms are defined in
Development Agreement, and whose adjusted gross income during the twelve
(12) months preceding the date of initial occupancy of the Property by the
Qualified Homebuyer does not exceed the income qualification limits
referenced in the Development Agreement.
3.
1.
SB2001:37091.1
As a condition precedent to any transfer, sale, conveyance, grant or other
hypothecation by the Developer of the Property to a Qualified Homebuyer the
"Affordable Housing Agreement and Covenant" (the "Affordable Housing
Covenant"), substantially in the form as attached hereto as Exhibit "A", shall be
fully executed in recordable form by the Developer, the Qualified Homebuyer
and the Agency and filed for recordation as an official record of the Recorder of
San Bernardino County, all as set forth in the Development Agreement. The
final form of the Affordable Housing Covenant shall be consistent with the
terms and conditions of the Development Agreement as applicable at the time of
initial occupancy of the Property by a Qualified Homebuyer, and may reflect
certain technical and conforming changes as may be necessary to accommodate
the Qualified Homebuyer's use of affordable housing assistance funds as may
be provided under either the HOME Program (24 CFR Part 92 et seq.) or local
9
redevelopment housing assistance programs of the Agency. Upon its
recordation, the fully executed form of the Affordable Housing Covenant shall
be a separate community redevelopment affordable single family housing
covenant, or if applicable, a HOME Program Regulatory Agreement(24 CFR 92
et seq.) to which the Qualified Homebuyer and the Agency are parties and
which runs with the Property and which binds the Qualified Homebuyer and
each heir, successor and assign of the Qualified Homebuyer for the term as
provided in such recorded Affordable Housing Covenant.
4. The Property shall be subject to the following affordable housing
redevelopment covenant in perpetuity and the text which appears in this Grant
Deed shall be incorporated into the text of each grant deed or other instrument
which transfers the Property to a successor in interest of the Developer and each
Qualified Homebuyer:
"The grantee herein covenants by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, age, handicap,
national origin or ancestry in the sale, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the
grantee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of any vendee in the land herein
conveyed. The foregoing covenants shall run with the land."
PART C
During the term of subparagraph 2 of P ART B of this Grant Deed, but prior to the recordation of
the Affordable Housing Covenant, executed by the Agency, the Qualified Homebuyer and the
Developer, the Agency hereby authorizes the Developer to conduct land improvement and home
sales and ancillary business activity on the Property associated with the improvement and sale by
the Developer, of an affordable single family dwelling unit on the Property to a Qualified
Homebuyer, pursuant to the Development Agreement. The provisions of PART C of this Grant
Deed shall have no further force or effect upon the Property after the date of the recordation of
the Affordable Housing Covenant.
PARTD
The provisions of this Grant Deed are expressly declared by the Agency to promote an increase,
improvement and preservation of the community's supply oflow- and moderate-income housing.
The transfer of the Property by the Agency to the Developer for this purpose and the recordation
of this Grant Deed is authorized by Health and Safety Code Sections 33334.2 and 33334.3, and
10
SB2001 :37091.1
other applicable law and actions of the Agency, including without limitation, the Development
Agreement and 24 Code of Federal Regulations Part 92, et seq.
PARTE
Upon the delivery of this Grant Deed to the Developer, the community redevelopment affordable
housing conditions, covenants and restrictions as contained herein shall be covenants and
restrictions which affect the Property and shall run with the land and shall be enforceable by
either the Agency or by the City of San Bernardino, a municipal corporation, as provided by
Health and Safety Code Section 33334.3(f)(2) against the Developer and each successor in
interest or assignee of the Developer in the Property, including, without limitation, any Qualified
Homebuyer. No person other than either the City of San Bernardino or the Agency shall be
deemed to be authorized to enforce any provision of this Grant Deed as a covenant or restriction
which runs with the land and affects the Property.
THIS GRANT DEED is executed as ofthe date indicated below next to the authorized signatures
of the Executive Director ofthe Agency.
AGENCY
Redevelopment Agency of the City of
San Bernardino, a body corporate and politic
Dated:
By:
Executive Director
11
SB2001 :37091.1
ACCEPTANCE OF GRANT DEED AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING DEVELOPMENT,
USE AND OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS
BY THE DEVELOPER
ANR Industries, Inc., a California Corporation (the "Developer"), hereby accepts the
delivery of the instrument identified above as the "Grant Deed of a Public Agency and
Community Redevelopment Affordable Single Family Residential Housing Development, Use
and Occupancy Conditions, Covenants and Restrictions" (the "Grant Deed"), and the transfer of
the Property from the Redevelopment Agency of the City of San Bernardino, subject to the
conditions, covenants and restrictions contained in the Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the Property in an "AS-
IS", "WHERE IS" and "SUBJECT TO ALL FAULTS" condition and that the Developer is
solely responsible for causing the Property to be improved and reserved for sale and occupancy
by a Qualified Homebuyer as set forth in the Development Agreement by and between the
Agency and Developer.
The Developer hereby further accepts and agrees to each' of the community
redevelopment affordable housing use, improvement and occupancy conditions, covenants and
restrictions contained in the Grant Deed which touch and concern the Property and are
community redevelopment covenants which run with the land.
DEVELOPER
ANR Industries, Inc., a California Corporation
Dated:
By
Its:
By:
Its:
[NOTARY ACKNOWLEDGMENT ATTACHED]
12
SB2oo1 :37091.1
EXHIBIT "F"
Form of Affordable Housing Regulatory Agreement
SB2001 :37147.1
26
EXHIBIT "B"
RECORDING REQUESTED BY )
Redevelopment Agency ofthe )
City of San Bernardino )
)
AND WHEN RECORDED MAIL )
PROPERTY TAX BILL TO: )
)
)
ANR Industries, Inc. )
)
)
)
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
AND
COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING
DEVELOPMENT, USE AND OCCUPANCY CONDITIONS,
COVENANT AND RESTRICTIONS
PART A
THIS GRANT DEED OF A PUBLIC AGENCY AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING DEVELOPMENT, USE AND
OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS (the "Grant Deed")
transfers 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 ANR Industries, Inc., a California
Corporation, (the "Developer"), subject to the community redevelopment affordable single
family housing conditions, covenants and restrictions contained in PART B hereof. The Agency
is the grantor in this Grant Deed, and the Developer is the grantee.
For valuable consideration, the receipt of which is hereby acknowledged, the Agency hereby
grants to the Developer, subject to the community redevelopment affordable single family
housing conditions, covenants and restrictions of this Grant Deed, all of the right, title and
interest of the Agency in the Property, as more particularly described below;
8
SB2001 :37091.1
(-- The Property--)
, on file in the Official Records of the
Office of the Recorder of San Bernardino County.
PARTB
The grant by the Agency of the Property to the Developer is expressly subject to the satisfaction
of the following community redevelopment affordable single family housing conditions,
covenants and restrictions as arise under that certain agreement entitled "Development
Agreement - Infill Housing (Neighborhood Initiative Program)" dated as of December 17, 2001,
(the "Development Agreement") by and between the Agency and the Developer:
1. the Property shall be reserved for use, improvement and occupancy for single
family residential purposes for a term of thirty (30) years commencing on the
date of recordation of this Grant Deed; and
2.
.,.
3.
'l
SB2001:37091.1
the Property shall be used, reserved, sold, transferred, granted, conveyed or
otherwise hypothecated for occupancy only to a "person" or a "family" who is a
"Qualified Homebuyer" for a term of ten (10) years, beginning on the date of
recordation of the Development Agreement and Covenant described in
subparagraph 3, below. The words "Qualified Homebuyer" refer to any person
or family who owns and occupies (or who declares their intention to own and
occupy) the Property as their principal residence and who also satisfy the
requirement of being a "Qualified Homebuyer," as these terms are defined in
Development Agreement, and whose adjusted gross income during the twelve
(12) months preceding the date of initial occupancy of the Property by the
Qualified Homebuyer does not exceed the income qualification limits
referenced in the Development Agreement.
As a condition precedent to any transfer, sale, conveyance, grant or other
hypothecation by the Developer of the Property to a Qualified Homebuyer the
"Affordable Housing Agreement and Covenant" (the "Affordable Housing
Covenant"), substantially in the form as attached hereto as Exhibit "A", shall be
fully executed in recordable form by the Developer, the Qualified Homebuyer
and the Agency and filed for recordation as an official record ofthe Recorder of
San Bernardino County, all as set forth in the Development Agreement. The
final form of the Affordable Housing Covenant shall be consistent with the
terms and conditions of the Development Agreement as applicable at the time of
initial occupancy of the Property by a Qualified Homebuyer, and may reflect
certain technical and conforming changes as may be necessary to accommodate
the Qualified Homebuyer's use of affordable housing assistance funds as may
be provided under either the HOME Program (24 CFR Part 92 et seq.) or local
9
redevelopment housing assistance programs of the Agency. Upon its
recordation, the fully executed form of the Affordable Housing Covenant shall
be a separate community redevelopment affordable single family housing
covenant, or if applicable, a HOME Program Regulatory Agreement(24 CFR 92
et seq.) to which the Qualified Homebuyer and the Agency are parties and
which runs with the Property and which binds the Qualified Homebuyer and
each heir, successor and assign of the Qualified Homebuyer for the term as
provided in such recorded Affordable Housing Covenant.
4. The Property shall be subject to the following affordable housing
redevelopment covenant in perpetuity and the text which appears in this Grant
Deed shall be incorporated into the text of each grant deed or other instrument
which transfers the Property to a successor in interest of the Developer and each
Qualified Homebuyer:
"The grantee herein covenants by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, age, handicap,
national origin or ancestry in the sale, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the
grantee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of any vendee in the land herein
conveyed. The foregoing covenants shall run with the land."
PART C
During the term of subparagraph 2 of PART B of this Grant Deed, but prior to the recordation of
the Affordable Housing Covenant, executed by the Agency, the Qualified Homebuyer and the
Developer, the Agency hereby authorizes the Developer to conduct land improvement and home
sales and ancillary business activity on the Property associated with the improvement and sale by
the Developer, of an affordable single family dwelling unit on the Property to a Qualified
Homebuyer, pursuant to the Development Agreement. The provisions of PART C of this Grant
Deed shall have no further force or effect upon the Property after the date of the recordation of
the Affordable Housing Covenant.
PARTD
The provisions of this Grant Deed are expressly declared by the Agency to promote an increase,
improvement and preservation of the community's supply oflow- and moderate-income housing.
The transfer of the Property by the Agency to the Developer for this purpose and the recordation
of this Grant Deed is authorized by Health and Safety Code Sections 33334.2 and 33334.3, and
10
SB2001 :37091.1
other applicable law and actions of the Agency, including without limitation, the Development
Agreement and 24 Code of Federal Regulations Part 92, et seq.
PARTE
Upon the delivery of this Grant Deed to the Developer, the community redevelopment affordable
housing conditions, covenants and restrictions as contained herein shall be covenants and
restrictions which affect the Property and shall run with the land and shall be enforceable by
either the Agency or by the City of San Bernardino, a municipal corporation, as provided by
Health and Safety Code Section 33334.3(f)(2) against the Developer and each successor in
interest or assignee of the Developer in the Property, including, without limitation, any Qualified
Homebuyer. No person other than either the City of San Bernardino or the Agency shall be
deemed to be authorized to enforce any provision of this Grant Deed as a covenant or restriction
which runs with the land and affects the Property.
THIS GRANT DEED is executed as of the date indicated below next to the authorized signatures
of the Executive Director ofthe Agency.
AGENCY
Redevelopment Agency of the City of
San Bernardino, a body corporate and politic
Dated:
By:
Executive Director
11
SB2001:37091.1
ACCEPTANCE OF GRANT DEED AND COMMUNITY REDEVELOPMENT
AFFORDABLE SINGLE FAMILY RESIDENTIAL HOUSING DEVELOPMENT,
USE AND OCCUPANCY CONDITIONS, COVENANTS AND RESTRICTIONS
BY THE DEVELOPER
ANR Industries, Inc., a California Corporation (the "Developer"), hereby accepts the
delivery of the instrument identified above as the "Grant Deed of a Public Agency and
Community Redevelopment Affordable Single Family Residential Housing Development, Use
and Occupancy Conditions, Covenants and Restrictions" (the "Grant Deed"), and the transfer of
the Property from the Redevelopment Agency of the City of San Bernardino, subject to the
conditions, covenants and restrictions contained in the Grant Deed.
The Developer hereby acknowledges and agrees that it accepts the Property in an "AS-
IS", "WHERE IS" and "SUBJECT TO ALL FAULTS" condition and that the Developer is
solely responsible for causing the Property to be improved and reserved for sale and occupancy
by a Qualified Homebuyer as set forth in the Development Agreement by and between the
Agency and Developer.
The Developer hereby further accepts and agrees to each' of the community
redevelopment affordable housing use, improvement and occupancy conditions, covenants and
restrictions contained in the Grant Deed which touch and concern the Property and are
community redevelopment covenants which run with the land.
DEVELOPER
ANR Industries, Inc., a California Corporation
Dated:
By
Its:
By:
Its:
[NOTARY ACKNOWLEDGMENT ATTACHED]
12
SB2001 :37091.1
EXHIBIT "F"
Form of Affordable Housing Regulatory Agreement
SB2001 :37147.1
26
EXHIBIT "F"
(ANR Industries, Inc.)
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Attn: Executive Director
(Space Above Line Reserved For Use By Recorder)
RECORDATION OF THIS INSTRUMENT
IS EXEMPT FROM ALL FEES AND
TAXES
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
(Name of Qualified Homebuver)
THIS DOCUMENT IS PRESENTED IN GENERAL FORM AS AN EXHIBIT TO THE
WITHIN AGENCY GRANT DEED-- The final form of this document shall be executed by the
"Developer", the "Qualified Homebuyer" and the Agency at the time of close of the "New Home
Escrow", as each of these items are defined in this Exhibit" A". The final form of a community
redevelopment housing affordability covenant may vary in certain technical respects from this
Exhibit "A" at the time of close of the New Home Escrow depending upon whether the Qualified
Homebuyer may elect to use (on a first come- first serve basis and subject to the availability of
such public funds of the Agency) certain purchase money mortgage funds as may be provided by
the Agency from a special source of available Agency funds, if any, pursuant to Health and
Safety Code Section 33334.3 ( the "Agency MAP Program") or other law, including 24 Code of
Federal Regulations Part 92 et seq. (the "HOME Program"). Accordingly, certain editorial notes
which appears in brackets [J are set forth in the following text.
SB2001 :37093.1
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING AFFORD ABILITY COVENANTS
AND RESTRICTIONS, (the "Covenant") is made and entered into as of
200_, by and among ANR INDUSTRIES, INC., a California Corporation (the
"Developer"), the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a body corporate and politic (the "Agency"), and
(the "Qualified Homebuyer"), and this Covenant relates to
the following facts set forth in Recitals.
m RECITALS
A. The Qualified Homebuyer proposes to acquire a single family residence
(the "New Home"), located within the City of San Bernardino (the "City"), from the
Developer, to be owned and occupied by the Qualified Homebuyer as their principal
residence. The legal description of the New Home is attached hereto as Exhibit "A" and
incorporated herein by this reference.
, B. The Agency has made the property on which the New Home is situated
available to the Developer for the purposes as set forth under that certain Development
Agreement - Infill Housing dated as of December 17, 2001, (the "Development
Agreement") in order to make the New Home available for acquisition and occupancy by
the Qualified Homebuyer subject to the terms and conditions of this Covenant; and
C. The terms of the Development Agreement mandate that the acquisition,
use and occupancy of the New Home shall be restricted in certain respects for the term as
provided herein (the "Qualified Residence Period") in order to ensure that the New Home
will be used and occupied in accordance with the Development Agreement and the
affordable single family residential dwelling unit development goals and objectives of the
Agency.
t.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL
COVENANTS AND UNDERTAKINGS SET FORTH HEREIN, AND FOR
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE QUALIFIED
HOMEBUYER, THE DEVELOPER AND THE AGENCY DO HEREBY
COVENANT AND AGREE FOR THEMSELVES, THEIR SUCCESSORS AND
ASSIGNS AS FOLLOWS:
SB2001:37093.1
Section 1. Definitions of Certain Terms. As used in this Covenant, the
following words and terms shall have the meaning as provided in the Recitals or in this
Section 1 unless the specific context of usage of a particular word or term may otherwise
require:
Adjusted Family Income. The words "Adjusted Family Income" mean the total
annual income (adjusted for family size) for a twelve (12) month period
immediately proceeding the close of the New Home Escrow, of each individual or
family residing or treated as residing in the New Home as calculated in
accordance with Treasury Regulation 1.167(k) - 3b)(3) under the Code, as
adjusted, based upon family size in accordance with the household income
adjustment factors adjusted and amended from time to time, pursuant to Section 8
ofthe United States Housing Act of 1937, as amended.
Affordable Housing Cost. The words "Affordable Housing Cost" shall have the
meaning as set forth in Health and Safety Code Section 50052.5. At the time of
the close of the New Home Escrow, or later when a proposed Successor-In-
Interest acquires the new home the amount of the maximum Affordable Housing
Cost payable in connection with the acquisition of the New Home at any time
during the Qualified Residence Period shall be calculated as set forth in Health
and Safety Code 50053.5(b)(I) or (2), as applicable.[Editor's Note: THIS
DEFINITION FOR USE UNDER AGENCY MAP PROGRAM]
Code. The word "Code" means the Internal Revenue Code of 1986, as amended,
and any regulation, rulings or procedures with respect thereto.
Delivery Date. The words "Delivery Date" mean the date of delivery of title and
possession of the New Home from the Developer to the Qualified Homebuyer at
the close of the New Home Escrow.
Low- and Moderate-Income Household. The words "Low- and Moderate-
Income Household" mean persons and families whose income does not exceed
the qualifying limits for persons and families whose Adjusted Family Income is
not more than One Hundred and Fifteen percent (115%) of the Area Median
Income for San Bernardino County. The limits shall be published by the
department in the California Administrative Code as soon as possible after
adoption by the Secretary of Housing and Urban Development. In the event such
federal standards are discontinued, the department shall, by regulation, establish
income limits for lower income households for all geographic areas ofthe state at
80 percent of area median income, adjusted for family size and revised annually.
The words "Area Median Income" means the median family income of San
Bernardino County as established by the published household income reports for
San Bernardino County announced from time-to-time by the State of California
Department of Housing and Community Development. [Editor's Note: THIS
DEFINITION FOR USE UNDER AGENCY MAP PROGRAM]
2
SB2001:37093.1
Low Income Family. The words "Low Income Family" means persons and
families whose Adjusted Family Income does not exceed 80 percent of Area
Median Income. [Editor's Note: THIS DEFINITION FOR USE UNDER
HOME PROGRAM]
New Home. The words "New Home" mean and refer to the completed affordable
single-family residential dwelling unit (including the land and landscape
improvements thereon) as constructed by the Developer and sold to the Qualified
Homebuyer.
New Home Escrow. The words "New Home Escrow" mean and refer to the real
estate conveyance transaction or escrow by and between the Developer and the
Qualified Homebuyer (or later, by and between the Qualified Homebuyer and the
Successor-In-Interest). The transfer of the New Home from the Developer to the
Qualified Homebuyer (or later, by and between the Qualified Homebuyer and the
Successor-In-Interest) shall be accomplished upon the close of the New Home
Escrow.
Notice of Agency Concurrence. The words "Notice of Agency Concurrence"
mean and refer to the acknowledgment in recordable form in which the Agency
confirms that the proposed Successor-In-Interest of the Qualified Homebuyer
satisfies all of the Adjusted Family Income and other requirements of this
Covenant for occupancy of the New Home by the Successor-In-Interest at any
time during the Qualified Residence Period.
Qualified Homebuyer. The words "Qualified Homebuyer" mean the purchaser
of the New Home from the Developer (e.g.: all adult persons identified as having
a property ownership interest vested in the New Home and who shall reside in the
New Home as of the close of the New Home Escrow). At the close of the New
Home Escrow, the Qualified Homebuyer shall: (i) have an annual Adjusted
Family Income which does not exceed the household income qualification limits
of a Low- and Moderate-Income Household: (ii) shall be a first-time homebuyer,
as this term is defined in Health and Safety Code Section 50068.5; and (iii)pay no
more than an Affordable Housing Cost for the New Home pursuant to the terms
of the purchase transaction for the New Home, including all sums payable by the
Qualified Homebuyer for its purchase money mortgage financing, insurance,
escrow and other fees and costs. [Editor's Note: THIS DEFINITION FOR
AGENCY MAP PROGRAM]
Qualified Homebuyer. The words "Qualified Homebuyer" mean the purchaser
of the New Home from the Developer (e.g.: all adult persons identified as having
a property ownership interest vested in the New Home and who shall reside in the
New Home as of the close of the New Home Escrow). At the close of escrow the
New Home Escrow, the Qualified Homebuyer shall satisfy the eligibility
requirements as set forth under 24 Code of Federal Regulations Part 92.254(a)(3).
[Editor's Note: FOR USE UNDER THE HOME PROGRAM]
3
SB2001 :37093.1
Qualified Residence Period. The words "Qualified Residence Period" mean the
period oftime beginning on the Delivery Date and ending on the date which is ten
(10) years after the Delivery Date. [Editor's Note: FOR HOME PROGRAM
THIS PERIOD SHALL BE TWENTY (20) YEARS FOR "NEW"
CONSTRUCTION]
Covenant. The words "Covenant" mean these Redevelopment Agency of the
City of San Bernardino Community Redevelopment Housing Affordability
Covenants and Restrictions by and among the Qualified Homebuyer, the
Developer and the Agency pertaining to the New Home. [Editor's Note: SEE
GENERAL COMMENT OR THE COVER PAGE OF THIS FORM
COVENANT WHICH INDICATES THAT THE FINAL FORM OF THIS
INSTRUMENT WILL REFLECT WHETHER AGENCY MAP PROGRAM
OR HOME PROGRAM ASSISTANCE HAS BEEN PROVIDED BY THE
AGENCY TO THE QUALIFIED HOMEBUYER]
Successor-In-Interest. The words "Successor-In-Interest" mean and refer to the
person, family or household which may acquire the New Home from the
Qualified Homebuyer at any time during the Qualified Residence Period by
purchase, assignment, transfer or otherwise. The Successor-In-Interest shall be a
"first-time homebuyer" and shall have an income level for the twelve (12) months
prior to the date on which the Successor-In-Interest acquires the New Home
which does not exceed the maximum Adjusted Family Income level for a Low-
and Moderate-Income Household. Upon acquisition of the New Home the
Successor-In-Interest shall be bound by each of the covenants, conditions and
restrictions of this Covenant. [Editor's Note: THIS DEFINITION FOR
AGENCY MAP PROGRAM]
Successor-In-Interest. The words "Successor-In-Interest" means and refers to
the Low Income Family which may acquire the New Home from the Qualified
Homebuyer at any time during the Qualified Residence Period by purchase,
assignment transfer or otherwise. The Successor-In-Interest shall be a Low
Income Family and shall otherwise satisfy the requirements of24 Code of Federal
Regulations Part 92.254 (a). Upon acquisition of the New Home, the Successor-
In-Interest shall be bound by each of the covenants, conditions and restrictions of
this Covenant. [Editor's Note: THIS DEFINITION FOR HOME PROGRAM]
The titles and headings of the sections of this Covenant have been inserted for
convenience of reference only and are not to be considered a part hereof and shall not in
any way modify or restrict the meaning any of the terms or provisions hereof.
4
SB2001 :37093.1
Section 2.
Homebuver.
Acknowledl!ments and Representations of the Qualified
The Qualified Homebuyer hereby acknowledges and represents that, as of the Delivery
Date:
(a) the total household income for the Qualified Homebuyer does not exceed
the maximum amount permitted as Adjusted Family Income for a Low- and Moderate-
Income Household, [Low Income Family for HOME Program] adjusted for family
size;
(b) the Qualified Homebuyer intends to promptly occupy the New Home after
the Delivery Date as the principal place of residence for a term of at least two (2) years
following the Delivery Date and the Qualified Homebuyer has not entered into any
arrangement and has no present intention to rent, sell, transfer or assign the New Home
to any third party during the Qualified Residence Period so as to frustrate the purpose of
this Covenant;
(c) the Qualified Homebuyer has no present intention to lease or rent any
room or sublet or rent a portion of the New Home to any relative of the Qualified
Homebuyer or to any third person at any time during the Qualified Residence Period;
(d) the Qualified Homebuyer agrees to provide the Agency with the following
items of information for inspection by the Agency promptly upon written request of the
Agency:
(i) State and federal income tax returns filed by all persons who
reside in the New Home for the calendar year preceding the
close of the New Home Escrow for inspection of such State
and federal income tax returns;
(ii) current wage, income and salary statements for all person
residing in the New Home at the close of the New Home
Escrow;
(e) the Qualified Homebuyer has been informed by the Developer that this
Covenant imposes certain restrictions on the use and occupancy of the New Home during
the term of this Covenant and that this Covenant imposes certain restrictions on the
resale of the New Home during the Qualified Residence Period. The Qualified
Homebuyer acknowledges and understands that these restrictions shall be applicable to
the New Home and to any resale of the New Home from the Delivery Date to the end of
the Qualified Residence Period which is ,201_
Dated:
Initials of Qualified Homebuyer
5
SB2oo1:37093.1
(f) the sum payable each month by the Qualified Homebuyer following the
close of the New Home Escrow as principal and interest, property taxes and, property
casualty insurance for the acquisition of the New Home does not exceed the Affordable
Housing Cost for the household. [Editor's Note: THIS PROVISION FOR AGENCY
MAP PROGRAM].
(g) the Qualified Homebuyer has instructed the holder of the New Home
Escrow and the First Mortgage Lender , to deliver to the Agency a true and
correct copy of the loan agreement by and between the First Mortgage Lender,
, and the Qualified Homebuyer.
(h) the Developer has conducted a due and diligent investigation of the
matters set forth by the Qualified Homebuyer in each of the preceding subparagraphs of
this Section 3, and the Developer hereby certifies and warrants to the Agency that each
such statement of the Qualified Homebuyer is true and correct.
Section 3. Acknowledl!ment of Subordination of the Provisions of Section 4 of
this Covenant to the Mortl!al!e Securitv Interest of the First Mortl!al!e Lender.
Concurrently upon the execution and recordation of this Covenant the Qualified
Homebuyer shall obtain certain purchase money mortgage financing for the acquisition
of the New Home from (the "First Mortgage Lender").
As a condition to providing its mortgage loan to the Qualified Homebuyer, the
First Mortgage Lender requires the Agency to agree that the provisions of Section 4 of
this Covenant shall be junior and subordinate to the security interest ofthe First Mortgage
Lender in the New Home of even date herewith.
The Agency hereby acknowledges and agrees that the provisions of Section 4 of
this Covenant are subordinate and junior to the security interest of the First Mortgage
Lender in the New Home of even date herewith. No breach or default by the Qualified
Homebuyer of any provision of Section 4 of this Covenant, nor the exercise by the
Agency of any remedy it may have against the Qualified Homebuyer in the event of such
a breach or default shall affect such security interest of the First Mortgage Lender in the
New Home.
Section 4. Covenant of the Oualified Homebuver to Maintain Affordability
of the New Home Durin I! the Oualified Residence Period and Covenant Relatinl! to
Sale or Transfer of the New Home Durinl! the Oualified Residence Period to a
S uccessor- In-In terest.
(a) The Qualified Homebuyer for itself, its heirs, successors and assigns,
hereby covenants and agrees that during the term of the Qualified Residence Period the
New Home shall be used and, occupied by the Qualified Homebuyer as its principal
residence, and that the New Home shall be reserved for sale, use and occupancy by the
Qualified Homebuyer and/or for another Low- and Moderate-Income Household as a
6
SB2oo1 :37093.1
Successor-In-Interest at an Affordable Housing Cost. The Qualified Homebuyer, for
itself, its heirs, successors and assigns, further covenants and agrees that, during the
Qualified Residence Period, the Agency shall have the right and duty as provided in this
Section 4 to verify that each proposed Successor-In-Interest of the Qualified Homebuyer
in the New Home satisfies the income requirements and Affordable Housing Cost
limitations of a Low- and Moderate-Income Household (based upon the Adjusted Family
Income of each household), [Low Income Family] and that the completion of any resale
or transfer of the New Home to a Successor-In-Interest shall be subject to the recordation
of the "Notice of Agency Concurrence" as provided in Section 4(d).
(b) The Qualified Homebuyer, for itself, its successors and assigns, hereby
covenants and agrees that during the term of the Qualified Residence Period the Qualified
Homebuyer shall not sell, transfer or otherwise dispose of the New Home (or any interest
therein) to a Successor-In-Interest without first giving written notice to the Agency and
without first obtaining the written concurrence of the Agency as provided herein. At
least sixty (60) days prior to the date on which the Qualified Homebuyer proposes to
transfer title in the New Home to a Successor-In-Interest, the Qualified Homebuyer shall
send a written notice to the Agency as provided in Section 17 of the intention of the
Qualified Home buyer to sell the New Home to a Successor-In-Interest which includes
the following true and correct information:
(i) name of the proposed Successor-In-Interest (including the
identity of all persons in the household of the Successor-In-
Interest, proposing to reside in the New Home);
(ii) copies of State and federal income tax returns for the
Successor-In-Interest for the calendar year preceding the year
in which the notice of intention to sell the New Home is given
to the Agency;
(iii) resale price of the New Home payable by the Successor-In-
Interest, including the terms of all purchase money mortgage
financing to be assumed, provided or obtained by the
Successor-In-Interest, escrow costs and charges, realtor broker
fees and all other resale costs or charges payable by either the
Qualified Homebuyer or the Successor- In-Interest;
(iv)
name address, and telephone number of the escrow company
which shall coordinate the transfer of the New Home from the
Qualified Homebuyer to the Successor-In-Interest;
;.
(v) appropriate mortgage credit reference for the Successor-In-
Interest with a written authorization signed by the Successor-
In-Interest authorizing the Agency to contact each such
reference; and
7
5B2001 :37093.1
(vi) such other relevant information as the Agency may reasonably
request, as provided in Section 4(c).
(c) Within twenty (20) days following receipt of the notice of intention
described in Section 4(b), the Agency shall provide the Qualified Homebuyer with either
a preliminary confirmation of approval or a preliminary rejection of approval in writing
of the income and household occupancy qualifications of the Successor-In-Interest. The
Agency shall not unreasonably withhold approval of any proposed sale of the New Home
to a Successor-In-Interest who satisfies the Adjusted Family Income [and the Affordable
Housing Cost] requirements for occupancy of the New Home and for whom the other
information as described in Section 4(b) has been provided to the Agency. In the event
that the Agency may request additional information relating to the confirmation of the
matters described in Section 4(b), the Qualified Homebuyer shall provide such
information to the Agency as promptly as feasible.
(d) Upon its final confirmation of approval of the Adjusted Family Income
and Affordable Housing Cost eligibility of the Successor-In-Interest to acquire the New
Home, the Agency shall deliver a written acknowledgment and approval of the resale of
the New Home to the Successor-In-Interest in recordable form to the escrow holder
referenced in Section 4(b)(iv) above, and thereafter the Successor-In-Interest may acquire
the New Home subject to the satisfaction of the following conditions:
(i) the recordation of the Notice of Agency Concurrence executed
by the Successor-In-Interest and the Agency at the close of the
resale escrow;
(ii) the escrow holder shall have provided the Agency with a copy
of the customary form of the final escrow closing statement of
the Qualified Homebuyer and the final escrow closing
statement for the Successor- In- Interest; and
(iii) the other conditions of the resale escrow as established by the
Qualified Homebuyer and Successor- In-Interest shall have
been satisfied.
(e) The Qualified Homebuyer for itself, its successors and assigns hereby
covenants and agrees that during the Qualified Residence Period the New Home shall not
be leased, subleased, or rented to any third person, except for a temporary period (not to
exceed 12 months) in the event of an emergency or other unforeseen circumstance as may
be expressly approved in writing by the Agency subject to compliance during the
temporary rental period with the reasonable temporary rental occupancy conditions
required by the Agency. The Qualified Homebuyer shall submit a written request to the
Agency prior to the commencement of the temporary occupancy, as practicable, but in
any event within not more than (60) days following the commencement of a temporary
rental occupancy of the New Home by a third party, which notice shall set forth the
8
SB2001 :37093.1
grounds on which the Qualified Homebuyer believes an emergency or other unforeseen
circumstance has occurred and that a temporary rental occupancy in necessary.
Section 5. Maintenance Condition of the New Home. The Qualified
Homebuyer, for itself, its successors and assigns, hereby covenants and agrees that:
(a) The exterior areas of the New Home which are subject to public view
(e.g.: all improvements, paving, walkways, landscaping, and ornamentation) shall be
maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear
excepted. In the event that at any time during the term of the Qualified Residence Period,
there is an occurrence of an adverse condition on any area of the New Home which is
subject to public view in contravention of the general maintenance standard described
above, (a "Maintenance Deficiency") then the Agency shall notify the Qualified
Homebuyer in writing of the Maintenance Deficiency and give the Qualified Homebuyer
thirty (30) days from the date of such notice to cure the Maintenance Deficiency as
identified in the notice. The words "Maintenance Deficiency" include without limitation
the following inadequate or non-confirming property maintenance conditions and/or
breaches of single family dwelling residential property use restrictions:
failure to properly maintain the windows, structural elements, and painted
exterior surface areas of the dwelling unit in a clean and presentable
manner;
failure to keep the front and side yard areas of the property free of
accumulated debris, appliances, inoperable motor vehicles or motor
vehicle parts, or free of storage of lumber, building materials or equipment
not regularly in use on the property;
failure to regularly mow lawn areas or permit grasses planted in lawn
areas to exceed nine inches (9") in height, or failure to otherwise maintain
the landscaping in a reasonable condition free of wed and debris;
parking of any commercial motor vehicle in excess of 7,000 pounds gross
weight anywhere on the property, or the parking of motor vehicles, boats,
camper shells, trailers, recreational vehicles and the like in any side yard
or on any other parts of the property which are not covered by a paved and
impermeable surface;
the use of the garage area of the dwelling unit for purposes other than the
parking of motor vehicles and the storage of personal possessions and
mechanical equipment of persons residing in the New Home.
In the event the Qualified Homebuyer fails to cure or commence to cure the
Maintenance Deficiency within the time allowed, the Agency may thereafter conduct a
public hearing following transmittal of written notice thereof to the Qualified Homebuyer
ten (10) days prior to the scheduled date of such public hearing in order to verify whether
9
SB2001 :37093.1
a Maintenance Deficiency exists and whether the Qualified Homebuyer has failed to
comply with the provision of this Section 5(a). If, upon the conclusion of a public
hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there
appears to be non-compliance with the general maintenance standard, as described above,
thereafter the Agency shall have the right to enter the New Home (exterior areas only)
and perform all acts necessary to cure the Maintenance Deficiency, or to take other action
at law or equity the Agency may then have to accomplish the abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the abatement of a
Maintenance Deficiency as authorized by this Section 5(a) shall become a lien on the
New Home. If the amount of the lien is not paid within thirty (30) days after written
demand for payment by the Agency to the Qualified Homebuyer, the Agency shall have
the right to enforce the lien in the manner as provided in Section 5( c).
(b) Graffiti which is visible from any public right-of-way which is adjacent or
contiguous to the New Home shall be removed by the Qualified Homebuyer from any
exterior surface of a structure or improvement on the New Home by either painting over
the evidence of such vandalism with a paint which has been color-matched to the surface
on which the paint is applied, or graffiti may be removed with solvents, detergents or
water as appropriate. In the event that graffiti is placed on the New H~me (exterior areas
only) and such graffiti is visible from an adjacent or contiguous public right-of-way and
thereafter such .graffiti is not removed within 72 hours following the time of its
application; then in such event and without notice to the Qualified Homebuyer, the
Agency shall have the right to enter the New Home and remove the graffiti.
Notwithstanding any provision of Section 5(a) to the contrary, any sum expended by the
Agency for the removal of graffiti from the New Home as authorized by this Section 5(b)
shall become a lien on the New Home. If the amount of the lien is not paid within thirty
(30) days after written demand for payment by the Agency to the Qualified Homebuyer,
the Agency shall have the right to enforce its lien in the manner as provided in Section
5(c).
(c) The parties hereto further mutually understand and agree that the rights
conferred upon the Agency under this Section 4 expressly include the power to establish
and enforce a lien or other encumbrance against the New Home in the manner provided
under Civil Code Sections 2924, 2924b and 2924c in the amount as reasonably necessary
to restore the New Home to the maintenance standard required under Section 5(a) or
Section 5(b), including attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and the collection of the
costs of the Agency in connection with such action. In any legal proceeding for
enforcing such a lien against the New Home, the prevailing path shall be entitled to
recover its attorneys' fees and costs of suit. The provisions of this Section 5, shall be a
covenant running with the land for the Qualified Residence Period and shall be
enforceable by the Agency in its discretion, cumulative with any other rights or powers
granted by the Agency under applicable law. Nothing in the foregoing provisions of this
Section 5 shall be deemed to preclude the Qualified Homebuyer from making any
alterations, additions, or other changes to any structure or improvement or landscaping on
the New Home, provided that such changes comply with the zoning and development
10
SB2001:3709J.1
regulations of the City and other applicable law.
Section 6. rRESERVED/NO TEXTl
Section 7. Foreclosure of Purchase Monev Mortl!al!e Loan of the First
Mortl!al!e Lender and Al!encv Ril!ht of First Refusal.
(a) During the Qualified Residence Period the Agency shall have the right
(but not the obligation) to bid on the purchase of mortgage loan lien of the First
Mortgage Lender secured by the New Home at the time of any trustee foreclosure sale or
any judicial foreclosure sale.
(b) During the Qualified Residence Period the Agency shall have the right of
first refusal to purchase the New Home from the Qualified Homebuyer on the same terms
which the Qualified Homebuyer may propose to offer the New Home for resale to a
Success- In-Interest. The Agency must exercise such a right of first refusal within thirty
(30) days following written notification of the intention of the Qualified Homebuyer to
resell the New Home, and if the Agency accepts the offer in writing within such time
period the Agency shall be bound to complete the purchase of the New Home strictly in
accordance with the offer. Thereafter the Agency shall pay the "resale price" to the
Qualified Homebuyer and close an escrow for the transfer of the New Home to the
Agency within sixty (60) days following written notification of the intention of the
Qualified Homebuyer to resell the New House. The Qualified Homebuyer shall deliver
possession of the New Home to the Agency free and clear of all occupancies, liens and
encumbrances except for the lien of current property taxes not yet payable, and with
merchantable title in a condition satisfactory to the Agency.
Section 8. Covenants to Run With the Land. The Developer, the Agency and
the Qualified Homebuyer hereby declare their specific intent that the covenants,
reservations and restrictions set forth herein are part of a common plan for the
rehabilitation of affordable single family housing improvements within the territorial
jurisdiction of the Agency and that each shall be deemed covenants running with the land
and shall pass to and be binding upon the New Home and each Successor-In-Interest of
the Qualified Homebuyer in the New Home for the term provided in Section 10. The
Qualified Homebuyer hereby expressly assumes the duty and obligation to perform each
of the covenants and to honor each of the reservations and restrictions set forth in this
Covenant. Each and every contract, deed or other instrument hereafter executed covering
or conveying the New Home or any interest therein shall conclusively be held to have
been executed, delivered and accepted subject to such covenants, reservations, and
restrictions, regardless of whether such covenants, reservations and restrictions are set
forth in such contract, deed or other instrument.
Section 9. Burden and Benefit. The Developer, the Agency and the Qualified
Homebuyer hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land in that the Qualified Homebuyer's
legal interest in the New Home is affected by the affordable single family dwelling use
11
SB2001 :37093.1
and occupancy covenants hereunder. The Agency and the Qualified Homebuyer hereby
further declare their understanding and intent that the benefit of such covenants touch and
concern the land by enhancing and increasing the enjoyment and use of the New Home
by the intended beneficiaries of such covenants, reservations and restrictions, and by
furthering the affordable single family housing development goals and objectives of the
Agency and in order to make the New Home available for acquisition and occupancy by
the Qualified Homebuyer.
Section 10. Term.
(a) The provisions of Section 4 and Section 7 of this Covenant shall apply to
the New Home and the Qualified Homebuyer and to each Successor-In-Interest as of the
Delivery Date for ten (10) years after the Delivery Date. [Editor's Note: 20 YEARS IN
THE CASE OF THE HOME PROGRAM]
(b) All of the other provisions of this Covenant shall apply to the New Home
for a term of thirty (30) years after the Delivery Date.
(c) Any provision or section of this Covenant may be terminated after the
Delivery Date upon agreement by the Agency and the Qualified Homebuyer (or the
Successor-In-Interest in the New Home), if there shall have been provided to the Agency
an opinion of special legal counsel acceptable to the agency that such a termination,
under the terms and conditions approved by the Agency in its reasonable discretion, will
not impose an unfunded financial obligation on the Agency or otherwise adversely affect
the affordable single family housing and development goals of the Agency.
Section 11. Breach and Default and Enforcement.
(a) Failure or delay by the Qualified Homebuyer to honor or perform any
material term or provision of this Covenant shall constitute a breach under this
Agreement; provided however, that if the Qualified Homebuyer commences to cure,
correct or remedy the alleged breach within thirty (30) calendar days after the date of
written notice specifying such breach and shall diligently complete such cure, correction
or remedy, the Qualified Homebuyer shall not be deemed to be in default hereunder.
The Agency shall give the Qualified Homebuyer written notice of breach
specifying the aIleged breach which if uncured by the Qualified Homebuyer within thirty
(30) calendar days, shall be deemed to be an event of default. Delay in giving such
notice shall not constitute a waiver of any breach or event of default nor shall it change
the time of breach or event of default; provided, however, the Agency shall not exercise
any remedy for an event of default hereunder without first delivering the written notice of
breach as specified in this Section 11.
Except with respect to rights and remedies expressly declared to be exclusive in
this Covenant, the rights and remedies of the Agency are cumulative with any other right
or power of the Agency or the City or other applicable law, and the exercise of one or
12
5B2001:37093.1
more of such rights or remedies shall not preclude the exercise by the Agency at the same
or different times, of any other right or remedy for the same breach or event of default.
In the event that a breach of the Qualified Homebuyer may remain incurred for
more than thirty (30) calendar days following written notice, as provided above, an event
of default shall be deemed to have occurred. In addition to the remedial provisions of
Section 5 as related to a Maintenance Deficiency at the New Home, upon the occurrence
of any event of default the Agency shall be entitled to seek any appropriate remedy or
damages by initiating legal proceedings as follows:
(i) by mandamus or other suit, action or proceeding at law or in
equity, to require the Qualified Homebuyer to perform its
obligations and covenants hereunder, or enjoin any acts or
things which may be unlawful or in violation of the rights of
the Agency; or
(ii) by other action at law or in equity as necessary or convenient to
enforce the obligations, covenants and agreements of the
Qualified Homebuyer or the Developer to the Agency.
(b) No third party shall have any right or power to enforce any provision of
this Covenant on behalf of the Agency or to compel the Agency to enforce any provision
of this Covenant against the Qualified Homebuyer or the New Home; provided however,.
that the City of San Bernardino may enforce the provisions of this Covenant as the
successors to the Agency for the enforcement of the affordable housing goals and
programs of the Agency.
Section 12. Governinl! Law. This Covenant shall be governed by the laws of
the State of California.
Section 13. Amendment. This Covenant may be amended after the Delivery
Date only by a written instrument executed by the Qualified Homebuyer (or the
Successor-In-Interest, as applicable) and by the Agency. The Developer shall have not
any right or power to approve any such amendment to this Covenant, and the execution
by the Developer of any such amendment after the Delivery Date shall not be required.
Section 14. Attornev's Fees. In the event that the Agency brings an action to
enforce any condition or covenant, representation or warranty in this Covenant or
,. otherwise arising out ofthis Covenant, the prevailing party in such action shall be entitled
to recover from the other party reasonable attorneys' fees to be fixed by the court in
which a judgment is entered, as well as the costs of such action. In the case of the
Agency, the words "reasonable attorney's fees" refer to the salaries and benefits of
lawyers employed by the Office of the City Attorney of the City of San Bernardino,
computed on an hourly basis, who provide legal services to the Agency in connection
with any such action.
13
SB2001:37093.1
Section 15. Severability. If any provision of this Covenant shall be declared
invalid, inoperative or unenforceable by a final judgment or order of a court of competent
jurisdiction, such invalidity or unenforceability of such provision shall not affect the
remaining parts of this Covenant which are hereby declared by the parties to be severable
from any other part which is found by a court to be invalid or unenforceable.
Section 16. Time is of the Essence. For each provision of this Covenant which
states a specific amount of time within which the requirements thereof are to be satisfied,
time shall be deemed to be of the essence.
Section 17. Notice. Any notice required to be given under this Covenant shall
be given by the Agency or by the Qualified Homebuyer, as applicable, by personal
delivery or by First Class United States mail at the addresses specified below or at such
other address as may be specified in writing by the parties hereto:
If to the Agency:
Executive Director
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Phone: (909) 663-1044
If to the
Qualified Homebuyer:
Attn:
Phone:
Notice shall be deemed given five (5) calendar days after the date of mailing to the party,
or, if personally delivered, when received by the Executive Director of the Agency or the
Qualified Homebuyer, as applicable.
14
SB2oo1:37093.1
IN WITNESS WHEREOF, the Developer, the Qualified Homebuyer and the
Agency have caused this Covenant to be signed, acknowledged and attested on their
behalf by duly authorized representatives in counterpart original copies which shall upon
execution by all of the parties be deemed to be one original document. The recordation
of this Covenant is authorized under Health and Safety Code Section 33334.3(g). [24
Code of Federal Regulations Part 92].
QUALIFIED HOMEBUYER
Dated:
By:
By:
DEVELOPER
ANR Industries, Inc., a Corporation
Corporation
Dated:
By:
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated:
By:
Executive Director
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
Agency Counsel
15
SB2001 :37093.1
EXHIBIT "A"
Legal Description ofthe New Home
16
SB2001 :37093.1
,
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 12:-/1-01 Item # ~~~_
Vote: Ayes \- c" Nays -0' Abstain
Change to motion to amend original documents:
Resolution ~ _~rx~1260I-S']_~_.__
..fl-- Absent~_~_____
Reso. # On Attachments: ,,/ Contract term:
Note on Resolution of Attachment stored separately: _==-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD WCOUNTY
Date Sent to Mayor:
l"2-~\"'-()\
Date of Mayor's Signature:
Date ofClerk/CDC Signature:
1"2-1'1-(; \
12- ,-6--0 \
Date Memo/Letter Sent for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached:
See Attached:
See Attached:
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:
NullNoid After_~D~.i'b=lS-(>'-_
By: _____~~_
Reso. Log Updated ....-..-
Seal Impressed: __~_J.:::'..___________.
Date Retumed: 12.- 2!:;--c) I
Ves L No By
Ves No ,/ By
Ves NoL By
Ves No -Y' By
Ves 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: 12-2.1-01
Revised 01112/01