HomeMy WebLinkAbout04-03-2019 Agenda BackupCITY OF SAN BERNARDINO
AGENDA
FOR THE
JOINT REGULAR MEETING OF THE MAYOR AND CITY COUNCIL
OF THE CITY OF SAN BERNARDINO, MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS
THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY, MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO ACTING AS THE SUCCESSOR HOUSING AGENCY TO THE REDEVELOPMENT AGENCY, MAYOR AND
CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE HOUSING AUTHORITY, AND THE MAYOR AND
CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE SAN BERNARDINO JOINT POWERS FINANCING
AUTHORITY
WEDNESDAY, APRIL 3, 2019
5:30 PM – CLOSED SESSION 7:00 PM – OPEN SESSION
COUNCIL CHAMBER • 201 NORTH E STREET • SAN BERNARDINO, CA 92401 • WWW.SBCITY.ORG
Theodore Sanchez John Valdivia James Mulvihill
COUNCIL MEMBER, W ARD 1 MAYOR COUNCIL MEMBER, WARD 7
Sandra Ibarra
Andrea M. Miller
COUNCIL MEMBER, W ARD 2 CITY MANAGER
Vacant Gary D. Saenz
COUNCIL MEMBER, W ARD 3 CITY ATTORNEY
Fred Shorett Georgeann “Gigi” Hanna
COUNCIL MEMBER, W ARD 4 CITY CLERK
Henry Nickel David Kennedy
COUNCIL MEMBER, W ARD 5 CITY TREASURER
Bessine L. Richard
COUNCIL MEMBER, W ARD 6
Welcome to a meeting of the Mayor and City Council of the City of San Bernardino.
o Anyone who wishes to speak during public comment or on a particular item will be required to fill out a
speaker slip. Speaker slips must be turned in to the City Clerk. You may email your request to speak
to publiccomments@sbcity.org prior to 4 p.m. Each request will cover one speaker. Those who wish
to speak must submit their own request to be called on by the Mayor.
o There is a 3-minute-per-person time limit for all comments, excluding public or quasi-judicial
hearings.
o Written comment on any item may also be submitted to the City Clerk to be included in the meeting
record. It will not be read aloud by the City Clerk.
o Those who wish to speak on public or quasi-judicial hearing items will have three minutes for each item.
o All who wish to speak, including Council members and staff, need to be recognized by the Mayor or
Mayor Pro Tempore before speaking.
o Please contact the City Clerk’s Office (384-5002) two working days prior to the meeting for any
requests for reasonable accommodation to include interpreters.
o All documents for public review are on file with the City Clerk’s Office or may be accessed online by
going to www.sbcity.org.
o Please turn off or mute your cell phone while the meeting is in session.
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 2 Printed 3/29/2019
o
Call to Order
Attendee Name Present Absent Late Arrived
Council Member, Ward 1 Theodore Sanchez
Council Member, Ward 2 Sandra Ibarra
Council Member, Ward 3 Vacant
Council Member, Ward 4 Fred Shorett
Council Member, Ward 5 Henry Nickel
Council Member, Ward 6 Bessine L. Richard
Council Member, Ward 7 James Mulvihill
Mayor John Valdivia
City Clerk Georgeann "Gigi" Hanna
City Attorney Gary D. Saenz
City Manager Andrea M. Miller
CLOSED SESSION
PUBLIC COMMENTS ON CLOSED SESSION ITEMS
A three-minute limitation shall apply to each member of the public who wishes to
address the Mayor and City Council and the Mayor and City Council Acting as the
Successor Agency to the Redevelopment Agency. No member of the public shall
be permitted to “share” his/her three minutes with any other member of the public.
A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Pursuant to
Government Code Section 54956.9(a) and (d)(1)):
i. Irma Jacko v. City of San Bernardino , Workers’ Comp. Claim No. CSBY-
9847
ii. Sencio Chavez v. City of San Bernardino, Workers’ Comp. Claim No.
CSBY-10440
iii. Josh Fisher v. City of San Bernardino, WCAB Case No. ADJ10134510
iv. Michael Janzen v. City of San Bernardino, WCAB Case Nos.
ADJ1632425; ADJ3944218; ADJ7154180; and ADJ7307544
v. Michael Smith v. City of San Bernardino , WCAB Case Nos. ADJ3199307;
ADJ7116811; ADJ8586449; and ADJ8586447
B. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION
Initiation of litigation - Government Code Section 54956.9(d)(4):
One case.
C. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Pursuant to Government
Code Section 54957(b)(1)):
City Manager
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 3 Printed 3/29/2019
D. CONFERENCE WITH REAL PROPERTY NEGOTIATORS – Pursuant to
Government Code Section 54956.8:
i. Property Address: N. Harris Street – APN 0144-131-
21
Agency Negotiator: Andrea Miller, City Manager
Negotiator: Felipe Del Real Soto and Ruben Castaneda Calderon
Under Negotiation: Price and Terms of Payment
INVOCATION AND PLEDGE OF ALLEGIANCE
CLOSED SESSION REPORT
PRESENTATIONS
1. Chamber of Commerce & Local Elected Officials Announcements
2. Proclamation for DMV/Donate Life California Month
3. National Library Week (April 7-13, 2019) Proclamation – Ed Erjavek
4. Proclamation for Child Abuse Prevention Month - San Bernardino County
Children’s Network
PUBLIC COMMENTS FOR ITEMS LISTED AND NOT LISTED ON THE AGENDA
A three-minute limitation shall apply to each member of the public who wishes to address
the Mayor and City Council on any item on the agenda. There is no limit to the number of
items that may be discussed within the three-minute time limit. To be called on by the
Mayor, please turn in individual speaker slips to the City Clerk by 5:00 p.m. the day of the
meeting. If you wish, you may email your speaking request to publiccomments@sbcity.org
prior to the beginning of the meeting. Emailed requests to speak will not be accepted from
anyone but the person requesting to speak.
CONSENT CALENDAR
There will be no separate discussion of Consent Calendar items unless a Council
member requests that the item be considered in its normal sequence on the agenda.
Public comment on Consent Calendar items is limited to three minutes total per
person. There is no limit on the items that can be discussed within that time.
5. Waive Full Reading of Resolutions and Ordinances
Recommendation: Waive full reading of Resolutions and Ordinances on
the agenda dated April 3, 2019.
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 4 Printed 3/29/2019
6. City Council Approval of Commercial and Payroll Checks
Recommendation: Approve the commercial and payroll checks for March
2019.
7. City Council Approval of Draft Minutes
Recommendation: Approve the minutes of the Mayor and City Council
Special Meeting of January 28, 2019.
8. Amendment Number Three to the Agreement with R.T. Desai & Associates
for Accounting Consultant Services
Recommendation: Adopt Resolution No. 2019-53 of the Mayor and City
Council of the City of San Bernardino, California,
authorizing the execution of Amendment Number
Three to the Professional Services Agreement
between the City of San Bernardino and consultant
R.T. Desai & Associates for Accounting Services in
the amount of $175,000 for a total amount not to
exceed $515,000.
9. Imposing Liens to Recover Costs for Code Enforcement Abatement
Recommendation: Adopt Resolution No. 2019-50 of the Mayor and City
Council of the City of San Bernardino, California,
imposing liens on certain real property located within
the City of San Bernardino for the cost of public
nuisance abatements.
10. Authorization to Increase Konica Minolta’s Yearly Maintenance PO from
$74,800 to an Amount Not to Exceed $100,000
Recommendation: Authorize the City Manager or her designee to
approve an increase in the Konica Minolta annual
maintenance purchase order in an amount not to
exceed $100,000.
11. Legislative Update and Census 2020 Support
Recommendation: Receive and file the Legislative Update and adopt
Resolution No. 2019-51 of the Mayor and City Council
Affirming Support for the 2020 Census.
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 5 Printed 3/29/2019
12. Lease Agreement – Vanir Tower Building, Inc.
Recommendation: Authorize the City Manager to execute two, six month
lease extensions to the lease agreement between
Vanir Tower Building, Inc. (290 North D Street, San
Bernardino, California – APN 0134-311-42-0000) and
the City of San Bernardino extending the Lease
agreement through April 15, 2020.
13. Sale of HOME- Assisted Properties
Recommendation: Approve the sale of two HOME-assisted properties,
consisting of nine rental units, from Frazee
Community Center to 7 Arrow Properties, LLC; and
authorize the City Manager or designee to take any
further actions and execute additional documents as
necessary to effectuate the sale.
14. Amendments to the Professional Services Agreements with Cole Huber
LLP and the Retainer Agreement with Manning & Kass Ellrod, Ramirez,
Trester LLP
Recommendation: Adopt Resolution No. 2019-54, authorizing the City
Manager to execute Amendments to the Professional
Services Agreements with Cole Huber LLP
(Resolution Nos. 2015-45; Resolution 2016-160; and
Resolution 2017-69) and Manning & Kass Ellrod,
Ramirez, Trester, LLP.
STAFF REPORTS
15. Further Review and Discussion of the Mid-Year Financial Review – Fiscal
Year 2018/19
Recommendation: Further review and discuss the Mid-Year Financial
Review-Fiscal Year 2018/19, review and consider
alternatives to address the deficit in the Gas Tax Fund
and Maintenance of Obligation Effort (MOE), and
provide direction.
16. Implementation of a Neighborhood Resource Center, Matching Grants
Fund Program and Leadership Program
Recommendation: Review, discuss and consider the proposed
Neighborhood Resource Center, Matching Grant
Program and Leadership Program.
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 6 Printed 3/29/2019
17. Commercial Cannabis Business Update
Recommendation: 1. Review update on Commercial Cannabis Business
applications that were approved by the City
Council;
2. Direct staff to proceed with an Amendment to the
Development Code; and
3. Consider taking additional action related to those
applications that were not approved, or consider
Amendments to the existing Commercial Cannabis
Business Ordinance (Ord. MC-1503).
18. Selection of SCAG Regional Council District 7 Election Voting Members
Recommendation: Approve the selection of five voting members for the
2019 Southern California Association of Governments
(SCAG) Regional Council District 7 Election on Friday,
April 5, 2019 at 5:30 p.m. at the SCAG San Bernardino
Regional Office, Historic Santa Fe Depot, 1170 West
Third Street, Suite 140, San Bernardino, California.
19. Oral Update on discussions regarding Boys and Girls Club
Recommendation: Receive an oral update on discussions regarding the
Boys and Girls Club.
PUBLIC HEARING
20. Business Registration Liens
Recommendation: Adopt Resolution No. 2019-52 of the Mayor and City
Council of the City of San Bernardino, California,
imposing liens on certain properties for unpaid
business registration taxes and penalties and instruct
the Director of Finance to remove any properties from
the Business Registration Lien List (Exhibit A to the
Resolution) which are resolved prior to the hearing.
MAYOR AND CITY COUNCIL INITIATED ITEMS
21. Cancellation of April 17, 2019 City Council Meeting
Recommendation: Approve the cancelation of the April 17, 2019 City
Council Meeting and adjourn the April 3, 2019
meeting to May 1, 2019.
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 7 Printed 3/29/2019
22. Analysis on Expanding Security Camera Program – for discussion
23. Reactivating Cannabis Committee, Citizen Advisory Committee and ensure
that Charter Committee is still meeting – for discussion
24. Discussion on Bringing Back the City Clerk to Closed Session – for
discussion
25. Arden Guthrie Project w/Mark Development – Attached Project Summary
Provided to MCC via Email on March 27, 2019
26. Mayor and City Council Meeting Location – IVDA License Agreement
scheduled for May 1, 2019 Agenda
27. Food Truck Regulations – for discussion
28. Community Oriented Policing and Problem Solving (COPPS) Plan
Implementation – FY2018/19 Budget Amendment for City Council approved
Option 1 (Annual Cost $336,270.53) scheduled for May 1, 2019 Agenda
29. Draft Censure Policy (attached) and Censure – for discussion
ADJOURNMENT
The next joint regular meeting of the Mayor and City Council and the Mayor and City
Council Acting as the Successor Agency to the Redevelopment Agency will be held on
Wednesday, April 17, 2019 in the Council Chamber located at 201 North “E”
Street, San Bernardino, California 92401. Closed Session will begin at 5:30 p.m. and
Open Session will begin at 7:00 p.m.
CERTIFICATION OF POSTING AGENDA
I, Georgeann “Gigi” Hanna, MMC, City Clerk for the City of San Bernardino, California,
hereby certify that the agenda for the April 3, 2019 regular meeting of the Mayor and
City Council and the Mayor and City Council acting as the Successor Age ncy to the
Redevelopment Agency was posted on the City’s bulletin board located at 201 North “E”
Street, San Bernardino, California, at the San Bernardino Public Library, and on the
City’s website www.ci.san-bernardino.ca.us on Friday, March 29, 2019.
I declare under the penalty of perjury that the foregoing is true and correct.
Georgeann “Gigi” Hanna, MMC, City Clerk
Regular Meeting Agenda April 3, 2019
Mayor and City Council of the City of San Bernardino Page 8 Printed 3/29/2019
NOTICE: Any member of the public may address this meeting of the Mayor and City
Council and the Mayor and City Council Acting as the Successor Agency to the
Redevelopment Agency on any item appearing on the agenda by approaching the
microphone in the Council Chamber when the item about which the member desires to
speak is called and by asking to be recognized.
Any member of the public desiring to speak to the Mayor and City Council and the
Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency
concerning any matter not on the agenda but which is within the subject matter
jurisdiction of the Mayor and City Council and the Mayor and City Council Acting as the
Successor Agency to the Redevelopment Agency may address the body at the end of
the meeting, during the period reserved for public comments. Said total period for
public comments shall not exceed 60 minutes , unless such time limit is extended
by the Mayor and City Council and the Mayor and City Council Acting as the
Successor Agency to the Redevelopment Agency. A three minute limitation shall
apply to each member of the public, unless such time limit is ext ended by the Mayor
and City Council and the Mayor and City Council Acting as the Successor Agency to the
Redevelopment Agency. No member of the public shall be permitted to “share” his/her
three minutes with any other member of the public.
Speakers who wish to present documents to the governing body may hand the
documents to the City Clerk at the time the request to speak is made.
The Mayor and City Council and the Mayor and City Council Acting as the Successor
Agency to the Redevelopment Agency may refer any item raised by the public to staff,
or to any commission, board, bureau, or committee for appropriate action or have the
item placed on the next agenda of the Mayor and City Council and the Mayor and City
Council Acting as the Successor Agency to the Redevelopment Agency. However, no
other action shall be taken nor discussion held by the Mayor and City Council and the
Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency
on any item which does not appear on the agenda unless the action is otherwise
authorized in accordance with the provisions of subdivision (b) of Section 54954.2 of the
Government Code.
Public comments will not be received on any item on the agenda when a public hearing
has been conducted and closed.
Consent Calendar
City of San Bernardino
Request for Council Action
\
Date: April 3, 2019
To: Honorable Mayor and City Council Members
From: Gigi Hanna, City Clerk
Subject: Waive Full Reading of Resolutions and Ordinances
Recommendation:
Waive full reading of Resolutions and Ordinances on the agenda dated April 3, 2019.
5.a
Packet Pg. 9 Attachment: Waive Reading.Report_Apr 3 (6028 : Waive Full Reading of Resolutions and Ordinances)
6.a
Packet Pg. 10 Attachment: FN.Commercial Checks Payroll Report -April 03. 2019 (6029 : City Council Approval of Commercial and Payroll Checks)
2018-2019 Goals and Objectives
Approval of the check registers for commercial and payroll checks align with Goal No. 6:
Operate in a Fiscally Responsible and Business-Like Manner. The Mayor and City
Council’s approval of the City’s weekly remittances to third parties promotes
transparency of City business with the public.
Fiscal Impact
Amounts noted in the check registers have no further fiscal impact. Amounts were paid
consistent with existing budget authorization and no further budgetary impact is
required.
Conclusion
It is recommended that the attached check registers be approved by the Mayor and City
Council.
Attachments
Attachment 1 Commercial checks for Register #44
Attachment 2 Commercial checks for Register #45
Attachment 3 Payroll checks for March 2019
Ward:
Synopsis of Previous Council Actions:
6.a
Packet Pg. 11 Attachment: FN.Commercial Checks Payroll Report -April 03. 2019 (6029 : City Council Approval of Commercial and Payroll Checks)
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Packet Pg. 12 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 17 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 18 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 19 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 20 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 23 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 24 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 25 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 26 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 27 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 28 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 29 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 30 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 31 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 32 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 33 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 34 Attachment: FN.Commercial Checks & Payroll. Register #44 (6029 : City Council Approval of Commercial
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Packet Pg. 35 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 43 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 44 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 45 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 46 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 47 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 48 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 49 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 50 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 51 Attachment: FN.Commercial Checks & Payroll. Register #45 (6029 : City Council Approval of Commercial
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Packet Pg. 52 Attachment: FN.Payroll Summary Report 3M (6029 : City Council Approval of Commercial and Payroll Checks)
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Packet Pg. 53 Attachment: FN.Payroll Summary Report BW-5 (6029 : City Council Approval of Commercial and Payroll Checks)
Consent Calendar
City of San Bernardino
Request for Council Action
\
Date: April 3, 2019
To: Honorable Mayor and City Council Members
From: Gigi Hanna, MMC, City Clerk
Subject: City Council Approval of Draft Minutes
Recommendation
Approve the minutes of the Mayor and City Council Special Meeting of January 28,
2019.
7.a
Packet Pg. 54 Attachment: Minutes_Apr 3 (6053 : City Council Approval of Draft Minutes)
City of San Bernardino
290 North "D" Street
San Bernardino, CA 92401
http://www.sbcity.org
Mayor and City Council of the City of San Bernardino Page 1 Printed 1/10/2019
MINUTES
FOR THE
SPECIAL MEETING OF THE MAYOR AND CITY COUNCIL
OF THE CITY OF SAN BERNARDINO
MONDAY, JANUARY 28, 2019
6:00 PM
The Special Meeting of the Mayor and City Council of the City of San Bernardino was
called to order by Mayor John Valdivia at 6:02 p.m. on Monday, January 28, 2019, in
the Council Chamber, 201 North "E" Street, San Bernardino, CA.
Call to Order
Attendee Name Title Status Arrived
Theodore Sanchez Council Member, Ward 1 Present 6:00 PM
Sandra Ibarra Council Member, Ward 2 Present 6:00 PM
VACANT Council Member, Ward 3 VACANT ---------
Fred Shorett Council Member, Ward 4 Present 6:00 PM
Henry Nickel Council Member, Ward 5 Present 6:00 PM
Bessine L. Richard Council Member, Ward 6 Present 6:06 PM
James Mulvihill Council Member, Ward 7 Present 6:00 PM
John Valdivia Mayor Present 6:00 PM
Georgeann "Gigi" Hanna City Clerk Present 6:00 PM
Gary Saenz City Attorney Present 6:00 PM
Andrea Miller City Manager Present 6:00 PM
PLEDGE OF ALLEGIANCE
Council Member Nickel led the Pledge of Allegiance.
Mayor John Valdivia
Council Members
Theodore Sanchez
Sandra Ibarra
VACANT – Third Ward
Fred Shorett
Henry Nickel
Bessine L. Richard
James Mulvihill
7.b
Packet Pg. 55 Attachment: 1-28-19_SM_gh_draft (6053 : City Council Approval of Draft Minutes)
Special Meeting Minutes January 28, 2019
Mayor and City Council of the City of San Bernardino Page 2 Printed 3/25/2019
STAFF REPORTS
1. Presentation from the Neighborhood Association Council
Speakers
Sean Kelley
Lynne Wear
NAC President Amelia Lopez gave a presentation about the Neighborhood
Association Council and said residents and the neighborhood councils have been
left out of plans to revitalize the city and discussed several proposals for getting
involved in the effort.
No vote was taken on this item.
Adjournment
The meeting adjourned at 7:23 p.m.
The next joint regular meeting of the Mayor and City Council and t he Mayor and
City Council Acting as the Successor Agency to the Redevelopment Agency will
be held on Wednesday, February 6, 2019 in the Council Chamber located at
201 North “E” Street, San Bernardino, California 92401. Closed Session will
begin at 4:00 p.m. and Open Session will begin at 5:00 p.m.
By: __________________________
Georgeann “Gigi” Hanna, MMC
City Clerk
7.b
Packet Pg. 56 Attachment: 1-28-19_SM_gh_draft (6053 : City Council Approval of Draft Minutes)
8.a
Packet Pg. 57 Attachment: FN.R Desai Contract 2019- Staff report (6030 : Amendment Number Three to the Agreement with R.T. Desai & Associates for
On February 1, 2016, the Mayor and City Council authorized a Professional Services
Agreement between the City of San Bernardino and R.T. Desai & Associates in an
amount not to exceed $80,850 for accounting consulting services. That agreement
expired June 30, 2016. On June 20, 2016 the Mayor and Council authorized a new
12-month Professional Services Agreement, effective July 1, 2016, between the City of
San Bernardino and R.T. Desai & Associates in an amount not to exceed $90,000 for
accounting consulting services. Also, previously approved by the Mayor and City
Council were the following contract amendments: not to exceed $100,000 on May 15,
2017 and not to exceed $150,000 on April 18, 2018.
It is also important to note that the contractor has not raised rates since the original
contract approval in 2016.
Discussion
As discussed during the Mid-Year Budget Review, since 2014, the Finance Department
has seen the turnover of twenty employees. This fiscal year alone the Finance
Department has seen vacancies in four (4) high level positions: Finance Director,
Deputy Director, Principal Accountant, and Payroll Supervisor. The City is actively
working to fill these positions and recently the vacant position of Principal Accountant
was upgraded to Accounting Manager.
R.T. Desai & Associates has been performing the duties of an Independent Contractor
for the Finance Department under its existing contract since February 2016. During that
time it has been instrumental in providing the required accounting assistance that has
enabled the City to become current on all of its financial reporting obligations. That
additional assistance remains necessary at this time as key vacancies in the Accounting
Division remain. The City’s auditors have expressed concern at the City’s ability to
retain qualified staff and this will be noted in their management letter to the City at the
conclusion of the City’s annual financial audit.
The Finance Department has significant needs in the Accounting Division in order to
complete annual audits and ensure compliance with Generally Accepted Accounting
Principles (GAAP) and the Governmental Accounting Standards Board (GASB).
Additionally, there is substantial work to be completed to implement the process
changes required in accordance with the City’s audit findings and to help implement
other best practices that need to occur within the Finance Department. The Finance
Department requests a fifteen (15) month amendment to bring the term to June 30,
2020.
2018-2019 Goals and Objectives
The proposed Agreement aligns with Goal No. 6: Operate in a Fiscally Responsible and
Business-Like Manner. The City has many internal control and procedural
improvements to be made within the Finance Department in order to clear existing audit
findings and implement best practices throughout the Finance Department.
8.a
Packet Pg. 58 Attachment: FN.R Desai Contract 2019- Staff report (6030 : Amendment Number Three to the Agreement with R.T. Desai & Associates for
Fiscal Impact
The total cost to the City for the amendment is up to $175,000. There are sufficient
resources in the FY 2018/19 Budget and 2019/20 Proposed Budget to fund these
charges in account No: 001-120-0039*5502. Additionally, if vacancies remain, salary
savings will fund this contract until positions can be filled.
Conclusion
It is recommended that the Mayor and City Council adopt Resolution No. 2019-53
authorizing the execution of Amendment Number Three to the Professional Services
Agreement between the City of San Bernardino and consultant R.T. Desai & Associates
for Accounting Services in the amount of $175,000 for a total amount not to exceed
$515,000.
Attachments
Attachment 1 Resolution; Exhibit A- Amendment Number Three
Attachment 2 Consulting Services Agreement dated June 20, 2016.
Ward: All
Synopsis of Previous Council Action:
April 14, 2018- Mayor and City Council adopted Resolution No. 2018-113
8.a
Packet Pg. 59 Attachment: FN.R Desai Contract 2019- Staff report (6030 : Amendment Number Three to the Agreement with R.T. Desai & Associates for
Resolution No. 2019-53
RESOLUTION NO. 2019-53 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE EXECUTION OF AMENDMENT
NUMBER THREE TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND CONSULTANT R.T. DESAI &
ASSOCIATES FOR ACCOUNTING SERVICES IN THE
AMOUNT OF $175,000 FOR A TOTAL AMOUNT NOT TO
EXCEED $515,000
WHEREAS, on April 14, 2018, the Mayor and City Council authorized a Professional
Services Agreement Amendment Number 2 between the City of San Bernardino and R.T.
Desai & Associates in an amount not to exceed $340,000 for accounting consulting services;
and
WHEREAS, the City of San Bernardino has determined that significant needs remain in the
Accounting section of the Finance Department and professional accounting consulting services
from R.T. Desai & Associates are required and in the best interest of the City.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City M anager is hereby authorized and directed to execute
Amendment No. Three to the professional services agreement with R.T. Desai & Associates to
continue to provide assistance to the Finance Department, and increase the amount of the
contract by $175,000 for a total amount not to exceed $515,000 through June 30, 2020.
SECTION 2. The authorization granted hereunder shall expire and be void of no further
effect if the Agreement is not executed by both parties and returned to the Office of the City
Clerk within sixty (60) days following the effective date of this resolution.
SECTION 3. The Director of Finance or designee is hereby authorized to increase the
purchase order issued to R.T. Desai & Associates by $175,000.
SECTION 4. That the City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
8.b
Packet Pg. 60 Attachment: FN.R Desai Contract 2019- Attachment 1 Resolution (6030 : Amendment Number Three to the Agreement with R.T. Desai &
Resolution No. 2019-53
SECTION 5. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 6. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this ___ day of __________, 2019.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
8.b
Packet Pg. 61 Attachment: FN.R Desai Contract 2019- Attachment 1 Resolution (6030 : Amendment Number Three to the Agreement with R.T. Desai &
Resolution No. 2019-53
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO)
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
VACANT _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2019.
______________________________
Georgeann Hanna, MMC, City Clerk
8.b
Packet Pg. 62 Attachment: FN.R Desai Contract 2019- Attachment 1 Resolution (6030 : Amendment Number Three to the Agreement with R.T. Desai &
AMENDMENT NUMBER THREE TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
R.T. DESAI & ASSOCIATES FOR ACCOUNTING SERVICES
THIS AMENDMENT NUMBER THREE is made and entered into as of April 3,
2019, by and between the CITY OF SAN BERNARDINO (“CITY”) and R.T. DESAI &
ASSOCIATES (“CONSULTANT”).
Whereas, On April 14, 2018 the CITY and CONSULTANT entered into that
certain agreement entitled “Professional Services Agreement between the City of
San Bernardino and R.T. Desai & Associates” (“Agreement”) for $340,000.
Now, therefore, in consideration of the mutual covenants and conditions set forth
herein, the parties agree as follows:
1. Section 2.0 Compensation is hereby amended to increase the amount by $175,000
for a total amount not to exceed $515,000 through the period ending June 30,
2020.
2. Except for the changes specifically set forth herein, all other terms and conditions
of the Agreement shall remain in full force and effect.
IN WITNESS THEREOF, the parties hereto have executed this Amendment
Number Two to be executed by and through their respective authorized officers, as of the date
first above written.
CITY OF SAN BERNARDINO CONSULTANT
By:_________________________________ By:___________________________
Andrea M. Miller R.T. Desai & Associates
City Manager
APPROVED AS TO FORM: ATTEST:
Gary D. Saenz, City Attorney
By:_________________________________ By:___________________________
Georgeann Hanna, CMC, City Clerk
1
8.c
Packet Pg. 63 Attachment: FN.R Desai Contract 2019- Attachment 1 Exhibit A (6030 : Amendment Number Three to the Agreement with R.T. Desai &
8.d
Packet Pg. 64 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 65 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 66 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 67 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 68 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 69 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 70 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
8.d
Packet Pg. 71 Attachment: FN.R Desai Contract 2019- Attachment 2 Consulting Services Agreement (6030 : Amendment Number Three to the Agreement with
9.a
Packet Pg. 72 Attachment: PD.Imposing Liens to Recover Costs- Staff Report (6031 : Imposing Liens to Recover Costs for Code Enforcement Abatement)
date, no responses have been received. Therefore, staff recommends adopting the
Resolution in order to assess such unpaid costs of abatement.
The owners of properties listed on the Abatement Assessments List have been notified
of this meeting and provided with an additional copy of the Statement of Costs. If
owners come forward to pay their costs prior to the public hearing, their properties will
be removed from Exhibit A.
2018-19 Goals and Objectives
The request to impose liens to recover costs for Code Enforcement abatement aligns
with Goal Number 4: Ensure Development of a Well-Planned, Balanced, and
Sustainable City. Imposing liens to resolve public nuisances would ensure that the City
is clean and attractive.
Fiscal Impact
The anticipated amount to be collected is $71,571.65. The amount will be collected
incrementally as individual properties are sold and/or liens are paid through the escrow
process.
Conclusion
It is recommended that the Mayor and City Council adopt Resolution No. 2019-50,
imposing liens on certain real property located within the City of San Bernardino for the
cost of public nuisance abatements.
Attachments
Attachment 1 Resolution; Exhibit A - Abatement Assessments List
Ward:
Synopsis of Previous Council Actions:
On December 12, 2018, the Mayor and City Council adopted Resolution No. 2018-312, imposing
liens on certain real property located within the City of San Bernardino for the costs of public
nuisance abatements.
On August 1, 2018, the Mayor and City Council adopted Resolution No. 2018-222, imposing liens
on certain real property located within the City of San Bernardino for the cost of public nuisance
abatements.
On April 18, 2018, the Mayor and City Council adopted Resolution 2018-106, imposing liens on
certain real property located within the City of San Bernardino for the costs of public nuisance
abatements.
3/29/2019 10:16 AM
9.a
Packet Pg. 73 Attachment: PD.Imposing Liens to Recover Costs- Staff Report (6031 : Imposing Liens to Recover Costs for Code Enforcement Abatement)
Resolution No. 2019-50
RESOLUTION NO. 2019-50 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
IMPOSING LIENS ON CERTAIN REAL PROPERTY
LOCATED WITHIN THE CITY OF SAN BERNARDINO
FOR THE COST OF PUBLIC NUISANCE ABATEMENTS
WHEREAS, the City of San Bernardino, pursuant to its authority under Chapter 8.30 of
the San Bernardino Municipal Code, did lawfully cause public nuisances to be abated on the
properties described in the Abatement Assessments List, a copy of which is attached hereto and
incorporated herein as Exhibit A, in this Resolution; and
WHEREAS, notice of the abatement costs were given to the owners of record of said
properties, and any timely requested hearing has heretofore been held to hear protests of the costs
of said abatement before the Administrative Hearing Office, who determined the owner of record
is responsible for the costs.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. Said costs are found to have been incurred by the City pursuant to
proceedings under the San Bernardino Municipal Code, and the final statement of costs on file
with the City Clerk is hereby confirmed and adopted as special assessments against the
properties list in Exhibit A.
SECTION 3. Said sum shall become a lien on said property pursuant to San Bernardino
Municipal Code 8.30.050 and shall be collected as a special assessment.
SECTION 4. The City Clerk is hereby directed to file a certified copy of this Resolution,
including Exhibit A, showing such sums as remained unpaid, to the Recorder and the Auditor of
the County of San Bernardino, State of California, directing that each sum be entered as a lien
charged against the property as it appears on the current assessment rolls, to be collected at the
said time and in the same manner, subject to the same penalties and interest upon delinquencies,
as the general taxes for the City of San Bernardino are collected.
SECTION 5. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
9.b
Packet Pg. 74 Attachment: PD.Imposing Liens to Recover Costs-Attachment 1 Reso (6031 : Imposing Liens to Recover Costs for Code Enforcement
Resolution No. 2019-50
SECTION 6. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
9.b
Packet Pg. 75 Attachment: PD.Imposing Liens to Recover Costs-Attachment 1 Reso (6031 : Imposing Liens to Recover Costs for Code Enforcement
Resolution No. 2019-50
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this ___ day of __________, 2019.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
9.b
Packet Pg. 76 Attachment: PD.Imposing Liens to Recover Costs-Attachment 1 Reso (6031 : Imposing Liens to Recover Costs for Code Enforcement
Resolution No. 2019-50
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO)
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
VACANT _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2019.
______________________________
Georgeann Hanna, MMC, City Clerk
9.b
Packet Pg. 77 Attachment: PD.Imposing Liens to Recover Costs-Attachment 1 Reso (6031 : Imposing Liens to Recover Costs for Code Enforcement
EXHIBIT A
ABATEMENT ASSESSMENTS
ADDRESS OWNER DATE ABATED WARD COST
1233 W. Baseline St.Baseline Rental Properties, LLC 9/5/2018 6 $683.57
1798 W. 5th St.Adriana Alejandre 9/5/2018 1 $1,210.72
690 W. Olive St. Isaac Casias 8/08/2018, 9/26/2018 2 $2,914.06
1761 W. 20th St. Clay Finley 11/1/2018 6 $2,649.22
1387 W. Oregon St. Dennis J. Walden 10/3/2018 3 $19,454.30
824 Campus Way Darlene Ortiz 11/29/2018 2 $2,092.53
735 N. D St.SBMC Investments, LLC 10/2/2018 1 $801.49
3980 N H St. Michael X. Wang 12/12/2018 4 $2,404.79
1259 Laurelwood Ave.Gerardo Perez Orozco 11/9/2018 3 $707.30
4240 Hallmark Pkwy.Huaone Group, LLC 12/8/2018 6 $595.74
1677 Vine St. Danielle Latrice Grant 11/15/2018, 12/27/2018 1 $1,378.50
1595 N. D St. DPND Property Investments,LLC 12/27/2018 2 $349.56
1075 W. 11th St.Estella Castaneda 9/4/18, 12/30/18, 1/23/19 1 $16,470.53
Parcel # 0145-173-17-0000 Efrain I. Deras 1/22/2019 2 $3,600.29
145 E. Highland Ave. Quyen Doan 1/17/19, 2/14/19 2 $637.62
1165 E. 3rd St. Margaret Manson 11/13/2018 1 $1,843.88
632 N. Crescent 632 Crescent Ave, Trust 9/12/2018, 1/16/2019 1 $3,108.74
376 W. 16th St. SBPC Properties, LLC 9/26/18, 10/18/18, 1/30/19 2 $2,541.01
Total $63,443.85
OTHER ABATEMENT ASSESSMENTS
ADDRESS OWNER DATE ABATED WARD COST
1144 Spruce St. ERE Investments, LLC 6/2/2018 1 $1,949.17
4120 E. Highland Ave. Gold TM, LLC 10/8/2018 4 $531.36
4110 E. Highland Ave. Highland Avenue Plaza 10/14/2018 4 $541.36
218 E. Highland Ave. Saleh Sarwar 11/9/2018 7 $980.40
1557 W. Evans Davis A. Roosevelt 10/23/2018, 2/06/2019 6 $1,716.59
1523 W. Evans Starlite Mgmt, VII LP 12/24/2018 6 $259.57
1400 W. Edgehill #49 Lizbeth Margarita Abaunza 1/19/2019 5 $144.70
4985 Hallmark Pkwy 4985 Hallmark Parkway, Inc.12/27/2018 6 $319.70
798 W Highland Ave Antoinette Marie Family Trst 1/19/2019 2 $337.55
2101 N Waterman Ave Dignity Health 12/15/2018 2 $1,347.40
Total $8,127.80
Grand Total $71,571.65
9.c
Packet Pg. 78 Attachment: PD.Imposing Liens to Recover Costs-Attachment 1 Exhibit A (6031 : Imposing Liens to
10.a
Packet Pg. 79 Attachment: IT.authorization KM PO increase-Staff Report (6032 : Authorization to Increase Konica Minolta’s Yearly Maintenance PO from
Fiscal Impact
This request will not affect the FY 2018/19 budget. Each department is charged back
for its usage and pays for it out of existing FY 2018/19 budget funds.
This request is only for authorization to increase the existing purchase order since the
projected amount will exceed the current authorization limit.
Conclusion
It is recommended that the Mayor and City Council authorize the City Manager or her
designee to approve an increase in the Konica Minolta annual maintenance purchase
order in an amount not to exceed $100,000.
Attachments
None
Ward: N/A
Synopsis of Previous Council Actions
On July 18th, 2018, the Mayor and City Council authorized the renewal of hardware maintenance
service agreement for Konica Minolta in the amount not to exceed $74,800.
3/29/2019 10:15 AM
10.a
Packet Pg. 80 Attachment: IT.authorization KM PO increase-Staff Report (6032 : Authorization to Increase Konica Minolta’s Yearly Maintenance PO from
11.a
Packet Pg. 81 Attachment: CM.Legislative Update & Support of 2020 Census.1 REPORT (6033 : Legislative Update and Census 2020 Support)
Since the last update, the new legislative session began and staff has been monitoring
proposed bills and directives from Governor Newsom’s Office that may impact the City.
In keeping with the city’s adopted legislative platform, a letter of support was sent to the
state capital for Assembly Bill (AB) 213 (Reyes) on February 27, 2019. AB 213 restores
funding allocated from annual vehicle license fees, previously allocated to cities that
annexed inhabited territory prior to the passage of Senate Bill 89 of 2011. If AB 213
passes, the City of San Bernardino stands to be one of the beneficiaries receiving
approximately $112,944 in additional annual ongoing revenue. Staff will continue to
watch and monitor the progress of this bill. With the Governor Newsome now in office,
staff does envision an increase of Housing related bills and will keep an eye on these
bills as they are proposed.
Census 2020
Once each decade, the U.S. Census Bureau attempts to count every person in the
United States. The next record will be April 1, 2020 and will be the first to rely heavily on
online responses. The primary and ongoing challenge facing the U.S. Census Bureau is
the undercount of certain population groups, a challenge amplified in California, where
more residents are considered traditionally hard to count. A complete and accurate
count of California’s population is essential on allowing for California to receiving its fair
share of resources.
One of the main implications of a miscount is the loss of annual federal and state
funding for local government as well as philanthropic funding for social program and
services. In addition, one or more Congressional seats given to California could be lost.
California cities can play an active role in helping to make the 2020 U.S. Census fair
and accurate, particularly for historically undercounted populations: racial and ethnic
minorities, young children and renters. In the 2010 census 95,000 or about 0.26 percent
of Californian residents were undercounted. Though the overall count was an
improvement from the previous undercounts (2.74 percent in 1990 and 1.52 percent in
2000), the rate of undercounted populations remains consistently high, which has many
cities concerned about receiving an accurate account in the upcoming census.
As the 2020 U.S. Census is important for all Californians, especially residents of San
Bernardino, some of which make up the historically undercounted populations. Staff
recommends adopting a resolution to support potential partnerships in aiding an
accurate count in the City of San Bernardino.
2018-19 Goals and Objectives
Keeping up to date and involved with legislation and supporting the 2020 Census allows
for the City to maintain close working relationships with other agencies and ensure that
San Bernardino receives its fair share of resources in alignment with Goal No. 7: Pursue
City Goals and Objectives by Working with Other Agencies.
Fiscal Impact
There is no fiscal impact associated with receiving and filing the legislative update and
supporting the 2020 Census.
3/29/2019 10:14 AM
11.a
Packet Pg. 82 Attachment: CM.Legislative Update & Support of 2020 Census.1 REPORT (6033 : Legislative Update and Census 2020 Support)
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino,
California, receive and file the Legislative Update and adopt Resolution No. 2019-54
Affirming Support for the 2020 Census.
Attachments
Attachment 1 2019 Legislative and Regulatory Platform
Attachment 2 SB City Legislative Watchlist
Attachment 3 Resolution No. 2019-51 – Affirming Support for the 2020 Census
Ward: All
Synopsis of Previous Council Actions:
On April 18, 2018, the Mayor and City Council adopted Resolution No. 2018-117
establishing the legislative program policy and procedures and the 2018 Legislative and
Regulatory Platform for the City of San Bernardino.
On December 5, 2018, the Mayor and City Council adopted the 2019 Legislative and
Regulatory Platform.
3/29/2019 10:14 AM
11.a
Packet Pg. 83 Attachment: CM.Legislative Update & Support of 2020 Census.1 REPORT (6033 : Legislative Update and Census 2020 Support)
CITY OF SAN
BERNARDINO
2019 Legislative & Regulatory Platform
The City of San Bernardino’s Legislative and Regulatory Platform guides City officials and staff
in considering and rapidly responding to legislative and regulatory proposals introduced at the
State and Federal levels based upon the City’s priority goals and objectives.
11.b
Packet Pg. 84 Attachment: CM.Legislative Update & Support of 2020 Census.2 ATTACHMENT 1 (6033 : Legislative Update and Census 2020 Support)
City of San Bernardino
Page 1
City of San Bernardino
LEGISLATIVE & REGULATORY PLATFORM
PROVIDE FOR THE SAFETY OF CITY RESIDENTS AND BUSINESSES
The City is committed to developing programs that enhance emergency response, reduce crime and
ensure neighborhoods and business areas are safe. As such, the City will support legislation and seek
funding that strengthens law enforcement’s efforts to prevent and reduce crime and will help to contribute
to emergency response and preparedness. The City will oppose reductions in Federal and State funding
for public safety programs and services.
CREATE, MAINTAIN AND GROW JOBS AND ECONOMIC VALUE IN THE CITY
The City is dedicated to building a vibrant and sustainable local economy that allows for business
development and job creation. The City is also committed to supporting workforce development,
education and vocational training programs that meet the needs of the business community and improve
job opportunities for residents. To achieve these goals and objectives, the City will support legislative
actions and funding that encourage redevelopment and provide the tools and resources needed for
business growth and development and promote regional education and job training programs. The City
will oppose measures that restrict the City’s ability to provide for local economic development or create
disadvantages for businesses at the local and state levels.
ENSURE DEVELOPMENT OF A WELL-PLANNED, BALANCED, AND SUSTAINABLE CITY
The City’s infrastructure has a direct impact on the quality of life in the City for both residents and the
business community. As such, the City is committed to maintaining, improving and developing the City’s
infrastructure including housing, roads, bridges, sidewalks, storm drains, street lights, traffic signals, water
and wastewater systems as well as public transportation systems. The City will support legislation that
provides funding and support to meet the infrastructure needs of the community. The City will oppose
legislation that removes or reduces funding that would impact infrastructure projects or public
transportation. The City will also oppose any legislation or regulations that preempt local zoning or
require development of a particular type.
OPERATE IN A FISCALLY RESPONSIBLE AND BUSINESS-LIKE MANNER
The City is committed to developing a sustainable financial strategy that creates stability and allows the
City to reinvest in operations and infrastructure. In these efforts, the City will support legislation that
secures local government funding sources such as property taxes, sales tax, transient occupancy taxes
and Community Development Block Grants (CDBG). The City will oppose legislation that creates
unfunded mandates and legislation that eliminates or diverts local revenues.
11.b
Packet Pg. 85 Attachment: CM.Legislative Update & Support of 2020 Census.2 ATTACHMENT 1 (6033 : Legislative Update and Census 2020 Support)
Jurisdiction Legislative Item Formal
Name Summary Impact on San
Bernardino
Current Status as
of 3/28/19
League
Stance
SB City
Stance
Action
Taken
State AB 68 (Ting)
Land use:
accessory
dwelling units
Existing law requires a
local agency to approve
or deny a permit
application for the
creation of an accessory
dwelling within 120 days
of receiving the
application. AB 68
would instead require a
local agency to approve
or deny a permit
application for the
creation of an accessory
dwelling unit permit
within 60 days of receipt.
AB 68 would require our
Community & Economic
Development Department
to halve the amount of time
to approve or deny a
permit application for an
accessory dwelling units,
mandating a further stress
on our Planning Division
workload.
3/27/19 - From
committee chair, with
author's amendments:
Amend, and re-refer to
Com. on H. & C.D.
Read second time and
amended.Watch Watch Watching
State AB 213 (Reyes)
Annexation
Finance,
Restoration of
Lost Revenue
AB 213 restores
revenues previously
allocated to cities that
annexed inhabited
territory prior to the
passage of SB 89 of
2011. The bill would
also restore incentives to
support future
annexations of inhabited
areas as encouraged by
existing state policies.
Prior to 2011, cities would
receive funding allocated
from annual vehicle license
fees, when a city would
annex inhabited territory.
This bill would restore that
revenue to cities who have
annexed since 2011. If
passed, San Bernardino
would receive an
additional $112,944 in
annual revenue.
3/26/19 - Initial
Hearing Set.Sponsor Support
Letter of
support
sent on
2/27/19.
Legislative Watchlist
1 of 4 Updated on 3/28/2019
11.c
Packet Pg. 86 Attachment: CM.Legislative Update & Support of 2020 Census.3 ATTACHMENT 2 (6033 : Legislative
Jurisdiction Legislative Item Formal
Name Summary Impact on San
Bernardino
Current Status as
of 3/28/19
League
Stance
SB City
Stance
Action
Taken
Legislative Watchlist
State AB 1568 (McCarty)
General plans:
housing
element:
production
report:
withholding of
transportation
funds
AB 1568 would tie
transportation funding to
compliance with meeting
the minimum housing
production goal for that
reporting period.
If the City of San
Bernardino did not meet
the state's minimum
housing production goal
for that period, the City
would not be eligible to
receive transportation
funding.
3/14/19 - Referred to
Coms. On H. & C.D.
and TRANS.Watch Watch Watching
State
SB 5 (Beall and
McGuire)
Local-State
Sustainable
Investment
Incentive
Program
Senate Bill 5 allows local
governments to
collaborate on state-
approved redevelopment
plans, which would be
funded by reducing their
contributions to local
Education Revenue
Augmentation Funds
(ERAFs).
This bill provides the
opportunities for
communities to access
additional tax increment
revenues to fund
affordable housing,
infrastructure, and
economic development
projects that advance state
and local priorities,
including greenhouse gas
emissions, expanding
transit oriented
development, addressing
poverty, and revitalizing
neighborhoods.
3/26/19 - Initial
Hearing Set.Support Watch Watching
2 of 4 Updated on 3/28/2019
11.c
Packet Pg. 87 Attachment: CM.Legislative Update & Support of 2020 Census.3 ATTACHMENT 2 (6033 : Legislative
Jurisdiction Legislative Item Formal
Name Summary Impact on San
Bernardino
Current Status as
of 3/28/19
League
Stance
SB City
Stance
Action
Taken
Legislative Watchlist
State SB 15 (Portantino)
Property tax
revenue
allocations:
successor
agencies
SB 15 would reallocate
property tax that is
otherwise required to be
allocated to the county
Educational Revenue
Augmentation Fund to be
allocated to the successor
agencies that are located
within the county. The
bill would require the
successor agencies to use
these funds for specified
purposes, including to
increase the availability
of affordable housing.
SB 15 would provide the
city with an additional
funding source to increase
the availability of
affordable housing, but
will impose a state-
mandated local program.
3/27/19 - Re-referred
to Coms. On GOV. &
F. and HOUSING.Watch Watch Watching
State SB 50 (Weiner)
Planning and
Zoning: housing
development:
incentives
Senate Bill 50 makes it
legal to build small and
mid-rise apartment
buildings near high-
quality transit by
exempting these areas
from certain restrictive
zoning standards.
This bill would allow for
small to mid-rise apartment
buildings to circumvent
city zoning law and build
near high-quality transit
regardless of prior zoning
standards.
3/26/19 - Initial
Hearing Set.
Oppose
Unless
Amended Oppose
2019 -
Watching
4/4/2018 -
Sent
Opposition
Letter -
Persico
3 of 4 Updated on 3/28/2019
11.c
Packet Pg. 88 Attachment: CM.Legislative Update & Support of 2020 Census.3 ATTACHMENT 2 (6033 : Legislative
Jurisdiction Legislative Item Formal
Name Summary Impact on San
Bernardino
Current Status as
of 3/28/19
League
Stance
SB City
Stance
Action
Taken
Legislative Watchlist
State SB 128 (Beall)
Enhanced
infrastructure
financing
districts: bonds:
issuance
Existing law authorizes
the legislative body of a
city to establish an
enhanced infrastructure
financing district, with a
governing body referred
at as a public financing
authority, to finance
public capital facilities or
other specified projects
of communitywide
significance. This will
shift the authorization
from voters to the public
financing authority to
issue bonds to finance
public capital facilities or
other specified projects
of communitywide
significance.
For potential city projects
in the enhanced
infrastructure financing
district, the public
financing authority can
issue bonds for these
purposes without
submitting a proposal to
the voters.
3/21/19 - Read second
time and amended.
Ordered to third
reading.Support Watch Watching
4 of 4 Updated on 3/28/2019
11.c
Packet Pg. 89 Attachment: CM.Legislative Update & Support of 2020 Census.3 ATTACHMENT 2 (6033 : Legislative
Resolution No. 2019-51
RESOLUTION NO. 2019-51 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AFFIRMING SUPPORT FOR THE 2020 CENSUS
WHEREAS, the U.S. Census Bureau is required by Article I, Section 2 of the U.S.
Constitution to conduct an accurate count of the population every ten years; and
WHEREAS, the next enumeration will be April 1, 2020 and will be the first to rely
heavily on online responses; and
WHEREAS, the primary and perpetual challenge facing the U.S. Census Bureau is the
undercount of certain population groups; and
WHEREAS, the challenge is amplified in California, given the size of the state and the
diversity of communities; and
WHEREAS, California has a large percentage of individuals that are considered
traditionally hard to count; and
WHEREAS, these diverse communities and demographic populations are at risk of
being missed in the 2020 Census; and
WHEREAS, California receives nearly $77 billion in federal funding that relies, in part,
on census data; and
WHEREAS, a complete and accurate count of California’s population is essential; and
WHEREAS, the data collected by the decennial Census determines the number of seats
each state has in the U.S. House of Representatives and is used to distribute billions of dollars in
federal funds to state and local governments; and
WHEREAS, the data is also used in the redistricting of state legislatures, county boards
of supervisors and city councils; and
WHEREAS, the decennial census is a massive undertaking that requires cross-sector
collaboration and partnership in order to achieve a complete and accurate count; and
WHEREAS, California’s leaders have dedicated a historic amount of funding and
resources to ensure every Californian is counted once, only once and in the right place; and
WHEREAS, this includes coordination between tribal, city, county, state governments,
community-based organizations, education, and many more; and
WHEREAS; U.S. Census Bureau is facing several challenges with Census 2020,
including constrained fiscal environment, rapidly changing use of technology, declining response
11.d
Packet Pg. 90 Attachment: CM.Legislative Update & Support of 2020 Census.4 ATTACHMENT 3 (6033 : Legislative Update and Census 2020 Support)
Resolution No. 2019-51
rates, increasingly diverse and mobile population, thus support from partners and stakeholders is
critical; and
WHEREAS; California is kicking-off its outreach and engagement efforts in April 2019
for the 2020 Census; and
WHEREAS; the City of San Bernardino, in partnership with other local governments,
the State, businesses, schools, and community organizations, is committed to robust outreach and
communication strategies, focusing on reaching the hardest-to-count individuals; now, therefore,
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. That City of San Bernardino recognizes the importance of the 2020 U.S.
Census and supports helping to ensure a complete, fair, and accurate count for all Californians.
SECTION 3. That the City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 4. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
PASSED, APPROVED, and ADOPTED by the City Council and signed by the Mayor
and attested by the City Clerk this 3rd day of April, 2019.
John Valdivia, Mayor
City of San Bernardino
11.d
Packet Pg. 91 Attachment: CM.Legislative Update & Support of 2020 Census.4 ATTACHMENT 3 (6033 : Legislative Update and Census 2020 Support)
Resolution No. 2019-51
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
11.d
Packet Pg. 92 Attachment: CM.Legislative Update & Support of 2020 Census.4 ATTACHMENT 3 (6033 : Legislative Update and Census 2020 Support)
Resolution No. 2019-51
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the 3rd day of April, 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
VACANT _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this 3rd day of April 2019.
______________________________
Georgeann Hanna, MMC, City Clerk
11.d
Packet Pg. 93 Attachment: CM.Legislative Update & Support of 2020 Census.4 ATTACHMENT 3 (6033 : Legislative Update and Census 2020 Support)
12.a
Packet Pg. 94 Attachment: CM.Vanir Tower Lease Agreement Extension.01.Staff Report (6034 : Lease Agreement – Vanir Tower Building, Inc.)
2018-19 Goals and Objectives
The request to extend the existing lease agreement with Vanir Tower for the continued
use of office space through April 15, 2020 aligns with Goal No. 6: Operate in a fiscally
responsible and business-like manner.
Fiscal Impact
The financial impact to the City is $543,462.48 ($45,288.54 per month). The funding
required to support leased space at Vanir Tower was included in the FY 2018/19
Adopted Budget in account number 001-090-0053-5171 and will be incorporated within
the FY 2019/20 budget plan.
Conclusion
It is recommended that the Mayor and City Council, authorize the City Manager to
execute two, six month extensions to the lease agreement between Vanir Tower
Building, Inc. (290 North D. Street, San Bernardino, California - APN -0134-311-42-
0000) and the City of San Bernardino extending the lease agreement through April 15,
2020.
Attachments
Attachment 1 Resolution No. 2016-240; Lease agreement between the City of
San Bernardino and Vanir Tower Building, Inc.
Attachment 2 Resolution 2017-039; Amended Lease agreement between the
City of San Bernardino and Vanir Tower Building, Inc.
Synopsis of Previous Council Actions:
November 21, 2016, the City Council adopted Resolution No. 2016-240, authorizing the
City Manager to execute a lease agreement between Vanir Tower, Inc. at 290 North D.
Street, San Bernardino, California and the City of San Bernardino for office space
commencing on December 1, 2016.
March 6, 2017, the City Council adopted Resolution No. 2017-039, authorizing the City
Manager to execute an amendment to the lease agreement between Vanir Tower, Inc. at
290 North D. Street, San Bernardino, California and the City of San Bernardino for office
space commencing on April 15, 2017.
3/29/2019 10:15 AM
12.a
Packet Pg. 95 Attachment: CM.Vanir Tower Lease Agreement Extension.01.Staff Report (6034 : Lease Agreement – Vanir Tower Building, Inc.)
1
RESOLUTION NO. 2016-240
2
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
4
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND VANIR TOWER
5 BUILDING,INC. FOR THE LEASE OF OFFICE SPACE.
6
7
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
8
SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement
9
10 between the City of San Bernardino and Vanir Tower Building, Inc., attached hereto as Exhibit
11 "A" and incorporated herein.
12 SECTION 2. The Director of Finance is hereby authorized to issue a Purchase Order to
13
Vanir Tower Building, Inc. for the lease of office space for the entire term of the Lease.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
12.b
Packet Pg. 96 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND VANIR TOWER
3 BUILDING, INC. FOR THE LEASE OF OFFICE SPACE.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the
6
21St day of November, 2016, by the following vote,to wit:
7
8
Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ x-
10 BARRIOS x-
11
VALDIVIA X
12
SHORETT X
13
14 NICKEL X
15 RICHARD X
16
MULVIHILL X
17
18 Georgeann anna, C64-), City Clerk
19
The foregoing Resolution is hereby approved this ,X day of November, 2016.
2 0
21
22
R. Carey Dayi<Day' , Mayor
City of San Bernardino
23 Approved as to form:
24
Gary D. Saenz, City Attorney
25 By:
26
27
28
2
12.b
Packet Pg. 97 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
CITY OF SAN BERNARDINO
LEASE AGREEMENT
LANDLORD:Vanir Tower Building, Inc.
4540 Duckhorn Drive, Suite 100
Sacramento, CA 95834
CITY: CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
PREMISES:
TERM OF LEASE:Two (2) years with two (2) six-month option to extend periods
COMMENCEMENT DATE OF LEASE:December 1, 2016 (subject to
Paragraph 3)
INITIAL MONTHLY RENT: $42,688.80 per month for Year 1 and 43,969.46 per
month for Year 2
12.b
Packet Pg. 98 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
TABLE OF CONTENTS
PARAGRAPH CAPTION
PAGE
1. PARTIES...........................................................................................1
2. PREMISES LEASED .......................................................................1
3. TERM................................................................................................ 1
4. RENT ................................................................................................2
5. EXPANSION OF RENTAL SPACE.................................................3
6. OPTION TO EXTEND TERM .........................................................4
7. RETURN OF PREMISES ................................................................4
8. HOLDING OVER.............................................................................5
9. TAXES...............................................................................................5
10. USE...................................................................................................5
11. HEALTH, SAFETY AND FIRE CODE REQUIREMENTS ...........5
12. SIGNS ...............................................................................................5
13. MAINTENANCE..............................................................................6
14. ALTERATIONS................................................................................7
15. FIXTURES........................................................................................7
16. UTILITIES........................................................................................8
17. INDEMNIFICATION.......................................................................8
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS..........8
19. DESTRUCTION OF PREMISES...................................................12
20. LANDLORD'S DEFAULT.............................................................. 13
21. CITY'S REMEDIES ON LANDLORD'S DEFAULT.....................13
22. CITY'S DEFAULT.......................................................................... 14
23. LANDLORD'S REMEDIES ON CITY'S DEFAULT..................... 14
24. LANDLORD'S ACCESS TO PREMISES ......................................14
25. NOTICES........................................................................................15
26. INCORPORATION OF PRIOR AGREEMENT............................16
27. WAIVERS .......................................................................................16
28. AMENDMENTS.............................................................................16
29. SUCCESSORS................................................................................16
30. SEVERABILITY............................................................................. 16
31. TIME OF ESSENCE......................................................................16
32. QUIET ENJOYMENT.................................................................... 16
33. PROVISIONS ARE COVENANTS AND CONDITIONS ............. 16
34. CONSENT ...................................................................................... 16
35. EXHIBITS.......................................................................................17
36. LAW ................................................................................................17
12.b
Packet Pg. 99 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
37. VENUE ........................................................................................... 17
38. ATTORNEYS' FEES AND COSTS................................................ 17
39. RESERVED .................................................................................... 17
40. CITY'S RIGHT TO TERMINATE LEASE .................................... 17
41. LANDLORD'S IMPROVEMENTS ................................................ 17
42. CAPTIONS, TABLE OF CONTENTS AND COVER PAGE ........20
43. SURVIVAL......................................................................................20
44. FORMER CITY OFFICIALS .........................................................20
45. BROKER'S COMMISSIONS..........................................................21
46. ESTOPPEL CERTIFICATES ........................................................21
47. SUBORDINATION AND ATTORNMENT ...................................21
48. HAZARDOUS SUBSTANCES.......................................................22
49. PUBLIC RECORDS DISCLOSURE, CONFIDENTIALITY........23
50. CONDITION OF PREMISES........................................................24
51. CONDEMNATION.........................................................................24
52. MATERIAL MISREPRESENTATION..........................................25
53. INTERPRETATIONS.....................................................................25
54. AUTHORIZED SIGNATORS.........................................................26
EXHIBIT "A" Premises
EXHIBIT "A-1" Premises Specifications
EXHIBIT "B" Licensed Janitorial and Maintenance Contractor
Services
EXHIBIT "C" List of Former CITY Officials
EXHIBIT "D" Estoppel Certificate
EXHIBIT "E" Subordination, Nondisturbance and Attornment
Agreement
EXHIBIT "F" Prevailing Wage Requirements
12.b
Packet Pg. 100 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
LEASE AGREEMENT
1. PARTIES: This lease ("Lease") is made between Vanir Tower Building, Inc.
LANDLORD"), and the City of San Bernardino ("CITY"), who agree on the terms
and conditions contained in this Lease. LANDLORD hereby represents and
warrants to CITY that LANDLORD is the legal owner with sole title to the
Property (as defined below), including the Premises (as defined below), and has the
right to enter into this Lease without consent or approval from any other parties. In
the event of a breach of the foregoing representation and warranty, CITY shall have
the right to terminate this Lease with immediate effect and LANDLORD shall
indemnify, defend (with counsel reasonably approved by CITY) and hold harmless
CITY and its officials, employees, contractors, agents, and volunteers from any and
all claims, actions, losses, damages and/or liability arising out of said breach.
2. PREMISES LEASED:
LANDLORD leases to CITY and CITY leases from LANDLORD certain premises of
approximately 23,716 square feet of office space ("Premises"), comprising a portion
of the building (`Building") located on the real property commonly known as 290
North "D" Street, San Bernardino, California, APN 0134-311-42-0000 ("Property").
The Premises is more particularly depicted in Exhibit "A" PREMISES, attached
hereto and incorporated herein by reference. The parties hereby agree that the
Premises shall not be re-measured at any time during the term of the Lease,
including any extensions thereof.
3. TERM:
A. Initial Term. The Lease's initial term ("Initial Term") shall commence
on December 1, 2016 ("Commencement Date") and end on November 30, 2018
Ending Date"), provided that all Improvements to be constructed by LANDLORD
pursuant to Paragraph 41, LANDLORD IMPROVEMENTS, are Substantially
Completed (hereinafter defined) and are accepted by CITY. For the purposes of this
Lease, "Substantially Completed" shall mean that the Premises can be used for
their intended purposes and have been certified for occupancy by the entity that
issued the building permits, notwithstanding that minor corrections and/or
additions remain to be completed, it being understood that LANDLORD shall
promptly complete said corrections and/or additions. In the event the term
commences prior to the Commencement Date as the result of CITY's election under
subparagraph 3C, Early Possession, the Ending Date shall not be changed. If
LANDLORD is unable to Substantially Complete the Improvements or deliver
possession of the Premises by the Commencement Date, CITY shall not be liable for
any rent and this Lease shall not commence until LANDLORD Substantially
Completes the Improvements and delivers possession of the Premises to CITY. Any
such delay in possession shall not affect the Ending Date.
I
12.b
Packet Pg. 101 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
B. Early Access. LANDLORD shall allow the CITY early access ("Early
Access") to the Premises at any time prior to the Commencement Date for the
purpose of the CITY or its representatives installing communications equipment,
modular furniture, alarms and such other items that the CITY may reasonably
desire and to inspect the status of the construction of the Improvements for the
Premises. CITY shall exercise its Early Access rights at a time and in a manner
that will not unreasonably interfere with LANDLORD's construction of the
Improvements. If CITY totally or partially occupies the Premises under this Early
Access provision prior to the Commencement Date, the obligation to pay rent shall
be abated for the period of the Early Access. All other terms of this Lease shall,
however, be in effect during such period. Any such Early Access shall not affect the
Commencement Date or the Ending Date.
C. Early Possession. The CITY may elect to totally or partially take
possession of the Premises at any time prior to the scheduled Commencement Date
Early Possession"). CITY shall exercise its Early Possession rights at a time and
in a manner that will not unreasonably interfere with LANDLORD's construction of
the Improvements. If CITY totally or partially takes possession of the Premises
under this Early Possession provision prior to the Commencement Date, the
obligation to pay rent for only that portion of the Premises possessed shall
commence for the period of such Early Possession. Such Early Possession shall not
be considered as the CITY's acceptance of any portion of the Improvements as
Substantially Completed. The CITY may vacate all or any portion it has possessed
as Early Possession without in any manner affecting the Commencement Date, the
Ending Date or any other portion of the Lease. All other terms of this Lease shall,
however, be in effect during such period. Any such Early Possession shall not affect
the Commencement Date or the Ending Date.
D. Delay in Possession. LANDLORD agrees to use all commercially
reasonable efforts to deliver possession of the Premises with all of the
Improvements Substantially Completed to CITY by the Commencement Date. If as
a result of causes beyond LANDLORD's reasonable control, LANDLORD is unable
to deliver possession as agreed, this Lease shall not be voidable, nor shall such
failure affect the validity of this Lease. If possession is not delivered within ninety
90) days after the Commencement Date, CITY can elect to terminate this Lease by
giving written notice to LANDLORD at any time before LANDLORD delivers
possession of the Premises to CITY. If CITY elects to terminate this Lease
pursuant to this provision, CITY shall be discharged of all obligations under this
Lease.
4. RENT:
A. Subject to the completion of the Improvements, receipt of a certificate
of occupancy and subject to acceptance of the improved Premises by CITY, CITY
shall pay to LANDLORD monthly rental payments of $42,688.80 per month for
Year 1 and $43,969.46 for Year 2 for the Premises in arrears not later than the last
2
12.b
Packet Pg. 102 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
day of each month, commencing when the term commences, continuing during the
term, based on approximately 23,716 square feet of leased space.
B. Rent for any partial month shall be prorated based on the actual
number of days of the month. LANDLORD shall accept all rent and other
payments from CITY under this Lease via electronic funds transfer (EFT) directly
deposited into the LANDLORD's designated checking or other bank account.
LANDLORD shall promptly comply with directions and accurately complete forms
provided by CITY required to process EFT payments.
C. If the CITY has accepted the Premises as Substantially Completed
with minor corrections and/or additions remaining to be completed, only eighty
percent (80%) of the monthly rental will be paid to LANDLORD, and the remaining
twenty percent (20%) of the monthly rental will accrue from the Commencement
Date of this Lease but will not be paid to LANDLORD until all such minor
corrections and/or additions have been completed and accepted by CITY. If the
CITY withholds monthly rental payments under this subparagraph, the CITY will
not be in default and no interest or service charges will be added to the amounts
due LANDLORD upon completion of the minor corrections and/or additions. The
minor corrections and/or additions remaining to be completed are subject to
subparagraph 13B, MAINTENANCE.
5. EXPANSION OF RENTAL SPACE:
A. LANDLORD shall not lease or extend an existing lease covering all or
any part of the area of the building in which the Premises are located that is
marked on Exhibit "A" as Expansion Space ("Expansion Space") to a third party
without first notifying CITY that LANDLORD intends to lease part or all of the
Expansion Space. At any time during the term of this Lease that all or any part of
the Expansion Space is not leased to a third person, CITY shall have the option to
add to the Premises any part or all of the Expansion Space that is not leased to a
third party. In the event LANDLORD makes or receives a bona fide offer to
actually lease or extend an existing lease on some or all of the Expansion Space,
LANDLORD shall provide CITY with written notice of LANDLORD's intention to
lease (or extend an existing lease) some or all of the Expansion Space to a third
party. LANDLORD's notice to CITY shall include all material terms of the third-
party offer. CITY shall have thirty (30) days from CITY's receipt of LANDLORD's
notice to determine whether CITY wishes to add any part or all of the Expansion
Space identified in the third-party offer to the Premises. LANDLORD shall have
the right to lease to a third party (or extend an existing lease with such third
party), on the terms set forth in LANDLORD's notice to CITY, any part of the
Expansion Space mentioned in the third-party offer as to which CITY has not
notified LANDLORD of CITY's agreement to lease within thirty (30) days after
CITY's receipt of LANDLORD's notice. If CITY does not exercise its option to add
the Expansion Space mentioned in the third party offer to the Premises, and
3
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Packet Pg. 103 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
LANDLORD is unable to consummate the transaction described in the third-party
offer with such third party, CITY's rights under this paragraph shall be reinstated
automatically. Further, CITY's rights under this paragraph shall accrue anytime
any of the Expansion Space is not leased to a third party or becomes available.
B. If CITY exercises its option to lease the Expansion Space or part of it,
the Expansion Space or part of it shall be included within the Premises and leased
to CITY pursuant to all provisions of this Lease, including, without The rent
payable under this Lease shall be increased proportionately by the sum of (i) the
basic rental rate per square foot of floor area for each square foot of floor area in the
Expansion Space leased by CITY, as set forth in Subparagraph 6A(1), OPTION TO
EXTEND TERM, plus (ii) the cost per square foot of floor area of all improvements
made to the Expansion Space leased by CITY amortized over the balance of the
unexpired portion of the Initial Term. All Improvements shall be made pursuant to
plans and specifications, prepared by LANDLORD and approved by CITY.
LANDLORD shall deliver said plans and specifications to CITY within thirty (30)
days of CITY's election to lease the Expansion Space, or part thereof. The
construction of all Improvements shall be governed by Paragraph 41,
LANDLORD'S IMPROVEMENTS. CITY's obligation to pay rent on the Expansion
Space shall be governed by Paragraph 4, RENT. The parties shall immediately
execute an amendment to this Lease stating the addition of the Expansion Space or
part thereof to the Premises and the additional rent for the Expansion Space.
C. If prior to executing this Lease, LANDLORD granted a third party an
option to lease or extend an existing lease for all or part of the expansion space, the
third party's option will take precedence over the CITY's right of first refusal and
option set forth in subparagraph A and B, above. Additionally, if during the term of
this Lease, LANDLORD follows the provisions of subparagraphs A and B, above,
and thereafter grants a third party an option to lease or extend an existing lease for
all or part of the expansion space, the third party's option will take precedence over
the CITY's right of first refusal and option set forth in subparagraphs A and B,
above.
6. OPTION TO EXTEND TERM: LANDLORD gives CITY the option to extend
the term of the Lease on the same provisions and conditions, except for the monthly
rent, for two (2) six-month option periods ("extended term") following expiration of
the Initial Term, by CITY giving notice of its intention to exercise the option to
LANDLORD prior to the expiration of the preceding term or during any holding
over pursuant to Paragraph 8, HOLDING OVER. The rent for each extended term
shall be the same as during the Initial Term.
7. RETURN OF PREMISES: The CITY agrees that it will, upon the
termination of this Lease, return the Premises in a good condition and repair as the
Premises now is or shall hereafter be put; reasonable wear and tear expected.
4
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Packet Pg. 104 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
2016-240
8. HOLDING OVER: In the event the CITY shall hold over and continue to
occupy the Premises with the consent of the LANDLORD, expressed or implied, the
tenancy shall be deemed to be a tenancy from month-to-month upon the same terms
and conditions, including rent, as existed and prevailed at the time of the expiration
of the term of this Lease. Notwithstanding Paragraph 40 CITY'S RIGHT TO
TERMINATE LEASE, either party shall have the right to terminate the Lease with
not less than sixty (60) days prior written notice to the other party during any
holdover tenancy.
9. TAXES= LANDLORD shall pay all real property taxes, and general and
special assessments levied and assessed against the Premises.
10. USE: CITY shall occupy and use the Premises during the term hereof for the
purposes of CITY business.
11. HEALTH SAFETY AND FIRE CODE REQUIREMENTS:
A. Compliance with Code Requirements: As a condition precedent to the
existence of this Lease, LANDLORD, at its sole expense will ensure the Premises
meet the applicable requirements of all Health, Safety, Fire and Building Codes,
statutes, regulations and ordinances for public and governmental buildings,
including any requirements for a notice of completion, certificate of occupancy,
California Title 24 requirements and the Americans with Disabilities Act ("ADA").
Specifically, LANDLORD must ensure there is an accessible path of travel from
public transportation to the Premises pursuant to Title 24. Additionally,
LANDLORD warrants that any improvements on or in the Premises which have
been constructed or installed by LANDLORD or with LANDLORD's consent or at
LANDLORD's direction shall comply with all applicable covenants or restrictions of
record and applicable Codes, statutes, regulations and ordinances in effect on the
Commencement Date. LANDLORD also warrants to CITY that LANDLORD has
no knowledge of any claim having been made by any governmental agency that a
violation or violations of applicable Codes, statutes, regulations, or ordinances exist
with regard to the Premises as of the Commencement Date. Should the continued
occupancy of the Premises be in any way prejudiced or prevented due to changes in
the ADA or the Health, Safety, Fire and Building Codes, statutes, regulations or
ordinances for public and governmental buildings, the LANDLORD shall correct,
update and comply with said changes at LANDLORD's cost.
B. Access Inspection: No inspection of the Premises, Building, or Property
has been performed by a Certified Access Specialist in conjunction with this Lease.
For avoidance of doubt, notwithstanding that an inspection of the Premises,
Building, or Property has not be performed by a Certified Access Specialist,
LANDLORD's obligations under Paragraph 10.A. shall remain unchanged.
12. SIGNS: CITY will display from the windows and/or marquee of the Premises
only such sign or signs as are not prohibited by law.
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13. MAINTENANCE:
A. Except as specifically provided in subparagraph 13C, below,
LANDLORD at its cost shall perform such inspections, maintenance and repairs as
are necessary to ensure that all portions of the Premises, including but not limited
to the following, are at all times in good repair and safe condition:
1) The structural parts of the building and other improvements
that are a part of the Premises, which structural parts include the foundations,
bearing and exterior walls (including glass and doors), subflooring, and roof, and,
2) The electrical, plumbing, and sewage systems, including,
without limitation, those portions of the systems owned or controlled by
LANDLORD lying outside the Premises; and,
3) Window frames, gutters, and downspouts on the building and
other improvements that are a part of the Premises; and,
4) Heating, ventilation and air conditioning (HVAC) systems
servicing the Premises (additionally, air-conditioning and heating filters are to be
changed quarterly. Upon commencement of this lease agreement LANDLORD is to
provide an air balance certificate and maintenance of HVAC servicing); and,
5) The grounds, including outside lighting, grass, trees, shrubbery
and other flora; and,
6) The servicing of fire extinguishers or any other fire suppression
equipment attached to the facility; and,
7) Maintenance for the entire Building and janitorial services for
common areas. Maintenance and janitorial services must be performed in a
workmanlike manner by licensed and qualified independent contractors, as set
forth in Exhibit "B", Licensed Janitorial and Maintenance Contractor Services.
LANDLORD shall perform maintenance and janitorial services at a time and in
manner that will cause the least possible inconvenience, annoyance, or disturbance
to CITY. LANDLORD shall follow the carpet manufacture's maintenance
requirements and maintain the carpet manufacturer's warranty for the carpet.
Hours scheduled for the day janitor are to be reviewed and approved by CITY. The
CITY shall perform janitorial services for the Premises.
B. Without in any way affecting LANDLORD's duty to inspect, maintain
and repair the Premises and regardless of whether any specific notice of need for
maintenance or repair is provided to LANDLORD by the CITY, the CITY may
request specific maintenance or repairs. Any such request may be made orally, by
telephone or otherwise. If, (a) CITY gives notice to LANDLORD of a condition
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requiring maintenance or repairs, and LANDLORD does not commence the
performance of its maintenance or repair obligations within ten (10) days of
receiving such notice, or does not diligently prosecute its obligations to completion
thereafter, or (b) in the case of an emergency, whether or not CITY has given notice
to LANDLORD, LANDLORD does not immediately perform its obligations, CITY
can perform the obligations and have the right to be reimbursed for the sum CITY
actually and reasonably expends (including charges for CITY employees and
equipment) in the performance of LANDLORD's obligations. The sum expended by
CITY shall be due from LANDLORD to CITY within five (5) days of notice of such
sum, and if paid at a later date shall bear interest at the maximum rate the CITY is
permitted by law to charge from the date the sum was paid by CITY until CITY is
reimbursed by LANDLORD. If LANDLORD fails to reimburse CITY as required by
this paragraph, CITY shall have the right to withhold from future rent due the sum
CITY has paid until CITY is reimbursed in full for the sum and interest on it. The
remedies set forth in this paragraph are in addition to and do not in any manner
limit other remedies set forth in particular paragraphs of this Lease. CITY shall
forward to LANDLORD receipts and/or documentation supporting the amount
withheld.
C. CITY, at its option and sole discretion, reserves the right to require the
LANDLORD to hire a qualified property management company to manage the
Premises, and that property management services, not limited to maintenance and
repair, be performed pursuant to a property management agreement. The Premises
must be inspected by the Property Manager at least every other week, beginning
the second week after the commencement date, and daily by the janitorial staff, to
ensure the Premises are maintained properly. Inspections must be coordinated
with the CITY representative. The CITY has the right to review the selection of the
property manager and to review the agreement with the manager.
14. ALTERATIONS: CITY shall not make any structural or exterior
improvements or alterations to the Premises without LANDLORD's consent. Any
such alterations shall remain on and be surrendered with the Premises on
expiration or termination of the Lease.
15. FIXTURES CITY shall have the right during the term(s) of this Lease to
install shelving and fixtures, and make interior, non-structural improvements or
alterations in the Premises. Such shelving, fixtures, improvements, and alterations
shall remain the property of the CITY and may be removed by the CITY during the
term(s) of this Lease or within a reasonable time thereafter, provided that the CITY
restores the Premises to the condition as it existed at the commencement of this
Lease, reasonable wear and tear excluded, or the CITY in its sole discretion may
elect to surrender all or any part of such shelving, fixture, improvements and
alterations to the LANDLORD, in which case CITY shall have no duty to restore
the Premises. Any such election to surrender must be in writing, but need not be
accepted by LANDLORD to be effective.
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16. UTILITIES: LANDLORD shall furnish to the Premises and pay all service
charges and related taxes for electric, gas, water, sewer, trash, fire alarm service
and all other utilities. CITY shall furnish and pay for security, vending machines,
computers, internet and its own telephone service including pay telephones.
17. INDEMNIFICATION: The LANDLORD agrees to indemnify, defend (with
counsel reasonably approved by CITY) and hold harmless the CITY and its
authorized officers, employees, agents and volunteers from any and all claims,
actions, losses, damages, and/or liability arising out of this contract from any cause
whatsoever, including the acts, errors or omissions of any person and for any costs
or expenses incurred by the CITY on account of any claim except where such
indemnification is prohibited by law. This indemnification provision shall apply
regardless of the existence or degree of fault of indemnities. The LANDLORD's
indemnification obligation applies to the CITY's "active" as well as "passive"
negligence but does not apply to the CITY's "sole negligence" or "willful misconduct"
within the meaning of Civic Code Section 2782.
18. INSURANCE REQUIREMENTS AND SPECIFICATIONS:
A. CITY is a self-insured public entity for purposes of professional
liability, general liability and workers' compensation.
B. The LANDLORD agrees to provide insurance set forth in accordance
with the requirements herein. If the LANDLORD uses existing coverage to comply
with these requirements and that coverage does not meet the specified
requirements, the LANDLORD agrees to amend, supplement or endorse the
existing coverage to do so. The type(s) of insurance required is determined by the
scope of the lease hereunder. Without in anyway affecting the indemnity herein
provided and in addition thereto, the LANDLORD shall secure and maintain
throughout the contract term the following types of insurance with limits as shown:
1) Workers' Compensation/Employers Liability — A program of
Workers' Compensation insurance or a state-approved, self-insurance program in an
amount and form to meet all applicable requirements of the Labor Code of the State
of California, including Employer's Liability with $250,000 limits covering all
persons including volunteers providing services on behalf of the LANDLORD and
all risks to such persons under this lease agreement.
If LANDLORD has no employees, it may certify or warrant to the CITY that is does
not currently have any employees or individuals who are defined as "employees"
under the Labor Code and the requirement for Workers' Compensation coverage
will be waived by the CITY's Director of Risk Management.
If, LANDLORD is a non-profit corporation, organized under California or Federal
law, volunteers for LANDLORD are required to be covered by Workers'
Compensation insurance.
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2) Commercial/General Liability Insurance — The LANDLORD
shall carry General Liability Insurance covering all operations performed by or on
behalf of the LANDLORD providing coverage for bodily injury and property damage
with a combined single limit of not less than one million dollars ($1,000,000), per
occurrence. The policy coverage shall include:
a) Premises operations and mobile equipment.
b) Products and completed operations.
c) Broad form property damage (including completed
operations).
d) Explosion, Collapse, and underground hazards
e) Personal injury
f) Contractual liability.
g) $2,000,000 general aggregate limit.
3) Commercial Property Insurance providing all risk coverage for
the leased premises, building, fixtures, equipment and all property constituting a
part of the premises. Coverage shall be sufficient to insure One Hundred percent
100%) of the replacement cost.
4) Automobile Liability Insurance — Primary insurance coverage
shall be written on ISO Business Auto coverage form for all owned, hired and non-
owned automobiles or symbol 1 (any auto). The policy shall have a combined single
limit of not less than one million dollars ($1,000,000) for bodily injury and property
damage, per occurrence.
5) Umbrella Liability Insurance - An umbrella (over primary) or
excess policy may be used to comply with limits or other primary coverage
requirements. When used, the umbrella policy shall apply to bodily injury/property
damage, personal injury/advertising injury and shall include a "dropdown"
provision providing primary coverage for any liability not covered by the primary
policy. The coverage shall also apply to automobile liability.
C. If LANDLORD performs any construction of the Premises on behalf of
the CITY, LANDLORD shall also procure and maintain coverages as follows:
1) For construction contracts for projects over One Million Dollars
1,000,000) and less than Three Million Dollars ($3,000,000) require limits of not
less than Three Million Dollars in General Liability and Auto Liability coverage.
2) For construction contracts for projects over Three Million
Dollars ($3,000,000) and less than Five Million Dollars ($5,000,000) require limits
of not less than Five Million Dollars ($5,000,000) in General Liability and Auto
Liability coverage.
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3) For construction contracts for projects over Five Million Dollars
5,000,000) and less than Ten Million Dollars ($10,000,000) require limits of not
less than Ten Million Dollars (10,000,000) in General Liability and Auto Liability
coverage.
4) Subcontractor Insurance Requirements. The LANDLORD
agrees to require all parties or subcontractors, including architects or others it hires
or contracts with related to the performance of this contract to provide insurance
covering the contracted operation with the basic requirements for all contracts in
B1 and the insurance sections for all contracts in B2, (including waiver of
subrogation rights) and naming the CITY as an additional insured. The
LANDLORD agrees to monitor and review all such coverage and assumes all
responsibility ensuring that such coverage is provided as required here.
5) Course of Construction/Installation (Builder's Risk) property
insurance providing all risk, including theft coverage for all property and materials
to be used on the project. The insurance policy shall not have any coinsurance
penalty.
D. Additional Insured — All policies, except for the Workers'
Compensation, shall contain endorsements naming the CITY and their officers,
employees, agents and volunteers as additional insureds with respect to liabilities
arising out of the use under this lease hereunder. The additional insured
endorsements shall not limit the scope of coverage for the CITY to vicarious liability
but shall allow coverage for the CITY to the full extent provided by the policy. Such
additional insured coverage shall be at least as broad as Additional Insured (Form
B) endorsement form ISO, CG 2010.11 85.
E. Waiver of Subrogation Rights — The LANDLORD shall require the
carriers of required coverages to waive all rights of subrogation against the CITY,
their officers, employees, agents, volunteers, contractors and subcontractors. All
general or auto liability insurance coverage provided shall not prohibit the
LANDLORD and LANDLORD's employees or agents from waiving the right of
subrogation prior to a loss or claim. The LANDLORD hereby waives all rights of
subrogation against the CITY.
F. Policies Primary and Non-Contributory — All policies required herein
are to be primary and non-contributory with any insurance or self-insurance
programs carried or administered by the CITY.
G. Severability of Interests — The LANDLORD agrees to ensure that
coverage provided to meet these requirements is applicable separately to each
insured and there will be no cross liability exclusions that preclude coverage for
suits between the LANDLORD and the CITY or between the CITY and any other
insured or additional insured under the policy.
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H. Proof of Coverage — The LANDLORD shall furnish Certificates of
Insurance to the CITY evidencing the insurance coverage, including endorsements,
as required, prior to the commencement of performance of services hereunder,
which certificates shall provide that such insurance shall not be terminated or
expire without thirty (30) days written notice to CITY, and LANDLORD shall
maintain such insurance from the time LANDLORD commences use under the
lease hereunder until the end of the period of the lease. Within fifteen (15) days of
the commencement of this contract, the LANDLORD shall furnish a copy of the
Declaration page for all applicable policies and will provide complete certified copies
of the policies and endorsements immediately upon request.
I.Acceptability of Insurance Carrier — Unless otherwise approved by the
CITY's Risk Management Division, insurance shall be written by insurers
authorized to do business in the State of California and with a minimum "Best"
Insurance Guide rating of"A- VII".
J.Deductibles and Self-Insured Retention — Any and all deductibles or
self-insured retentions in excess of $10,000 shall be declared to and approved by
CITY's Risk Management Division.
K. Insurance Review — Insurance requirements are subject to periodic
review by the CITY. The CITY's Human Resources Director or designee is
authorized, but not required, to reduce, waive or suspend any insurance
requirements whenever the CITY's Risk Management Division determines that any
of the required insurance is not available, is unreasonably priced, or is not needed
to protect the interests of the CITY. In addition, the CITY's Director of Human
Resources or designee is authorized, but not required, to change the above
insurance requirements to require additional types of insurance coverage or higher
coverage limits, provided that any such change is reasonable in light of past claims
against the CITY, inflation, or any other item reasonably related to the CITY's risk.
Any change requiring additional types of insurance coverage or higher coverage
limits must be made by amendment to this lease. LANDLORD agrees to execute
any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of CITY to monitor or enforce compliance
with any of the insurance and indemnification requirements will not be deemed as a
waiver of any rights on the part of the CITY.
L. Failure to Procure Insurance. All insurance required must be
maintained in force at all times by LANDLORD. Failure to maintain said insurance,
due to expiration, cancellation, etc., shall be cause for the CITY to give notice to
immediately suspend all LANDLORD's business activities on the Premises. Failure
to reinstate said insurance within the (10) days of notice to do so shall be cause for
termination and for forfeiture of this agreement, and/or CITY, at its discretion, may
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procure or renew such insurance and pay any and all premiums in connection
therewith, and all monies so paid by CITY shall be repaid by LANDLORD to CITY
upon demand but only for the pro rata period of non-compliance.
M. CITY shall have no liability for any premiums charged for such
coverage(s). The inclusion of CITY as additional named insured is not intended to
and shall not make a partner or joint venturer with LANDLORD in LANDLORD's
operations.
N. The LANDLORD agrees to require all parties or subcontractors, or
others it hires or contracts with related to the use of this lease to provide insurance
covering such use with the basic requirements and naming the CITY as additional
insured. LICENSEE agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided as required herein.
19. DESTRUCTION OF PREMISES:
A. During the term of this Lease, if any casualty renders a portion of the
Premises unusable for the purpose intended, then LANDLORD shall, at
LANDLORD's expense, restore the Premises and repair any damages caused by
such casualty as soon as reasonably possible and this Lease shall continue in full
force and effect. If LANDLORD does not commence the restoration of the Premises
in a substantial and meaningful way within thirty (30) days following the
LANDLORD's receipt of written notice of the casualty, or should LANDLORD fail to
diligently pursue completion of the restoration of the Premises, or if the time
required to restore the Premises is estimated to exceed ninety (90) days, CITY may,
at its option, terminate this Lease immediately upon written notice to the
LANDLORD. If CITY elects to terminate this Lease pursuant to this provision,
CITY shall be discharged of all future obligations under this Lease. Alternatively,
if LANDLORD fails to commence the restoration of the Premises or fails to
diligently pursue the completion of the restoration as aforesaid, CITY may, at its
option and in its sole discretion, after notice to LANDLORD, perform LANDLORD's
obligations and restore the Premises. If CITY elects to restore the Premises, CITY
shall have the right to be reimbursed for all sums it actually and reasonably
expends (including charges for CITY employees and equipment) in the performance
of LANDLORD's obligations. The sum paid by CITY shall be due from LANDLORD
to CITY within five (5) days of notice of such sum, and if paid at a later date shall
bear interest at the maximum rate the CITY is permitted by law to charge from the
date the sum was paid by CITY until CITY is reimbursed by LANDLORD. If
LANDLORD fails to reimburse CITY as required by this paragraph, CITY shall
have the right to withhold from future rent due the sum CITY has paid until CITY
is reimbursed in full for the sum and interest on it. The remedies set forth in this
paragraph are in addition to and do not in any manner limit other remedies set
forth in particular paragraphs of this Lease. CITY shall forward to LANDLORD
receipts and/or documentation supporting the amount withheld. For the purposes
of this paragraph, the phrase "commence . . . in a substantial and meaningful way"
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shall mean either the unconditional authorization of the preparation of the required
plans, the issuance of any required Building Permits or the beginning of the actual
work on the Premises.
B. In the event there is a destruction of a portion of the Premises as set
out in subparagraph A, above, there shall be an abatement or reduction of the rent
between the date of destruction and the date of completion of restoration or the date
of termination of this Lease, whichever comes first. The abatement or reduction of
the rent shall be in proportion to the degree to which CITY's use of the Premises is
impaired.
C. In the event there is a destruction of a portion of the Premises as set
out in subparagraph A, above, and the Lease is not terminated because of such
destruction, LANDLORD agrees to use any and all insurance proceeds received for
said destruction in the restoration of the Premises.
D. In the event LANDLORD is required to restore the Premises as
provided in this paragraph, LANDLORD shall restore, at LANDLORD' expense,
any structural or exterior improvements or alterations to the Premises made by
CITY pursuant to Paragraph 14, ALTERATIONS, of this Lease, but shall not be
responsible for restoring any shelving, fixtures, or interior nonstructural
improvements or alteration made by the CITY pursuant to Paragraph 15,
FIXTURES, of this Lease.
E. It is the purpose and intent of this paragraph to determine who shall
bear the initial responsibility for restoration of the Premises in the event of any
such destruction and not to determine the party ultimately responsible for the costs
of such restoration.
20. LANDLORD'S DEFAULT: Except where another time limit is specifically
provided, LANDLORD shall be in default of this Lease if LANDLORD fails or
refuses to perform any material provisions of this Lease and such failure or refusal
to perform is not cured within thirty (30) days following LANDLORD' receipt of
written notice of default from CITY. If the default cannot reasonably be cured
within thirty (30) days, LANDLORD shall not be in default of this Lease if
LANDLORD commences to cure the default within the thirty (30) day period and
diligently and in good faith continues to cure the default.
21. CITY'S REMEDIES ON LANDLORD'S DEFAULT: CITY, at any time after
LANDLORD is in default, can terminate this Lease immediately upon written
notice to LANDLORD or can cure the default at LANDLORDS cost. If CITY at any
time, by reason of LANDLORD' default, pays any sum or does any act that
requires the payment of any sum (including charges for CITY' employees and
equipment), the sum paid by CITY shall be due from LANDLORD to CITY within
five (5) days of notice of such sum, and if paid at a later date shall bear interest at
the maximum rate the CITY is permitted by law to charge from the date the sum
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was paid by CITY until CITY is reimbursed by LANDLORD. If LANDLORD fails
to reimburse CITY as required by this paragraph, CITY shall have the right to
withhold from future rent due the sum CITY has paid until CITY is reimbursed in
full for the sum and interest on it. The remedies set forth in this paragraph are in
addition to and do not in any manner limit other remedies set forth in particular
paragraphs of this Lease.
22. CITY'S DEFAULT: The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by CITY:
A. The vacating for more than thirty (30) consecutive days or
abandonment of the Premises by CITY.
B. The failure by CITY to perform any material provisions of this Lease to
be performed by CITY, including the payment of rent, where such failure shall
continue for a period of thirty (30) days after notice by LANDLORD to CITY;
provided, however, that if the nature of CITYSs default is such that more than thirty
30) days are reasonably required for its cure, then CITY shall not be deemed to be
in default if CITY commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion. The purpose of this notice
requirement is to extend the notice requirements of the unlawful detainer statutes
of California.
23. LANDLORD'S REMEDIES ON CITY'S DEFAULT: Whenever any Event of
Default referred to in Section 22 hereof shall have happened and be continuing, it
shall be lawful for the LANDLORD to exercise any and all remedies available
pursuant to law or granted pursuant to this Lease; provided, however, that
notwithstanding anything herein to the contrary, there shall be no right under any
circumstances to accelerate the Rent or otherwise declare any Rent not then in
Default to be immediately due and payable. Each and every covenant hereof to be
kept and performed by the CITY is expressly made a condition and upon the breach
thereof the LANDLORD may, at its option, terminate this Lease. In the event of
such Event of Default, the CITY shall continue to remain liable for the payment of
the Rent and/or damages for breach of this Lease and the performance of all
conditions herein contained and, in any event such rent and/or damages shall be
payable to the LANDLORD only at the same time and in the same manner as
provided for the payment of Rent.
24. LANDLORD'S ACCESS TO PREMISES: LANDLORD and its authorized
representatives shall have the right to enter the Premises at all reasonable times
for any of the following purposes=
A. To determine whether the Premises are in good condition; and,
B. To do any necessary maintenance and to make any restoration to the
Premises that LANDLORD has the right or obligation to perform; and
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C. To serve, post, or keep posted any notices required by law; and,
D. To post "for sale" signs at any time during the term, to post "for rent"
or "for Lease" signs during the last three (3) months of the term; and,
E. To show the Premises to prospective brokers, agents, buyers, tenants,
lenders or persons interested in an exchange, at any time during the term.
LANDLORD shall conduct its activities on the Premises as allowed in this
paragraph in a manner that will cause the least possible inconvenience, annoyance,
or disturbance to CITY.
25. NOTICES:
A. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by United States mail,
postage prepaid, certified or registered, return receipt requested. Any notice,
demand, request, consent, approval, or communication that either party desires or
is required to give to the other party shall be addressed to the other party at the
address set forth below. Either party may change its address by notifying the other
party of the change of address. Notices shall be deemed delivered and effective upon
the earlier of(i) actual receipt or (ii) the date of delivery or refusal of the addressee
to accept delivery if such notice is sent by or United States mail, postage prepaid,
certified or registered, return receipt requested.
LANDLORD's address: Vanir Tower Building, Inc.
4540 Duckhorn Drive, Suite 100
Sacramento, CA 95834
CITY's address: City of San Bernardino
ATTN: City Manager
300 North "D" Street
San Bernardino, CA 92418
B. If, at any time after the CITY accepts the Premises, the LANDLORD
assigns or transfers a non-controlling interest of its rights in the Premises to a third
party, LANDLORD must notify CITY of its action at least fifteen (15) CITY working
days prior to completing any such action.
C. If, at any time after the CITY accepts the Premises, the LANDLORD
assigns or transfers a controlling interest of its rights in the Premises to a third
party, LANDLORD must notify CITY of its action at least fifteen (15) CITY working
days prior to completing any such action. The new owner must provide CITY with
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evidence of completion of such action. The parties shall immediately execute an
amendment to this Lease stating the change of ownership of the Premises.
1) Within fifteen (15) CITY working days of completing any action
which affects a change in the ownership of the Premises, the new owner must
provide CITY evidence of obtaining insurance in compliance with Paragraph 17,
INDEMNIFICATION and Paragraph 18, INSURANCE REQUIREMENTS AND
SPECIFICATIONS.
26. INCORPORATION OF PRIOR AGREEMENT= This Lease contains all of
the agreements of the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreement or understanding pertaining to
any such matter shall be effective for any purpose.
27. WAIVERS: No waiver by either party of any provisions of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach by
either party of the same or any other provisions.
28. AMENDMENTS: No provision of this Lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their respective
successor in interest, expressing by its terms an intention to modify this Lease.
29. SUCCESSORS: This Lease shall inure to the benefit of and be binding upon
the heirs, executors, administrators, successors, and assigns of the parties hereto.
30. SEVERABILITY: If any word, phrase, clause, sentence, paragraph, section,
article, part or portion of this Lease is or shall be invalid for any reason, the same
shall be deemed severable from the remainder hereof and shall in no way affect or
impair the validity of this Lease or any other portion thereof.
31. TIME OF ESSENCE: Time is of the essence of each provision of this Lease
which specifies a time within which performance is to occur. In the absence of any
specific time for performance, performance may be made within a reasonable time.
32. QUIET ENJOYMENT= Subject to the provisions of this Lease and
conditioned upon performance of all the provisions to be performed by CITY
hereunder, LANDLORD shall secure to CITY during the Lease term the quiet and
peaceful possession of the Premises and all right and privilege appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS: All provisions,
whether covenants or conditions, on the part of either party shall be deemed to be
both covenants and conditions.
34. CONSENT: Whenever consent or approval of either party is required that
party shall not unreasonably withhold, condition or delay such consent or approval.
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35. EXHIBITS: All exhibits referred to are attached to this Lease and
incorporated by reference.
36. LAW: This Lease shall be construed and interpreted in accordance with the
laws of the State of California.
37. VENUE: The parties acknowledge and agree that this Lease was entered
into and intended to be performed in San Bernardino County, California. The
parties agree that the venue for any action or claim brought by any party to this
Lease will be the Superior Court of California, County of San Bernardino. Each
party hereby waives any law, statute (including but not limited to Code of Civil
Procedure section 394), or rule of court that would allow them to request or demand
a change of venue. If any third party brings an action or claim concerning this Lease,
the parties hereto agree to use their best efforts to obtain a change of venue to the
Superior Court of California, County of San Bernardino.
38. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to
enforce or declare any party's rights hereunder, each party, including the prevailing
party, must bear its own costs and attorneys' fees. This paragraph shall not apply
to those costs and attorneys' fees directly arising from any third party legal action
against the CITY, including such costs and attorneys' fees payable under
Paragraph 17, INDEMNIFICATION, Paragraph 48, HAZARDOUS
SUBSTANCES, and Paragraph 49, PUBLIC RECORDS DISCLOSURE;
CONFIDENTIALITY.
39. RESERVED:
40. CITY'S RIGHT TO TERMINATE LEASE: The CITY shall have the right to
terminate this Lease at any time whenever CITY, in its sole discretion, determines
it would be in CITY's best interests to terminate this Lease. The City Manager
shall give LANDLORD notice of any termination pursuant to this paragraph at
least ninety (90) days prior to the date of termination. In the event CITY
terminates this Lease pursuant to this Paragraph 40, no termination fees,
reimbursement for Improvements, or other costs shall be due or payable to
LANDLORD for exercising CITY's termination right, except that LANDLORD shall
have the right to receive from CITY the rent which will have been earned under the
Lease through the effective termination date.
41. LANDLORD'S IMPROVEMENTS:
A. LANDLORD, at its cost, agrees to make the improvements to the
Premises set forth in Exhibit "A-1", Premises Specifications ("Improvements"). The
Improvements shall be completed by the Commencement Date. LANDLORD shall,
within ninety (90) days after the Commencement Date (or within ninety [90) days of
any termination date if the termination date is prior to the Commencement Date),
provide CITY receipts, invoices and other billing and/or accounting information
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necessary to verify the cost of all Improvements Tenant Improvement costs are
payable in 2 payments on December 1, 2016 and December 1, 2017.
B. LANDLORD understands and agrees that from the time that this
agreement is executed through the completion of the Improvements pursuant to
Exhibit "A-1", Premises Specifications, and acceptance of the improved Premises by
CITY, LANDLORD shall not assign or transfer a controlling interest in the
Premises to a third party, without CITY's prior review and approval.
1) LANDLORD understands and agrees to provide to CITY all
documents and relevant information concerning any proposed transfer. CITY will
have ten (10) CITY working days after receiving all such documents and
information to complete its review. Upon CITY approval of an assignment or
transfer, the parties shall immediately execute an amendment to this Lease stating
the change of ownership of the Premises.
C. LANDLORD understands and agrees not to make any modifications to
the improvement plans and specifications as set forth in Exhibit "A-11, Premises
Specifications, without first obtaining approval in the form of an amendment to this
Lease. Any changes to these plans and specifications, without first acquiring said
approval, will be at the expense of the LANDLORD and not the CITY.
D. In the event LANDLORD contracts for the construction of any portion
of the Improvements set forth in Exhibit "A-1", Premises Specifications,
LANDLORD shall comply with the California Public Contract Code Sections 22000
through 22045 regarding bidding procedures and Labor Code Sections 1720.2 and
1770 et seq. regarding general prevailing wages, including the provisions set forth
in Exhibit "F" attached hereto and incorporated herein by reference. LANDLORD
shall indemnify and hold harmless CITY and its officers, employees, and agents
from any claims, actions, losses, damages and/or liability arising out of the
obligations set forth in this subparagraph. The LANDLORD's indemnity
obligations shall survive the CITY's tenancy, and shall not be limited by the
existence or availability of insurance.
E. LANDLORD, at its sole expense, must provide all site plans (including
elevations of the building and details of the exterior finish), space design plans,
construction plans, and a complete set of the bid drawings and specifications. The
bid drawings shall be on reproducible transparent vellum with the
architect's/engineer's professional stamp and signature, and also provided to CITY
on a compact disc-recordable (CD-R). The file format for the CD-R copy shall be an
Adobe Acrobat file (.pdf file extension) AND AutoCAD software (.dwg file
extension). The specifications shall be submitted as a reproducible hardcopy and
copied on a CD-R with formats compatible with Microsoft Word. LANDLORD
agrees and understands that it will construct on the Premises during the period
immediately following execution of this Lease, those Improvements shown on the
space design and site plans prepared by LANDLORD and approved by CITY. The
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Improvements shall be constructed in accordance with Paragraph 11, HEALTH,
SAFETY AND FIRE CODE REQUIREMENTS, and Exhibit "A-1", Premises
Specifications.
F. LANDLORD and CITY agree that the Improvements are projected to
be constructed, completed and certified for occupancy by the CITY, acting in its
regulatory capacity, by 201_, and that the CITY must be able to
occupy the improved Premises no later than 201_. In order to meet the
projected occupancy date, the parties have agreed upon the following Project
Construction Schedule setting forth the essential elements of construction, the
projected completion dates, and the critical completion dates for each element.
Those dates are as follows:
1) Preparation and Submittal of Building and Site Plans to the
City of San Bernardino: Projected Completion Date: 201_. Critical
Completion Date: 201_.
2) Approval and Permit Issuance of Building and Site Plans by
City Agencies: Projected Completion Date: 201_. Critical
Completion Date: 201_.
3) Tenant Improvement Plan Preparation and Submittal to City:
Projected Completion Date: 201_. Critical Completion Date:
201_.
4) Permit Issuance for Tenant Improvements: Projected
Completion Date: 201_. Critical Completion Date:
201 .
5) Site Work and Building Construction: Projected Completion
Date: 201_ Critical Completion Date: 201_.
6) Construction of Tenant Improvements and Certified for
Occupancy: Projected Completion Date: 201_. Critical Completion
Date 201_.
G. LANDLORD agrees that its failure to meet any of the above Critical
Completion Date(s) will mean that the CITY will not be able to occupy the improved
Premises by 201_, and that the CITY may therefore elect to
terminate this Lease in the event the LANDLORD fails to meet any_ of said dates.
Any such election to terminate by the CITY must be in writing and given to
LANDLORD within ninety (90) CITY working days of the missed Critical
Completion Date, and before the LANDLORD completes the element and notifies
the CITY of such completion.
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H. LANDLORD agrees to provide the CITY a written progress report
every thirty (30) days. The report shall contain up-date information of construction
progress and notification of any permit approval. LANDLORD shall immediately
notify CITY of the completion of every element in the Project Construction
Schedule.
I.LANDLORD acknowledges that late delivery of the Premises to CITY
will cause CITY to incur costs not contemplated by this Lease agreement, the exact
amount of such costs being extremely difficult and impracticable to fix. Therefore,
if LANDLORD does not deliver the improved Premises by the projected occupancy
date of 201_, LANDLORD agrees to liquidated damages of Five
Hundred and 00100 Dollars ($500.00) for each day's delay from the projected
occupancy date of 201_, to the date the CITY accepts the Premises or
terminates this Lease agreement. The parties agree that this charge represents a
fair and reasonable estimate of the costs that CITY will incur by reason of late
delivery. Acceptance of any charge shall not constitute a waiver of LANDLORD's
default or prevent CITY from exercising any of the other rights and remedies
available to CITY.
J.Notwithstanding subparagraphs "F", "G" and "I", above, in the event
LANDLORD, after exercising all due diligence, is unable to meet any of the above
mentioned Critical Completion Dates due to reasons which LANDLORD proves are
outside the control of LANDLORD, such reasons include but are not limited to acts
of God, unreasonable acts of governmental agencies causing unavoidable delays (the
normal and reasonable times for review, action and reasonably anticipated delays
by governmental agencies are already included in the timing of the Critical
Completion Dates), strikes, or labor troubles, then the Critical Completion Dates(s)
shall be extended for a period equivalent to the period of such delay.
1) As soon as LANDLORD becomes aware, or should in the exercise
of due diligence have become aware of any facts or circumstances that may or will
cause such a delay, LANDLORD shall immediately notify CITY of any such delay or
anticipated delay. In the event LANDLORD fails to timely notify CITY of any such
delay or anticipated delay, LANDLORD, notwithstanding the main portion of this
subparagraph V" above, shall be subject to subparagraph "I", above, for the entire
length of any delay.
42. CAPTIONS TABLE OF CONTENTS AND COVER PAGE= The paragraph
captions, table of contents and the cover page of this Lease shall have no effect on
its interpretations.
43. SURVIVAL: The obligations of the parties that, by their nature, continue
beyond the term of this Lease, will survive the termination of this Lease.
44. FORMER CITY OFFICIALS: LANDLORD agrees to provide or has already
provided information on former CITY administrative officials (as defined below)
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who are employed by or represent LANDLORD. The information provided includes
a list of former CITY administrative officials who terminated CITY employment
within the last five years and who are now officers, principals, partners, associates
or members of the business. The information should also include the employment
and/or representative capacity and the dates these individuals began employment
with or representation of your business. For purposes of this provision, "CITY
administrative official" is defined as a member of the Mayor and Common Council
or such official's staff, City Manager or member of such officer's staff, CITY
department head, assistant department head, or any employee in the San
Bernardino Confidential Management Unit. (See Exhibit "C", List of Former CITY
Officials.)
45. BROKER'S COMMISSIONS LANDLORD is solely responsible for the
payment of any commissions to any broker who has negotiated or otherwise
provided services in connection with this Lease.
46. ESTOPPEL CERTIFICATES: Each party within thirty (30) days after
notice from the other party, shall execute and deliver to other party, in recordable
form, a certificate stating that this Lease is unmodified and in full force and effect,
or in full force and effect as modified, and stating the modifications. The certificate
also shall state the amount of minimum monthly rent, the dates to which the rent
has been paid in advance, the amount of any security deposit or prepaid rent, and
that there are no uncured defaults or specifying in reasonable detail the nature of
any uncured default claimed. Failure to deliver the certificate within thirty (30)
days shall be conclusive upon the party requesting the certificate and any successor
to the party requesting the certificate, that this Lease is in full force and effect and
has not been modified except as may be represented by the party requesting the
certificate, and that there are no uncured defaults on the part of the party
requesting the certificate. The estoppel certificate shall be in the form as shown in
Exhibit "D", Estoppel Certificate.
47. SUBORDINATION AND ATTORNMENT:
A. As a condition precedent to the CITY's obligations under this Lease,
LANDLORD shall obtain from each holder of a lien or encumbrance on the
Premises which is senior to this Lease either an executed recordable subordination
agreement which subordinates such lien or encumbrance to this Lease, or a non-
disturbance agreement which contains terms at least as favorable to the CITY as
those set forth in paragraph 2 ("Nondisturbance") of Exhibit "E", Subordination,
Nondisturbance and Attornment Agreement, hereto.
B. If, after execution of this Lease, a subsequent lienor requires that this
Lease be subordinate to any such encumbrance, this Lease shall be subordinate to
that encumbrance if, and only if, LANDLORD first obtains from the subsequent
lienor an executed subordination, nondisturbance and attornment agreement, the
terms of which are at least as favorable to the CITY as those set forth in Exhibit
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E", Subordination, Nondisturbance and Attornment Agreement hereto. If the City
Attorney approves the form of a subordination, nondisturbance and attornment
agreement pursuant to this subparagraph, and if such agreement is executed by the
subsequent lienor, then the City Manager is authorized on behalf of the CITY to,
and shall, execute such agreement, and shall further execute any other documents
required by the lender to accomplish the purposes of this paragraph, provided such
other documents are consistent with the terms of the subordination, nondisturbance
and attornment agreement and this Lease.
48. HAZARDOUS SUBSTANCES:
A. LANDLORD hereby represents and warrants that, to the best of
LANDLORD's knowledge, information and belief. (i) the Premises and the property
on which the Premises forms a part of have not been exposed to Hazardous
Substances and are presently free of all Hazardous Substances; (ii) neither the
LANDLORD nor any of the other current tenants, if any, on the property of which
the Premises forms a part is in violation or subject to an existing, pending or
threatened investigation by any governmental authority under any applicable
federal, state or local law, regulation, ordinance or other legislation pertaining to
air, water, or soil quality or the handling, transportation, storage, treatment, usage
or disposal of Hazardous Substances; (iii) any handling, transportation, storage,
treatment or use of toxic or Hazardous Substances to date has been in compliance
with applicable laws; and (iv) no reportable use has occurred on the Premises and
the property on which the Premises forms a part of to date, and the soil,
groundwater and vapor on or under the Premises and the property on which the
Premises forms a part of is free of Hazardous Substances as of the Commencement
Date.
B. LANDLORD shall indemnify, protect, defend (with counsel reasonably
approved by CITY) and hold CITY, its agents and employees and the Premises,
harmless from and against any and all losses and/or damages, liabilities,
judgments, costs, claims, expenses, penalties, including attorneys' and consultant's
fees, arising out of or involving the existence of any Hazardous Substances located
in, about or under the Premises and the property on which the Premises forms a
part of- (i) prior to the Commencement Date of this Lease; and (ii) not caused by
CITY during the term, including any extended terms. Additionally, the issuance of
an order by any governmental authority directing the LANDLORD or any of
LANDLORD's other tenants or licensees on the property of which the Premises
forms a part to cease and desist any illegal action in connection with a Hazardous
Substance, or to remediate a contaminated condition caused by the LANDLORD or
any person acting under LANDLORD's direct control and authority is a breach of
this Contract, and LANDLORD shall be responsible for all costs and expenses of
complying with such order, including any and all expenses imposed on or incurred
by CITY in connection with or in response to such order. LANDLORD's obligations
under this paragraph shall include, but shall not be limited to, the effects of any
contamination or injury to person, property or the environment created or suffered
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by CITY, and the cost of investigation, removal, remediation, restoration and/or
abatement thereof. LANDLORD's obligations under this provision shall survive the
expiration or early termination of this Lease. No termination, cancellation or
release agreement entered into by CITY and LANDLORD shall release
LANDLORD from its obligations under this Lease with regard to Hazardous
Substances unless specifically agreed to by CITY in writing.
C. For the purposes of this paragraph, the following definitions shall
apply:
1) "Hazardous Substance," as used in this Lease, shall mean any
product, substance or waste whose presence, use, manufacture, disposal,
transportation, or release, either by itself or in combination with other materials
expected to be on the Premises and the property on which the Premises forms a part
Of, is either (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises and the property on which the Premises forms a part
of (ii) regulated or monitored by any governmental authority; or (iii) a basis for
potential liability of LANDLORD or CITY under any applicable statute or common
law theory.
2) "Reportable use" shall mean (i) the installation or use of any
above- or below-ground storage tank; (ii) the generation, possession, storage, use,
transportation or disposal of a Hazardous Substance that requires a permit from, or
with respect to which a report, notice, registration or business plan is required to be
filed with any governmental authority and/or (iii) the presence at the Premises and
the property on which the Premises forms a part of a Hazardous Substance with
respect to which any Applicable Requirements requires that a notice be given to
persons entering or occupying the Premises and the property on which the Premises
forms a part of or neighboring properties.
3) The term "applicable requirements" shall be deemed to refer to
all applicable laws, covenants or restrictions of record, building codes, regulations
and ordinances.
49. PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY
A. All information received by the CITY from the LANDLORD or any
source concerning this Lease, including the Lease itself, may be treated by the CITY
as public information subject to disclosure under the provisions of the California
Public Records Act, Government Code Section 6250 et seg. (the "Public Records Act").
LANDLORD understands that although all materials received by the CITY in
connection with this Lease are intended for the exclusive use of the CITY, they are
potentially subject to disclosure under the provisions of the Public Records Act. In the
event a request for disclosure of any part or all of any information which a
LANDLORD has reasonably requested CITY to hold in confidence is made to the
CITY, the CITY shall notify the LANDLORD of the request and shall thereafter
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disclose the requested information unless the LANDLORD, within five (5) days of
receiving notice of the disclosure request, requests nondisclosure, provides CITY a
legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold
the CITY harmless in any/all actions brought to require disclosure. LANDLORD
waives any and all claims for damages, lost profits, or other injuries of any and all
kinds in the event CITY fails to notify LANDLORD of any such disclosure request
and/or releases any information concerning this Lease received from the LANDLORD
or any other source.
B. Confidentiality. LANDLORD acknowledges that the premises will be
used by CITY for the processing and storage of confidential information protected
from unlawful access and disclosure by federal, state and local laws. CITY and its
officers, agents, volunteers and employees, agree to comply with relevant federal,
state and local laws pertaining to the security and protection of such confidential
information while on the premises. LANDLORD agrees that it will prevent any
unlawful access to or disclosure of the confidential information by LANDLORD, its
officers, agents, volunteers, employees and contractors. LANDLORD agrees that all
entities with which LANDLORD contracts to provide services on the premises will
prevent any unlawful access or disclosure of the confidential information, and that
said entities will agree to the same in writing. LANDLORD acknowledges that any
unlawful access to or disclosure of confidential information may result in the
imposition of civil and criminal sanctions.
50. CONDITION OF PREMISES: LANDLORD shall deliver the Premises to
CITY clean and free of debris on the Commencement Date and warrants to CITY
that the plumbing, electrical systems, fire sprinkler system, lighting, air
conditioning and heating systems and loading doors, if any, in the Premises shall be
in good operating condition on the Commencement Date.
51. CONDEMNATION:
A. If the Premises or any portion thereof are taken under the power of
eminent domain or sold under the threat of the exercise of said power (all of which
are herein called "condemnation"), this Lease shall terminate as to the part so
taken as of the date the condemning authority takes title or possession, whichever
first occurs. If more than ten percent (10%) of the floor area of the Premises, or
more than twenty-five percent (25%) of the portion of the Common Areas or that
portion of the Premises designated for CITY's parking, is taken by condemnation,
CITY may, at CITY's option, to be exercised in writing within thirty (30) days after
LANDLORD shall have given CITY written notice of such taking (or in the absence
of such notice, within thirty (30) days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority
takes such possession. If CITY does not terminate this Lease in accordance with
the foregoing, this Lease shall remain in full force and effect as to the portion of the
Premises remaining, except that the rent shall be reduced in the same proportion as
the rentable floor area of the Premises taken bears to the total rentable floor area of
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the Premises. No reduction of rent shall occur if the condemnation does not apply
to any portion of the Premises. CITY shall be entitled to receive the following
amounts of any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such
power: (a) one hundred percent (100%) of any amount attributable to any excess of
the market value of the Premises for the remainder of the Lease Term over the
present value as of the Termination Date of the Rent payable for the remainder of
the Lease Term (commonly referred to as the "bonus value" of the Lease); and (b)
CITY shall have the right to make a separate claim in the Condemnation
proceeding for: (i) The taking of the amortized or undepreciated value of any trade
fixtures or leasehold improvements owned by CITY that CITY has the right to
remove at the end of the Lease term and that CITY elects not to remove; (ii)
Reasonable removal and relocation costs for any trade fixtures or leasehold
improvements that CITY has the right to remove and elects to remove (if
Condemnor approves of the removal); (iii) Loss of goodwill; (iv) Relocation costs
under Government Code section 7262, the claim for which CITY may pursue by
separate action independent of this Lease; and (v) Any other amount in addition to
the foregoing that the CITY is allowed under condemnation law.
B. CITY shall have the right to negotiate directly with Condemnor for the
recovery of the portion of the Award that CITY is entitled to under subparagraph
B) of this paragraph. In the event that this Lease is not terminated by reason of
such condemnation, LANDLORD shall repair any damage to the Premises caused
by such condemnation authority pursuant to Paragraph 13, MAINTENANCE, and
Paragraph 19, DESTRUCTION OF PREMISES.
52. MATERIAL MISREPRESENTATION: If during the course of the
administration of this lease, the CITY determines that the LANDLORD has made a
material misstatement or misrepresentation or that materially inaccurate
information has been provided to the CITY, this Lease may be immediately
terminated. If this Lease is terminated according to this provision, the CITY is
entitled to pursue any available legal remedies.
53. INTERPRETATIONS: As this Lease was jointly prepared by both parties,
the language in all parts of this Lease shall be construed, in all cases, according to
its fair meaning, and not for or against either party hereto.
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54. AUTHORIZED SIGNATORS: Both parties to this Lease represent that the
signators executing this document are fully authorized to enter into this agreement.
CITY OF SAN BERNARDINO
Mark Scott, City Manager
0IANDLORD" Vanif
r Tower Bui ldi"Lng,
latBy: 'j"
e)Dorene C.- Domin gue(
D 2 4V, 17ate: Title:Pres1 dent
ATTEST*
GEORGEANN HANNA, City Clerk
B,7y:.
Date:
I Zq I
Approved as to Legal Form:
GARY D. SAENZ, City Attorney
City of San Bernardino
0Date* February 8, 2017
Name) H. Vincent McLaupzrhlin
idle *Secretary
iate:February •8Iii: , 2017
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EXHIBIT "A!' —PREMISES
FOR CLARITY: the Premises is comprised of approximately square feet of
office space located at CA.
Assessor Parcel Map Number:0000
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EXHIBIT"B"
LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES
Janitorial Service to provide/supply all sanitary and paper goods.)
DAILY SERVICES:
1. Empty and damp clean all ashtrays.
2. Empty all waste baskets and other waste containers.
3. Dust mop all tiled/terrazzo floors.
4. Vacuum traffic lanes of carpeting.
5. Dust all desks, chairs, tables, filing cabinets and other office furniture.
6. Damp clean lobby counters.
7. Clean and sanitize rest room fixtures, mirrors, chrome pipes, etc.
8. Clean splash marks from walls of rest rooms.
9. Refill soap, towel and paper containers.
10. Clean and sanitize drinking fountains.
11. Clean hand marks off glass on entrance doors.
12. Damp clean table tops in coffee rooms.
13. Clean kitchen sinks and counters.
14. Sweep entryways.
15. Brush down steps of inside stairwells.
16. Vacuum elevator carpet. All carpeted areas are to be vacuumed using a dual
motor vacuum with a rotating cylindrical brush, rather than a beater bar.
17. Spot clean all walls and doors including elevator.
18. Spot clean carpets of small spillage, footprints, etc.
19. Keep janitor closets clean and orderly.
20. Remove paper and debris outside main entrance.
WEEKLY SERVICE:
1. Wet mop all tiled/terrazzo floors.
2. Clean all desk tops and tables that are cleared; clean all chairs.
3. Clean hand marks from walls, doors and woodwork.
4. Vacuum all carpeting completely. All carpeted areas are to be vacuumed using
a dual motor vacuum with a rotating cylindrical brush, rather than a beater
bar.
TWICE-MONTHLY SERVICE:
1. Dust high areas, including window coverings.
2. Vacuum upholstered furniture.
3. Clean lobby directories and fire extinguisher glass.
4. Machine clean and seal all tiled floors.
EVERY THREE MONTHS:
1. Vacuum dust and dirt accumulation from air conditioning vents.
2. Brush down cobwebs inside building.
3. Wash inside windows and partitions.
4. Replace cartridge in rest room automatic air fresheners.
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The above are considered the minimum standard janitorial items, and are to be
performed by a licensed janitorial contractor. Landlord is responsible for providing
all services related to the health and cleanliness of the leased facility.'
The following services are to be performed by a licensed maintenance contractor.Page 1 of 2
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EXHIBIT "B" - FOR HSS PROJECTS ONLY
LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES
Continued):
WEEKLY SERVICE:
1. Contract with a mat service to supply and replace interior entry mats with
cleaned mats.
2. Replace light bulbs and tubes inside building when needed.
ONCE-MONTHLY SERVICE:
1. Licensed pest control.
EVERY THREE MONTHS:
1. Carpet to be cleaned by a professional carpet cleaning company using hot
water extraction process.
2. Wash exterior and interior windows and partitions.
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EXHIBIT"C"
LIST OF FORMER CITY OFFICIALS
INSTRUCTIONS: List the full name of the former CITY Official, the
title/description of the Official's last position with the CITY, the date the Official
terminated CITY employment, the Official's current employment and/or
representative capacity with the LANDLORD, the date the Official entered
LANDLORD's employment and/or representation.
OFFICIAL'S NAME: REQUIRED INFORMATION
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EXHIBIT "D" - ESTOPPEL CERTIFICATE
Date:
To
Re
address) city)
The undersigned ("CITY") hereby certifies as follows:
1. CITY is in possession of
California (the "Premises"). CITY leases the Premises under a written Lease
agreement dated 20 , Lease Agreement No. the "Lease"),
wherein CITY is the lessee or tenant, and Owner") is the
lessor or landlord.
2. The Lease is in full force and effect and has not been amended,
supplemented or changed, except as follows:
3. The term of the Lease commenced on 20 , and is
scheduled to expire 20_. CITY has no right or option to renew or
extend the term of the Lease except as to the following: year
options.
4. CITY's current monthly rental is $ payable on the last day
of each month.
5. CITY currently has no security deposit with Owner.
6. CITY is not in default under the terms of the Lease and no condition
exists which, with the passage of time or the giving of notice, or both, would
constitute such a default. To the best of CITY's knowledge, Owner is not in default
under the terms of the Lease, and no condition exists which, with the passage of
time or the giving notice, or both, would constitute such a default.
7. CITY hereby certifies that the foregoing is true and correct.
By:
City Manager
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EXHIBIT "E"
RECORDED AT REQUEST OF
AND TO BE RETURNED TO
Attn:
SUBORDINATION. NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT ("Agreement") is entered into by and between the City of San
Bernardino Tenant"),
Landlord")
and, Lender").
Name and type of entity)
Recitals
A. Tenant entered into a certain Lease Agreement, dated as of
20_ (the "Lease"), between Tenant, as lessee, and Landlord, as
lessor, pertaining to that certain premises commonly known as
California zip code), as more
particularly described in the Lease ("Premises"), located on that certain real
property located in the County of San Bernardino, State of California, as more
particularly described in Exhibit "A", attached hereto and incorporated herein (the
Property"). Landlord may also be referred to as "Borrower".
B. Borrower made, executed and delivered, or is about to make, execute
and deliver to Lender a certain promissory note, dated substantially
contemporaneously herewith ("the Note"), in the original principal sum of
The obligations evidenced by the Note shall be referred to as
the "Loan". The Note is executed pursuant to the terms of a certain Construction
Loan Agreement, dated substantially contemporaneously herewith (the "Loan
Agreement"), between Lender and Landlord.
C. Borrower has executed and delivered, or is about to execute and deliver
to Lender, a certain Deed of Trust and Assignment of Rents, dated substantially
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contemporaneously herewith (the "Deed of Trust"), encumbering the Property to
secure the Loan.
D. It is a condition precedent to the Loan that the Deed of Trust shall
unconditionally be and remain at all times a lien or charge upon the Property, prior
and superior to the Lease.
E. It is a condition precedent to the Loan that Tenant will specifically and
unconditionally subordinate and subject the Lease, together with all rights and
privileges of Tenant thereunder, to the lien or charge of the Deed of Trust.
F. It is to the mutual benefit of the parties hereto that Lender and
Borrower enter into the Loan.
Covenants
In consideration of the recitals set forth above and the covenants and
agreements contained herein, the parties agree as follows=
1. Subordination: Tenant hereby subordinates all of Tenant's right, title,
interest and leasehold estate in and to the Premises to the lien, operation, and effect
of the Deed of Trust.
2. Nondisturbance: Tenant's peaceful and quiet possession of the
Premises shall not be disturbed and Tenant's rights and privileges under the Lease,
including but not limited to the provisions of the Lease set forth under the headings
TERM," "EXPANSION OF RENTAL SPACE," "OPTION TO EXTEND TERM,"
INDEMNIFICATION,: INSURANCE REQUIREMENTS AND
SPECIFICATIONS," "DESTRUCTION OF PREMISES," "CITY'S RIGHT TO
TERMINATE LEASE," and "CONDEMNATION," shall not be diminished by
Lender's foreclosure, acceptance of a deed in lieu of foreclosure, or any other
exercise of Lender's rights or remedies under the Deed of Trust, the Note, the Loan
Agreement, any other loan document, or the laws governing secured loans. All of
the provisions of the Lease shall prevail over any conflicting provisions in the Deed
of Trust, the Note, the Loan Agreement, any other loan document, or the laws
governing secured loans. Tenant shall not be named or joined in any foreclosure,
trustee's sale, or other proceeding or action to enforce the Deed of Trust, the Note,
the Loan Agreement, any other loan document, unless such joinder shall be legally
required to perfect such foreclosure, trustee's sale, or other proceeding or action.
3. Attornment: If the Deed of Trust is foreclosed for any reason, or
Landlord deeds the Property to Lender in lieu of foreclosure, the Lease shall not be
extinguished and Tenant shall be bound to Lender under all the terms, covenants,
and conditions of the Lease for the balance of the term of the Lease with the same
force and effect as if Lender was the lessor under the Lease. Tenant shall attorn to
Lender as Tenant's Lessor, and agrees to recognize Lender as the new owner and
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promises to pay the rent to Lender as Landlord. This attornment shall be effective
and self operative, without the execution of any other instruments on the part of any
of the parties to this Agreement, immediately upon Lender succeeding to the interest
of Landlord under the Lease.
4. Disbursements: Lender is under no obligation or duty to monitor the
application of the proceeds of the Loan. Any application of such proceeds for purposes
other than those provided for in the Loan Agreement or any of the other Loan
Documents shall not defeat the effect of this Agreement in whole or in part.
5. Acknowledgment of Assignment: Tenant acknowledges and consents to
the assignment of Landlord's rights under the Lease to Lender pursuant to a certain
Assignment of Leases (the "Assignment"). Tenant shall pay rent to Lender upon
receipt of written notice from Lender that Lender has revoked the waiver of
Landlord's right to receive the rents from the Premises pursuant to the Assignment,
notwithstanding the fact that Lender has not foreclosed the Deed of Trust, nor
succeeded to the interest of Landlord under the Lease. Tenant shall not be liable to
Landlord for any payments made to Lender hereunder.
6. Assignment or Sublease: Tenant may assign or sublease all or any
portion of the Property in accordance with the Lease, but no such assignment,
transfer, or subletting shall relieve Tenant of any of its obligations under the Lease.
Tenant hereby covenants that the Lease has not been modified or altered except at
stated in the recitals. Tenant shall not voluntarily subordinate or subject the Lease or
any interest therein to any lien or encumbrance without the prior written consent of
Lender, unless said lien or encumbrance shall relate to personal property that can be
removed without damage to the Premises, or unless such subordination is required by
the Lease.
7. Notices: Tenant shall deliver to Lender a copy of all notices, requests, or
demands delivered by Tenant to Landlord in accordance with this Paragraph. Tenant
shall also deliver to Lender any and all notices, demands, or requests received by
Tenant from Landlord relating to any of the aforesaid. Lender shall deliver to Tenant
all notices, requests or demands in accordance with this Paragraph. All notices
required hereunder or pertaining hereto shall be in writing and shall be deemed
delivered and effective upon the earlier of(i) actual receipt; or (ii) the date of delivery
or refusal of the addressee to accept delivery if such notice is sent by express courier
service or United States mail, postage prepaid, certified or registered, return receipt
requested; in each case, to the applicable address as follows:
to Tenant: CITY of San Bernardino
address]
to Landlord:
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Attn:
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to Lender:
Attn:
Notwithstanding the foregoing, any notice under or pertaining to this Agreement,
given and effective in accordance with applicable law, shall be effective for purposes
hereof Any party may change the address at which it is to receive notices hereunder
to another business address within the United States (but not a post office box or
similar mail receptacle) by giving notice of such change of address in accordance
herewith.
8. Landlord's Default: Tenant hereby agrees that Tenant will notify
Lender in writing, in accordance with Paragraph 7, Notices, above, of any default by
Landlord under the terms of the Lease and Tenant shall not cancel or terminate, or
acquiesce to the cancellation or termination of the Lease without giving Lender a
reasonable period (not less than 30 days) after delivery of such notice to cure the
default; Lender's rights and remedies under the Loan Agreement or any of the Loan
Documents (as defined in the Loan Agreement) shall not be prejudiced by its exercise
or failure to exercise the right to cure described above. Except for Landlord's defaults
under Paragraph 3, TERM, of the Lease, relating to Landlord's failure to meet the
Critical Completion Dates as set forth in Exhibit "A", Page 4, Schedule of Completion,
Lender elects within such thirty (30) day period to foreclose on the Deed of Trust,
such time period shall be extended so that Lender shall have a reasonable period
within which to foreclose the Deed of Trust and shall have an additional thirty (30)
days from the time Lender becomes owner of the Property through foreclosure within
which to cure such default. If any default by Landlord is cured within the time
periods described above, Tenant shall have no right to terminate the Lease by virtue
of such default.
9. Binding Effect: This Agreement shall be binding upon the parties and
their respective heirs, personal representatives, successors, and assigns.
10. Law: This Agreement shall be construed and interpreted in accordance
with the laws of the State of California.
11 Reserved:
12.Attorneys' Fees and Costs: If any legal action is instituted to enforce or
declare any party's rights hereunder, each party, regardless of which party is the
prevailing party, must bear its own costs and attorneys' fees. This paragraph shall
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not apply to those costs and attorneys' fees directly arising from any third party legal
action against a party hereto and payable under Lease Paragraph 17,
INDEMNIFICATION", Paragraph 48, HAZARDOUS SUBSTANCES; and
Paragraph 49, PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY.
13. Venue: The parties acknowledge and agree that this Agreement was
entered into and intended to be performed in San Bernardino County, California.
The parties agree that the venue for any action or claim brought by any party to
this Agreement will be the Superior Court of California, County of San Bernardino.
Each party hereby waives any law, statute (including but not limited to Code of
Civil Procedure section 394), or rule of court that would allow them to request or
demand a change of venue. If any third party brings an action or claim concerning
this Agreement, the parties hereto agree to use their best efforts to obtain a change of
venue to the Superior Court of California, County of San Bernardino.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year written below.
Tenant:Lender:
CITY OF SAN BERNARDINO:
By:
City Manager Name)
Date:
Title:
ATTEST: Date:
Georgeann Hanna, City Clerk
Landlord:
By:
Date:
Title:
Approved as to Legal Form:
Gary D. Saenz, City Attorney
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Date:
By:
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EXHIBIT "F"
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Landlord Improvements in the Contract or Purchase
Order (as applicable) requires the payment of prevailing wages and
compliance with the following requirements. As used in this Attachment,
the term "Contractor" shall include Landlord or Landlord's contractor
and/or subcontractors.
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq., the CITY has obtained from the
Director of the Department of Industrial Relations (DIR) pursuant to the California
Labor Code, the general prevailing rates of per diem wages and the prevailing rates
for holiday and overtime work in the locality in which the Landlord Improvements
is to be performed. Copies of said rates are on file with the CITY, will be made
available for inspection during regular business hours, may be included elsewhere
in the specifications for the Landlord Improvements, and are also available online
at www.dir.ca.gov. The wage rate for any classification not listed, but which may
be required to execute the Landlord Improvements, shall be commensurate and in
accord with specified rates for similar or comparable classifications for those
performing similar or comparable duties. In accordance with Labor Code section
1773.2, the Contractor shall post, at appropriate and conspicuous locations on the
jobsite, a schedule showing all applicable prevailing wage rates and shall comply
with the requirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Landlord
Improvements, shall be paid not less than the general prevailing wage rate,
regardless of any contractual relationship which may be alleged to exist between
the Contractor or any subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the
CITY for each calendar day or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director of the DIR for such work or craft in
which such worker is employed by the Contractor or by any subcontractor in
connection with the Landlord Improvements. Pursuant to California Labor Code
section 1775, the difference between such prevailing wage rates and the amount
paid to each worker for each calendar day, or portion thereof, for which each worker
was paid less than the prevailing wage rate, shall be paid to each worker by the
Contractor.
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4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner
publishes and distributes a list of contractors ineligible to perform work as a
contractor or subcontractor on a public works project. This list of debarred
contractors is available from the DIR website at http://www.dir.ca.gov/Public-
Works/PublicWorks.html. Any contract entered into between a contractor and a
debarred subcontractor is void as a matter of law. A debarred subcontractor may
not receive any public money for performing work as a subcontractor on a public
works contract, and any public money that may have been paid to a debarred
subcontractor by a contractor on the project shall be returned to the CITY. The
Contractor shall be responsible for the payment of wages to workers of a debarred
subcontractor who has been allowed to work on the Landlord Improvements.
6. Payroll Records:
Pursuant to California Labor Code section 1776, the Contractor and each
subcontractor, shall keep accurate certified payroll records, showing the name,
address, social security number, work classification, straight time and overtime
hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker or other employee employed by them in connection
with the Landlord Improvements. The payroll records enumerated herein shall be
verified by a written declaration made under penalty of perjury that the
information contained in the payroll record is true and correct and that the
Contractor or subcontractor has complied with the requirements of the California
Labor Code sections 1771, 1811, and 1815 for any Landlord Improvements
performed by his or her employees. The payroll records shall be available for
inspection at all reasonable hours at the principal office of the Contractor on the
following basis:
1)A certified copy of an employee's payroll record shall be made available for
inspection or furnished to such employee or his/her authorized
representative on request;
2)A certified copy of all payroll records shall be made available for
inspection or furnished upon request to the CITY, the Division of Labor
Standards Enforcement of the DIR;
3)A certified copy of payroll records shall be made available upon request to
the public for inspection or copies thereof made; provided, however, that a
request by the public shall be made through either the CITY or the
Division of Labor Standards Enforcement. If the requested payroll
records have not been previously provided to the CITY or the Division of
Labor Standards Enforcement, the requesting party shall, prior to being
provided the records, reimburse the cost of preparation by the Contractor,
subcontractor and the entity through which the request was made; the
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public shall not be given access to such records at the principal office of
the Contractor;
4) The Contractor shall file a certified copy of the payroll records with the
entity that requested such records within ten (10) days after receipt of a
written request; and
5) Copies provided to the public, by the CITY or the Division of Labor
Standards Enforcement shall be marked or obliterated in such a manner
as to prevent disclosure of an individual's name, address and social
security number. The name and address of the Contractor or any
subcontractor, performing a part of the Landlord Improvements shall not
be marked or obliterated. The Contractor shall inform the CITY of the
location of payroll records, including the street address, city and CITY and
shall, within five (5) working days, provide a notice of a change of location
and address.
The Contractor shall have ten (10) days from receipt of the written notice specifying
in what respects the Contractor must comply with the above requirements. In the
event Contractor does not comply with the requirements of this section within the
ten (10) day period, the Contractor shall, as a penalty to the CITY, forfeit one-
hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker,
until strict compliance is effectuated. Upon the request of the Division of Labor
Standards Enforcement, such penalty shall be withheld from any portion of the
payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor Code section 1810, eight (8) hours of labor shall
constitute a legal day's work. Pursuant to California Labor Code section 1811, the
time of service `of any worker employed at any time by the Contractor or by a
subcontractor, upon the Landlord Improvements or upon any part of the Landlord
Improvements, is limited and restricted to eight (8) hours during any one calendar
day and forty (40) hours during any one calendar week, except as provided for under
Labor Code section 1815. Notwithstanding the foregoing provisions, work
performed by employees of Contractor or any subcontractor, in excess of eight (8)
hours per day and forty (40) hours during any one week, shall be permitted upon
compensation for all hours worked in excess of eight (8) hours per day at not less
than one and one-half(1%) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the CITY a penalty of twenty-five dollars ($25.00) for
each worker employed on the Landlord Improvements by the Contractor or any
subcontractor, for each calendar day during which such worker is required or
permitted to work more than eight (8) hours in any calendar day and forty (40)
hours in any one calendar week, in violation of the provisions of the California
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Labor Code, unless compensation to the worker so employed by the Contractor is
not less than one and one-half(1'/2) times the basic rate of pay for all hours worked
in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) Requirements:
1) Contractor shall comply with Senate Bill 854 (signed into law on June 20, 2014).
The requirements include, but are not limited to, the following:
a. No contractor or subcontractor may be listed on a bid proposal (submitted
on or after March 1, 2015) for a public works project unless registered
with the DIR pursuant to Labor Code section 1725.5, with limited
exceptions from this requirements for bid purposes only as allowed under
Labor Code section 1771.1(a).
b. No contractor or subcontractor may be awarded a contract for public work
or perform work on a public works project (awarded on or after April 1,
2015) unless registered with the DIR pursuant to Labor Code section
1725.5.
c. This project is subject to compliance monitoring and enforcement by the
DIR.
d. As required by the DIR, Contractor is required to post job site notices, as
prescribed by regulation, regarding compliance monitoring and
enforcement by the DIR.
e. Contractors and all subcontractors must submit certified payroll records
online to the Labor Commissioner for all new public works projects issued
on or after April 1, 2015, and for all public works projects, new or ongoing,
on or after January 1, 2016.
i. The certified payroll must be submitted at least monthly to the
Labor Commissioner.
ii. The CITY reserves the right to require Contractor and all
subcontractors to submit certified payroll records more frequently
than monthly to the Labor Commissioner
iii. The certified payroll records must be in a format prescribed by the
Labor Commissioner.
2) Labor Code section 1725.5 states the following:
A contractor shall be registered pursuant to this section to be qualified to bid on,
be listed in a bid proposal, subject to the requirements of Section 4104 of the
Public Contract Code, or engage in the performance of any public work contract
that is subject to the requirements of this chapter. For the purposes of this
section, "contractor" includes a subcontractor as defined by Section 1722.1.
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a) To qualify for registration under this section, a contractor shall do all of the
following:
1) Beginning July 1, 2014, register with the Department of Industrial
Relations in the manner prescribed by the department and pay an initial
nonrefundable application fee of three hundred dollars ($300) to qualify
for registration under this section and an annual renewal fee on or before
July 1 of each year thereafter. The annual renewal fee shall be in a
uniform amount set by the Director of Industrial Relations, and the initial
registration and renewal fees may be adjusted no more than annually by
the director to support the costs specified in Section 1771.3.
2) Provide evidence, disclosures, or releases as are necessary to establish
all of the following:
A) Workers' Compensation coverage that meets the requirements
of Division 4 (commencing with Section 3200) and includes
sufficient coverage for any worker whom the contractor employs to
perform work that is subject to prevailing wage requirements other
than a contractor who is separately registered under this section.
Coverage may be evidenced by a current and valid certificate of
workers' compensation Insurance or certification of self-insurance
required under Section 7125 of the Business and Professions Code.
B) If applicable, the contractor is licensed in accordance with
Chapter 9 (commencing with Section 7000) of the Business and
Professions Code.
C) The contractor does not have any delinquent liability to an
employee or the state for any assessment of back wages or related
damages, interest, fines, or penalties pursuant to any final
judgment, order, or determination by a court or any federal, state,
or local administrative agency, including a confirmed arbitration
award. However, for purposes of this paragraph, the contractor
shall not be disqualified for any judgment, order, or determination
that is under appeal, provided that the contractor has secured the
payment of any amount eventually found due through a bond or
other appropriate means.
D) The contractor is not currently debarred under Section 1777.1
or under any other federal or state law providing for the debarment
of contractors from public works.
E) The contractor has not bid on a public works contract, been
listed in a bid proposal, or engaged in the performance of a contract
for public works without being lawfully registered in accordance
with this section, within the preceding 12 months or since the
effective date of the requirements set forth in subdivision (e),
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whichever is earlier. If a contractor is found to be in violation of the
requirements of this paragraph, the period of disqualification shall
be waived if both of the following are true:
i) The contractor has not previously been found to be in
violation of the requirements of this paragraph within the
preceding 12 months.
ii) The contractor pays an additional nonrefundable penalty
registration fee of two thousand dollars ($2,000).
b) Fees received pursuant to this section shall be deposited in the State Public
Works Enforcement Fund established by Section 1771.3 and shall be used only
for the purposes specified in that section.
c) A contractor who fails to pay the renewal fee required under paragraph (1) of
subdivision (a) on or before the expiration of any prior period of registration
shall be prohibited from bidding on or engaging in the performance of any
contract for public work until once again registered pursuant to this section. If
the failure to pay the renewal fee was inadvertent, the contractor may renew its
registration retroactively by paying an additional nonrefundable penalty
renewal fee equal to the amount of the renewal fee within 90 days of the due
date of the renewal fee.
d) If, after a body awarding a contract accepts the contractor's bid or awards
the contract, the work covered by the bid or contract is determined to be a public
work to which Section 1771 applies, either as the result of a determination by
the director pursuant to Section 1773.5 or a court decision, the requirements of
this section shall not apply, subject to the following requirements:
1) The body that awarded the contract failed, in the bid specification or
in the contract documents, to identify as a public work that portion of the
work that the determination or decision subsequently classifies as a
public work.
2) Within 20 days following service of notice on the awarding body of a
determination by the Director of Industrial Relations pursuant to Section
1773.5 or a decision by a court that the contract was for public work as
defined in this chapter, the contractor and any subcontractors are
registered under this section or are replaced by a contractor or
subcontractors who are registered under this section.
3) The requirements of this section shall apply prospectively only to any
subsequent bid, bid proposal, contract, or work performed after the
awarding body is served with notice of the determination or decision
referred to in paragraph (2) of this subdivision.
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e) The requirements of this section shall apply to any bid proposal submitted
on or after March 1, 2015, and any contract for public work, as defined in this
chapter, entered into on or after April 1, 2415.
3) Labor Code section 1771.1 states the following=
a) A contractor or subcontractor shall not be qualified to bid on, be listed in a
bid proposal, subject to the requirements of Section 4104 of the Public Contract
Code, or engage in the performance of any contract for public work, as defined in
this chapter, unless currently registered and qualified to perform public work
pursuant to Section 1725.5. It is not a violation of this section for an
unregistered contractor to submit a bid that is authorized by Section 7029.1 of
the Business and Professions Code or by Section 10164 or 20103.5 of the Public
Contract Code, provided the contractor is registered to perform public work
pursuant to Section 1725.5 at the time the contract is awarded.
b) Notice of the requirement described in subdivision (a) shall be included in all
bid invitations and public works contracts, and a bid shall not be accepted nor
any contract or subcontract entered into without proof of the contractor or
subcontractor's current registration to perform public work pursuant to Section
1725.5.
c) An inadvertent error in listing a subcontractor who is not registered
pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid
protest or grounds for considering the bid nonresponsive, provided that any of
the following apply:
1) The subcontractor is registered prior to the bid opening.
2) Within 24 hours after the bid opening, the subcontractor is registered
and has paid the penalty registration fee specified in subparagraph (E) of
paragraph (2) of subdivision (a) of Section 1725.5.
3) The subcontractor is replaced by another registered subcontractor
pursuant to Section 4107 of the Public Contract Code.
d) Failure by a subcontractor to be registered to perform public work as
required by subdivision (a) shall be grounds under Section 4107 of the Public
Contract Code for the contractor, with the consent of the awarding authority, to
substitute a subcontractor who is registered to perform public work pursuant to
Section 1725.5 in place of the unregistered subcontractor.
e) The department shall maintain on its Internet Web site a list of contractors
who are currently registered to perform public work pursuant to Section 1725.5.
1) A contract entered into with any contractor or subcontractor in violation of
subdivision (a) shall be subject to cancellation, provided that a contract for
public work shall not be unlawful, void, or voidable solely due to the failure of
the awarding body, contractor, or any subcontractor to comply with the
requirements of Section 1725.5 or this section.
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g) This section shall apply to any bid proposal submitted on or after March 1,
2015, and any contract for public work entered into on or after April 1, 2015.
4) Labor Code section 1771.4 states the following:
a) All of the following are applicable to all public works projects that are
otherwise subject to the requirements of this chapter:
1) The call for bids and contract documents shall specify that the project
is subject to compliance monitoring and enforcement by the Department
of Industrial Relations.
2) The awarding body shall post or require the prime contractor to post
job site notices, as prescribed by regulation.
3) Each contractor and subcontractor shall furnish the records specified
in Section 1776 directly to the Labor Commissioner, in the following
manner:
A) At least monthly or more frequently if specified in the contract
with the awarding body.
B) In a format prescribed by the Labor Commissioner.
4) The department shall undertake those activities it deems necessary to
monitor and enforce compliance with prevailing wage requirements.
b) The Labor Commissioner may exempt a public works project from
compliance with all or part of the requirements of subdivision (a) of this section
if either of the following occurs:
1) The awarding body has enforced an approved labor compliance
program, as defined in Section 1771.5, on all public works projects under
its authority, except those deemed exempt pursuant to subdivision (a) of
Section 1771.5, continuously since December 31, 2011.
2) The awarding body has entered into a collective bargaining agreement
that binds all contractors performing work on the project and that
includes a mechanism for resolving disputes about the payment of wages.
c)
1) The requirements of paragraph (1) of subdivision (a) shall only apply
to contracts for public works projects awarded on or after January 1, 2015.
2) The requirements of paragraph (3) of subdivision (a) shall only apply
to the following projects:
A) Projects that were subject to a requirement to furnish records
to the Compliance Monitoring Unit pursuant to Section 16461 of
Title 8 of the California Code of Regulations, prior to the effective
date of this section.
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2016-240
B) Projects for which the initial contract is awarded on or after
April 1, 2015.
C) Any other ongoing project in which the Labor Commissioner
directs the contractors or subcontractors on the project to furnish
records in accordance with paragraph (3) of subdivision (a).
D) All projects, whether new or ongoing, on or after January 1,
2016.
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIRMENTS
1. State Public Works Apprenticeship Requirements:
The Contractor is responsible for compliance with Labor Code section 1777.5 and
the California Code of Regulations, title 8, sections 230 - 230.2 for all
apprenticeable occupations (denoted with V" symbol next to craft name in DIR
Prevailing Wage Determination), whether employed by the Contractor,
subcontractor, vendor or consultant. Included in these requirements is (1) the
Contractor's requirement to provide notification (i.e. DAS-140) to the appropriate
apprenticeship committees; (2) pay training fund contributions for each
apprenticeable hour employed on the Contract; and (3) utilize apprentices in a
minimum ratio of not less than one apprentice hour for each five journeyman hours
by completion of Contract work (unless an exception is granted in accordance with
Labor Code section 1777.5) or request for the dispatch of apprentices.
Any apprentices employed to perform any of the Landlord Improvements shall be
paid the standard wage to apprentices under the regulations of the craft or trade for
which such apprentice is employed, and such individual shall be employed only for
the work of the craft or trade to which such individual is registered. Only
apprentices, as defined in California Labor Code section 3077, who are in training
under apprenticeship standards and written apprenticeship agreements under
California Labor Code sections 3070 et seq. are eligible to be employed for the
Landlord Improvements. The employment and training of each apprentice shall be
in accordance with the provisions of the apprenticeship standards and apprentice
agreements under which such apprentice is training.
2. Compliance with California Labor Code section 1777.5 requires all public
works contractors to
Submit Contract Award Information (DAS-140)
a. Although there are a few exemptions (identified below), all Contractors,
regardless of union affiliation, must submit contract award information when
performing on a California public works project.
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2016-240
b. The DAS-140 is a notification "announcement" of the Contractor's
participation on a public works project—it is not a request for the dispatch of
an apprentice.
c. Contractors shall submit the contract award information (you may use form
DAS 140) within 10 days of the execution of the prime contract or
subcontract, but in no event later than the first day in which the Contractor
has workers employed on the public work.
d. Contractors who are already approved to train apprentices (i.e. check "Box 1"
on the DAS-140) shall only be required to submit the form to their approved
program.
e. Contractors who are NOT approved to train apprentices (i.e. those that check
either "Box 2" or "Box 3" on the DAS-140) shall submit the DAS-140 TO
EACH of the apprenticeship program sponsors in the area of your public
works project.For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/Pwaddrstart.asp.
Employ Registered Apprentices
a. Labor Code section 1777.5 requires that a contractor performing work in an
apprenticeable" craft must employ one (1) hour of apprentice work for every
five (5) hours performed by a journeyman. This ratio shall be met prior to
the Contractor's completion of work on the project. "Apprenticeable" crafts
are denoted with a pound symbol "#" in front of the craft name on the
prevailing wage determination.
b. All Contractors who do not fall within an exemption category (see below)
must request for dispatch of an apprentice from an apprenticeship program
for each apprenticeable craft or trade) by giving the program actual notice of
at least 72 hours (business days only) before the date on which apprentices
are required.
c. Contractors may use the "DAS-142" form for making a request for the
dispatch of an apprentice.
d. Contractors who are participating in an approved apprenticeship training
program and who did not receive sufficient number of apprentices from their
initial request must request dispatch of apprentices from ALL OTHER
apprenticeship committees in the project area in order to fulfill this
requirement.
e. Contractor should maintain and submit proof (when requested) of its DAS-
142 submittal to the apprenticeship committees (e.g. fax transmittal
confirmation). A Contractor has met its requirement to employ apprentices
only after it has successfully made a dispatch request to all apprenticeship
programs in the project area.
f. Only "registered" apprentices may be paid the prevailing apprentice rates
and must, at all times work under the supervision of a Journeyman (Cal.
Code Regs., tit 8, § 230.1).
Make Training Fund Contributions
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a. Contractors performing in apprenticeable crafts on public works projects,
must make training fund contributions in the amount established in the
prevailing wage rate publication for journeymen and apprentices.
b. Contractors may use the "CAC-2" form for submittal of their training fund
contributions.
c. Contractors who do not submit their training fund contributions to an
approved apprenticeship training program must submit their contributions to
the California Apprenticeship Council (CAC), PO Box 420603, San Francisco,
CA 94142-0603.
d. Training fund contributions to the CAC are due and payable on the 15th day
of the month for work performed during the preceding month.
e. The "training" contribution amount identified on the prevailing wage
determination shall not be paid to the worker, unless the worker falls within
one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
The following are exempt from having to comply with California apprenticeship
requirements. These types of contractors do not need to submit a DAS-140, DAS-
142, make training fund contributions, or utilize apprentices.
a. When the Contractor holds a sole proprietor license ("Owner-Operator") and
no workers were employed by the Contractor. In other words, the contractor
performed the entire work from start to finish and worked alone.
b. Contractors performing in non-apprentice able crafts. "Apprenticeable" crafts
are denoted with a pound symbol "#" in front of the craft name on the
prevailing wage determination.
c. When the Contractor has a direct contract with the Public Agency that is
under $30,000.
d. When the project is 100% federally-funded and the funding of the project does
not contain any city, CITY, and/or state monies (unless the project is
administered by a state agency in which case the apprenticeship
requirements apply).
e. When the project is a private project not covered by the definition of public
works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Ratios:
The Joint Apprenticeship Committee shall have the discretion to grant a certificate,
which shall be subject to the approval of the Administrator of Apprenticeship,
exempting the Contractor from the 1-to-5 ratio set forth in this Section when it
finds that any one of the following conditions are met=
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2016-240
a. Unemployment for the previous three-month period in such area
exceeds an average of fifteen percent (15%); or
b. The number of apprentices in training in such area exceeds a ratio of
1-to-5 in relation to journeymen; or
C. The Apprenticeable Craft or Trade is replacing at least one-thirtieth
1/30) of its journeymen annually through apprenticeship training, either on
a statewide basis or on a local basis; or
d. If assignment of an apprentice to any work performed under the
Contract Documents would create a condition which would jeopardize such
apprentice's life or the life, safety or property of fellow employees or the
public at large, or if the specific task to which the apprentice is to be assigned
is of such a nature that training cannot be provided by a journeyman.
When such exemptions from the 1-to-5 ratio between apprentices and journeymen
are granted to an organization which represents contractors in a specific trade on a
local or statewide basis, the member contractors will not be required to submit
individual applications for approval to local Joint Apprenticeship Committees,
provided they are already covered by the local apprenticeship standards.
5. Contractor's Compliance
The responsibility of compliance with this Section for all Apprenticeable Trades or
Crafts is solely and exclusively that of the Contractor. All decisions of the Joint
Apprenticeship Committee(s) under this Section are subject to the provisions of
California Labor Code section 3081 and penalties are pursuant to Labor Code
section 1777.7 and the determination of the Labor Commissioner.
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Packet Pg. 152 Attachment: CM.Vanir Tower Lease Agreement Extension.02. Resolution 2016-240.Attachment 1 (6034 : Lease Agreement – Vanir Tower
I RESOLUTION NO. 2017-39
2 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
3 BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO
EXECUTE AMENDMENT NUMBER ONE TO THE LEASE WITH VANIR TOWER
4 BUILDING, INC. FOR 290 NORTH D STREET, SAN BERNARDINO, CALIFORNIA
5 BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The City Manager is hereby authorized to execute Amendment
8 Number One between the City of San Bernardino and Vanir Tower Building, Inc., attached
9
hereto as Exhibit"A" and incorporated herein.
10
11
SECTION 2. The City Manager is hereby authorized to execute any other such
12 documents as may be necessary to effectuate the intention of this Resolution.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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Packet Pg. 153 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
1
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA AUTHORIZING THE CITY MANAGER TO
2 EXECUTE AMENDMENT NUMBER ONE TO THE LEASE WITH VANIR TOWER
BUILDING, INC. FOR 290 NORTH D STREET, SAN BERNARDINO, CALIFORNIA
3
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5
6 and City Council of the City of San Bernardino at a joint regular meeting thereof, held on
7 the 6th day of March, 2017, by the following vote, to wit:
8
Council Members: AYES NAYS ABSTAIN ABSENT
9
MARQUEZ X(M)
10
11
BARRIOS X
12 VALDIVIA X--
1313 SHORETT XXS)
14 NICKEL X
15
RICHARD X
16
17
MULVIHILL X
r
18
GeorgeanrlfHanna, CNIL, City Clerk
19
20
21
The foregoing Resolution is hereby approved this day of 11VAecit- 2017.
22
23
24 R. Carey D is, Mayor
25
City of Sai Bernardino
Approved as to form:
26 Gary D. Saenz, City Attorney
27
By.
28
2
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Packet Pg. 154 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
AMh;NDMENT NVKRBR ONE T0 THE LEASEAGREI MEN T BETWEEN
THE CITY OF SAN BIER INO AM
VANM TOWER BUILDING, INC.
This Amendment 'Number One' the "First Amendment") is entered into this -k day
of -AdTL—,
7 20177 BY AND BETWEEN**
the City of San Ber'nardino, a Charter City organized under the laws of the
State of California, with an address of 300 N. "D"' Street, San Bernard* ino,
California (the "CITY")*)
AND
Vanir Tower Building, Inc,, (the "LANDLORD") (individually CITY or
LANDLORD may be referred to as a "PARTY' and collectively CITY and
LANDLORD may be referred to as the "PARTIES1.
aW1TNESSETHAk
WHEREASI on M"L (. 4m -o, 2017 ti -ie CITY and LANDLORD
entered 'into that certain Lease Agreement (the "Lease") for approximately 231716
square feet of office 'space Vanir Tower located at 290 North "D" Street; and
WHEREAS, CITY and LANDLORD desire to amend the Agreement
desireto amend their rights, duties, and liabilities in connection w their
pertormance thereunderl* and,
NOW., THEREFORE, for and in cons
I
ideration of the mutual covenants and
conditions contained , nerein', the PARTIES hereby agree as follows.*
The Pre Im*Ses of the Lease found on the Title Page s,hall be amealdeld
react as lollows,4
PREMISES" A portion of Vanir Tower*
Two Suites on the Ground Floor
Entire Third Floor
Two Suites on the Eighth Floor
2. The Commencement Date of the laease found on the Title Page shall be
0amendedtoreadasfollows,"
0COMMENCEMENTDATEOFLEASE* April 15, 2017 (subject- to
Paragraph 3)
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO ANDVANIR TOWER BUILDING,, INC,
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Packet Pg. 155 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
0. The Init"al Monthly Rent of the Lease found on the Title Page shal be
0amendedtoreadasfollows1b
OINITULMONTHLYRENTO $42,688.80 Year 1
43,969.46 Year 2
45,288.54 Option to Extend Periods
Is A
40 Paragrapil A (Initial Term) of Section 3 (Term) shall be amended to read
0
as follows=
Paragraph D (Delay 'in Possession) of Section 3 (Term) shall be amended
to read as follows:
D. Delay in Possessioll. LANDLORD agrees to use all
commercially reasonable efforts to deliver possession of the Premises with
all of the Improvements Substantially Completed to CITY by the
Commencement Date. If as a result of causes beyond LANDLORD's
reasonable control, LANDLORD is unable to deliver possession as aareed,
this Lease shall not be voidable, nor shall such failure affect the valid"'ity of
this Lease. If CITY elects to terminate this Lease pursuant to this
hallnbe discharged of all obligations under this Lease. provisio, CITY s
6. Section 5 (Expansion of Rental Space) shall be removed in its entirety and
replaced with a heading reserving the section number.
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND VANIR TOWER BUILDINGINC.
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Packet Pg. 156 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
T sedidn 6 (Option to Ext6rld Term) shall be amended- t d s follow -so
80 Sedibn 8 (Holding Over) zhall be amended to read a I follaows
91 Section 112 ($*os) shall be amended to read a's TOROW4
11 disp I fr12. SIGNS9 CITY wi om, the windows and/or marquee of
the Yremises only such, igsi*an or 8 is that have been appr ed byiov
LANDLORD nd that ar not hiDitapro ea Dy, aw.
100 Soparagraph, 4 of Parah A of Section 13grap (Maintenance) shafl be
0amendedtoreadaswa$
aa
44) Heating, ventilation and air conditioning (HVAC) systems
servicing the Premises, air-conditioning and heating filters are to be
changed quarterly and,
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE C11TY OF SA
BERNARDINO AND VANTIR TOWER BUILDING, INC.
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Packet Pg. 157 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
Paragraph C of Section 13 (Maintenance) sha-11 b- e amended to read- as
followls'
dw
AB M
12. Sectd*oA 17 (Indemnification) shall be amended to read as follow
A1310Paragraph of Section 19 (Destruction of Premises) shall be amended to
readas, follows-"
9 N,
sir
1W.
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Packet Pg. 158 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
lr% It A 0i4. raragrapna of Section 25 (Notices) shall be amended to read as follows*
A. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other party or any other
person shall be in writing and either served personally or sent by United
States mail, postage prepaid, certified or registered, return receipt
requested. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other
party shall be addressed to the other party at the address set forth below.
Either party may change its address by notifying the other party of the
change of address. Notices shall be deemed delivered and effective upon
the earlier of (i) actual recei t or (ii) the date of delivery or refusal of theip
addressee to accept delivery if such notice is sent by or United States
mail, postage prepaid, cered or registered, return receiP t reque.fit. I
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND VANIR TOWER BUILDING, INC.
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Packet Pg. 159 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
LANDLORD's a. dr Vanir Tower Building, Inc.
ATTN'President
4540 Duckhorn Drive, Suite 100
Sacraniento, CA 95834
With a copy to: Vanir Development Company, Inc.
ATTN* President
4540 Duckhorn Drive, Suite 100
Sacramento, CA 95834
0Caddress' City of San Bernardino
ATTN0* City Manager
300 or "D" -Street
San Bernardino, CA 92418
Section 40 (City's Right to Termm"ate Lease) shaU be amento read as
10
ded-
fouOWSO
Ask
16. Section 41 (Landlor&s Improvements) shall be amended to read as
afollows'*
Ab
a. kN10Many _*j
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Packet Pg. 160 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
r. billing and/or accounting information necessary to verify the cost
GAIN
all Improvements. Tenant Improvement costs are payable in
single payment within forty-five (45) days of invoice. I
B. LANDLORD understands and agrees that from the time that thi
agreement is executed through the completion of the Improvement
pursuant to Exhibit "A -P, Premises Specificat 'ions, and acceptanc,
t
of the improved Premises by CITY, LANDLORD shall not assign o;
transfer a controlling interest 'in the Premises to a third part
without CITY's prior review and approval.
X-
11) LANDLORD understands and agrees to provide to CITY all
documents and relevant information concerning any
proposed transfer. CITY will have ten (10) CITY working
days after receiving all such documents and information to
complete its review. Upon CITY approval of an assignment or
transfer, the parties shall *immediately execute an
amendment to this Lease stating the change of ownership of
the Premises.
C. LANDLORD understands and agrees not to make any
modiffications to the improvement plans and specifications as set
forth in Exhibit A111, Premises Specifications, without first
obtaining approval in the form of an amendment to this Lease. Any
changes to these plans and s-pecitications, without first acquiring
said approval, will be at the expense of the LANDLORD and not the
CITY.
D. In the event LANDLORD contracts for the construction of any
portion of the Improvements set forth in Exhibit "A-1", Premises
Specifications, LANDLORD shall comply with the California Public
Contract Code Sections 22000 through 22045 regarding bidding
procedures and Labor Code Sections 1720.2 and 1770 et seq.
regarding general prevailing wages, including the provisions set
forth 'in Exhibit "F-' attached hereto and 'incorporated herein by
reference. LANDLORD shall indemm*fy and hold harmless CITY
and its officers, employees, and agents from any claims, actions,
losses, amages and r liability arising out of the obligations set
forth in this subparagraph. The LANDLORD's indemnity
obligations shall survive the CITY's tenancy, and shall not be
limited by the existence or availability of insurance.
E. LANDLORD, at its sole expense, must provide all site plans
including elevations of the building and details of the exterior
AMENDMENT NtJNIBER ONE TO THE LEASE AGMEMENT BETWEENTHE CITY OF SAN
BERNARDINO AND VANIR TOWER BUILDING, INC.
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Packet Pg. 161 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
finish), space design plans, construction plans, and a complete set o',
the bid drawings and specifications for new construction. The bi
drawings shall be on reproducible transparent vellum with th
architect's/en ineer's professional stamp and signature, and als91
provided to CITY on a compact disc -recordable (CD -R). The fil,
format for the CD -R copy shall be an Adobe Acrobat file (.pdf fil
extension) AND AutoCAD software (.dwg file extension). Th
specitications shall be submitted as a reproducible hardeopy an
copied on a CD -R with formats compatible with Microsoft Word
LANDLORD agrees and understands that 'it will construct on th
Premises during the period immediately following execution of thi
Lease, those Improvements shown on the space design and sit•
plans prepared by LANDLORD and approved by CITY. Th
Improvements shall be constructed in accordance with Paragrap
11, HEALTH, SAFETY AND FIRE CODE REQUIREMENTS, an
Exhibi*t,,A-1,,, Premises Specifications.
U. LANDLORD and CITY agree that the Improvements are projected -
to be constructed, completed and certified for occupancy by the
CITY, acting in its regulatory capacity, by April 15, 2017 and that
the CITY must be able to occupy the improved Premises no later
than April 15, 2017.
G. LANDLORD agrees that its failure to meet the projected occupancy
date will mean that the CITY will not be able to occupy the
improved Premises by April 15, 2017, and that the sole remedy of
the CITY shall be liquidated damages in accordance with
Paragraph 41.1 'in the event the LANDLORD fails to meet the
projected occupancy date. Any such election to terminate by the
CITY must be in writing and given to LANDLORD within ninety
90) CITY working days of the projected occupancy date, and before
the LANDLORD completes the Improvements and notifies the
CITY of such completion.
H. LANDLORD agrees to provide the CITY a written progress report
every thirty (30) days. The report shall contain up -date information
of construction progress and notification of any permit approval.
1. LANDLORD acknowledges that late delivery of the Premises to
CITY will cause CITY to incur costs not contemplated by this Lease
agreement, the exact amount of such costs being extremely difficult
and impracticable to fix. Therefore, if LANDLORD does not del* er1v
the improved Premises by the projected occupancy date of April 15,
2017, LANDLORD agrees to liquidated damages of Five Hundred
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERN.,XRDINO AND VANIR TOWER BUILDING, INC.
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Packet Pg. 162 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
and 00/00 Dollars ($500.00) for each day's delay from the projected
occupancy date of April 15, 2017, to the date the CITY accepts the
Premises or terminates this Lease agreement under Paragraph 3.D.
Liquidated damages shall be prorated to the extent that a portion of
the Premises have been completed and accepted by CITY. The
parties agree that this charge represents a fair and reasonable
estimate of the costs that CITY will 'incur by reason of late delivery.
Acceptance of any charge shall not constitute a waiver of
LANDLORD's default or prevent CITY from exercising any of the
other fights and remedies available to CITY.
J. Notwithstanding subparagraphs 171, "G" and "I". above, in th4
event LANDLORD, after exercising all due clidigence, is unable b
meet the projected occupancy date due to reasons whiel
LANDLORD proves are outside the control of LANDLORD, sucl
reasons include but are not limited to acts of God, unreasonabli
acts of governmental agencies causing unavoicia " ble delays (th4
normMl and reasonable times for review, action and reasonabli
4.
anticipated delays by governmental agencies are already 'Include(
in the timing of the projected occupancy date), strikes, or la --iba
troubles, then the projected occupancy date shall be extended for f
period equivalent to the period of such delay.
As soon as LANDLORD becomes aware, or should in the
exercise of due gence have become aware of any facts or
circumstances that may or will cause such a delay,
LANDLORD shall immediately notify CITY of any such
delay or anticipated delay. In the event LANDLORD falls to
timely notify CITY of any such delay or anticipated delay,
LANDLORD, notwithstanding the main portion of thi's
subparagraph above, shall be subject to subparagraph
above, for the entire length of any delay.
17. Paragraph A of Section 48 (Hazardous Substances) shall be amended to
read as follows:
A. LANDLORD hereby represents and warrants that, to the best of
LANDLORD's knowledge, information and belief. (f) the Premises and
the property on which the Premises forms a part of are presently free of
all Hazardous Substances; (ii) neither the LANDLORD nor any of the
other current tenants, if any, on the property of which the Premises forms
a part is in violation or subject to an existing, pending or threatened
investigation by any governmental authority under any applicable federal,
state or local law, regulation, ordinance or other legislation pertaining to
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF Sj-N
BERNARDINO AND VANIR TOWER BUILDING, INC.
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4
air, water, or soil quality or the handling, transportation, storage,
treatment, usage or disposal of Hazardous Substances; (iii) any handling,
transportation storage, treatment or use of tox* I ic or Hazardous
Substances to date has been in compliance with applicable laws,* and (iv)
no reportable use has occurred on the Premises and the property on which
the Premises forms a part of to date, and the soil, groundwater and vapor
on or under the Premises and the property on which the Premises forms a
part of is:ft-ee of Hazardous Substances as of the Commencement Date.
S18. ection 52 (Material Misrepresentation) shall be •amendedto read as
follows**
052. MATERIAL MISREPRESENTATION* If during the course of
the administration of this lease, the CITY determines that the
LANDLORD has made a material misstatement or misrepresentation or
that materially inaccurate 'Information has been provided to the CITY,
and that the CITY has relied to its detriment resulting in damages, this
Lease may be immediately terminated. If this Lease is terminated
according to this provision, the CITY is entitled to pursue any available
legal remedies.
19. Exhibit A to the Agreement 'is hereby replaced with Exhibit A to thi-q.....
Amendment.
20. Exhibit A- 1 to the Agreement ishereby replaced with Exhibit A-1 to thi
Amendment.
21. Exhibit B to the Agreement is hereby replaced with Exhibit B to this
Amendment.
22. All other terms and condons of the Lease shall rema 'in 'in full force and
effect.
l 1111ij! 11 111d Z,11 1111ir
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERN,ARDINO AND VANIR TONVER BUILDING, INC.
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Packet Pg. 164 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND
VANIR TOWER BUILDING, INC.
IN WITNESS THEREOF, the parties hereto have executed this Agreement
on the day and date set for below.
Dated. February 8 2017
D a t e d r2 0 17
LANDLORD Vanir Tower Bull
lding . Inc.
4
100'
f--) 1wirik 'r,
IBy: -A
Its: President
By:
Mark Scott, City Manager
0APPROVEDASTOFORM*
Gary D. Saenz, City Attorney
By: C
AMENDMENT NUMBER ONE TO THE LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND VANIR TOWER BUILDING, INC.
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Packet Pg. 165 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 166 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 167 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 168 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 170 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 171 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 173 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
EXHIBIT UB11
LICENSED JANITORIAL AND MAINTENANCE CONTRACTOR SERVICES
Janitorial Service to provide/supply all sanitary .n
11, Empty and damp clean all ashtrays.
2. Empty all wl,aste b,
laskets
an other waste containers.
3'. Dust mop all tiled/ter,ralzzo floors.
4. Vacuum traffic lanes of carpeting,
5. Dust all desks, chairs tables, filing cad* t and other office
6. Damp claan lobby counters
7. Clean and fixtures, mirrors, chrome pip(,as, etc.
8. Clem splash markswalls f rest rooms.
9. Refill soap, towel and paper containers.
10, Clean and sanit zerroil g fountains. .
11. Clean hand marks off glasson entrance doors'
12 p clean table tops in cottee rooms.
3. Clean kitchexi sinks and counters.
14. Sweep entryways.,
a Bush down steps of inside stairwells
16, Vacuum elevator carpet. All carpeted gees are to be Vacuumed using
motor vacuum' With a rottingcyl" dxicalin brratherher than a beaterbar.
17. Spot clean all walls and doors including elevator.
18. Spot clean carpets of small spillage, footprints, etc.
9. Keep janitor closets clean and orderly,
20. Remove paper and debris outside main entrance.
WEEKLY SERVICKO
1. Wet op all tiled/terrazzo floors.
2 Clean all desk tops and tables that are cleared; . 11 chairs.
3 Clean hand marks from galls, doors and woodwork.
4. Vacuum all carpeting etel . All carpeted areas are to be vacuumed using
a. clual motor vacuum with a rotating cylmdrical brush, rather
r
TWCE-Moxi!gLy NE QE41
rm „ -
I .. „.
Vacuum upholstered . s
3. Clean . ire . , r glass.isher
t Machine clean and seal #
EVERY THREE MOXTHS*
1. Vacuum dust and dirt accumulation from aix condit'o
2. Wit...,insideu.
ildingI
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Packet Pg. 174 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
EXHIBIT 11BIt
LICENSED JANITORIAL ANTD MAJN-TENANCE CONTRA CTOR SERVICES
continued)':
Uc ilsed
8
1. Carpet to be cleaned by a professional carpet cleamng company using hot
water extraction process.
2. Wash exterior and interior winctows ancl part" tions.
2-
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Packet Pg. 175 Attachment: CM.Vanir Tower Lease Agreement Extension.03. Resolution 2017-039. Attachment 2 (6034 : Lease Agreement – Vanir Tower
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Packet Pg. 176 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale. REPORT (6035 : Sale of HOME- Assisted Properties)
Discussion
Frazee would like to renovate its properties, but in order to undertake the renovations it
needs to consolidate its property holdings to more effectively manage them and
generate cash for the renovations. Consequently, Frazee would like to sell two of its
properties consisting of nine affordable units (six 1-bedroom units and three 2-bedroom
units). The interested buyer, Foothill Aids, is a non-profit organization that has been
providing supportive services to families in the City of San Bernardino since the 1990’s
and is affiliated with 7 Arrow Properties (Arrow Properties). Arrow Properties will
maintain the units affordable for the remaining term of the 2002 and 2004 HOME
Agreements (eight and ten years, respectively).
Arrow Properties will upgrade the properties it has offered to purchase. Since Frazee
needed to make improvements to the properties, as the units became vacant, Frazee
kept the units off the market. Consequently, Arrow Properties will not displace residents
or incur relocation costs when it undertakes the renovations. On the properties that
Frazee is retaining, there is a combination of vacant and occupied units, and Frazee will
stage the work so as to minimize disruption to residents. The First Amendment to the
HOME Agreement (Amendment) requires that renovations be completed within
eighteen months of the Amendment date for the properties Frazee is retaining and
those the Arrow Properties is proposing to purchase.
To ensure that the transaction will benefit the City and that the operation of the
properties will be financially viable, the City engaged Keyser Marston and Associates
(KMA) to undertake a financial analysis of the proposed sale and the future operations
of the properties. Based on KMA’s analysis, the requirement for quarterly operating
statements from both Frazee and Arrow Properties was added to the amendment to
ensure that during the ensuing five years the fiscal management of the properties is
effective. Should concerns be identified in the reports the City can address them within
the three month/quarterly period. Additionally, based on the anlysis, the City will require
that Frazee reinvest the entirety of the sales proceeds into the renovations of the
properties to be retained.
Benefits to the City of approval of the sale include:
• Repayment of $287,600 in HOME program income, which the City must reinvest
in affordable housing
• Improvement of the housing stock, as a result of the renovations to be
undertaken
• Families with special needs will be able to stay in San Bernardino and live in
decent and affordable housing
2018-19 Goals and Objectives
The request for approval of the sale of two HOME-assisted properties aligns with Goal
No. 4: Ensure development of a well-planned and sustainable city.
3/29/2019 10:07 AM
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Packet Pg. 177 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale. REPORT (6035 : Sale of HOME- Assisted Properties)
Fiscal Impact
No fiscal impact to the City. The funds received as repayment will be deposited into the
City’s HOME account.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino,
California, approve the sale of two HOME-assisted properties, consisting of nine rental
units, from Frazee Community Center to 7 Arrow Properties, LLC; and authorize the
City Manager or designee to take any further actions and execute additional documents
as necessary to effectuate the sale.
Attachments
Attachment 1 First Amendment to HOME Agreements
Ward: 2
Synopsis of Previous Council Actions:
On January 10, 2002, the Community Development Commission adopted Resolution No.
CDC/2002-3, approving a HOME Loan Agreement with Frazee Community Center.
On July 22, 2004, the Community Development Commission adopted Resolution No.
CDC/2004-22, approving a HOME Loan Agreement with Frazee Community Center.
3/29/2019 10:07 AM
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Packet Pg. 178 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale. REPORT (6035 : Sale of HOME- Assisted Properties)
SYCR draft of 3/20/2019 pm
FIRST AMENDMENT TO HOME AGREEMENTS
by and among the
CITY OF SAN BERNARDINO
and
FRAZEE COMMUNITY CENTER
and
7 ARROW PROPERTIES LLC
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FIRST AMENDMENT TO HOME AGREEMENTS
This FIRST AMENDMENT TO HOME AGREEMENTS (the “First Amendment”),
dated, for identification purposes only, as of April 1, 2019 (the “First Amendment Date”), is entered
into by and among the CITY OF SAN BERNARDINO, a municipal corporation and charter city
(“City”), FRAZEE COMMUNITY CENTER, a California nonprofit public benefit corporation
(“Participant”), and 7 ARROW PROPERTIES LLC, a California limited liability company (“7
Arrow Properties”). City, Participant, and 7 Arrow Properties together constitute the “Parties”, with
each being a “Party.”
R E C I T A L S
A. As part of its governmental functions, City applied for, received, and administered
programs involving certain federal funding sources, such as the HOME program under the Home
Investment Partnership Act (the “HOME Program”).
B. City previously established a redevelopment agency known as the Redevelopment
Agency of the City of San Bernardino (the “Former Agency”), which operated under the California
Community Redevelopment Law, Chapter 1 of Part 1 of Title 24 of the California Health and Safety
Code (the “Redevelopment Law”).
C. The Former Agency and Participant entered into an agreement entitled “Frazee
Community Center, 2002 HOME-Community Housing Development Organization (CHDO) Loan
Agreement” dated as of January 7, 2002 (the “2002 Agreement”) and a second agreement entitled
“Frazee Community Center, 2004 HOME-Community Housing Development Organization (CHDO)
Loan Agreement” dated as of July 19, 2004 (the “2004 Agreement”). A copy of each of the 2002
Agreement and the 2004 Agreement is on file with the City as a public record. The 2002 Agreement
and the 2004 Agreement are collectively referred to herein as the “Original Agreements.”
D. The following rental units are, as of the First Amendment Date, under the ownership,
management, and control of the Participant: at (i) 1441-1443 Mountain View (collectively, “Parcel
2004-1”), two (2) rental units (the “Parcel 2004-1 Rental Units”); (ii) 1495 Mountain View and 195-
197 West Magnolia (collectively, “Parcel 2004-2”), three (3) units (the “Parcel 2004-2 Rental
Units”); (iii) 1501-1503 Pershing (collectively, “Parcel 2004-3”), two (2) rental units (the “Parcel
2004-3 Rental Units”); and (iv) 1379 Arrowhead (“Parcel 2004-4”), four (4) rental units (the “Parcel
2004-4 Rental Units” and, together with the Parcel 2004-1 Rental Units, the Parcel 2004-2 Rental
Units, and the Parcel 2004-3 Rental Units, the “2004 Rental Units”). Parcel 2004-1, Parcel 2004-2,
Parcel 2004-3 and Parcel 2004-4 collectively constitute the “2004 Properties.” The 2004 Rental
Units were rehabilitated under an agreement between the Former Agency and Neighborhood
Housing Services of the Inland Empire, Inc., a California non-profit corporation (“NHS”) under an
agreement entered into between the Former Agency and NHS during October 2001 (the “NHS
Agreement”); a copy of the NHS Agreement is on file with the City as a public record. Under the
2004 Agreement, four (4) rental units were required to be maintained available for “Very Low
Income Households” (as defined below) at affordable rent and an additional six (6) rental units were
required to be maintained available for “Low Income Households” (as defined below) at affordable
rent. There is one additional unit (to be located at 1441 Mountain View Avenue) which is devoted to
use by an on-site manager; this unit is not restricted on the basis of income. Additionally, two (2)
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units in addition to the four (4) rental units (Parcel 2004-4) are not restricted as affordable units and
are noted here for purposes of identifying the units on these parcels.
E. Under the 2004 Agreement, Participant agreed to acquire the interests of NHS in the
2004 Properties, including the 2004 Rental Units, and to operate all of the 2004 Rental Units for
affordable rental housing purposes as provided under the 2004 Agreement. Under the 2004
Agreement, the Participant agreed to acquire the 2004 Properties subject to covenants and other
requirements which had been applicable to NHS under the NHS Agreement, and subject to the
obligation of NHS for payment of the sum of Five Hundred Twenty Seven Thousand Eight Hundred
Eighty Five Dollars ($527,885.00) (the “NHS Loan Amount”) under a promissory note in relation to
such NHS Loan Amount as on file with the City (the “NHS Promissory Note”). Payments under the
NHS Promissory Note were secured by that certain instrument entitled “Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing” dated as of July 19, 2004, as
recorded among the official land records of the County Recorder of the County of San Bernardino
(“Official Records”) on October 19, 2004 as Document No. 2004-0759981 (the “2004 Deed of
Trust”). Attached as Exhibit “B” to the 2004 Deed of Trust is a document entitled “Frazee
Community Center HOME Regulatory Agreement, Property Use and Covenant” (the “2004
Regulatory Agreement”)
F. Under the 2002 Agreement, the Participant agreed to rehabilitate and operate as
affordable rental housing units the following rental units which, as of the First Amendment Date, are
under the ownership, management, and control of the Participant: at (i) 951 North Crescent Avenue
(“Parcel 2002-1”), four (4) rental units (the “Parcel 2002-1 Rental Units”); (ii) 162 West Wabash
Avenue (“Parcel 2002-2”), five (5) units (the “Parcel 2002-2 Rental Units”); and (iii) 1331, 1333,
and 1335 North Mountain View Avenue, three (3) units (“Parcel 2002-3” and, together with the
Parcel 2002-1 Rental Units and the Parcel 2002-2 Rental Units, the “2002 Rental Units”). Parcel
2002-1, Parcel 2002-2, and Parcel 2002-3 collectively constitute the “2002 Properties.” In
connection with the 2002 Agreement, Parcel 2002-2 was made subject to certain covenants by that
certain grant deed made by the Former Agency to the Participant as recorded among the Official
Records on February 20, 2002 as Document No. 2002-0082384 (the “Parcel 2002-2 Deed”). In
addition, an instrument entitled “Frazee Community Center HOME Regulatory Agreement, Property
Use and Covenant” was recorded on February 20, 2002 among the Official Records as Document
No. 2002-0082386 (the “Parcel 2002-2 Covenants”), affecting Parcel 2002-2; an instrument entitled
“Frazee Community Center HOME Regulatory Agreement, Property and Use Covenant” recorded
among the Official Records as Document No. 2002-0057882 on February 5, 2002 (the “Parcel 2002-
1 Covenants”), affecting Parcel 2002-1; and an instrument entitled “Frazee Community Center
HOME Regulatory Agreement, Property and Use Covenant” recorded among the Official Records as
Document No. 2002-0057181 on February 4, 2002 (the “Parcel 2002-3 Covenants”), affecting Parcel
2002-3.
G. In connection with the implementation of the Original Agreements, promissory notes
evidencing the obligation to repay loans (the “Original Loans”) were executed and delivered by
Participant to Former Agency, covenants were executed and recorded among the Official Records (as
defined below), and deeds of trust were executed and recorded among the Official Records as
follows:
(i) as to 1441-1443 Mountain View, a promissory note in the original principal
amount of $527,885 (the “2004 Note”), a deed of trust recorded among the Official Records
as Document No. 2004-0759981 (the “2004 Deed of Trust”) including covenants recorded as
2
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part of the 2004 Deed of Trust (such covenants being referred to herein as the “2004
Covenants”);
(ii) as to 1495 Mountain View and 195-197 West Magnolia, the 2004 Note, and
the 2004 Deed of Trust (including the 2004 Covenants);
(iii) as to 1501-1503 Pershing, the 2004 Note, and the 2004 Deed of Trust
(including the 2004 Covenants);
(iv) as to 1379 Arrowhead, the 2004 Note, and the 2004 Deed of Trust (including
the 2004 Covenants);
(v) as to 951 N. Crescent Avenue, a promissory note in the original principal
amount of $218,600 (the “Crescent Note”), the Parcel 2002-1 Covenants, covenants
contained in a grant deed recorded on February 5, 2002 among the Official Records as
Document No. 2002-0057880 (the “Crescent Grant Deed”), and that certain deed of trust
dated as of January 7, 2002 and recorded among the Official Records on February 5, 2002 as
Document No. 2002-0057881 (the “Crescent Deed of Trust”);
(vi) as to 162 N. Wabash, a promissory note in the original principal amount of
$215,570 (the “Wabash Note”), covenants contained in a grant deed recorded on
February 20, 2002 among the Official Records as Document No. 2002-0082384 (the
“Wabash Grant Deed”) and that deed of trust recorded among the Official Records as
Document No. 2002-0082385 (the “Wabash Deed of Trust”);
(vii) as to 1331 N. Mountain View, a promissory note in the original principal
amount of $165,500 (the “2002 Mountain View Note”), covenants contained in a grant deed
recorded on February 4, 2002 among the Official Records as Document No. 2002-0057179
(the “2002 Mountain View Grant Deed”) and that deed of trust recorded among the Official
Records as Document No. 2002-0057180 (the “2002 Mountain View Deed of Trust”).
The 2004 Note and the 2002 Note collectively constitute the “Original Promissory Notes.” The 2002
Deed of Trust and the 2004 Deed of Trust collectively constitute the “Original Deeds of Trust.” The
Parcel 2002-1 Covenants, the Parcel 2002-2 Covenants, the Parcel 2002-3 Covenants, those
covenants attached to the 2004 Deed of Trust, those covenants contained in the Crescent Grant Deed,
those covenants contained in the Wabash Grant Deed, and those covenants contained in the 2002
Mountain View Grant Deed collectively constitute the “Original Covenants.”
H. The Former Agency and all other redevelopment agencies in the State of California
were dissolved pursuant to ABx1 26, as created by the California Legislature in 2011 (the “2011
Dissolution Enactment”). The dissolution of redevelopment agencies was further prescribed by AB
1484, Chapter 26 of Statutes of 2012 (“AB 1484” and, together with the 2011 Dissolution Enactment
as amended by AB 1484, the “Redevelopment Dissolution Measure”).
I. Following the elimination of the Former Agency, the housing assets of the Former
Agency (including without limitation the Site and all rights of the Former Agency under the Original
Agreements) were transferred to the City acting as housing successor agency (in such capacity,
“Housing Successor Agency”) to the Former Agency.
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J. In the course of administering the Original Agreements, each of City and Participant
has determined that the Original Agreements should be amended to address the following
circumstances: (i) the Former Agency was eliminated and the City is now the successor in interest to
all interest of the Former Agency under the Original Agreements as well as being the beneficial
owner of the Site; (ii) certain, specific provisions requiring particular actions by Participant are no
longer necessary or appropriate; (iii) it is necessary and appropriate that the provisions set forth in
covenants as attached to a deed of trust recorded as to certain parcels within the Site be recorded as a
new instrument that is not part of a deed of trust; (iv) various typographical errors or technical
defects have been identified in the Original Agreements or instruments executed pursuant thereto
which should be corrected as a matter of record; and (v) continuing to have deeds of trust of record
showing as beneficiary the Former Agency (rather than the City) promotes confusion with regard to
the state of record title.
K. Each of the Parcel 2002-2 Rental Units and the Parcel 2004-4 Rental Units, as well as
the grounds of Parcel 2002-2 and Parcel 2004-4 have substantial deferred maintenance that requires
that substantial improvements be undertaken to render such rental units habitable. 7 Arrow
Properties shall, within sixty (60) days after the First Amendment Date, commence construction of
the “7 Arrow Improvements” as defined herein, with all such improvements to be accomplished by
the one hundred eightieth (180th) day after the First Amendment Date. Participant shall, within sixty
(60) days after the First Amendment Date, commence execution of the “Participant Improvements”
as defined herein, with all such improvements to be accomplished by the one hundred eightieth
(180th) day after the First Amendment Date.
L. The Site has become subject to liens imposed by the City and/or other governmental
agencies having to do with the maintenance of such properties; these liens are recorded as: (i) a lien
in favor of the East Valley Water District recorded as to each of Parcel 2002-1, Parcel 2002-2, Parcel
2002-3, Parcel 2004-1, and Parcel 2004-3 on June 29, 2016 among the Official Records as Document
No. 2016-0255941; (ii) a lien in favor of the City recorded as to Parcel 2004-1 on January 25, 2012
among the Official Records as Document No. 2012-0029446; (iii) a lien in favor of the City recorded
as to Parcel 2004-1 on February 5, 2015 among the Official Records as Document No. 2015-
0047547; (iv) a lien in favor of the City recorded as to Parcel 2004-2 on February 1, 2011 among the
Official Records as Document No. 0046884; (v) a lien in favor of the City recorded as to Parcel
2004-2 on January 25, 2012 among the Official Records as Document No. 2012-0029445; (vi) a
notice of substandard property in favor of the City recorded as to Parcel 2004-2 on July 10, 2013
among the Official Records as Document No. 2013-0302344; (vii) a notice of substandard property
in favor of the City recorded as to Parcel 2004-2 on August 29, 2013 among the Official Records as
Document No. 2013-0380562; (viii) a lien in favor of the City recorded as to Parcel 2004-2 on
August 5, 2014 among the Official Records as Document No. 2014-0283684; (ix) a lien in favor of
the City recorded as to Parcel 2004-2 on October 1, 2014 among the Official Records as Document
No. 2014-368104; (x) a lien in favor of the City recorded as to Parcel 2004-2 on February 5, 2015
among the Official Records as Document No. 2015-47546; (xi) a lien in favor of the City as to Parcel
2002-2 on May 13, 2013 among the Official Records as Document No. 2013-0200972; (xii) a lien in
favor of the City as to Parcel 2002-2 on August 6, 2013 among the Official Records as Document
No. 2013-0345569; (xiii) a lien in favor of the City as to Parcel 2002-2 on April 28, 2015 among the
Official Records as Document No. 2015-0171903; (xiv) a lien in favor of the City as to Parcel 2002-
2 on June 2, 2016 among the Official Records as Document No. 2016-0215629; (xv) a notice of
substandard property in favor of the City as to Parcel 2002-1 as recorded on November 2, 2002
among the Official Records as Document No. 2000-0401717; (xvi) a lien in favor of the City as to
Parcel 2002-1 on August 5, 2013 among the Official Records as Document No. 2013-0342530; (xvii)
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a lien in favor of the City as to Parcel 2002-1 on June 18, 2014 among the Official Records as
Document No. 2014-0218292; (xviii) a lien in favor of the City as to Parcel 2002-1 on July 20, 2015
among the Official Records as Document No. 2015-0308015; (xix) a lien in favor of the City as to
Parcel 2002-1 on October 6, 2015 among the Official Records as Document No. 2015-0436958;
(xxiii) a lien in favor of the City as to Parcel 2002-1 on August 25, 2016 among the Official Records
as Document No. 2016-0344918; (xx) a lien in favor of the City as to Parcel 2002-3 on March 2,
2012 among the Official Records as Document No. 2012-0082844; (xxi) a lien in favor of the City as
to Parcel 2002-3 on June 11, 2014 among the Official Records as Document No. 2014-0210398;
(xxii) a lien in favor of the City as to Parcel 2002-3 on July 21, 2014 among the Official Records as
Document No. 2014-0262236; (xxiii) a lien in favor of the City as to Parcel 2002-3 on September 8,
2014 among the Official Records as Document No. 2014-0330072; (xxiv) a lien in favor of the City
as to Parcel 2002-3 on October 1, 2014 among the Official Records as Document No. 2014-0368103;
and (xxv) a lien in favor of the City as to Parcel 2002-3 on June 20, 2015 among the Official Records
as Document No. 2015-0154239 (collectively, the “Recital L Encumbrances”). Participant agrees to
cause the removal of the Recital L Encumbrances, and, as further provided below, the Public Entity
Enforcement Liens (including all such matters whether or not they encumber the Disposition
Parcels), at or before the conveyance of the Disposition Parcels to 7 Arrow Properties.
M. The Participant has encountered various difficulties in connection with the
management of the 2002 Rental Units and the 2004 Rental Units. As part of its efforts to address
those matters, the Participant has (i) arranged for the sale of the Disposition Parcels to 7 Arrow
Properties, as described further in Section 6, below and (ii) engaged Quality Management Group,
Inc., as a consultant to assist with the management of the remaining 2002 Rental Units and 2004
Rental Units.
N. Participant has negotiated with 7 Arrow Properties regarding the acquisition by 7
Arrow Properties of the Disposition Parcels; the consent of City is required in order for Participant to
convey the Disposition Parcels to 7 Arrow Properties. 7 Arrow Properties has agreed to assume the
obligations of Participant with respect to the Disposition Parcels as set forth with respect to the
Disposition Parcels under the 2002 Agreement and the 2004 Agreement and, in addition, to discharge
all obligations with respect to the Disposition Parcels as otherwise set forth in this First Amendment,
including without limitation the attachments hereto. The terms of sale as to the Disposition Parcels,
as privately negotiated between Participant and 7 Arrow Properties without participation by City, are
set forth in the “Private Party Purchase Agreements”, as defined below. The City is not a party to
either of the Private Purchase and Sale Agreements and the provisions of the Private Purchase and
Sale Agreements are not incorporated herein.
O. This First Amendment is in the vital and best interest of the City of San Bernardino,
California, and the health, safety and welfare of its residents.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the Parties hereto agree as follows:
1. Capitalized Terms; Additional Definitions. Except to the extent expressly defined
herein, capitalized terms shall have the meanings established under the Original Agreements.
Participant, 7 Arrow Properties and City together constitute the “Parties.”
Additional definitions are contained herein, as indicated by quotation marks, as well as the
following:
5
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Packet Pg. 184 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
“Affordable Units” means the Very Low Income Units and the Low Income Units.
“CED Director” means the Community and Economic Department Director of the City or, in
the absence of a person holding such position, such other person as may be designated by the City
Manager.
“City Manager” means the City Manager of the City or his or her designee.
“Closing” is defined in Section 7.4.
“Conditions Precedent to Sale” has the meaning set forth therefor in Section 6.1.
“Disposition Conveyance” means the conveyance of the Disposition Parcels by Participant to
7 Arrow Properties by means of the Disposition Deed.
“Disposition Deed” means a grant deed by which Participant conveys the Disposition Parcels
to 7 Arrow Properties.
“Disposition Parcels” means Parcel 2002-2 and Parcel 2004-4, collectively.
“Disposition Parcels Preliminary Title Reports” means: (i) as to Property 2004-4, that
preliminary title report re 1379 North Arrowhead Avenue dated as of May 7, 2018 by Lawyers Title,
File No. 618673413; and (ii) as to Property 2002-2, that preliminary title report re 162 West Wabash
Avenue dated as of May 7, 2018 by Lawyers Title, File No. 618672053.
“Eligible Households” or “HOME Eligible Households” means: (i) as to four of the units
within the Retained Parcels, households having incomes at or below fifty percent (50%) of area
median income, and, (ii) as to all of the remaining units on the Site, households identified by the
United States Department of Housing and Urban Development with income at or below eighty
percent (80%) of the area median income.
“Escrow” means that certain escrow described in Section 7 of this First Amendment.
“Escrow Holder” means Lawyers Title Company Inland Empire or such escrow holder as
may be mutually designated by the Parties.
“Insuring Party” means the Participant, excepting that, as to the Disposition Parcels following
the conveyance of the Disposition Parcels by Participant to 7 Arrow Properties, Insuring Party as to
the Disposition Parcels means 7 Arrow Properties.
“Lender’s Title Policy” is defined in Section 7.8.
“Low Income Households” means households having an income of not greater than eighty
percent (80%) of area median income.
“Low Income Units” means: (i) those five (5) units within the Disposition Parcels that are
required to be maintained at Affordable Rent to Low Income Households (162 West Wabash Avenue
(Parcel 2002-2, which units consist of four (4) one-bedroom dwelling units and one (1) two-bedroom
dwelling unit), and (ii) nine (9) units within the Retained Parcels (which units consist of six (6) one-
bedroom dwelling units and one (1) two-bedroom unit at 1441-1443 North Mount View (Parcel
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Packet Pg. 185 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
2004-1), 1495 Mountain View and 195-197 West Magnolia Avenue (Parcel 2004-2), and 1501-1503
North Pershing Avenue (“Parcel 2004-3”).
“Master Deed of Trust” means Attachment No. 6 to this First Amendment.
“Master Promissory Note” means Attachment No. 10 to this First Amendment.
“Memorandum of Agreement” means Attachment No. 7 to this First Amendment.
“Official Records”, unless the context shall otherwise require, means the official land records
of the County Recorder of the County of San Bernardino.
“Owner’s Title Policy” is defined in Section 7.8.
“Participant Certificate” means a certificate by Participant to City in the form of Attachment
No. 5 to this First Amendment.
“Participant Improvements” has the meaning set forth therefor in the Scope of Work.
“Participant Preliminary Title Reports” means: (i) as to Property 2004-1, that preliminary
title report re 1441-1443 North Mountain View Avenue dated as of July 31, 2018 by Lawyers Title,
File No. 618673413; (ii) as to Property 2004-2, that preliminary title report re 1495 North Mountain
View Avenue and 195-197 West Magnolia dated as of August 2, 2018 by Lawyers Title, File No.
618673415; (iii) as to Property 2004-3, that preliminary title report re 1501-1503 North Pershing
Avenue dated as of July 31, 2018 by Lawyers Title, File No. 618673414; (iv) as to Property 2002-1,
that preliminary title report re 951 Crescent Street dated as of August 7, 2018 by Lawyers Title, File
No. 618673557; (v) as to Property 2002-3, that preliminary title report re 1331, 1333, and 1335
North Mountain View dated as of August 16, 2018 by Lawyers Title, File No. 618673558.
“Principals” means: (i) as to Participant: the officers and employees of Participant; and
(ii) as to 7 Arrow Properties: (a) the officers of 7 Arrow Properties, including John Henderson,
President, Michael Lewis, Fundraising Chair, Michael Maher, RN/Secretary, and Maritza Tona,
Executive Director/Secretary, (b) FAP, and (c) the officers of FAP.
“Private Party Arrowhead Agreement” means that certain unrecorded instrument concerning
Parcel 2004-4 entitled “Residential Income Property Purchase Agreement and Joint Escrow
Instructions” by and between Participant and 7 Arrow Properties dated as of May 2, 2018, together
with an Addendum dated as of May 15, 2018, and an instrument entitled “Escrow
Amendment/Supplement” dated as of August 6, 2018 (together, the “Private Party Arrowhead
Agreement”).
“Private Party Purchase and Sale Agreements” means the Private Party Arrowhead
Agreement and the Private Party Wabash Agreement.
“Private Party Wabash Agreement” means that certain unrecorded instrument concerning
Parcel 2002-2 entitled “Residential Income Property Purchase Agreement and Joint Escrow
Instructions” by and between Participant and 7 Arrow Properties dated as of May 2, 2018, together
with an Addendum dated as of May 15, 2018, and an instrument entitled “Escrow
Amendment/Supplement” dated as of August 6, 2018, an Addendum dated as of July 31, 2018, and
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Packet Pg. 186 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
an Extension of Time Addendum dated as of July 31, 2018 (together, the “Private Party Wabash
Agreement”).
“Public Entity Enforcement Liens” means: (i) the Recital L Encumbrances, and (ii) such
other liens or other instruments imposed by one or more governmental agencies as to one or more of
the parcels combining the Site (but not including, for the purposes of this definition, deeds of trust).
“Purchase Price” means the Private Party Wabash Purchase Price and the Private Party
Arrowhead Purchase Price (as those capitalized terms are defined in Section 6).
“Recordable Documents” is defined in Section 7.4.
“Release and Reconveyance” means a form of substitution of trustee, release and
reconveyance substantially in one of the forms set forth at Attachment No. 8 to this First
Amendment.
“Restated 2002 Properties Regulatory Agreement” means Attachment No. 3 to this First
Amendment.
“Restated 2004 Properties Regulatory Agreement” means Attachment No. 1 to this First
Amendment.
“Retained Parcels” means all land comprising the Site other than the Disposition Parcels.
“Risk Manager” means such employee as from time to time so designated by the CED
Director and, in the absence of such designation, the CED Director.
“Scope of Work” means Attachment No. 2 to this First Amendment.
“Site”, as used in this First Amendment, means all properties conveyed to Participant under
the Original Agreements including, without limitation, the Disposition Parcels.
“Title Company” means Lawyers Title Company Inland Empire or another title insurer
acceptable to City.
“Very Low Income Households” means households having an income of not greater than
fifty percent (50%) of area median income.
“Very Low Income Units” means those four (4) units within the Retained Parcels that are
required to be maintained at Affordable Rent to Very Low Income Households; these dwelling units
consist two (2) three-bedroom dwelling units, and two (2) four-bedroom dwelling units (961 North
Crescent Avenue (Parcel 2002-1), and those four (4) dwelling units within the Disposition Parcels
that are required to be maintained at Affordable Rent to Very Low Income Households, which units
consist of two (2) two-bedroom units and two (2) one-bedroom units (1379 Arrowhead (Parcel 2004-
4)).
“7 Arrow Properties Certificate” means a certificate by 7 Arrow Properties to City in the
form of Attachment No. 9 to this First Amendment.
“7 Arrow Properties Improvements” has the meaning set forth therefor in the Scope of Work.
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Packet Pg. 187 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
2. Representations and Warranties of Participant and 7 Arrow Properties.
2.1 Participant Representations. Participant represents and warrants to City as
follows and, additionally, to City and 7 Arrow Properties as set forth in subsection 2.1.7 hereof:
2.1.1 Authority. Participant is a California non-profit public benefit
corporation organized within and in good standing under the laws of the State of California.
Participant has full right, power and lawful authority to convey the Disposition Parcels to 7 Arrow
Properties and to undertake all obligations as provided herein and the execution, performance and
delivery of this First Amendment by Participant has been fully authorized by all requisite actions on
the part of Participant. The parties who have executed this First Amendment on behalf of Participant
are authorized to bind Participant by their signatures hereto.
2.1.2 Litigation. To the best of Participant’s knowledge, there are no
actions, suits, material claims, legal proceedings, or any other proceedings affecting Participant, at
law or in equity before any court or governmental agency, domestic or foreign.
2.1.3 No Conflict. Participant’s execution, delivery, and performance of its
obligations under this First Amendment will not constitute a default or a breach under any contract,
agreement or order to which Participant is a party or by which it is bound.
2.1.4 No Participant Bankruptcy. Participant is not the subject of a
bankruptcy proceeding.
2.1.5 Participant Experience; Sophisticated Party. The Principals of
Participant are sophisticated parties, with substantial experience in the acquisition, rehabilitation,
development, financing, obtaining financing for, marketing, and operation of affordable housing
projects, including rental projects, and with the negotiation, review, and preparation of agreements
and other documents in connection with such activities. Participant is familiar with and has reviewed
all laws and regulations pertaining to the development and operation of the Development and has
obtained advice from any advisers of its own choosing in connection with this First Amendment.
2.1.6 Due Authorization and Execution. Participant has duly authorized the
execution of this First Amendment, the 2002 Agreement (and the instruments required to be executed
and delivered thereunder), the 2004 Agreement (and the instruments required to be executed and
delivered thereunder), the Master Deed of Trust, the Restated 2004 Properties Regulatory
Agreement, the Restated 2002 Properties Regulatory Agreement, and all documents necessary to
effectuate the Disposition Conveyance and the implementation of this First Amendment, including
without limitation the ongoing operation of the Retained Parcels in conformity with this First
Amendment, the Restated 2004 Properties Regulatory Agreement, and those provisions of the 2002
Agreement and the 2004 Agreement (including the instruments recorded thereunder as modified by
this First Amendment, the Restated 2004 Properties Regulatory Agreement, the Master Promissory
Note, and the Master Deed of Trust) as to the Retained Parcels. Concurrently with the execution of
this First Amendment by City or within five (5) calendar days thereafter, Participant shall execute
and deposit with City (to be held pending satisfaction of the Conditions Precedent to Sale) the
Restated 2004 Properties Regulatory Agreement, the Master Promissory Note, the Master Deed of
Trust, the Memorandum of Agreement, and all documents necessary to effectuate the Disposition
Conveyance hereunder.
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Packet Pg. 188 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
2.1.7 Performance as to Various Matters as set forth in the 2002
Agreement and the 2004 Agreement. As of the First Amendment Date, Participant is in compliance
with and not in default of any provisions under the 2002 Agreement or the 2004 Agreement.
2.1.8 Removal of Public Entity Enforcement Liens. Participant shall absorb
all costs and do what is necessary to effect the removal of all of the Public Entity Enforcement Liens
(whether applicable to the Disposition Parcels or other parcels comprising the Site) prior to the
conveyance of the Disposition Parcels to 7 Arrow Properties.
Participant shall, upon learning of any fact or condition which would cause any of the
warranties and representations in this Section 2.1 not to be true, immediately give written notice of
such fact or condition to City. Participant’s representations and warranties contained herein shall be
deemed to have been made as of the Disposition Conveyance, subject to such exception(s). The
representations and warranties set forth in this Section 2.1 shall survive the conveyance of the
Disposition parcels by Participant to 7 Arrow Properties.
2.2 7 Arrow Properties Representations. 7 Arrow Properties represents and
warrants to City as follows:
2.2.1 Authority. 7 Arrow Properties is a California limited liability
company organized within and in good standing under the laws of the State of California. 7 Arrow
Properties has full right, power and lawful authority to accept the conveyance of the Disposition
Parcels, and undertake all obligations as provided herein and the execution, performance and delivery
of this First Amendment by 7 Arrow Properties has been fully authorized by all requisite actions on
the part of 7 Arrow Properties. The parties who have executed this First Amendment on behalf of 7
Arrow Properties are authorized to bind 7 Arrow Properties by their signatures hereto.
2.2.2 Litigation. To the best of 7 Arrow Properties’ knowledge, there are
no actions, suits, material claims, legal proceedings, or any other proceedings affecting 7 Arrow
Properties, at law or in equity before any court or governmental agency, domestic or foreign.
2.2.3 No Conflict. To the best of 7 Arrow Properties’ knowledge, 7 Arrow
Properties’ execution, delivery, and performance of its obligations under this First Amendment will
not constitute a default or a breach under any contract, agreement or order to which 7 Arrow
Properties is a party or by which it is bound.
2.2.4 No 7 Arrow Properties Bankruptcy. 7 Arrow Properties is not the
subject of a bankruptcy proceeding.
2.2.5 7 Arrow Properties Experience; Sophisticated Party. The Principals
of 7 Arrow Properties are sophisticated parties, with substantial experience in the acquisition,
rehabilitation, development, financing, obtaining financing for, marketing, and operation of
affordable housing projects, including rental projects, and with the negotiation, review, and
preparation of agreements and other documents in connection with such activities. 7 Arrow
Properties is familiar with and has reviewed all laws and regulations pertaining to the development
and operation of the Development, and has obtained advice from any advisers of its own choosing in
connection with this First Amendment.
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Packet Pg. 189 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
2.2.6 Due Authorization and Execution; Studies Completed. 7 Arrow
Properties has duly authorized the execution of this First Amendment and the Restated 2002
Properties Regulatory Agreement. 7 Arrow Properties is ready, willing and able to pay the Purchase
Price and to execute the Restated 2002 Properties Regulatory Agreement, the Restated 2004
Properties Regulatory Agreement, the Memorandum of Agreement, and all documents necessary to
effectuate the Disposition Conveyance and has conducted all studies necessary to proceed with the
acquisition and operation of the Disposition Parcels in conformity with this First Amendment,
including without limitation the Restated 2002 Properties Regulatory Agreement and the Restated
2004 Properties Regulatory Agreement. Concurrently with the execution of this First Amendment by
City or within five (5) calendar days thereafter, 7 Arrow Properties shall execute and deposit with
City (to be held pending satisfaction of the Conditions Precedent to Sale) the Restated 2002
Properties Regulatory Agreement, the Restated 2004 Properties Regulatory Agreement, the
Memorandum of Agreement, and all documents necessary to effectuate the Disposition Conveyance
hereunder.
7 Arrow Properties shall, upon learning of any fact or condition which would cause
any of the warranties and representations in this Section 2.2 not to be true as of one or both of the
Disposition Conveyance, immediately give written notice of such fact or condition to City. Such
exception(s) to a representation shall not be deemed a breach by 7 Arrow Properties hereunder. 7
Arrow Properties’ representations and warranties contained herein shall be deemed to have been
made as of the conveyance of the Disposition Parcels by Participant to 7 Arrow Properties. The
representations and warranties set forth in this Section 2.2 shall survive the conveyance of the
Disposition Parcels by Participant to 7 Arrow Properties.
3. Deletions; Superseded Provisions. The provisions of the 2002 Covenants, the 2004
Covenants, and the Wabash Grant Deed remain in effect except to the extent of conflict with the
Restated 2004 Properties Regulatory Agreement or the Restated 2002 Properties Regulatory
Agreement; in the event of conflict, the Restated 2004 Properties Regulatory Agreement and the
Restated 2002 Properties Regulatory Agreement shall control.
3.1 Deletions.
3.1.1 From the 2002 Agreement: the following provisions are deleted:
(i) provisions that describe how the proceeds of the “Loan” (as therein defined) will be initially
applied, as set forth in Section 2 thereof (provided that provisions concerning the ongoing
applicability of 24 CFR 92.504 and Participant’s obligation to maintain effective management
control shall continue (by Participant as to Parcels 2002-1 and 2002-3 and by 7 Arrow Properties as
to Parcel 2002-2); (ii) Sections 5.2 and 5.3 (such provisions having been satisfied); and (iii) the
second to last sentence of Section 20 (that appears at the bottom of page 22 of the 2002 Agreement).
3.1.2 From the 2004 Agreement: the following provisions are deleted:
(i) provisions that describe how the proceeds of the “Loan” (as therein defined) will be initially
applied, as set forth in Section 3 thereof; (ii) Sections 4.2 and 4.3 (such provisions having been
satisfied); and (iii) the first sentence of Section 20.
3.2 Superseded Provisions. Wherever reference is made to Agency, excepting
only for historical purposes as to the description of events that took place prior to February 1, 2012,
the reference shall be deemed to refer to City. Wherever reference is made to the Executive Director
of the Agency (herein, the Former Agency), the reference shall be deemed to refer to the CED
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Director. In addition, supersede provisions include those matters set forth in the remainder of this
Section 3.2.
3.2.1 As to the 2002 Agreement: (i) those provisions which provide for the
delivery of promissory notes and deeds of trust; (ii) those provisions which provide for credits as set
forth in Section 4.2 of the 2002 Agreement; (iii) the amount identified for a capital replacement and
reserve fund at Section 7.2 of the 2002 Agreement is superseded by the Restated 2004 Properties
Regulatory Agreement and the Restated 2002 Properties Regulatory Agreement; (iv) Section 10.2 of
the 2002 Agreement is augmented and, in the event of conflict, superseded by the Restated 2004
Properties Regulatory Agreement and the Restated 2002 Properties Regulatory Agreement;
(v) Section 17 of the 2002 Agreement is superseded by Section 8 of this First Amendment; and
(vi) Section 18 of the 2002 Agreement is augmented by the Restated 2004 Properties Regulatory
Agreement and the Restated 2002 Properties Regulatory Agreement, although such Section 18
remains in effect as so augmented.
3.2.2 As to the 2004 Agreement: (i) those provisions which provide for the
delivery of promissory notes and deeds of trust; (ii) those provisions which provide for credits as set
forth in Section 5.2 of the 2004 Agreement; (iii) the amount identified for a capital replacement and
reserve fund at Section 8.2 of the 2004 Agreement is superseded by the Restated 2004 Properties
Regulatory Agreement and the Restated 2002 Properties Regulatory Agreement; (iv) Section 11.2 of
the 2004 Agreement is augmented and, in the event of conflict, superseded by the Restated 2004
Properties Regulatory Agreement and the Restated 2002 Properties Regulatory Agreement;
(v) Section 17 of the 2004 Agreement is superseded by Section 8 of this First Amendment; and
(vi) Section 18 of the 2004 Agreement is augmented by the Restated 2004 Properties Regulatory
Agreement and the Restated 2002 Properties Regulatory Agreement, although such Section 18
remains in effect as so augmented.
4. Particular Disclosures as to Disposition Parcels. Participant has disclosed to 7 Arrow
Properties and confirms that each of the Disposition Parcels exhibits significant deferred
maintenance and is in disrepair; 7 Arrow Properties agrees and acknowledges that each of the
Disposition Parcels will require substantial rehabilitation, including those activities and
improvements applicable to the Disposition Parcels as described in the Scope of Work.
5. Restatement of Affordability Covenants. Certain rental units were required to be
maintained available to Low Income Households at rent which did not exceed Affordable Rent under
the 2002 Agreement, the 2004 Agreement, and various instruments delivered pursuant thereto. In the
course of administering such agreements, the Parties have mutually determined that it is mutually
beneficial that covenants of record be modified by the Restated 2004 Properties Regulatory
Agreement and, as to the Disposition Parcels, the Restated 2002 Properties Regulatory Agreement.
As a matter among the Parties, the Site, including all parcels, shall be deemed subject to the Restated
2004 Properties Regulatory Agreement and the Restated 2002 Properties Regulatory Agreement
upon execution of this First Amendment. In addition, the Restated 2004 Properties Regulatory
Agreement and the Restated 2002 Properties Regulatory Agreement shall be recorded at or prior to
the conveyance of the Disposition Parcels by Participant to 7 Arrow Properties.
The definition of Eligible Households, as set forth in this First Amendment, shall control over
the definition of Eligible Households or HOME Eligible Households under the Original Agreements
and instruments executed in connection with the Original Agreements.
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Packet Pg. 191 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
The Restated 2004 Properties Regulatory Agreement and the Restated 2002 Properties
Regulatory Agreement also contain certain additional provisions, including provisions that address
property maintenance, annual reporting, and penalties in the event reports are not correctly
submitted, and other matters. The Parties mutually agree that the inclusion of such additional
provisions, on a prospective basis, is beneficial.
6. Conveyance of the Disposition Parcels; Treatment of Proceeds of Sale. Participant
intends to sell to 7 Arrow Properties and 7 Arrow Properties intends to purchase from Participant the
Disposition Parcels for the purchase price of Two Hundred Eighty Thousand Dollars ($280,000.00)
as set forth in the Private Party Arrowhead Agreement (the “Private Party Arrowhead Purchase
Price”) and the purchase price of Two Hundred Seventy Thousand Dollars ($270,000.00) as set forth
in the Private Party Wabash Agreement (the “Private Party Wabash Purchase Price” and, together
with the Private Party Arrowhead Purchase Price, the “Private Party Arrowhead Purchase Price”).
The Parties agree that the consent of the City is required in order for Participant to sell and for 7
Arrow Properties to acquire the Disposition Parcels. The provision of consent by the City is subject
to the prior satisfaction of the “Conditions Precedent to Sale” as set forth in Section 6.1 of this First
Amendment. Participant, 7 Arrow Properties, and City agree that the allocation of closing costs in
connection with the purchase and sale of the Disposition Parcels shall be effected in the manner
prescribed by the Private Party Wabash Agreement and the Private Party Arrowhead Agreement,
excepting that in no event shall any closing costs necessary to effect the conveyance of the
Disposition Parcels as provided under those Agreements be the responsibility of the City. The
parties to this Agreement agree that in the event the sale of the Disposition Parcels is consummated,
the gross proceeds of sale shall be applied as follows: (i) a portion of the sales proceeds shall be
applied to defray premiums for title insurance, escrow charges, recording fees, and similar charges as
generally referenced at Section 7.4 (the “Closing Cost Amount”); (ii) $280,607.20 shall be disbursed
to City (the “Base City Amount”); (iii) $84,666.08 shall be disbursed to City for a construction
account for improvements to be accomplished for the rehabilitation of 951 N. Crescent, with
disbursements to be made as progress payments by City upon submittal of evidence deemed adequate
by the City Manager or his or her designee (the “Construction Account Amount”); (iv) funds
necessary to satisfy City liens for code enforcement matters affecting the Property (the “City Lien
Release Amount”); (v) funds necessary to satisfy liens imposed as to the Property by public agencies
other than the City (the “Other Public Agency Lien Release Amount”); (vi) $161,781.92 shall be
disbursed to Participant and shall be retained by Participant as a capital reserve as to the Retained
Units (the “Capital Reserve Amount”); (vii) amounts required to defray real estate commissions or
finders fees that have previously been disclosed to City (the “Commission Amounts”); and (vii) the
remainder of the gross proceeds of sale (after deducting the Closing Cost Amount, the Base City
Amount, the Construction Account Amount, the City Lien Release Amount, the Other Public Funds
Reserve Amount, and the Capital Reserve Amount). Participant shall be solely responsible to absorb
from its share of Net Proceeds any real estate commissions, finders’ fees, or similar remuneration
payable in connection with the sale of the Disposition Parcels. The Parties further agree that to the
extent the provisions of this Agreement differ from the provisions of the Private Party Wabash
Agreement or the Private Party Arrowhead Agreement with respect to the allocation of proceeds of
sale, the provision of this Agreement (and particularly this Section 6) shall control.
6.1 Conditions Precedent to Sale. The sale of the Disposition Parcels by
Participant to 7 Arrow Properties shall be subject to the prior satisfaction of each of the following as
confirmed by the CED Director (and, as to 6.1.10, confirmation by 7 Arrow Properties that such
condition has been satisfied or shall be satisfied as of the conveyance of the Disposition Parcels by
Participant to 7 Arrow Properties):
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6.1.1 Participant Certificate. Participant shall execute and deliver to City
the Participant Certificate.
6.1.2 7 Arrow Properties Certificate. 7 Arrow Properties shall execute and
deliver to City the 7 Arrow Properties Certificate.
6.1.3 Evidence of Financial Commitments to Accomplish the Scope of
Work. Participant shall provide written evidence satisfactory to the CED Director that Participant has
available and has committed those financial resources necessary to accomplish the Scope of Work.
6.1.4 Delivery of Management Plan. Participant shall have delivered to
City in form confirmed in writing by the CED Director to be satisfactory a management plan or
management plans as provided for under the 2004 Agreement and the 2002 Agreement as applicable
to each parcel comprising the Site.
6.1.5 Removal of Public Entity Enforcement Liens. Participant shall have
provided written evidence confirmed by the CED Director to be satisfactory that Participant has
removed or caused to be removed all of the Public Entity Enforcement Liens.
6.1.6 Execution by Participant of Documents. Participant shall execute and
deliver to City, or to an escrow holder as approved by the CED Director in connection with the
Disposition Conveyances, each of the following as duly executed by Participant: the Restated 2002
Properties Regulatory Agreement; the Restated 2004 Properties Regulatory Agreement; the Master
Deed of Trust; the Master Promissory Note; and the Memorandum of Agreement.
6.1.7 Execution by 7 Arrow Properties of Documents. 7 Arrow Properties
shall execute and deliver to City, or to an escrow holder as approved by the CED Director in
connection with the Disposition Conveyances, each of the following as duly executed by 7 Arrow
Properties: the Restated 2002 Properties Regulatory Agreement; the Restated 2004 Properties
Regulatory Agreement; and the Memorandum of Agreement.
6.1.8 Priority of Restated Covenants. The Restated 2004 Properties
Regulatory Agreement shall have a first priority, ahead of any deeds of trust, as to the Retained
Parcels and the Restated 2002 Properties Regulatory Agreement shall have a first priority, ahead of
any deeds of trust, as to the Disposition Parcels.
6.1.9 Lender’s Policy of Title Insurance. Participant shall have arranged
for the Title Company to issue, at Participant’s expense, a lender’s policy of title insurance insuring
the City’s beneficial interest under the Master Deed of Trust as to all of the Retained Parcels; such
policy shall: (i) evidence no matters not described in the Participant Preliminary Title Reports
(excepting for the provisions of the Restated 2002 Properties Regulatory Agreement, and the
Restated 2004 Properties Regulatory Agreement); (ii) evidence that all of the Public Entity
Enforcement Liens have been removed or shall be removed concurrent with the Disposition
Conveyance (and will not be reflected as encumbrances in the Lender’s Policy), and (iii) provide
insurance based upon the original principal amount of the Master Promissory Note.
6.1.10 Owner’s Policy of Title Insurance as to the Disposition Parcels.
Participant shall have arranged for the Title Company to issue, at Participant’s expense, an owner’s
policy of title insurance insuring fee title on behalf of 7 Arrow Properties as to the Disposition
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Parcels; such policy shall: (i) evidence no matters not described in the Disposition Parcels
Preliminary Title Reports (excepting for the provisions of the Disposition Deed, the Restated 2002
Properties Regulatory Agreement, and the Restated 2004 Properties Regulatory Agreement);
(ii) evidence that all of the Public Entity Enforcement Liens have been removed or shall be removed
concurrent with the Disposition Conveyance (and will not be reflected as encumbrances in the
Owner’s Policy), and (iii) provide insurance based upon the original principal amount of the
Purchase Price (provided that if coverage is provided in the form of two separate policies, the
amounts of the policies may separately reference the Private Party Wabash Purchase Price and the
Private Party Arrowhead Purchase Price).
7. Escrow. The parties shall open an escrow (the “Escrow”) with the Escrow Holder
within thirty (30) days after the First Amendment Date, or such later time as may be mutually
approved by City, Participant, and 7 Arrow Properties. City, Participant, and 7 Arrow Properties
agree to cooperate in processing such supplemental escrow instructions as may be reasonably
necessary or convenient to implement this Section 7. The conveyance of the Disposition Parcels and
the release of the Original Deeds of Trust is subject to and contingent upon the satisfaction of the
Conditions Precedent to Sale.
7.1 Costs of Escrow. Participant, and 7 Arrow Properties shall pay their
respective portions of the premium for the title insurance policies referenced in Section 7.4 hereof,
Participant shall pay for the documentary transfer taxes, if any, due with respect to the Disposition
Conveyance, and Participant and 7 Arrow Properties each agree to evenly share all other usual fees,
charges, and costs which arise from Escrow; City shall not be required to make any payment of
escrow fees and charges or any charges related to the escrow (including without limitation charges to
record any Release and Reconveyance whether one or several such instruments are utilized).
7.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Participant, City and Arrow, and the Escrow Holder to whom these instructions are
delivered is hereby empowered to act under this Agreement with respect to the conveyance of the
Disposition Parcels by Participant to 7 Arrow Properties (the “Escrow”). The parties hereto agree to
do all acts reasonably necessary to close the Escrow. Insurance policies in place as to the Disposition
Parcels for the benefit of Participant for fire or casualty are not to be transferred, and Participant will
cancel such policies after the Disposition Conveyance. All funds received in the Escrow shall be
deposited with other escrow funds in a general escrow account(s) and may be transferred to any other
such escrow trust account in any State or National Bank doing business in the State of California.
All disbursements shall be made by check from such account.
If in the opinion of any of Participant, City or Authority it is necessary or convenient
in order to accomplish the Disposition Conveyance, such party may request that the parties sign
supplemental escrow instructions; provided that if there is any inconsistency between this First
Amendment and the supplemental escrow instructions, then the provisions of this First Amendment
shall control. This First Amendment shall control over conflicting provisions, if any, from the
Private Party Purchase and Sale Agreements pertaining to escrow and title. The parties agree to
execute such other and further documents as may be reasonably necessary, helpful or appropriate to
effectuate the provisions of this First Amendment. The Disposition Conveyance shall take place
when the Conditions Precedent to Sale have been satisfied. Escrow Holder is instructed to release
closing statements to all parties to the Escrow.
7.3 Authority of Escrow Holder. Escrow Holder is authorized to, and shall:
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7.3.1 Pay and charge Participant and 7 Arrow Properties for their respective
shares of the premium for the Lender’s Title Policy and the Owner’s Title Policy as set forth in
Section 7.4 and any amount necessary to place title in the condition necessary to satisfy Section 7.3
of this Agreement.
7.3.2 Pay and charge Participant and 7 Arrow Properties for their respective
shares of any escrow fees, charges, and costs payable under Section 7.2.1 of this Agreement.
7.3.3 Pay and charge 7 Arrow Properties for any endorsements to the
Owner’s Title Policy which are requested by Arrow.
7.3.4 Disburse funds, record and deliver the Recordable Documents in the
order set forth above.
7.3.5 Do such other actions as necessary to fulfill its obligations under this
Agreement with respect to the conveyance of the Disposition Parcels.
7.3.6 Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
7.4 Closing. The Disposition Conveyance and delivery of documents related
shall close (the “Closing”) shall occur within thirty (30) days of the parties’ satisfaction of all of
Conditions Precedent to Sale, or at such other time as may be mutually designated by Participant, 7
Arrow Properties, and City, but in no event later than the first anniversary of the First Amendment
Date. The “Closing” means the time and day that the Master Promissory Note, the Participant
Certificate, and the 7 Arrow Properties Certificate have been executed and are held by the Escrow
Holder for delivery to the City and each of the following have been recorded among the Official
Records: (i) the Disposition Deed; (ii) the Master Deed of Trust; (iii) the Memorandum of
Agreement; (iv) the Restated 2002 Properties Regulatory Agreement; (v) the Restated 2004
Properties Regulatory Agreement; and (vi) one or more of the Release(s) and Reconveyance(s) (the
latter to release all of the Original Deeds of Trust); the foregoing items (i) through (vi) shall
constitute the “Recordable Documents.” The Escrow Holder will apply a portion of the purchase
price to defray closing costs, including: (i) the Owner’s Title Policy (as described in Section 7.8); (ii)
the Lender’s Title Policy (as described in Section 7.8); (iii) recording charges; (iv) escrow fees and
charges; and (v) such normal and customary charges of Escrow Holder or the County of San
Bernardino in connection with the recording and delivery of documents hereunder.
7.5 Termination of Escrow. If the Escrow is not in condition to close on or
before the first anniversary of the First Amendment Date, then any party which has fully performed
under this First Amendment may, in writing, demand the return of money or property and terminate
the Escrow. Termination of the Escrow shall be without prejudice as to whatever legal rights a Party
may have against another Party other arising from this First Amendment.
7.6 Closing Procedure. Escrow Holder shall close the Escrow for the Disposition
Conveyance as follows:
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7.6.1 Record the following documents in this order: (i) the Restated 2002
Properties Regulatory Agreement; (ii) the Restated 2004 Properties Regulatory Agreement; (iii) the
Disposition Deed; (iv) the Master Deed of Trust; (v) the Memorandum of Agreement; and (vi) the
Release and Reconveyance (or Releases and Reconveyances) of the Original Deeds of Trust. The
order of recordation shall be subject to revision upon approval of the Parties. In addition, the Escrow
Holder shall: (i) Instruct the Title Company to deliver the Owner’s Title Policy to 7 Arrow
Properties, with a copy to City; (ii) File any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements; (iii) Deliver the FIRPTA
Certificate, if any, to 7 Arrow Properties; (iv) Deliver documents as set forth in Section 7.2.3 hereof;
and (v) Forward to each of City, Participant, and 7 Arrow Properties a separate accounting of all
funds received and disbursed for each party and copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing date and information endorsed
thereon.
7.7 Review of Title.
7.7.1 By 7 Arrow Properties: Participant has, prior to the First Amendment
Date, caused the Title Company to deliver to 7 Arrow Properties the Disposition Parcels Preliminary
Title Reports with respect to the Disposition Parcels, and Participant will endeavor to cause the Title
Company to provide to 7 Arrow Properties legible copies of the documents underlying the exceptions
(“Disposition Parcels Exceptions”) set forth in the Disposition Parcels Preliminary Report, within
fifteen (15) days from the First Amendment Date. 7 Arrow Properties shall have the right to
reasonably approve or disapprove the Disposition Parcels Exceptions; provided, however, that 7
Arrow Properties hereby approves the following Disposition Parcels Exceptions: (i) the lien of any
non-delinquent property taxes and assessments (to be prorated at close of the Escrow); (iii) the
provisions of the Disposition Deed, the Restated 2002 Properties Regulatory Agreement, the
Restated 2004 Properties Regulatory Agreement, the Original Covenants (as amended by the
Restated 2002 Properties Regulatory Agreement and the Restated 2004 Properties Regulatory
Agreement), and the Memorandum of Agreement; and (iv) any incidental easements or other matters
affecting title which do not materially impact Arrow’s use of the Disposition Parcels for the purposes
described in this First Amendment. 7 Arrow Properties shall not be required to approve the Public
Entity Enforcement Liens, it being mutually understood that Participant shall cause the Public Entity
Enforcement Liens to be removed, at Participant’s cost, prior to Closing.
7 Arrow Properties shall have thirty (30) days from the date of its receipt of the Disposition
Parcels Preliminary Report to give written notice to Participant, City, and Escrow Holder of Arrow’s
approval or disapproval of any of such Disposition Parcels Exceptions. Arrow’s failure to give
written disapproval of the Disposition Parcels Preliminary Report within such time limit shall be
deemed to constitute disapproval of the Disposition Parcels Preliminary Report. If 7 Arrow
Properties notifies Participant (with a copy to City and Escrow Holder) of its disapproval of any
Disposition Parcels Exceptions in the Disposition Parcels Preliminary Report, Participant shall have
ten (10) days from the receipt of written notice of disapproval by 7 Arrow Properties to determine
whether or not it will undertake the removal of any disapproved Disposition Parcels Exceptions; such
time may be extended upon mutual agreement of City, 7 Arrow Properties, and Participant. If
Participant elects to remove such Disposition Parcels Exceptions, it shall diligently proceed to effect
the removal of such Disposition Parcels Exceptions. If Participant cannot or does not elect to remove
any of the disapproved Disposition Parcels Exceptions within that period, 7 Arrow Properties shall
have ten (10) business days after the expiration of such ten (10) business day period to either give
Participant (with a copy to City and Escrow Holder) written notice that 7 Arrow Properties elects to
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proceed with the acquisition of the Disposition Parcels subject to the disapproved Disposition Parcels
Exceptions or to give Participant (with a copy to each of City and Escrow Holder) written notice that
7 Arrow Properties elects to terminate the Escrow. The Disposition Parcels Exceptions to title
approved by 7 Arrow Properties as provided herein shall hereinafter be referred to as the “7 Arrow
Properties Condition of Title.” 7 Arrow Properties shall have the right to approve or disapprove any
additional and previously unreported Disposition Parcels Exceptions reported by the Title Company
after 7 Arrow Properties has approved the 7 Arrow Properties Condition of Title.
7.7.2 By City: Participant has, prior to the First Amendment Date, caused
the Title Company to deliver to City the Participant Preliminary Title Reports, and Participant will
endeavor to cause the Title Company to provide to City legible copies of the documents underlying
the exceptions (“Retained Parcels Exceptions”) set forth in the Participant Preliminary Title Reports,
within fifteen (15) days from the First Amendment Date. City shall have the right to reasonably
approve or disapprove the Retained Parcels Exceptions; provided, however, that City hereby
approves the following Retained Parcels Exceptions: (i) the lien of any non-delinquent property
taxes and assessments (to be prorated at close of the Escrow); (ii) the Restated 2004 Properties
Regulatory Agreement, the Original Covenants, excepting for the provisions of the Wabash Grant
Deed, the Crescent Grant Deed, and the 2002 Mountain View Grant Deed (all as amended by the
Restated 2002 Properties Regulatory Agreement and the Restated 2004 Properties Regulatory
Agreement) and the Memorandum of Agreement; and (iii) any incidental easements or other matters
affecting title which do not materially impact Participant’s ongoing use of such property for the
purposes set forth in the Original Agreements as modified by the First Amendment or City’s security
under the Master Deed of Trust. City shall not be required to approve the Public Entity Enforcement
Liens, it being mutually understood that Participant shall cause the Public Entity Enforcement Liens
to be removed, at Participant’s cost, prior to Closing.
City shall have thirty (30) days from the date of its receipt of the Participant Preliminary Title
Reports to give written notice to Participant, Arrow, and Escrow Holder of City’s approval or
disapproval of any of such Retained Parcels Exceptions. City’s failure to give written disapproval of
the Participant Preliminary Title Reports within such time limit shall be deemed to constitute
disapproval of the Participant Preliminary Title Reports. If City notifies Participant (with a copy to 7
Arrow Properties and Escrow Holder) of its disapproval of any Retained Parcels Exceptions,
Participant shall have ten (10) days from the receipt of written notice of disapproval by City to
determine whether or not it will undertake the removal of any disapproved Retained Exceptions; such
time may be extended upon mutual agreement of City, 7 Arrow Properties, and Participant. If
Participant elects to remove such Retained Parcels Exceptions, it shall diligently proceed to effect the
removal of such Retained Parcels Exceptions. If Participant cannot or does not elect to remove any
of the disapproved Retained Parcels Exceptions within that period, City shall have ten (10) business
days after the expiration of such ten (10) business day period to either give Participant (with a copy
to 7 Arrow Properties and Escrow Holder) written notice that City elects to proceed with the Closing
(subject to such exceptions) or to give Participant (with a copy to each of City and Escrow Holder)
written notice that 7 Arrow Properties elects to terminate the Escrow. The Retained Parcels
Exceptions to title approved by City as provided herein shall hereinafter be referred to as the
“Retained Parcels Condition of Title.” City shall have the right to approve or disapprove any
additional and previously unreported Retained Parcels Exceptions reported by the Title Company
after City has approved the Retained Parcels Condition of Title.
7.8 Title Insurance. Concurrently with recordation of the Disposition Deed, there
shall be issued to Arrow a standard ALTA owner’s policy of title insurance (the “Owner’s Title
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Policy”) as to the Disposition Parcels based upon the Purchase Price, together with such
endorsements as are reasonably requested by 7 Arrow Properties, issued by the Title Company
insuring that fee title to the Disposition Parcels is vested in 7 Arrow Properties in the condition
required by Section 7.3 of this First Amendment. The Title Company shall provide City with a copy
of the Owner’s Title Policy. The Participant shall pay that portion of the premium for the Owner’s
Title Policy equal to the cost of a standard ALTA standard coverage title policy insuring fee title in
the Disposition Parcels based upon the Purchase Price. Any additional costs, including the cost of an
ALTA owner’s extended coverage policy or any endorsements requested by 7 Arrow Properties,
shall be borne by 7 Arrow Properties.
In addition, concurrently with the recordation of the Master Deed of Trust, there shall be
issued to City a lender’s ALTA policy of title insurance (the “Lender’s Title Policy”) as to the
interest of City in the Retained Parcels under the Master Deed of Trust, based upon the original
principal amount of the Master Promissory Note, together with such endorsements as are reasonably
requested by City, issued by the Title Company insuring that such interest is vested in City in the
condition required by Section 7.3 of this First Amendment. The Participant shall pay that portion of
the premium for the Owner’s Title Policy equal to the cost of a standard ALTA standard coverage
title policy insuring the interest of City under the Master Deed of Trust based upon the original
principal amount of the Master Promissory Note, plus the cost of such endorsements as may be
requested by City.
8. Improvements. Participant shall commence the Participant Improvements within
sixty (60) days after the First Amendment Date and shall complete such Participant Improvements on
or before the one hundred eightieth (180th) day after the First Amendment Date. 7 Arrow Properties
shall commence the 7 Arrow Properties Improvements within sixty (60) days after the First
Amendment Date and shall complete such 7 Arrow Properties Improvements on or before the one
hundred eightieth (180th) day after the First Amendment Date. The Participant Improvements and the
7 Arrow Properties Improvements shall be accomplished to the reasonable satisfaction of the
Economic and Housing Development Director. Provided that work is being undertaken on Retained
Parcels and the Disposition Parcels, respectively, as provided hereunder (including without limitation
with respect to the time set forth for the commencement and completion of such improvements), such
construction activity shall be not be deemed to constitute noncompliance with respect to the
requirement that the corresponding dwelling units be rented in accordance with this First
Amendment.
Participant shall retain, following closing a capital reserve account as provided in the
Restated 2002 Properties Regulatory Agreement and the Restated 2004 Properties Regulatory
Agreement. That capital reserve account provided under the Restated 2004 Properties Regulatory
Agreement shall initially be funded with the Capital Reserve Amount.
9. Insurance. Insuring Party agrees to provide insurance set forth in accordance with the
requirements herein. If Insuring Party uses existing coverage to comply with these requirements and
that coverage does not meet the specified requirements, Insuring Party agrees to amend, supplement
or endorse the existing coverage to do so. The type(s) of insurance required is determined by the
scope of the contract services. Without in anyway affecting the indemnity herein provided and in
addition thereto, Insuring Party shall secure and maintain throughout the contract term the following
types of insurance with limits as shown:
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9.1 Workers’ Compensation/Employers Liability. During such time(s) as work is
performed on one or more parcels comprising the Site, the applicable Insuring Party shall maintain
Workers’ Compensation insurance or a state-approved, self-insurance program in an amount and
form to meet all applicable requirements of the Labor Code of the State of California, including
Employer’s Liability with $250,000 limits covering all persons including volunteers providing
services on behalf of Insuring Party and all risks to such persons under this contract.
With respect to contractors that are non-profit corporations organized under
California or federal law, volunteers for such entities are required to be covered by Workers’
Compensation Insurance.
9.2 Commercial/General Liability Insurance. The Insuring Party shall carry
General Liability Insurance covering all operations performed by or on behalf of Insuring Party
providing coverage for bodily injury and property damage with a combined single limit of not less
than one million dollars ($1,000,000), per occurrence. The policy coverage shall include coverage as
to the following: (i) premises operations and mobile equipment; (ii) products and completed
operations; (iii) broad form property damage (including completed operations); (iv) explosion,
collapse and underground hazards; (v) personal injury; (vi) contractual liability. This coverage shall
have a $2,000,000 general aggregate limit.
9.3 Automobile Liability Insurance. Primary insurance coverage shall be written
on ISO Business Auto coverage form for all owned, hired and non-owned automobiles or symbol 1
(any auto). The policy shall have a combined single limit of not less than one million dollars
($1,000,000) for bodily injury and property damage, per occurrence. If the Insuring Party is
transporting one or more non-employee passengers in performance of contract services, the
automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for
bodily injury and property damage per occurrence. If the Insuring Party owns no autos, a non-owned
auto endorsement to the General Liability policy described above is acceptable.
9.4 General Requirements as to All Policies.
9.4.1 Additional Insured. All policies, except for the Workers’
Compensation, Errors and Omissions and Professional Liability policies, shall contain endorsements
naming the City and its officers, employees, agents and volunteers as additional insureds with respect
to liabilities arising out of the performance of services hereunder. The additional insured
endorsements shall not limit the scope of coverage for the City to vicarious liability but shall allow
coverage for the City to the full extent provided by the policy. Such additional insured coverage
shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
9.4.2 Waiver of Subrogation Rights. Insuring Party shall require the
carriers of required coverages to waive all rights of subrogation against the City, its officers,
employees, agents, volunteers, contractors and subcontractors. All general or auto, liability insurance
coverage provided shall not prohibit Insuring Party and Insuring Party’s employees or agents from
waiving the right of subrogation prior to a loss or claim. Insuring Party hereby waives all rights of
subrogation against the City.
9.4.3 Policies Primary. All policies required herein are to be primary and
non-contributory with any insurance or self-insurance programs carried or administered by the City.
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9.4.4 Severability of Interests. Insuring Party agrees to ensure that
coverage provided to meet these requirements is applicable separately to each insured and there will
be no cross liability exclusions that preclude coverage for suits between Insuring Party and the City
or between the City and any other insured or additional insured under the policy.
9.4.5 Acceptability of Insurance Carrier. Unless otherwise approved by
Risk Management, insurance shall be written by insurers authorized to do business in the State of
California and with a minimum “Best” Insurance Guide rating of “A-VII”.
9.4.6 Deductibles and Self-Insured Retention. Any and all deductibles or
self-insured retentions in excess of $10,000 shall be declared to and approved by City.
9.5 Proof of Coverage. Insuring Party shall furnish Certificates of Insurance to
the Risk Manager evidencing the insurance coverage, including endorsements, as required, prior to
the commencement of performance of services hereunder, which certificates shall provide that such
insurance shall not be terminated or expire without thirty (30) days written notice to the City, and
Insuring Party shall maintain such insurance from the time Insuring Party commences performance
of services hereunder until the completion of such services. Within fifteen (15) days of the
commencement of this contract, Insuring Party shall furnish a copy of the declaration page for all
applicable policies and will provide complete certified copies of the policies and endorsements
immediately upon request.
10. Indemnification.
10.1.1 Indemnification by Participant. Participant shall save, protect, pay
for, defend (with counsel acceptable to City), indemnify and hold harmless City and its elected and
appointed officials, officers, employees, attorneys, representatives, volunteers, contractors and agents
(collectively, “Indemnitees”) from and against any and all liabilities, suits, actions, claims, demands,
penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses,
costs or expenses (including, without limitation, consultants’ fees, investigation and laboratory fees,
attorneys’ fees and remedial and response costs and third-party claims or costs) (the foregoing are
hereinafter collectively referred to as “Liabilities”) that may now or in the future be incurred or
suffered by Indemnitees by reason of, resulting from, in connection with or arising in any manner
whatsoever as a direct or indirect result of: (i) the 2002 Agreement, the 2004 Agreement, and
activities required to be accomplished thereunder; (ii) this First Amendment; (iii) the negotiation of
and processing of a sale by Participant to 7 Arrow Properties of the Disposition Parcels; and (iv) the
implementation of this First Amendment.
10.1.2 Indemnification by 7 Arrow Properties. 7 Arrow Properties shall
save, protect, pay for, defend (with counsel acceptable to City), indemnify and hold harmless City
and its elected and appointed officials, officers, employees, attorneys, representatives, volunteers,
contractors and agents (collectively, “Indemnitees”) from and against any and all liabilities, suits,
actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and
monetary sanctions), losses, costs or expenses (including, without limitation, consultants’ fees,
investigation and laboratory fees, attorneys’ fees and remedial and response costs and third-party
claims or costs) (the foregoing are hereinafter collectively referred to as “Liabilities”) that may now
or in the future be incurred or suffered by Indemnitees by reason of, resulting from, in connection
with or arising in any manner whatsoever as a direct or indirect result of: (i) the 2002 Agreement,
the 2004 Agreement, and activities required to be accomplished thereunder; (ii) this First
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Amendment; (iii) the negotiation of and processing of a sale by Participant to 7 Arrow Properties of
the Disposition Parcels; and (iv) the implementation of this First Amendment.
11. Reserves. Participant shall maintain reserves as provided under the Restated 2002
Regulatory Agreement and the Restated 2004 Regulatory Agreement; provided that following the
conveyance of the Disposition Parcels to 7 Arrow Properties, Participant shall maintain reserves as to
the Retained Parcels and 7 Arrow Properties shall maintain reserves as to the Disposition Parcels
based upon the amounts prescribed therefor in the Restated 2002 Regulatory Agreement and the
2004 Regulatory Agreement, respectively.
12. Restatement of Loan; Master Promissory Note and Master Deed of Trust. The
Original City Loans shall be restated and combined into one loan, to be evidenced by the Master
Promissory Note. Repayment under the Master Promissory Note shall be secured by the Master
Deed of Trust, which Master Deed of Trust shall be recorded as to all of the Retained Parcels.
13. References to Former Agency. References to the Former Agency (the
Redevelopment Agency of the City of San Bernardino) in the Original Agreements and in those
instruments executed and delivered pursuant thereto (including without limitation the Original
Covenants) shall be deemed to refer to the City.
14. Reaffirmation of Representations and Warranties. Participant reaffirms each and
every representation and warranty as provided by Participant under the Original Agreements, as of
the First Amendment Date as to each of the Original Agreements and this First Amendment. Each
such representation and warranty by Participant under the Original Agreements or the First
Amendment shall be deemed to be an ongoing representation and warranty.
15. No Third Party Beneficiaries. This First Amendment is made for the purpose of
setting forth rights and obligations of 7 Arrow Properties, Participant and City, and no other person
shall have any rights hereunder or by reason hereof. There shall be no third party beneficiaries of the
Original Agreements or this First Amendment.
16. References within Original Agreements. Wherever reference is made in the Original
Agreements to an obligation of Participant, Participant shall be deemed to be obligated to City to
perform thereunder and as modified by this First Amendment. For example, Participant’s obligations
to defend and indemnify City, as set forth in the Original Agreements, shall be deemed applicable to
this First Amendment and activities of Participant hereunder.
17. Notices, Demands and Communications among the Parties. Any approval,
disapproval, demand, document or other notice (“Notice”) required or permitted under this First
Amendment must be in writing and shall be sufficiently given if delivered by hand (and a receipt
therefor is obtained or is refused to be given) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered by telecopy or overnight delivery service to:
To City: City of San Bernardino
290 North “D” Street, Third Floor
San Bernardino, California 92401-1734
Attention: CED Director
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To 7 Arrow Properties: 7 Arrow Properties LLC
233 Harrison Avenue
Claremont, California 91711-4324
Attention:
To Participant: Frazee Community Center
10606 Trademark Pkwy No., #210A
Rancho Cucamonga, California 91730
Attention: Executive Director
Such written notices, demands and communications may be sent in the same manner to such
other addresses as a party may from time to time designate by mail to the other parties as provided in
this Section 17.
18. Survival. The Original Agreements, as modified hereby, shall remain in full force
and effect.
19. Interpretation. This First Amendment shall be interpreted to effectuate the terms of
the Original Agreements as expressly modified hereby, in accordance with the laws of the State of
California, and as if prepared and reviewed equally by the Parties. Where instruments are hereafter
executed and delivered under the Original Agreements and/or this First Amendment, they will
include reference to the Original Agreements as modified by this First Amendment. This First
Amendment may be executed in counterparts.
(Signatures on following page)
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IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to be
executed as of the First Amendment Date.
PARTICIPANT:
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By:
Name:
Title:
CITY:
CITY OF SAN BERNARDINO,
a municipal corporation and charter city
By:
City Manager
7 ARROW PROPERTIES
7 ARROW PROPERTIES LLC, a California
limited liability company
By: 7 Arrow Properties, a California nonprofit
public benefit corporation
By: ______________________________________
Name:
Authorized Signatory
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ATTACHMENT NO. 1
RESTATED 2004 PROPERTIES REGULATORY AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
AND MAIL TAX STATEMENTS TO:
City of San Bernardino
300 N. “D” Street, Third Floor
San Bernardino, California 92401-1734
Attention: CED Director
SPACE ABOVE THIS LINE FOR RECORDER’S USE
(This document is exempt from the payment of a recording fee
pursuant to Government Code Section 27383.)
REGULATORY AGREEMENT
This Regulatory Agreement is made and entered into by the signatories hereto.
R E C I T A L S
WHEREAS, each of the CITY OF SAN BERNARDINO, a municipal corporation (“City”),
FRAZEE COMMUNITY CENTER, INC., a California non-profit corporation (“Participant”), and
7 ARROW PROPERTIES LLC, a California limited liability company (“7 Arrow Properties”) is a
party to this Regulatory Agreement. City, Participant and 7 Arrow Properties are sometimes
collectively referred to herein as the “Declarants.”
WHEREAS, certain affordable housing activities, including the entering into agreements
with private parties regarding the expenditure of moneys under the “HOME Program” (as defined
below) under the HOME Investment Act were previously conducted by the Redevelopment Agency
of the City of San Bernardino (“Former Agency”).
WHEREAS, Participant acquired from the Former Agency, pursuant to the terms of that
certain unrecorded 2004 HOME-Community Housing Development Organization (CHDO) Loan
ATTACHMENT NO. 1-1
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Agreement, dated as of July 19, 2004 (the “2004 HOME Agreement”), by and between the
Participant and the Former Agency, that certain real property located within the City and described
as: 1441-1443 Mountain View Avenue; 1495 Mountain View Avenue and 195-197 Magnolia
Avenue; 1379 Arrowhead Avenue; and 1501-1053 Pershing, a legal description of which is attached
as Exhibit “A” hereto (the “2004 Property”);
WHEREAS, under the 2004 HOME Agreement, the Participant was required to manage
eleven (11) units (herein “Affordable Units”) on the 2004 Property for occupancy at HOME
Affordable Rents to HOME Qualified Low-Income Households. In connection with such activities,
and in implementation of the 2004 HOME Agreement, the Former Agency loaned to Participant (the
“2004 Loan”) the amount of Five Hundred Twenty-Seven Thousand Eight Hundred Eighty-Five
Dollars ($527,885) (the “2004 HOME Loan Amount”) of HOME Funds, as such HOME Funds were
provided by the City under the HOME Program.
WHEREAS, in 2011, the California Legislature eliminated all redevelopment agencies
within the State of California, including without limitation the Former Agency. All housing assets of
the Former Agency, including without limitation the 2004 Loan and the rights of the Former Agency
under those instruments recorded among the official land records of the County Recorder of the
County of San Bernardino (“Official Records”) became the property of the City as the housing
successor entity to the Former Agency.
WHEREAS, subsequent to Participant and Former Agency entering into the 2004 HOME
Agreement, Participant was obligated to maintain the 2004 Property in accordance with the HOME
regulations and restrictions concerning affordability, operation, and maintenance; an important
element of the 2004 HOME Agreement was to ensure that affordable rental housing units which were
to be developed under the 2004 HOME Agreement would be available to HOME eligible
Households with income at or below eighty percent (80%) of area median and for the term of twenty-
five (25) years and that rental units would be maintained as Affordable Units in accordance with the
provisions of the 2004 HOME Agreement, including attachments thereto and instruments recorded
pursuant to the 2004 HOME Agreement.
WHEREAS, 7 Arrow Properties has offered to purchase from Participant, and Participant
has agreed to sell to 7 Arrow Properties, certain portions of the 2004 Property; such portions which
are to be acquired by 7 Arrow Properties are referred to below as the “7 Arrow Properties 2004
Parcels.”
WHEREAS, the Declarants have mutually determined that it is mutually beneficial and
desirable that the 2004 Property continue to be maintained as an affordable rental housing resource
but that certain provisions pertaining to the ongoing operation, maintenance, and administration of
affordable rental housing should be clarified and amplified in the manner set forth in this Regulatory
Agreement, and that the 2004 Property, including without limitation the 7 Arrow Properties 2004
Parcels, shall be subject to this Regulatory Agreement.
WHEREAS, Declarants have entered into that certain unrecorded instrument entitled “First
Amendment to HOME Agreements”, dated as of April 1, 2019 (the “First Amendment”). The First
Amendment provides, in part, for the sale of the 7 Arrow Properties 2004 Parcels by Participant to 7
Arrow Properties, for the continuation of certain restrictions and requirements imposed under the
2004 HOME Agreement, and for the imposition of additional standards, provisions, and requirements
as set forth in the First Amendment, including without limitation this Regulatory Agreement.
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WHEREAS, this Regulatory Agreement establishes a plan for the improvement,
development and maintenance of the 2004 Property for the benefit of the community and the
furtherance of compliance with the “HOME Regulations” (as defined below) as well as the First
Amendment.
WHEREAS, it is contemplated under the Amended 2004 Property Agreement that, as of the
recordation of this Regulatory Agreement, Participant holds title to the 2004 Property.
WHEREAS, the Amended 2004 Property Agreement sets forth certain restrictive covenants
applicable to the 2004 Property, particularly the use of the 2004 Property for the provision of rental
housing units available to Very Low Income Households at Affordable Rents as those terms are
defined therein.
WHEREAS, this Regulatory Agreement establishes a plan for the improvement,
development and maintenance of the 2004 Property for the benefit of City.
WHEREAS, the Amended 2004 Property Agreement sets forth certain restrictive covenants
applicable to the 2004 Property, particularly the use of the 2004 Property for the provision of rental
housing units available to Very Low Income and Low Income Households at Affordable Rents as
those terms are defined therein and as more particularly set forth herein.
WHEREAS, City and Participant wish to adopt this Regulatory Agreement to further govern
the use of the 2004 Property in conjunction and along with the Amended 2004 Property Agreement
and to ensure that City achieves credit for production of affordable housing units as generally
described at Section 33413 of the California Health and Safety Code.
NOW, THEREFORE, City and Participant (as owner of real property interests described
hereinabove), in the City, declares that the 2004 Property shall be held, transferred, encumbered,
used, sold, conveyed, leased and occupied subject to the provisions hereinafter set forth expressly
and exclusively for the use and benefit of said property, and City. Each and all of the restrictions,
limitations, conditions, covenants, liens, reservations and charges herein contained shall run with the
land and be recorded on the 2004 Property title and shall be binding on Declarants, their grantees,
successors, heirs, executors, administrators, devisees or assigns, and all subsequent owner of all or
any part of the 2004 Property.
ARTICLE I
DEFINITIONS
The definitions provided herein shall be applicable to this Regulatory Agreement and also to
any amendment or supplemental Regulatory Agreement (unless the context implicitly or explicitly
shall prohibit), recorded against the 2004 Property pursuant to the provision of this Regulatory
Agreement. Capitalized terms not defined herein shall have the respective meanings established
therefor in the Amended 2004 Property Agreement.
Section 1. “Affordable Rent” means rent which does not exceed the maximum rent
allowed as established by the Department of Housing and Urban Development HOME Program as to
the respective income categories of households described in Prescribed Rent Levels herein.
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Section 2. “Amended 2004 Property Agreement” means the 2004 HOME Agreement,
including all instruments delivered pursuant thereto, as modified by the First Amendment.
Section 3. “Approved Housing Project” means all improvements as provided to be
developed by Participant under the Amended 2004 Property Agreement. The Approved Housing
Project must be completed in strict conformity with all specifications contained in or referred to in
the Amended 2004 Property Agreement.
Section 4. “Area” means the area defined by HUD which includes and consists primarily
of San Bernardino County.
Section 5. “Certificate” is defined in Section 3(a).
Section 6. “Certification of Program Compliance” means a certificate in the form of
Exhibit “B” hereto, or in such other format as may be prescribed from time to time by City.
Section 7. “City” means and refers to the City of San Bernardino, a municipal
corporation and charter city.
Section 8. “City Approvals” means those approvals given by City, whether before or
after the recording of this Regulatory Agreement, for the development of the Approved Housing
Project, including without limitation mitigation measures and conditions of approval.
Section 9. “City Code” means and refers to the City of San Bernardino Municipal Code
as revised from time to time.
Section 10. “Common Areas” means all areas on the 2004 Property that are open or
accessible to all tenants of the 2004 Property (such as grounds, but excluding buildings).
Section 11. “County” means the County of San Bernardino.
Section 12. “Eligible Households” or “HOME Eligible Households” means households
identified by the United States Department of Housing and Urban Development as having income at
or below Low Income; provided that as to no fewer than four (4) such households, income shall be at
or below Very Low Income.
Section 13. “First Amendment” means that certain unrecorded instrument entitled “First
Amendment to HOME Agreements”, dated as of April 1, 2019; a copy of the First Amendment is on
file with the City as a public record.
Section 14. “HOME Assisted Units” means the units designated as acquired and
rehabilitated with HOME loan proceeds rented to households with income at or below eighty percent
(80%) of area median income.
Section 15. “HOME Program” means the HOME Investment Partnership Act, 42 U.S.C.
§ 12701, et seq. as it now exists and as may hereafter be amended.
Section 16. “HOME Regulations” means the implementing regulations of the HOME
Program set forth at 24 CFR Part 92 as it now exists and, subject to the provisions of Section 2.2
herein, as may hereafter be amended.
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Section 17. “Improvements” has the meaning established therefor in the Amended 2004
Property Agreement.
Section 18. “Income Verification” means a form which verifies, in detail, the income of
each occupant household. If a form for Income Verification is prescribed by the City from time to
time, such form of Income Verification shall be utilized by each Owner.
Section 19. “Lower Income Household” means a household earning not greater than
eighty percent (80%) of Median Income for the Area.
Section 20. “Low Income Unit” or “Lower Income Unit” means a Unit occupied at
Affordable Rent by a Low Income (or Lower Income) Household.
Section 21. “Median Income for the Area” means the Median Income for the Area as
most recently determined by the Secretary of Housing and Urban Development under Section 8 of
the United States Housing Act of 1937, as amended, or, if programs under Section 8 are terminated,
Median Income for the Area determined under the method used by the Secretary prior to such
termination.
Section 22. “Owner” means the fee owner of the corresponding portion of the 2004
Property.
Section 23. “Prescribed Rent Levels” means the following: (i) as to four (4) dwelling
units, Affordable Rent for Very Low Income Households; and (ii) as to six (6) dwelling units,
Affordable Rent for Low Income Households.
Section 24. “Regulatory Agreement” means this Regulatory Agreement and any
amendments, modifications or supplements which may also be referred to herein.
Section 25. “Rental Project” means those thirteen (13) residential units existing on the
2004 Property as of the date of this Regulatory Agreement, including associated improvements on
the 2004 Property.
Section 26. “Required Affordable Unit” means each of: (i) four (4) Units required to be
maintained at Affordable Rent Levels for Very Low Income Households, and (ii) six (6) Units
required to be maintained at Affordable Rent Levels for Low Income Households; all of such Units
are required to be available to, occupied by, or held vacant for occupancy only by tenants qualifying
under the Prescribed Rent Levels, all as prescribed herein.
Section 27. “Required Covenant Period” or “Term” means the period commencing on the
date this Regulatory Agreement is recorded and ending on October 19, 2029.
Section 28. “Uniform Codes” means each of the following as in effect from time to time
as approved by City: the Uniform Building Code, the Uniform Housing Code, the National
Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, and the Uniform Code
for the Abatement of Dangerous Buildings.
Section 29. “Unit” means a dwelling unit on the Rental Project.
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Section 30. “Very Low Income Households” means Very Low Income Households
whose Adjusted Income does not exceed fifty percent (50%) of Median Income for the Area.
Section 31. “Very Low Income Unit” means a Unit occupied at Affordable Rent by a
Very Low Income Household.
Section 32. “2004 Property” means that property described in Exhibit “A” hereto and
shall include all real property and appurtenances, including all structures and other improvements
thereon, and any improvements hereafter constructed.
ARTICLE II
LAND USE RESTRICTIONS; IMPROVEMENTS
Section 1. Uses. Owner shall develop and thereafter maintain the Approved Housing
Project on the 2004 Property in conformity with the Amended 2004 Property Agreement. Thereafter,
the 2004 Property shall be operated as an affordable rental housing project devoted only to the uses
specified in the Amended 2004 Property Agreement for the periods of time specified herein. All uses
conducted on the 2004 Property, including, without limitation, all activities undertaken by Owner
pursuant to the Amended 2004 Property Agreement, shall conform to all applicable provisions of the
City Code and the City Approvals. The 2004 Property shall be used only for private multi-family
rental dwelling purposes and related amenity uses, but for no other purposes. Throughout the Term,
the each of Participant and 7 Arrow Properties covenants and agrees to make available, restrict
occupancy to, and rent each of the dwelling units on the 2004 Property as Affordable Units at an
Affordable Rent. None of the dwelling units on the 2004 Property shall at any time be utilized on a
transient basis, nor shall the 2004 Property or any portion thereof ever be used as a hotel, motel,
dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest
home. No Owner shall convert the 2004 Property to condominium ownership which approval the
City may grant, withhold or deny in its sole and absolute discretion.
The 2004 Property shall be used, maintained and operated in accordance with the Amended
2004 Property Agreement and this Regulatory Agreement for the Required Covenant Period. None
of the units in the Rental Project shall at any time be utilized on a transient basis nor shall the Rental
Project or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house,
rooming house, hospital, nursing home, sanitarium, rest home or trailer court or park. No part of the
2004 Property, from the date Participant acquired its interest in the 2004 Property, has been or will at
any time be owned or used as a cooperative housing corporation or a stock cooperative.
Section 2. Affordable Housing; Eligible Households. Each of Participant and 7 Arrow
Properties covenants and agrees for itself and its respective successors, its assigns and every
successor in interest to the 2004 Property or any part thereof, that throughout the Term, the
Participant, 7 Arrow Properties, such successors and assigns, shall use, maintain and operate the
2004 Property as specified in this Regulatory Agreement. During the Term, all uses undertaken by
the Participant pursuant to this Regulatory Agreement shall conform to the HOME Regulations and
HOME Program and to all applicable provisions of City Code. In the event an Owner desires to
change the affordable housing, maintenance or operation requirements for the 2004 Property from
the specific requirements set forth in this Regulatory Agreement in order to comply with a
subsequently enacted amendment to the HOME Program or the HOME Regulations, such Owner
shall notify City (as well as any other Owner) in writing of such proposed change to implementing
such change. In the event the City disapproves of such change and the applicable Owner’s
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interpretation of the amendment related thereto, City shall notify such Owner of its disapproval in
writing and the parties shall seek clarification from the appropriate HUD Field Office. Failure by
City to consent to a request shall be deemed to constitute disapproval. Only if HUD concurs with
such Owner’s interpretation of the HOME Program and HOME Regulations shall such Owner be
permitted to implement the proposed change.
1. Throughout the Term, Owner shall devote each of the dwelling units located
on the 2004 Property as Affordable Units which shall be rented and occupied by or, if vacant
available for rental and occupancy by, HOME Eligible Households. In addition, not fewer than four
(4) of such dwelling units shall be maintained at all times as Very Low Income Units.
NOTWITHSTANDING ANY PROVISION OF THIS REGULATORY AGREEMENT TO
CONTRARY EFFECT, NOT FEWER THAN FOUR (4) OF THE UNITS ACQUIRED BY 7
ARROW PROPERTIES SHALL BE RESTRICTED TO OCCUPANCY BY VERY LOW INCOME
HOUSEHOLDS WITH RENT NOT TO EXCEED AFFORDABLE RENT WITHOUT REGARD
TO 7 ARROW PROPERTIES RETAINS OWNERSHIP OF SUCH UNITS.
2. Prior to leasing an Affordable Unit, Owner shall verify the income eligibility
of the tenant applicant by obtaining verification of all household sources of income in order to assure
compliance with the rent and occupancy restrictions and monitoring requirements of this Regulatory
Agreement. Each Owner shall complete and provide to City income verifications as required under
the 2004 Agreement, the First Amendment and this Regulatory Agreement; if the City provides a
particular format for such income verifications, each Owner shall utilize such forms as are hereafter
prescribed by the City.
In the event recertification of a Very Low Income Household’s annual
income establishes that household’s income to be higher than the Very Low Income limit, Participant
shall designate the next available unit and any necessary units thereafter as a Very Low Income Unit.
For purposes of this Regulatory Agreement, such designated unit will be considered a Very Low
Income Unit if it is held vacant and available for occupancy by a Very Low Income Household, and,
upon occupancy, the income eligibility of the tenant as a Very Low Income Household is verified
and the unit is rented at Affordable Rent.
In the event the Participant, 7 Arrow Properties, or any owner of the 2004
Property accepts funding or assistance under a governmental program which imposes requirements
(which requirements may include limitations upon rent or income of occupants, as well as reporting
requirements), it shall be the responsibility of the owner of the 2004 Property, or applicable portion
thereof, to comply with all such additional requirements with respect to all of the 2004 Property
under ownership or control of such owner.
In the event a household’s income initially complies with the corresponding
income restriction but the income of such household increases, such increase shall not be deemed to
result in a violation of the restrictions of this Regulatory Agreement concerning limitations upon
income of occupants.. Participant shall include in its rental agreements provisions which implement
this requirement and limitation, and Participant shall expressly inform prospective renters as to this
limitation prior to the commencement of a tenancy.
3. Duration of Affordability Requirements. The Required Affordable Units shall
be available and occupied by Very Low Income Households and Low Income Households,
respectively, at Affordable Rent throughout the Required Covenant Period, in conformity with the
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Prescribed Income Limits. None of the Required Affordable Units shall be restricted on the basis of
age. All tenants residing in any Unit for which rents are limited by virtue of this Regulatory
Agreement or pursuant to other regulation during the last two (2) years of the Required Covenant
Period shall be given notice by Participant at least once every six (6) months prior to the expiration
date of this requirement, that the rent payable on such Unit may be raised to a market rate rent at the
end of the Required Covenant Period.
4. Selection of Tenants. As specified hereinbelow, Participant shall demonstrate
to City that the proposed tenants of each of the Required Affordable Units constitutes a Very Low
Income Household, a Very Low Income Household, as more particularly provided herein. None of
the Required Affordable Units shall be restricted on the basis of age. Participant, and not City, is
responsible for the selection of tenants and the continuation of tenancies in conformity with this
Regulatory Agreement and all applicable laws. None of the Required Affordable Units shall be
restricted on the basis of age. There are three (3) Units within the 2004 Property that are not
restricted on the basis of income; one of these units is to be devoted to use by an on-site manager.
Prior to the rental or lease of an Required Affordable Unit to a tenant, and as
set forth in this Section 2 of Article II of this Regulatory Agreement, Participant shall require the
tenant to execute a written lease and to complete an Income Verification certifying that the tenant(s)
occupying the Required Affordable Unit is/are a Very Low Income Household, a Very Low Income
Household, Very Low Income Household and meet(s) the eligibility requirements established for the
Required Affordable Unit. Participant shall verify the income of the tenant(s).
Participant shall accept as tenants on the same basis as all other prospective
tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing
program under Section 8 of the United States Housing Act of 1937, or its successor. Participant shall
not apply selection criteria to Section 8 certificate holders which are more burdensome than criteria
applied to any other prospective tenants.
5. Determination of Affordable Rent for the Affordable Units. The Affordable
Units shall be rented or leased at Affordable Rent. The maximum monthly rental for the Affordable
Unit shall be subject to annual adjustment as determined by City. Prior to implementing changes in
rents, an Owner shall confer with the City to assure that such modified rents are allowable under the
terms of this Regulatory Agreement.
EACH OF THE PARTICIPANT AND 7 ARROW PROPERTIES
UNDERSTANDS AND KNOWINGLY AGREES THAT THE MAXIMUM RENTAL FOR THE
AFFORDABLE UNITS ESTABLISHED BY THE AMENDED 2004 PROPERTY AGREEMENT
AND THIS REGULATORY AGREEMENT IS SUBSTANTIALLY BELOW THE FAIR MARKET
RENT FOR THE REQUIRED AFFORDABLE UNITS.
6. Occupancy Limits. To the greatest extent allowable by law, the maximum
occupancy of the Units at the 2004 Property shall not exceed more than such number of persons as is
equal to two persons per bedroom, plus one. Thus, for the two (2) bedroom Units, the maximum
occupancy shall not exceed five (5) persons. For the three (3) bedroom Units, the maximum
occupancy shall not exceed seven (7) persons.
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Section 3. Participant Verification and Program Compliance.
1. Income Verification and Certification. Participant will obtain and maintain
on file an Income Verification from each tenant (for each Unit and not merely from the Required
Units), dated immediately prior to the initial occupancy of such tenant in the Rental Project.
On August 15, 2019 and annually thereafter, Participant shall file with City or
its designee a Certificate, containing all information required to demonstrate that rents and income
levels for units comply with the requirements hereof regarding Affordable Rent and containing such
information as City additionally requires, in a form prescribed by City. Each Certificate shall cover
the immediately preceding fiscal year; a fiscal year for this purpose constitutes a calendar
commencing as of July 1 of a calendar year and ending as of June 30 of the immediately following
calendar year.
In addition, and without limitation to the preceding paragraph: (i) each Owner
shall engage a professional property manager that has been approved by City; and (ii) each Owner
shall submit quarterly (as of the 15th day of each August, November, February, and Mary which
occurs after the recording of this Regulatory Agreement) a report which sets forth all revenues and
expenses incurred with that portion of the Rental Project owned by such Owner, as prepared by such
property manager and signed by the property manager and the Owner. The provisions of this
paragraph shall remain in effect until the fifth (5th) anniversary of the recording of this Regulatory
Agreement.
2. Reporting Amounts. City requires that Participant monitor affordability of
dwelling units. In connection therewith, Participant shall monitor and report on each Unit, and not
merely the Affordable Units, and submit the annual reports required by Section 3 of Article II of this
Regulatory Agreement. City relies upon the information contained in such reports to satisfy its own
reporting requirements and to monitor performance hereunder. In the event Participant fails to
submit to City or its designee the Certification as required by Section 3(a), Participant shall be in
noncompliance with this Regulatory Agreement. In the event Participant remains in noncompliance
for thirty (30) days following receipt of written notice from City of such noncompliance under
Sections 3(a) and 3(b) of Article II hereinabove, then Participant shall, without further notice or
opportunity to cure, pay to City Two Hundred Fifty Dollars ($250.00) per Required Affordable Unit
for each year Participant fails to submit a Certificate covering each and every housing unit on the
2004 Property.
Section 4. Affordable Rent. All of the Required Affordable Units shall be rented at
rent which does not exceed Affordable Rent.
1. Increases in Tenant Income. The units shall qualify as affordable housing as
required despite a temporary non-compliance with the 2004 HOME Agreement, if the non-
compliance is caused by increases in the incomes of existing tenants and if actions satisfactory to
HUD are being taken to ensure that all vacancies are filled in accordance with this section until the
non-compliance is corrected. Tenants who no longer qualify as low-income families must pay fair
market rent.
2. Adjustment of Affordable Rent. HUD may adjust the Affordable Rent
established for the Project under paragraph (1) of this section, only if HUD finds that an adjustment
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is necessary to support the continued financial viability of the Project and only by an amount that
HUD determines is necessary to maintain financial viability of the Project.
3. Market Rent. Where the income of a tenant household may increase after its
initial occupancy to a level at which such tenant no longer qualifies as “low-income”, Participant
may thereafter increase the rent payable by such tenant to a fair market rent for the size of the
Affordable Unit which such tenant occupies; provided however, that at such time as such tenant may
no longer lawfully occupy the Affordable Unit the rent payable for such Affordable Unit shall be
reset to an Affordable Rent for the HOME Eligible Household who next occupies that Affordable
Unit.
Section 5. Tenant Protections.
1. Rental Agreement/Lease. The Participant shall execute or cause to be
executed a written rental agreement/lease in a form with each tenant household identifying by name
all permitted occupants, both adults and minors, occupying each Affordable Unit. The rental
agreement/lease between tenants occupying the Affordable Units and Owner must be for not less
than one year, unless by mutual agreement between the tenant and the Owner.
2. Prohibited Rental Agreement/Lease Terms. The rental agreement/lease may
not contain any of the following provisions:
a. Agreement to be sued. Agreement by the tenant to be sued, to admit
guilty, or to a judgment in favor of the Owner in a lawsuit brought in connection with the lease;
b. Treatment of property. Agreement by tenant that the Owner may
take, hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement by
the tenant concerning disposition of personal property remaining in the unit after the tenant has
moved out of the unit. The Owner may dispose of this personal property in accordance with state
law;
c. Excusing Owner from responsibility. Agreement by the tenant not to
hold Owner or Owner’s agents legally responsible for any action or failure to act, whether intentional
or negligent;
d. Waiver of notice. Agreement of the tenant that the Owner may
institute a lawsuit without notice to the tenant;
e. Waiver of legal proceedings. Agreement by the tenant or household
members without instituting a civil court proceeding in which the tenant has the opportunity to
present a defense, or before a court decision on the rights of the parties;
f. Waiver of a jury trial. Agreement by the tenant to waive any right to
a trial by jury;
g. Waiver of right to appeal court decision. Agreement by the tenant to
waive the tenant’s right to appeal, or to otherwise challenge in court, a court decision in connection
with the lease; and
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h. Tenant chargeable with cost of legal actions regardless of outcome.
Agreement by the tenant to pay attorneys’ fees or other legal costs even if the tenant wins in a court
proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if
the tenant loses.
3. Termination of Tenancy. The Owner may not terminate the tenancy or refuse
to renew the lease of a tenant of the Project except for serious or repeated violation of the terms and
conditions of the lease; for violation of applicable federal, state, or local law; or for other good cause.
Any termination, except for termination for non-payment of rent, or refusal to renew must be
preceded by not less than thirty (30) days by the Owner’s service upon the tenant of a written notice
specifying the grounds for the action.
4. Tenant Selection. Owner shall not refuse to rent a Unit to a holder of a Rental
Voucher or a Rental Certificate or comparable document evidencing participation in the Section 8
Program or other tenant-based assistance program. Participant must adopt written tenant selection
policies that:
a. Are consistent with the purpose of providing housing for HOME
Eligible Households;
b. Are reasonably related to HOME Program eligibility and the
applicants’ ability to perform the obligations of the lease;
c. Give reasonable consideration to the housing needs of families that
would have a federal preference under Section 960.211 of Title II of the Cranston-Gonzalez National
Affordable Housing Act of 1992; and
d. Provide for:
(1) The selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable; and
(2) The prompt written notification to any rejected applicant of
the grounds for any rejection.
5. Tenant Certification. Owner shall require every tenant of the 2004 Property
to certify that he or she will not participate in illegal or gang related activities.
6. Compliance with Use and Occupancy Laws. Owner agrees that for each
lease, the Owner shall comply with all applicable state and local laws, statutes, ordinances, rules and
regulations, which in any way restrict the use and occupancy and resale of the 2004 Property.
Section 6. Nondiscrimination. Owner shall refrain from restricting the rental, sale or
lease of the 2004 Property, or any portion thereof, on the basis of race, color, creed, religion, sex,
marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall
contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(1) In deeds: “The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group of
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persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall
the grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land.”
(2) In leases: “The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following conditions:
“That there shall be no discrimination against or segregation of any
person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in
the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the premises herein leased.”
(3) In contracts: “There shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d)
of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the
premises which are the subject of this Regulatory Agreement, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall
run with the land.”
The covenants established in this Regulatory Agreement shall,
without regard to technical classification and designation, be binding for the benefit and in favor of
City, its successors and assigns, City and any successor in interest to the 2004 Property, together with
any property acquired by Owner pursuant to this Regulatory Agreement, or any part thereof. The
covenants against discrimination as set forth in this Section 1 of Article II shall remain in effect in
perpetuity.
Section 7. Keeping of Animals. No animals of any kind shall be raised, bred or kept on
the 2004 Property, except that domesticated dogs, cats or other household pets may be kept by the
tenants in the Rental Project at the discretion of Owner and subject to compliance with all laws.
However, no animal shall be kept, bred or maintained for any commercial purpose or for fighting
purposes. Nothing permitted herein shall derogate in any way the right of Owner to further restrict
keeping of pets.
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Section 8. Parking of Vehicles. Owner shall not permit the parking, storing or keeping
of any vehicle except wholly within the parking areas designated for the Required Affordable Units.
Owner shall not permit the parking, storing or keeping of any large commercial type vehicle (dump
truck, cement mixer truck, oil or gas truck, etc.), or any recreational vehicle over twenty (20) feet in
length (camper unit, motor home, trailer, mobile home or other similar vehicle), boats over twenty
(20) feet in length, or any vehicle other than a private passenger vehicle, upon any portion of the
Common Areas, including parking spaces. For purposes of this Section 8, a pickup truck with a
pickup bed mounted camper shall be considered a private passenger vehicle; provided however, that
no such vehicle shall be used for residential purposes while parked on the premises.
Owner shall not permit major repairs or major restorations of any motor vehicle, boat, trailer,
aircraft or other vehicle to be conducted upon any portion of the Common Area, including the
parking areas, except for emergency repairs thereto and then only to the extent necessary to enable
movement of the vehicle to a proper repair facility. No inoperable vehicle shall be stored or kept in
the Common Area. Owner shall give the vehicle owner not less than four (4) days, nor more than
seven (7) days’ notice and an opportunity to remove any vehicle parked, stored or kept in violation of
the provisions of this Regulatory Agreement. Notice shall consist minimally of a reasonably diligent
attempt to personally notify the vehicle owner or alternatively leaving written notice on the subject
vehicle. After due notice and opportunity have been given to the vehicle owner, Owner shall have
the right to remove, at the vehicle owner’s expense, any vehicle parked, stored or kept in violation of
the provisions of this Regulatory Agreement.
Section 9. Maximum Occupancies. No persons shall be permitted to occupy any
Apartment within the Rental Project in excess of applicable limit of maximum occupancy set by the
City Code and the laws of the State of California.
Section 10. Fences and Electronic Installations. Owner shall not install or knowingly
permit to be installed on the exterior of any improvement or building on any fences or any antenna or
other television or radio receiving device, excepting satellite dishes having a diameter of eighteen
inches (18”) or less, without prior written consent of City. This prohibition shall not prohibit the
installation of cable television or subscription wires or receiving devices.
Section 11. Structural Change. Nothing shall be done on the 2004 Property in, on or to
any building which would materially structurally change the exterior or the interior bearing walls of
any such building or structure, except as otherwise provided herein. Nothing herein shall affect the
rights of Owner to repair, alter or construct improvements on the buildings on the 2004 Property
unless such repair, alteration or improvement would impair the structural integrity and/or exterior
appearance of said buildings. Nothing herein shall be deemed to prohibit work ordered to be
performed by the City building official.
Section 12. Miscellaneous Requirements. The requirements of this Section 12 shall
apply to each Owner with respect to those portions of the 2004 Property owned by such Owner.
A. Equal Opportunity. As set forth in section 92.350 of the HOME Regulations, no
person shall be excluded from participation in, be denied the benefits of or be subjected to
discrimination under any program or activity funded in whole or in part with HOME funds.
B. Affirmative Marketing. As required by Section 92.351 of the HOME Regulations,
Owner must adopt affirmative marketing procedures and requirements. These must include:
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Compliance with the provisions of the City of San Bernardino HOME Investment Partnership
Program and Title 24, Part 574.603 of the HOPWA affirmative fair marketing guidelines, and as
applicable, other Federal, State and Local law prohibiting discrimination in the lease or rental or in
the use, occupancy or tenure of enjoyment of the 2004 Property, or any part thereof on the basis of
marital status, race, color, religion, ancestry, sex, gender identity, sexual orientation, age, national
origin, HIV, Acquired Immune Deficiency Syndrome (AIDS) or AIDS related condition (ARC),
physical handicap, or on the basis of their receipt of, eligibility for, housing assistance programs. The
Owner or any person claiming authority under or through them will not establish or permit any such
practices of discrimination or segregation with references to the selection, location, number, use or
occupancy of tenants or lessees in the project. All criteria shall be applied equitably and all
information considered on an applicant shall be related solely to the attributes and behavior of
individual members of the household as they may affect residency, in addition to tenancy/rental
history, ability to pay rent, credit worthiness and other qualifying factors. The Owner will accept
forms of rental assistance (Section 8 or other acceptable forms) as long as the payment standards and
requirements of the voucher meet HOME or HOPWA regulations and program standards.
All rental advertisements will bear the fair housing logotype and slogan, and any information sheets
will also indicate accessibility to the disabled. A Fair Housing poster will be conspicuously displayed
in the rental office and where the initial lease/rent-up process will occur.
The application will include a section to be filled out by applicants requesting an accommodation
with details on the applicant’s special needs for accessible features or other accommodations.
Applicants will not be required to disclose a disability under any circumstances unless requesting
accommodation. Special outreach efforts will be made to the disability community through notices
describing the availability of all units, specific information regarding the availability and features of
accessible units, eligibility criteria, and application procedures.
Flyers will be mailed to Independent Living Centers and other agencies serving those with
disabilities (see agency list attached).
Training
1. The Owner shall provide property management staff with all relevant regulations and
Fair Housing provisions. All property management staff shall be required to follow
the procedures and policies adopted by the Owner.
2. Training programs shall include marketing, outreach, data collection, reporting, and
record keeping. Property management staff shall annually receive instruction
regarding fair housing laws and Affirmative Marketing Plan.
Marketing and Outreach
1. All advertising shall display the Equal Housing Opportunity logo or the phrase
“Equal Housing Opportunity.”
2. Consistent with the resident population this project was designed to serve, the
marketing of the 2004 Property will ensure equal access to the appropriate size unit
for all persons in any category protected by federal, state, and local laws governing
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discrimination. There will be no local residency requirements for applicants nor will
preference be given to local residents for this project.
Special marketing outreach consideration will be given to the following underserved
populations:
a. African-Americans
b. Asians and Pacific Islanders
c. Hispanics
d. American Indian
3. Marketing shall include the use of newspapers of general circulation in the City of
San Bernardino and surrounding cities. The Owner will place notices in newspapers,
specialized publications, and newsletters to reach potential residents. Applications,
notices, and all publications will include a Fair Housing and Equal Opportunity Logo,
and the Accessibility Logo. Community media advertisement of the project will be
through the following local newspapers or suitable substitution:
a. San Bernardino Sun
b. Vietnamerican Magazine
c. El Chicano, Inland Community News
4. 7-Arrow will contact local civic and community organizations representative of the
ethnic and cultural diversity of the area in order to disseminate information about the
project. Where necessary the Owner will publish its marketing materials in multiple
languages in order to better reach potential applicants in the area with language
limitations.
5. With respect to any of the 2004 Property acquired by 7 Arrow Properties, in order to
meet HOPWA affirmative marketing regulations with respect to such portions of the
2004 Property owned by 7 Arrow Properties, the Owner will also market to persons
with HIV which are on the waiting list of Foothill Aids Project (“FAP”) and will
outreach to IEHP and any other neighborhood-based agencies which serve that
population.
6. Other neighborhood-based, nonprofit housing agencies that maintain waiting lists or
make referrals for below market rate housing will be contacted.
Agency Name Address Telephone #
a. Housing Authority of the
County of San Bernardino
715 E. Brier Drive, San
Bernardino, CA 92408
(909) 890-0644
b. HPI, Inc. 715 E. Brier Drive, San (909) 332-6390
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Bernardino, CA 92408
c. FAP 670 N. Arrowhead Avenue,
Suite A-B San Bernardino, CA
92401
(909) 884-2722
d. IEHP Housing/ Care
Programs
10801 Sixth Street, Suite 120
7. Marketing and outreach efforts will begin approximately 90-days prior to the project
completion date to ensure a timely lease-up.
Race and Ethnic Data Collection and Reporting
1. Any family who asks shall receive an application package containing the following:
Instruction sheet; Application; and form HUD-27061-H “Race and Ethnic Data
Reporting Form.” The Owner is required to offer each household member the
opportunity to complete the form. Completed documents for the entire household
shall be stapled together and placed in the household’s file.
2. Program Integrity Manager – A staff member shall be designated by each Owner as
the coordinator (Program Integrity Manager) for the marketing of the 2004 Property
(or that portion held by such Owner) as well as oversee the admission of residents.
The Program Integrity Manager will keep the corresponding Owner apprised of the
occupancy process through monthly marketing reports which will include the number
of applicants as to the 2004 Property or portion thereof, unit preference, number of
actual occupants, ineligible applicants, and cancellations.
Compliance Assessment
1. The Owner will review the Affirmative Marketing Plan every five years and update
as needed to ensure compliance. The advertising sources will be included in the
review to determine if past sources should be changed or expanded.
2. The Owner will annually assess the success of affirmative marketing actions for the
2004 Property (or such portions of the 2004 Property held by such Owner). If the
demographic data of the applicants and residents are not represented within the
context of existing neighborhood composition, the Owner will review its procedures
to determine what changes, if any, might be made to make the affirmative marketing
efforts more effective.
Record Keeping
1. The Owner shall establish and maintain an Affirmative Marketing file to hold
advertisements, flyers, and other public information documents to demonstrate that
the appropriate logo and language have been used. Additionally, the Owner shall
keep records of its activities in implementing the affirmative marketing plan,
including other community outreach efforts and its annual analysis.
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2. The Owner shall keep up-to-date records based on census data, applications, and
surveys about community residents, applicants, residents of the project, and records
about tenant selection or rejection.
3. The Owner shall provide HUD and HOME staff access to any pertinent books,
documents, papers or other records of their HOME-assisted properties, as necessary,
for determining compliance with civil rights and nondiscrimination requirements.
C. Displacement, Relocation and Acquisition. The Owner must ensure that it has taken
all reasonable steps to minimize the displacement of persons as a result of this Project assisted with
HOME funds.
D. Lead-Based Paint. It is understood that the Project is subject to 24 CFR Part 35.
This requirement shall be met as required by that section and any cost of rehabilitation on the 2004
Property shall be disclosed to the City as such should testing and abatement be undertaken.
E. Conflict of Interest. Owner will hereby comply with all requirements set forth
regarding conflict of interest provisions as they apply in Section 92.356 of the HOME Regulations.
F. Debarment and Suspension. As required in Section 92.357 of the HOME
Regulations, Owner will comply with all debarment and suspension certifications.
G. Flood Insurance. Under the Flood Disaster Protection Act of 1973, HOME funds
may not be used with respect to the acquisition or rehabilitation of a project located in an area
identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards,
unless:
1. The community in which the area is situated is participating in the National
Flood Insurance Program, or less than a year has passed since FEMA notification regarding such
hazards; and
2. Flood insurance is obtained as a condition of approval of the commitment.
Section 13. Compliance with Laws. Owner shall comply with all applicable laws in
connection with the development and use of the 2004 Property, including without limitation the Fair
Housing Act (42 U.S.C. § 3601, et seq., and 24 C.F.R. § 100.300, et seq.). Owner is a sophisticated
party, with substantial experience in the acquisition, development, financing, obtaining financing for,
marketing, and operation of affordable housing projects, and with the negotiation, review, and
preparation of agreements and other documents in connection with such activities. Owner is familiar
with and has reviewed all laws and regulations pertaining to the acquisition, development and
operation of the Rental Project and has obtained advice from any advisers of its own choosing in
connection with this Regulatory Agreement.
ARTICLE III
DUTIES OF PARTICIPANT: MAINTENANCE RESPONSIBILITIES; MANAGEMENT
Section 1. General Maintenance. Owner shall maintain the 2004 Property and all
improvements thereon, including lighting and signage, in good condition, free of debris, waste and
graffiti, and in compliance with the terms of all applicable provisions of the City Code. Owner shall
maintain in accordance with the “Maintenance Standards,” as hereinafter defined, the improvements
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and landscaping at the 2004 Property. Such Maintenance Standards shall apply to all buildings,
signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements
and any and all other improvements on the 2004 Property. To accomplish the maintenance, Owner
shall either staff or contract with and hire licensed and qualified personnel to perform the
maintenance work, including the provision of labor, equipment, materials, support facilities, and any
and all other items necessary to comply with the requirements of this Regulatory Agreement.
Owner and its maintenance staff, contractors or subcontractors shall comply with the
following standards as to the 2004 Property (the “Maintenance Standards”):
a. The 2004 Property shall be maintained in conformance and in
compliance with the United States Department of Housing and Urban Development Uniform
Physical Condition Standards (24 CFR 5.703 and as provided under 24 CFR 92.251(a)) and all other
provisions of this Regulatory Agreement. The 2004 Property shall be maintained in good condition
and in accordance with the industry custom and practice generally applicable to comparable first
quality affordable housing projects in the County.
b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road
conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials;
control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for
support of trees.
c. Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to
mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
City agrees to notify Owner in writing if the condition of the 2004 Property does not meet
with the Maintenance Standards and to specify the deficiencies and the actions required to be taken
by Owner to cure the deficiencies. Upon notification of any maintenance deficiency, Owner shall
have thirty (30) days within which to correct, remedy or cure the deficiency. If the written
notification states the problem is urgent relating to the public health and safety of City, then Owner
shall have forty-eight (48) hours to rectify the problem. In the event Owner does not maintain the
2004 Property in the manner set forth herein and in accordance with the Maintenance Standards, City
shall have, in addition to any other rights and remedies hereunder, the right to maintain the 2004
Property, or to contract for the correction of such deficiencies, after written notice to Owner, and
Owner shall be responsible for the payment of all such costs incurred by City.
Section 2. Program Maintenance. In addition to routine maintenance and repair,
Owner shall perform the following programmed maintenance on the Improvements:
a. Interior painting and window covering replacement at least every
seven (7) years;
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b. Exterior painting at least every ten (10) years;
c. Repair and resurfacing of parking areas and walkways at least every
seven (7) years; and
d. Replacement of all deteriorated or worn landscaping at least every
five (5) years.
Upon the request of Owner, the CED Director, at his/her sole and absolute discretion, may grant a
waiver or deferral of any program maintenance requirement. Owner shall keep such records of
maintenance and repair as are necessary to prove performance of the program maintenance
requirements.
Section 3. Management of the 2004 Property.
a. Property Manager. Owner shall manage or cause the 2004 Property,
and all appurtenances thereto that are a part of the 2004 Property, to be managed in a prudent and
businesslike manner, consistent with good property management standards for other comparable first
quality, well-managed affordable rental housing projects in the County. Owner may contract with a
property management company or individual property manager to operate and maintain the 2004
Property in accordance with the terms of this Section 3.a. (“Property Manager”); provided, however,
the selection and hiring of the Property Manager (and each successor or assignee) is and shall be
subject to the prior written approval of CED Director (or designee) in his discretion. The Property
Manager shall manage the 2004 Property in accordance with the definitions of Affordable Rent
contained in this Regulatory Agreement, the tenant selection requirements contained in this
Regulatory Agreement and the definitions relating to income and age contained in this Regulatory
Agreement. Any fee paid to the Property Manager for social services provided to the tenants shall be
exclusive of the fee paid to the Property Manager relating to the management of the 2004 Property.
Owner shall conduct due diligence and background evaluation of any potential third party property
manager or property management company to evaluate experience, references, credit worthiness, and
related qualifications as a property manager. Any proposed property manager shall have significant
and relevant prior experience with affordable housing projects and properties comparable to the 2004
Property and the references and credit record of such property manager/company shall be
investigated (or caused to be investigated) by Owner prior to submitting the name and qualifications
of such proposed property manager to the CED Director for review and approval. A complete and
true copy of the results of such background evaluation shall be provided to the CED Director.
Approval of a Property Manager by CED Director shall not be unreasonably delayed but shall be in
his discretion, and the CED Director shall use good faith efforts to respond as promptly as practicable
in order to facilitate effective and ongoing property management of the 2004 Property by one
qualified Property Manager. The replacement of the Property Manager by Owner and/or the
selection by Owner of any new or different Property Manager shall also be subject to the foregoing
requirements.
b. Property Management Plan. Prior to the recording of this Regulatory
Agreement, but in no event later than thirty (30) days after such recording, Owner prepared and
submitted to the CED Director for review and approval, a management plan which includes a
detailed plan and strategy for long term marketing, operation, maintenance, repair and security of the
2004 Property, inclusive of social services for the residents of the Required Affordable Units, and the
method of selection of tenants, rules and regulations for tenants, and other rental policies for the 2004
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Property (“Property Management Plan”). The ongoing management and operation of the 2004
Property shall be in compliance with the approved Property Management Plan. During the Required
Covenant Period, Owner and its Property Manager may from time to time submit to the CED
Director proposed amendments to the Property Management Plan, the implementation of which shall
be subject to the prior written approval of the CED Director.
c. Record Keeping. Throughout the Term, each Owner shall comply
with all applicable record keeping and monitoring requirements set forth in Section 92.508 of the
HOME Regulations and as they may be amended and shall annually complete and submit to City a
Certification of Continuing Program compliance in the form attached as Exhibit C and provided to
Owner by City. Owner shall keep all records and documents pertaining to the Project for five (5)
years after the expiration of the Regulatory Agreement.
Representatives of the City shall be entitled to enter the 2004 Property, upon
at least twenty-four (24) hour notice, to monitor compliance with this Regulatory Agreement, to
inspect the records of the Project with respect to the Affordable Units, and to conduct an independent
audit of such records. The Owner agrees to cooperate with the City in making the 2004 Property
available for such inspection. If for any reason the City is unable to obtain the Owner’s consent to
such an inspection, the Owner understands and agrees that the City may obtain at Owner’s expense
an administrative inspection warrant or other appropriate legal order to obtain access to and search
the 2004 Property. Owner agrees to maintain records in a business-like manner and make such
records available to the City upon twenty-four (24) hour notice. Unless the City otherwise approves,
such records shall be maintained throughout the Term.
d. Gross Mismanagement. During the Required Covenant Period, and in
the event of “Gross Mismanagement” (as defined below) of the 2004 Property, CED Director and/or
City shall have and retain the authority to direct and require any condition(s), acts, or inactions of
Gross Mismanagement to cease and/or be corrected immediately, and further to direct and require the
immediate removal of the 2004 Property Manager and replacement with a new qualified and
approved Property Manager, if such condition(s) is/are not ceased and/or corrected after expiration of
thirty (30) days from the date of written notice from CED Director. If Owner or Property Manager
has commenced to cure such Gross Mismanagement condition(s) on or before the 20th day from the
date of written notice (with evidence of such submitted to the CED Director), but has failed to
complete such cure by the 30th day (or such longer period if the cure cannot reasonably be
accomplished in thirty (30) days as reasonably determined by the non-defaulting party), then Owner
and its Property Manager shall have an additional 10 days to complete the cure of Gross
Mismanagement condition(s). In no event shall any condition of Gross Mismanagement continue
uncured for a period exceeding forty-five (45) days from the date of the initial written notice of such
condition(s), except that the conditions described in subdivisions (d) and (e) below may exist for up
to, but no longer than, seventy-five (75) days without triggering City’s right to remove the Property
Manager as described in the immediately following sentence as long as Owner is diligently working
to cure such conditions of Gross Mismanagement. If such condition(s) do persist beyond such
period, CED Director shall have the sole and absolute right to immediately and without further notice
to Owner (or to Property Manager or any other person/entity) to remove the Property Manager and
replace the Property Manager with a new property manager of the CED Director’s selection at the
sole cost and expense of Owner. If Owner takes steps to select a new Property Manager that
selection is subject to the requirements set forth above for selection of a Property Manager.
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For purposes of this Regulatory Agreement, the term “Gross
Mismanagement” means management of the 2004 Property in a manner which violates the terms
and/or intention of this Regulatory Agreement to operate a high quality affordable housing complex,
and shall include, but is not limited to, any one or more of the following:
(a) Leasing to tenants who exceed the prescribed income levels;
(b) Allowing tenants to exceed the prescribed occupancy levels without
taking immediate action to stop such overcrowding;
(c) Under-funding required reserve accounts;
(d) Failing to timely maintain the 2004 Property in accordance with the
Property Management Plan and Maintenance Standards;
(e) Failing to submit timely and/or adequate annual reports to City as
required herein;
(f) Fraud or embezzlement of funds, including without limitation funds
in the reserve accounts;
(g) Failing to fully cooperate with the San Bernardino Police Department
or other local law enforcement agency(ies) with jurisdiction over the 2004 Property, in maintaining a
crime-free environment within the 2004 Property or in implementing measures recommended by the
San Bernardino Police Department;
(h) Failing to fully cooperate with the San Bernardino Fire Department or
other local public safety agency(ies) with jurisdiction over the 2004 Property, in maintaining a safe
and accessible environment within the 2004 Property or in implementing measures recommended by
the San Bernardino Fire Department;
(i) Failing to fully cooperate with the San Bernardino Planning and
Building Department, or other local health and safety enforcement agency(ies) with jurisdiction over
the 2004 Property, in maintaining a decent, safe and sanitary environment within the 2004 Property
or in implementing measures recommended by the San Bernardino Building & Planning Department;
(j) Maintaining or allowing the 2004 Property to be maintained as a
public nuisance or in a manner in conflict with any provision of the City Code; and
(k) Spending funds from the Capital Replacement Reserve account for
items that are not defined as eligible costs, including eligible capital and/or replacement costs, under
the standards imposed by generally accepted accounting principles (“GAAP”) (and/or, as applicable,
generally accepted auditing principles).
Notwithstanding the requirements of the Property Manager to correct any condition
of Gross Mismanagement as described above, Owner is obligated and shall use its best efforts to
correct any defects in property management or operations at the earliest feasible time and, if
necessary, to replace the Property Manager as provided above. Owner shall include advisement and
provisions of the foregoing requirements and requirements of this Regulatory Agreement within any
contract between Owner and its Property Manager for the 2004 Property.
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e. Code Enforcement. Owner acknowledges and agrees that City, and
their employees and authorized agents, shall have the right to conduct code compliance and/or code
enforcement inspections of the 2004 Property and the individual dwelling units (and not limited to
the Required Affordable Units), both exterior and interior, at reasonable times and upon reasonable
notice (not less than forty-eight (48) hours prior notice, except in an emergency) to Owner and/or an
individual tenant. If such notice is provided by City representative(s) to Owner, then Owner (or its
Property Manager) shall immediately and directly advise any affected tenant of such upcoming
inspection and cause access to the area(s) and/or Units at the 2004 Property to be made available and
open for inspection. Owner shall include express advisement of such inspection rights within the
lease/rental agreements for each Unit in the 2004 Property in order for each and every tenant and
tenant household to be aware of this inspection right.
Section 4. Capital Reserve Requirements. Concurrent with the recording of this
Regulatory Agreement, Participant shall deposit the “Capital Reserve Amount”, as defined in the
First Amendment, into a segregated interest bearing account (the “Capital Replacement Reserve”).
Thereafter, Owner shall annually set aside an amount of not less than Three Dollars ($300.00) per
dwelling unit into a segregated interest bearing trust account (“Capital Replacement Reserve”).
Funds in the Capital Replacement Reserve shall be used only for capital repairs, improvements and
replacements to the 2004 Property, including fixtures and equipment, which are normally capitalized
under GAAP. The non-availability of funds in the Capital Replacement Reserve does not in any
manner relieve or lessen Owner’s obligation to undertake any and all necessary capital repairs,
improvements, or replacements and to continue to maintain the 2004 Property in the manner
prescribed herein. Not less than once per year, Owner, at its expense, shall submit to the CED
Director an accounting for the Capital Replacement Reserve. Capital improvements and repairs to,
and replacements at the 2004 Property shall include only those items with a long useful life,
including without limitation the following: carpet and drapery replacement; appliance replacement;
exterior painting, including exterior trim; hot water heater replacement; plumbing fixtures
replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and
heating replacement; asphalt repair and replacement, and seal coating; roofing repair and
replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer line
replacement; water line replacement; gas line replacement; lighting fixture replacement; elevator
replacement and upgrade work; miscellaneous motors and blowers; common area furniture
replacement; and common area repainting. Pursuant to the procedure for submittal of each Annual
Budget for the 2004 Property to CED Director by Owner, CED Director will evaluate the cumulative
amount on deposit in the Capital Replacement Reserve account for the 2004 Property and exercise
his/her sole, reasonable discretion to determine if existing balance(s) in, proposed deposits to,
shortfalls, if any, and/or a cumulative unexpended/unencumbered account balance in such Capital
Replacement Reserve account are adequate to provide for necessary capital repairs and improvement
to the 2004 Property.
Section 5. Operating Budget. Commencing as of November 1, 2018 and annually
thereafter on or before November 1 of each year following the issuance of the first certificate of
occupancy issued by the City’s building official for, Owner shall submit to City on not less than an
annual basis an operating budget for the 2004 Property (“Operating Budget” or “Annual Budget”),
which budget shall be subject to the written approval of CED Director or designee, which approval
shall not be unreasonably withheld. The CED Director’s discretion in review and approval of each
proposed annual Operating Budget shall include, without limitation, authority to review individual
categories, line items, and accounts, such as the following: extent, type, and amount for social
services at or associated with the Project; existing balance(s) in and proposed deposits to the Capital
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Replacement Reserve for the 2004 Property to evaluate shortfalls and/or cumulative
unexpended/unencumbered deposits (provided that required annual deposits thereto are not required
to exceed $300/per unit); reasonableness and conformity to prevailing market rates in San Bernardino
County and rates and fees for goods and services to be provided Owner or any of its parent,
affiliated, or subsidiary entities, etc. for the 2004 Property.
Owner shall, or shall cause the Property Manager to, set aside an Operating Reserve for the
2004 Property in a separate interest bearing trust account a target amount equal to $300 per Unit or, if
different, that amount approved by the CED Director under an Operating Budget or Annual Budget.
Owner shall, not less than once per every twelve (12) months, submit to the CED Director evidence
reasonably satisfactory to City of compliance herewith.
Section 6. Duty to Prevent Hazardous Material Contamination. During the
development and operation of the 2004 Property, Owner shall take all necessary precautions to
prevent the release of any Hazardous Materials into the environment on or under the 2004 Property.
Such precautions shall include compliance with all Governmental Requirements with respect to
Hazardous Materials. Owner shall notify City, and provide to City a copy or copies, of any notices
of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist
orders, reports filed pursuant to self-reporting requirements and reports filed or applications made
pursuant to any Governmental Requirement relating to Hazardous Materials and underground tanks,
and Owner shall report to City, as soon as possible after each incident, any unusual, potentially
important incidents in the event of a release of any Hazardous Materials into the environment.
For purposes of this Section 6, “Governmental Requirements” means all laws, ordinances,
statutes, codes, rules, regulations, orders and decrees of the United States, the state, the County, City,
or any other political subdivision in which the 2004 Property is located, and of any other political
subdivision, agency or instrumentality exercising jurisdiction over City, Owner or the 2004 Property.
For purposes of this Section 6, “Hazardous Materials” means any substance, material, or
waste which is or becomes regulated by any local governmental authority, the County, including the
San Bernardino County Health Care Authority, the Regional Water Quality Control Board, the State
of California (including the Department of Toxic Substances Control), other state, regional or local
governmental authority, or the United States Government, including, but not limited to, any material
or substance which is (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted
hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law),
(ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act),
(iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under
Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
biphenyls, (viii) designated as “hazardous substances” pursuant to Section 311 of the Clean Water
Act (33 U.S.C. §1317), (ix) defined as a “hazardous waste” pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (x) defined as
“hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601, et seq. Notwithstanding the foregoing,
“Hazardous Materials” shall not include such products in quantities below attainment levels
ATTACHMENT NO. 1-23
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identified in one or more of the enactments identified above as Governmental Requirements,
including those product and amounts as are customarily used in the construction, maintenance,
rehabilitation, management, operation and residence of residential developments or associated
buildings and grounds, or typically used in residential activities in a manner typical of other
comparable residential developments, or substances commonly ingested by a significant population
living within the 2004 Property, including without limitation alcohol, aspirin, tobacco and
saccharine.
Section 7. Compliance With Laws. Owner shall carry out the design, development and
operation of the 2004 Property in conformity with all applicable laws, including all applicable state
labor standards, City zoning and development standards, building, plumbing, mechanical and
electrical codes, and all other provisions of the City Code, and all applicable disabled and
handicapped access requirements, including without limitation the Americans With Disabilities Act,
42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Section 8. Exterior Building Maintenance. All exterior, painted surfaces shall be
maintained at all times in a clean and presentable manner, free from chipping, cracking and defacing
marks. Any such defacing marks shall be cleaned or removed within a reasonable period of time as
set forth herein.
Section 9. Front and Side Exteriors. Owner shall at all times maintain the front
exterior and yard in a clean, safe and presentable manner, free from defacing marks or any disrepair
and any visible side exteriors. Owner shall hire maintenance personnel to maintain and/or repair any
front exterior or yard or visible side yard and exterior of any lot or building.
Section 10. Graffiti Removal. All graffiti, and defacement of any type, including marks,
words and pictures must be removed and any necessary painting or repair completed by the later to
occur of (i) seventy-two (72) hours of their creation or (ii) seventy-two (72) hours after notice to
Owner.
Section 11. Driveways. All driveways must be paved and maintained with impervious
material in accordance with the City Code. In addition, all water must be made to drain freely to the
public part of the waterway without any pooling.
Section 12. Exterior Illumination. Owner shall at all times maintain adequate lighting
in all entrance ways, garages and parking areas. Adequate lighting means outdoor, night lighting
designed and installed, which provides no less than one (1.0) foot candles in the parking areas and no
less than one and one-half (1-1/2) foot candles in the walking areas or common areas and no less than
0.2 foot candles at the point of least illumination.
Section 13. Front Setbacks. All front setback areas that are not buildings, driveways or
walkways shall be adequately and appropriately landscaped in accordance with minimum standards
established by City and shall be maintained by Owner. The landscaping shall meet minimum
standards set from time to time by City.
Section 14. Trash Bins. All trash shall be collected and placed at all times in an
enclosable bin to be placed in a designated refuse/trash bin area. The designated area shall be located
so that the bin will, to the extent possible, be readily accessible from the street.
ATTACHMENT NO. 1-24
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Section 15. Prohibited Signs. No exterior sign of any kind shall be displayed to the
public view on or from any portion of the 2004 Property without the approval of City and appropriate
City departments if any as required by the City Code.
ARTICLE IV
OBLIGATION TO MAINTAIN, REPAIR AND REBUILD
Section 1. Maintenance by Owner. Owner shall, at its sole cost and expense, maintain
and repair the 2004 Property and the improvements thereon keeping the same in a decent, safe and
sanitary manner, in accordance with the United States Department of Housing and Urban
Development (“HUD”) Uniform Physical Condition Standards (24 CFR 5.703 and as provided under
24 CFR 92.251(a)), and in good condition and making all repairs as they may be required by this
Regulatory Agreement and by all applicable City Code and Uniform Code provisions. Owner shall
also maintain the landscaping required to be planted in a healthy condition. If, at any time, Owner
fails to maintain the Rental Project or any portion thereof, and said condition is not corrected after
the expiration of forty-five (45) days from the date of written notice from City, then City may
perform the necessary maintenance and Owner shall pay such costs as are reasonably incurred for
such maintenance. Payment shall be due within fifteen (15) days of receipt of an invoice from City.
Section 2. Damage and Destruction Affecting Project - Owner’s Duty to Rebuild. If
all or any portion of the 2004 Property and the improvements thereon is damaged or destroyed by fire
or other casualty, it shall be the duty of Owner to rebuild, repair or reconstruct said portion of the
2004 Property and/or the improvements in a timely manner which will restore it to Code compliance
condition.
In furtherance of the requirements of this Section 2, Owner shall keep the construction on the
2004 Property insured by carriers at all times satisfactory to City against loss by fire and such other
hazards, casualties, liabilities and contingencies as included within an all risk extended coverage
hazard insurance policy, in an amount of the full replacement cost of the constructions. In the event
of loss, Owner shall give prompt notice to the insurance carrier and to City.
If the 2004 Property is abandoned by Owner, or if Owner fails to respond to City within
thirty (30) days from the date notice is mailed by City to Owner that the insurance carrier offers to
settle a claim for insurance benefits, City is authorized to collect and apply the insurance proceeds at
City’s option either to restoration or repair of the 2004 Property.
Section 3. Variance in Exterior Appearance and Design. In the event the Rental
Project sustains substantial physical damage due to a casualty event, Owner may apply to the City for
approval to reconstruct, rebuild or repair in a manner which will provide different exterior
appearance and lot design from that which existed prior to the date of the casualty.
Section 4. Time Limitation. Upon damage to the 2004 Property or the Rental Project
or other improvements, Owner shall be obligated to proceed with all due diligence hereunder and
commence efforts to begin reconstruction within two (2) months after the damage occurs and
complete reconstruction within six (6) months after commencement of construction or demolition
and vacate within two (2) months, unless prevented by causes beyond their reasonable control, in
which event reconstruction shall be commenced at the earliest feasible time.
ATTACHMENT NO. 1-25
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ARTICLE V
ENFORCEMENT
Section 1. Remedies. Breach of the covenants contained in the Regulatory Agreement
may be enjoined, abated or remedied by appropriate legal proceeding by City.
This Regulatory Agreement does not in any way infringe on the right or duties of the City to
enforce any of the provisions of the City Code including, but not limited to, the abatement of
dangerous buildings.
Section 2. Nuisance. The result of every act or omission whereby any of the covenants
contained in this Regulatory Agreement are violated in whole or in part is hereby declared to be and
constitutes a nuisance, and every remedy allowable at law or equity, against a nuisance, either public
or private, shall be applicable against every such result and may be exercised by any owner or its
successors in interest, without derogation of City’s rights under law.
Section 3. Right of Entry. In addition to the above general rights of enforcement, City
shall have the right through its agents and employees, to enter upon any part of the project area for
the purpose of enforcing the California Vehicle Code, and the ordinances and other regulations of
City, and for maintenance and/or repair of any or all publicly owned utilities. In addition, City has
the right of entry at reasonable hours and upon and after reasonable attempts to contact Owner, on
any lot to effect emergency repairs or maintenance which Owner has failed to perform. Subsequent
to sixty (60) days written notice to Owner specifically outlining Owner’s noncompliance, City shall
have the right of entry on the 2004 Property at reasonable hours to enforce compliance with this
Regulatory Agreement which Owner has failed to perform.
Section 4. Costs of Repair. The costs borne by City of any such repairs or maintenance
emergency and/or non-emergency, shall become a charge for which Owner shall be responsible.
Section 5. Cumulative Remedies. The remedies herein provided for breach of the
covenants contained in this Regulatory Agreement shall be deemed cumulative, and none of such
remedies shall be deemed exclusive.
Section 6. Failure to Enforce. The failure to enforce any of the covenants contained in
this Regulatory Agreement shall not constitute a waiver of the right to enforce the same thereafter.
Section 7. Enforcement and Nonliability. City may from time to time make such
efforts, if any, as it shall deem appropriate enforce and/or assist in enforcing this Regulatory
Agreement. However, City will not be subject to any liability for failure to affirmatively enforce any
provision of this Regulatory Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Covenant Against Partition. By acceptance of its interest in the 2004
Property, Owner shall be deemed to covenant for itself and for its heirs, representatives, successors
and assigns, that it will not institute legal proceedings or otherwise seek to effect partition of its right
and interest in the interest being conveyed to Owner, or the burdens running with the land as a result
of this Regulatory Agreement.
ATTACHMENT NO. 1-26
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Section 2. Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions which shall remain in all force
and effect.
Section 3. Term. This Regulatory Agreement shall run with and bind the interest of
Owner in the 2004 Property, and shall inure to the owner(s) of any property subject to this
Regulatory Agreement, his legal representatives, heirs, successors and assigns, and be enforceable by
City, for a term equal to the Required Covenant Period as defined in the Amended 2004 Property
Agreement, provided; however, that the covenants regarding nondiscrimination set forth in Section 4
of Article II of this Regulatory Agreement shall remain in effect for perpetuity.
Section 4. Construction. The provisions of this Regulatory Agreement shall be
liberally construed to effectuate its purpose of creating a uniform plan for the development and
operation of rental housing available at Affordable Rent for Extremely Low Income Households,
Very Low Income Households, , as more particularly set forth herein. The article and Section
headings have been inserted for convenience only, and shall not be considered or referred to in
resolving questions of interpretation or construction.
Owner shall be obligated by this Regulatory Agreement to comply with the provisions
hereof.
Section 5. Amendments. This Regulatory Agreement may be amended only by the
written agreement of Owner (as to the affected properties) and City.
Section 6. Hold Harmless. In addition to the provisions regarding defense, indemnity,
or hold harmless as provided under the First Amendment, each Owner agrees to defend and to hold
City, and its officers, agents, employees, representatives, elected and appointed boards and officials
harmless from liability for damage or claims for any type of damage including, but not limited to,
personal injury and claims for property damage, which may arise from the activities of such Owner
or those of such Owner’s contractors, subcontractors, agents, employees or other persons acting on
such Owner’s behalf and which relate to the 2004 Property. Each Owner agrees to and shall defend
City, and its officers, agents, employees, representatives, elected and appointed boards and officials
from any action for damages caused or alleged to have been caused by reason of such Owner’s
activities in connection with the 2004 Property, this Regulatory Agreement, or the First Amendment.
Section 7. Encroachments. None of the rights and obligations of Participant or 7
Arrow Properties created herein shall be altered in any way by encroachments due to settlement or
shifting of structures or any other cause. There shall be valid easements for the maintenance of said
encroachments so long as they shall exist; provided, however, that in no event shall a valid easement
for encroachment be created in favor of Owner if said encroachment occurs due to the willful
conduct of said Owner.
Section 8. Waivers. Failure by a Party to insist upon the strict performance of any of
the provisions of this Regulatory Agreement by another Party or the failure by a Party to exercise its
rights under or upon a default by another Party herein shall not constitute a waiver or a Party’s right
to demand strict compliance from such other Party or Parties in the future.
Section 9. Captions and Pronouns. The captions and headings of the various sections
of this Regulatory Agreement are for convenience only, and are not to be construed as confining or
ATTACHMENT NO. 1-27
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limiting in any way the scope or intent of the provisions hereof. Whenever the context requires or
permits, the singular shall include the plural, the plural shall include the singular, and masculine,
feminine and neuter shall be freely interchangeable.
Section 10. Notices. Any notice permitted or required to be delivered as provided herein
to Participant, 7 Arrow Properties or other Owner shall be in writing and may be delivered either
personally or by certified mail. Notice to City shall be made by certified mail to the CED Director or
his designee at 300 N. “D” Street, Third Floor, San Bernardino, California 92401-1734 (with a copy
to Stradling Yocca Carlson & Rauth, Attention: Mark J. Huebsch, 660 Newport Center Drive, Suite
1600, Newport Beach, California 92660), and shall be effective upon receipt. Notice to Owner shall
be made by certified mail to such Owner at the address provided to City by such Owner. As of the
date of this Regulatory Agreement, the address for notice of Participant is 10606 Trademark Pkwy
No., #210A, Rancho Cucamonga, California 91730, and the address for notice to 7 Arrow Properties
is 233 Harrison Avenue, Claremont, California 91711-4324; such notice shall be effective upon
receipt or, if earlier, within seven (7) calendar days from the date notice is transmitted by a Party to
an Owner at the address of record for such Owner as communicated to the City. Such address may
be changed from time to time by notice in writing.
ATTACHMENT NO. 1-28
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CITY OF SAN BERNARDINO,
a municipal corporation
By:
Andrea M. Miller, City Manager
ATTEST:
By:
Georgeann Hanna, City Clerk
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By: __________________________________
Name: __________________________________
7 ARROW PROPERTIES:
By: 7 ARROW PROPERTIES LLC, a California
limited liability company
By: 7 Arrow Properties, a California nonprofit
public benefit corporation
By: ______________________________________
Name:
Authorized Signatory
ATTACHMENT NO. 1-29
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EXHIBIT A
LEGAL DESCRIPTION OF THE 2004 PROPERTY
Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.15 FEET OF LOT 3, BLOCK 33,
RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7, PAGE 2, OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-163-43-0-000
1441-1443 NORTH MOUNTAIN VIEW AVENUE
LOT 3 OF TRACT NO. 1957, KIMMEL’S MAGNOLIA TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 55, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
APN 0146-163-02-0-000
1495 NORTH MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
LOT 10, BLOCK “B”, EDELEN TRACT, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 5 OF MAPS, PAGE 35,
RECORDS OF SAID COUNTY.
APN 0146-162-22-000
1379 NORTH ARROWHEAD AVENUE
LOT 11, OF TRACT NO. 1785 OF THE NIECE SUBDIVISION, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26,
PAGE 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-132-18-0-000
1501-1503 NORTH PERSHING AVENUE
EXHIBIT “A” TO ATTACHMENT NO. 1-1
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EXHIBIT B
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
Date: , 201_
The following information contained in this Certificate of Continuing Program Compliance
(“Certificate”) with respect to the _____________ (__) rental units located at
______________________ [list addresses] (the “Sites”), is being provided by
_______________________ (the “Owner”) as the owner of the Sites to the City of San Bernardino
(the “City”) pursuant to that certain unrecorded First Amendment to HOME Agreements by and
among Frazee Community Center, 7 Arrow Properties LLC, and the City dated as of March 1, 2019
(the “First Amendment”), and that Restated 2004 Properties Regulatory Agreement (the “Regulatory
Agreement”) as described in in the First Amendment. All capitalized terms not defined herein shall
have the respective meanings set forth therefor in the First Amendment and, if not defined therein,
the Regulatory Agreement:
(A) The total number of Required Affordable Units residential units which are completed,
habitable, and available for occupancy is __. The total number of such units occupied is
__________.
(B) The following residential units are considered to be occupied by Eligible Households
based on the information set forth below:
Number of
Units/Address
Unit
Size
Date Unit
Became
Available
Name of
Tenant
Number
of
Persons
Residing
in Unit Ethnicity
Total
Adjusted
Gross
Income
Initial
Occupancy
Date
(C) The Owner has obtained a “Certification of Tenant Eligibility” in the form prescribed
or previously approved by the City, from each Tenant named in (B) above, and each such
Certification is being maintained by the Owner in its records with respect to the Sites. Attached
hereto is the most recent “Certification of Tenant Eligibility” for each Tenant named in (B).
EXHIBIT “B” TO ATTACHMENT NO. 1-1
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(D) In renting the residential units at the Sites, the Owner has not given preference to any
particular group or class of persons (except for persons who qualify as HOME Eligible Households);
and none of the units listed in (D) above have been rented for occupancy entirely by students, no one
of which is entitled to file a joint return for federal income tax purposes. All of the residential units
at the Sites have been rented pursuant to a written lease, and the term of each lease is at least
__________ months.
(E) The information provided in this Certificate is accurate and complete, and no matters
have come to the attention of the Owner which would indicate that any of the information provided
herein, or in any “Certification of Tenant Eligibility” obtained from the Tenants named herein, is
inaccurate or incomplete in any respect.
EXHIBIT “B” TO ATTACHMENT NO. 1-2
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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ATTACHMENT NO. 2
SCOPE OF WORK
Detailed specifications for work (including bid packages) are on file with the City as a public record
and are deemed incorporated herein.
All of the Participant Improvements and the 7 Arrow Properties Improvements shall be accomplished
by the respective times set forth therefor in the First Amendment.
ATTACHMENT NO. 2-1
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ATTACHMENT NO. 3
RESTATED 2002 PROPERTIES REGULATORY AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
AND MAIL TAX STATEMENTS TO:
City of San Bernardino
300 N. “D” Street, Third Floor
San Bernardino, California 92401-1734
Attention: CED Director
SPACE ABOVE THIS LINE FOR RECORDER’S USE
(This document is exempt from the payment of a recording fee
pursuant to Government Code Section 27383.)
REGULATORY AGREEMENT
This Regulatory Agreement is made and entered into by the signatories hereto.
R E C I T A L S
WHEREAS, each of the CITY OF SAN BERNARDINO, a municipal corporation (“City”),
FRAZEE COMMUNITY CENTER, INC., a California non-profit corporation (“Participant”), and
7 ARROW PROPERTIES LLC, a California limited liability company (“7 Arrow Properties”) is a
party to this Regulatory Agreement. City, Participant and 7 Arrow Properties are sometimes
collectively referred to herein as the “Declarants.”
WHEREAS, certain affordable housing activities, including the entering into agreements
with private parties regarding the expenditure of moneys under the “HOME Program” (as defined
below) under the HOME Investment Act were previously conducted by the Redevelopment Agency
of the City of San Bernardino (“Former Agency”).
WHEREAS, Participant acquired from the Former Agency, pursuant to the terms of that
certain unrecorded 2002 HOME-Community Housing Development Organization (CHDO) Loan
ATTACHMENT NO. 3-1
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Agreement, dated as of January 7, 2002 (the “2002 HOME Agreement”), by and between the
Participant and the Former Agency, that certain real property located within the City and described
as: 951 N. Crescent Avenue; 162 N. Wabash; and 1331 N. Mountain View Avenue, a legal
description of which is attached as Exhibit “A” hereto (the “2002 Property”);
WHEREAS, under the 2002 HOME Agreement, the Participant was required to manage
eleven (11) units (herein “Affordable Units”) on the 2002 Property for occupancy at HOME
Affordable Rents to HOME Qualified Low-Income Households. In connection with such activities,
and in implementation of the 2002 HOME Agreement, the Former Agency loaned to Participant (the
“2002 Loan”) the amount of Six Hundred Thousand Dollars ($600,000) (the “2002 HOME Loan
Amount”) of HOME Funds, as such HOME Funds were provided by the City under the HOME
Program.
WHEREAS, in implementation of the 2002 HOME Agreement, the 2002 Property was made
subject to certain covenants as follows: (i) covenants contained in that certain grant deed made by the
Former Agency to the Participant as recorded among the Official Records on February 20, 2002 as
Document No. 2002-0082384 (the “Parcel 2002-2 Deed”); (ii) covenants contained in an instrument
entitled “Frazee Community Center HOME Regulatory Agreement, Property Use and Covenant” was
recorded on February 20, 2002 among the Official Records as Document No. 2002-0082386 (the
“Parcel 2002-2 Covenants”); (iii) covenants contained in an instrument entitled “Frazee Community
Center HOME Regulatory Agreement, Property and Use Covenant” recorded among the Official
Records as Document No. 2002-0057882 on February 5, 2002 (the “Parcel 2002-1 Covenants”); and
(iv) covenants contained in an instrument entitled “Frazee Community Center HOME Regulatory
Agreement, Property and Use Covenant” recorded among the Official Records as Document No.
2002-0057181 on February 4, 2002 (the “Parcel 2002-3 Covenants” and together with covenants
contained in the Parcel 2002-2 Deed, the Parcel 2002-2 Covenants, and the Parcel 2002-1 Covenants,
the “Original 2002 Covenants”).
WHEREAS, in 2011, the California Legislature eliminated all redevelopment agencies
within the State of California, including without limitation the Former Agency. All housing assets of
the Former Agency, including without limitation the 2002 Loan and the rights of the Former Agency
under those instruments recorded among the official land records of the County Recorder of the
County of San Bernardino (“Official Records”) became the property of the City as the housing
successor entity to the Former Agency.
WHEREAS, subsequent to Participant and Former Agency entering into the 2002 HOME
Agreement, Participant was obligated to maintain the 2002 Property in accordance with the HOME
regulations and restrictions concerning affordability, operation, and maintenance; an important
element of the 2002 HOME Agreement was to ensure that affordable rental housing units which were
to be developed under the 2002 HOME Agreement would be available to HOME eligible
Households with income at or below eighty percent (80%) of area median and for the term of twenty-
five (25) years and that rental units would be maintained as Affordable Units in accordance with the
provisions of the 2002 HOME Agreement, including attachments thereto and instruments recorded
pursuant to the 2002 HOME Agreement.
WHEREAS, 7 Arrow Properties has offered to purchase from Participant, and Participant
has agreed to sell to 7 Arrow Properties, certain portions of the 2002 Property; such portions which
are to be acquired by 7 Arrow Properties are referred to below as the “7 Arrow Properties 2002
Parcels.”
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WHEREAS, the Declarants have mutually determined that it is mutually beneficial and
desirable that the 2002 Property continue to be maintained as an affordable rental housing resource
but that certain provisions of the Original 2002 Covenants pertaining to the ongoing operation,
maintenance, and administration of affordable rental housing should be clarified and amplified in the
manner set forth in this Regulatory Agreement, and that the 2002 Property, including without
limitation the 7 Arrow Properties 2002 Parcels, shall be subject to this Regulatory Agreement.
WHEREAS, Declarants have entered into that certain unrecorded instrument entitled “First
Amendment to HOME Agreements”, dated as of April 1, 2019 (the “First Amendment”). The First
Amendment provides, in part, for the sale of the 7 Arrow Properties 2002 Parcels by Participant to 7
Arrow Properties, for the continuation of certain restrictions and requirements imposed under the
2002 HOME Agreement, and for the imposition of additional standards, provisions, and requirements
as set forth in the First Amendment, including without limitation this Regulatory Agreement.
WHEREAS, this Regulatory Agreement establishes a plan for the improvement,
development and maintenance of the 2002 Property for the benefit of the community and the
furtherance of compliance with the “HOME Regulations” (as defined below) as well as the First
Amendment.
WHEREAS, it is contemplated under the Amended 2002 Property Agreement that, as of the
recordation of this Regulatory Agreement, Participant holds title to the 2002 Property.
WHEREAS, the Amended 2002 Property Agreement sets forth certain restrictive covenants
applicable to the 2002 Property, particularly the use of the 2002 Property for the provision of rental
housing units available to Very Low Income Households at Affordable Rents as those terms are
defined therein.
WHEREAS, this Regulatory Agreement establishes a plan for the improvement,
development and maintenance of the 2002 Property for the benefit of City.
WHEREAS, the Amended 2002 Property Agreement sets forth certain restrictive covenants
applicable to the 2002 Property, particularly the use of the 2002 Property for the provision of rental
housing units available to Very Low Income and Low Income Households at Affordable Rents as
those terms are defined therein and as more particularly set forth herein.
WHEREAS, City and Participant wish to adopt this Regulatory Agreement to further govern
the use of the 2002 Property in conjunction and along with the Amended 2002 Property Agreement
and to ensure that City achieves credit for production of affordable housing units as generally
described at Section 33413 of the California Health and Safety Code.
NOW, THEREFORE, City and Participant (as owner of real property interests described
hereinabove), in the City, declares that the 2002 Property shall be held, transferred, encumbered,
used, sold, conveyed, leased and occupied subject to the provisions hereinafter set forth expressly
and exclusively for the use and benefit of said property, and City. Each and all of the restrictions,
limitations, conditions, covenants, liens, reservations and charges herein contained shall run with the
land and be recorded on the 2002 Property title and shall be binding on Declarants, their grantees,
successors, heirs, executors, administrators, devisees or assigns, and all subsequent owner of all or
any part of the 2002 Property.
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ARTICLE I
DEFINITIONS
The definitions provided herein shall be applicable to this Regulatory Agreement and also to
any amendment or supplemental Regulatory Agreement (unless the context implicitly or explicitly
shall prohibit), recorded against the 2002 Property pursuant to the provision of this Regulatory
Agreement. Capitalized terms not defined herein shall have the respective meanings established
therefor in the Amended 2002 Property Agreement.
Section 1. “Affordable Rent” means rent which does not exceed the maximum rent
allowed as established by the Department of Housing and Urban Development HOME Program as to
the respective income categories of households described in Prescribed Rent Levels herein.
Section 2. “Amended 2002 Property Agreement” means the 2002 HOME Agreement,
including all instruments delivered pursuant thereto, as modified by the First Amendment.
Section 3. “Approved Housing Project” means all improvements as provided to be
developed by Participant under the Amended 2002 Property Agreement. The Approved Housing
Project must be completed in strict conformity with all specifications contained in or referred to in
the Amended 2002 Property Agreement.
Section 4. “Area” means the area defined by HUD which includes and consists primarily
of San Bernardino County.
Section 5. “Certificate” is defined in Section 3(a).
Section 6. “Certification of Program Compliance” means a certificate in the form of
Exhibit “B” hereto, or in such other format as may be prescribed from time to time by City.
Section 7. “City” means and refers to the City of San Bernardino, a municipal
corporation and charter city.
Section 8. “City Approvals” means those approvals given by City, whether before or
after the recording of this Regulatory Agreement, for the development of the Approved Housing
Project, including without limitation mitigation measures and conditions of approval.
Section 9. “City Code” means and refers to the City of San Bernardino Municipal Code
as revised from time to time.
Section 10. “Common Areas” means all areas on the 2002 Property that are open or
accessible to all tenants of the 2002 Property (such as grounds, but excluding buildings).
Section 11. “County” means the County of San Bernardino.
Section 12. “Eligible Households” or “HOME Eligible Households” means households
identified by the United States Department of Housing and Urban Development as having income at
or below Low Income; provided that as to no fewer than four (4) such households, income shall be at
or below Very Low Income.
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Packet Pg. 243 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
Section 13. “First Amendment” means that certain unrecorded instrument entitled “First
Amendment to HOME Agreements”, dated as of April 1, 2019; a copy of the First Amendment is on
file with the City as a public record.
Section 14. “HOME Assisted Units” means the units designated as acquired and
rehabilitated with HOME loan proceeds rented to households with income at or below eighty percent
(80%) of area median income.
Section 15. “HOME Program” means the HOME Investment Partnership Act, 42 U.S.C.
§ 12701, et seq. as it now exists and as may hereafter be amended.
Section 16. “HOME Regulations” means the implementing regulations of the HOME
Program set forth at 24 CFR Part 92 as it now exists and, subject to the provisions of Section 2.2
herein, as may hereafter be amended.
Section 17. “Improvements” has the meaning established therefor in the Amended 2002
Property Agreement.
Section 18. “Income Verification” means a form which verifies, in detail, the income of
each occupant household. If a form for Income Verification is prescribed by the City from time to
time, such form of Income Verification shall be utilized by each Owner.
Section 19. “Lower Income Household” means a household earning not greater than sixty
percent (60%) of Median Income for the Area.
Section 20. “Low Income Unit” or “Lower Income Unit” means a Unit occupied at
Affordable Rent by a Low Income (or Lower Income) Household.
Section 21. “Median Income for the Area” means the Median Income for the Area as
most recently determined by the Secretary of Housing and Urban Development under Section 8 of
the United States Housing Act of 1937, as amended, or, if programs under Section 8 are terminated,
Median Income for the Area determined under the method used by the Secretary prior to such
termination.
Section 22. “Owner” means the fee owner of the corresponding portion of the 2002
Property.
Section 23. “Prescribed Rent Levels” means the following: (i) as to four (4) dwelling
units, Affordable Rent for Very Low Income Households; and (ii) as to eight (8) dwelling units,
Affordable Rent for Low Income Households.
Section 24. “Regulatory Agreement” means this Regulatory Agreement and any
amendments, modifications or supplements which may also be referred to herein.
Section 25. “Rental Project” means those thirteen (13) residential units existing on the
2002 Property as of the date of this Regulatory Agreement, including associated improvements on
the 2002 Property.
Section 26. “Required Affordable Unit” means each of twelve (12) of the thirteen (13)
dwelling units in the Rental Project, as rehabilitated or reconstructed under the Amended 2002
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Property Agreement, and available to, occupied by, or held vacant for occupancy only by tenants
qualifying under the Prescribed Rent Levels, all as prescribed herein.
Section 27. “Required Covenant Period” or “Term” means the period commencing on the
date this Regulatory Agreement is recorded and ending on October 19, 2029.
Section 28. “Uniform Codes” means each of the following as in effect from time to time
as approved by City: the Uniform Building Code, the Uniform Housing Code, the National
Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, and the Uniform Code
for the Abatement of Dangerous Buildings.
Section 29. “Unit” means a dwelling unit on the Rental Project.
Section 30. “Very Low Income Households” means Very Low Income Households
whose Adjusted Income does not exceed fifty percent (50%) of Median Income for the Area.
Section 31. “Very Low Income Unit” means a Unit occupied at Affordable Rent by a
Very Low Income Household.
Section 32. “Very Low Income Unit” means a Unit occupied at Affordable Rent by a
Very Low Income Household.
Section 33. “2002 Property” means that property described in Exhibit “A” hereto and
shall include all real property and appurtenances, including all structures and other improvements
thereon, and any improvements hereafter constructed.
ARTICLE II
LAND USE RESTRICTIONS; IMPROVEMENTS
Section 1. Uses. Owner shall develop and thereafter maintain the Approved Housing
Project on the 2002 Property in conformity with the Amended 2002 Property Agreement. Thereafter,
the 2002 Property shall be operated as an affordable rental housing project devoted only to the uses
specified in the Amended 2002 Property Agreement for the periods of time specified herein. All uses
conducted on the 2002 Property, including, without limitation, all activities undertaken by Owner
pursuant to the Amended 2002 Property Agreement, shall conform to all applicable provisions of the
City Code and the City Approvals. The 2002 Property shall be used only for private multi-family
rental dwelling purposes and related amenity uses, but for no other purposes. Throughout the Term,
the each of Participant and 7 Arrow Properties covenants and agrees to make available, restrict
occupancy to, and rent each of the dwelling units on the 2002 Property as Affordable Units at an
Affordable Rent. None of the dwelling units on the 2002 Property shall at any time be utilized on a
transient basis, nor shall the 2002 Property or any portion thereof ever be used as a hotel, motel,
dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest
home. No Owner shall convert the 2002 Property to condominium ownership which approval the
City may grant, withhold or deny in its sole and absolute discretion.
The 2002 Property shall be used, maintained and operated in accordance with the Amended
2002 Property Agreement and this Regulatory Agreement for the Required Covenant Period. None
of the units in the Rental Project shall at any time be utilized on a transient basis nor shall the Rental
Project or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house,
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rooming house, hospital, nursing home, sanitarium, rest home or trailer court or park. No part of the
2002 Property, from the date Participant acquired its interest in the 2002 Property, has been or will at
any time be owned or used as a cooperative housing corporation or a stock cooperative.
Section 2. Affordable Housing; Eligible Households. Each of Participant and 7 Arrow
Properties covenants and agrees for itself and its respective successors, its assigns and every
successor in interest to the 2002 Property or any part thereof, that throughout the Term, the
Participant, 7 Arrow Properties, such successors and assigns, shall use, maintain and operate the
2002 Property as specified in this Regulatory Agreement. During the Term, all uses undertaken by
the Participant pursuant to this Regulatory Agreement shall conform to the HOME Regulations and
HOME Program and to all applicable provisions of City Code. In the event an Owner desires to
change the affordable housing, maintenance or operation requirements for the 2002 Property from
the specific requirements set forth in this Regulatory Agreement in order to comply with a
subsequently enacted amendment to the HOME Program or the HOME Regulations, such Owner
shall notify City (as well as any other Owner) in writing of such proposed change to implementing
such change. In the event the City disapproves of such change and the applicable Owner’s
interpretation of the amendment related thereto, City shall notify such Owner of its disapproval in
writing and the parties shall seek clarification from the appropriate HUD Field Office. Failure by
City to consent to a request shall be deemed to constitute disapproval. Only if HUD concurs with
such Owner’s interpretation of the HOME Program and HOME Regulations shall such Owner be
permitted to implement the proposed change.
1. Throughout the Term, Owner shall devote each of the dwelling units located
on the 2002 Property as Affordable Units which shall be rented and occupied by or, if vacant
available for rental and occupancy by, HOME Eligible Households. In addition, not fewer than four
(4) of such dwelling units shall be maintained at all times as Very Low Income Units.
2. Prior to leasing an Affordable Unit, Owner shall verify the income eligibility
of the tenant applicant by obtaining verification of all household sources of income in order to assure
compliance with the rent and occupancy restrictions and monitoring requirements of this Regulatory
Agreement. Each Owner shall complete and provide to City income verifications as required under
the 2002 HOME Agreement, the First Amendment and this Regulatory Agreement; if the City
provides a particular format for such income verifications, each Owner shall utilize such forms as are
hereafter prescribed by the City.
In the event recertification of a Very Low Income Household’s annual
income establishes that household’s income to be higher than the Very Low Income limit, Participant
shall designate the next available unit and any necessary units thereafter as a Very Low Income Unit.
For purposes of this Regulatory Agreement, such designated unit will be considered a Very Low
Income Unit if it is held vacant and available for occupancy by a Very Low Income Household, and,
upon occupancy, the income eligibility of the tenant as a Very Low Income Household is verified
and the unit is rented at Affordable Rent.
In the event the Participant, 7 Arrow Properties, or any owner of the 2002
Property accepts funding or assistance under a governmental program which imposes requirements
(which requirements may include limitations upon rent or income of occupants, as well as reporting
requirements), it shall be the responsibility of the owner of the 2002 Property, or applicable portion
thereof, to comply with all such additional requirements with respect to all of the 2002 Property
under ownership or control of such owner.
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In the event a household’s income initially complies with the corresponding
income restriction but the income of such household increases, such increase shall not be deemed to
result in a violation of the restrictions of this Regulatory Agreement concerning limitations upon
income of occupants.. Participant shall include in its rental agreements provisions which implement
this requirement and limitation, and Participant shall expressly inform prospective renters as to this
limitation prior to the commencement of a tenancy.
3. Duration of Affordability Requirements. The Required Affordable Units shall
be available and occupied by Very Low Income Households and Low Income Households,
respectively, at Affordable Rent throughout the Required Covenant Period, in conformity with the
Prescribed Income Limits. None of the Required Affordable Units shall be restricted on the basis of
age. All tenants residing in any Unit for which rents are limited by virtue of this Regulatory
Agreement or pursuant to other regulation during the last two (2) years of the Required Covenant
Period shall be given notice by Participant at least once every six (6) months prior to the expiration
date of this requirement, that the rent payable on such Unit may be raised to a market rate rent at the
end of the Required Covenant Period.
4. Selection of Tenants. As specified hereinbelow, Participant shall demonstrate
to City that the proposed tenants of each of the Required Affordable Units constitutes a Very Low
Income Household, a Very Low Income Household, as more particularly provided herein. None of
the Required Affordable Units shall be restricted on the basis of age. Participant, and not City, is
responsible for the selection of tenants and the continuation of tenancies in conformity with this
Regulatory Agreement and all applicable laws. None of the Required Affordable Units shall be
restricted on the basis of age. There is one (1) Unit on the 2002 Property which is not a Required
Affordable Unit; that one (1) Unit is not restricted on the basis of income or age.
Prior to the rental or lease of an Required Affordable Unit to a tenant, and as
set forth in this Section 2 of Article II of this Regulatory Agreement, Participant shall require the
tenant to execute a written lease and to complete an Income Verification certifying that the tenant(s)
occupying the Required Affordable Unit is/are a Very Low Income Household, a Very Low Income
Household, Very Low Income Household and meet(s) the eligibility requirements established for the
Required Affordable Unit. Participant shall verify the income of the tenant(s).
Participant shall accept as tenants on the same basis as all other prospective
tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing
program under Section 8 of the United States Housing Act of 1937, or its successor. Participant shall
not apply selection criteria to Section 8 certificate holders which are more burdensome than criteria
applied to any other prospective tenants.
5. Determination of Affordable Rent for the Affordable Units. The Affordable
Units shall be rented or leased at Affordable Rent. The maximum monthly rental for the Affordable
Unit shall be subject to annual adjustment as determined by City. Prior to implementing changes in
rents, an Owner shall confer with the City to assure that such modified rents are allowable under the
terms of this Regulatory Agreement.
EACH OF THE PARTICIPANT AND 7 ARROW PROPERTIES
UNDERSTANDS AND KNOWINGLY AGREES THAT THE MAXIMUM RENTAL FOR THE
AFFORDABLE UNITS ESTABLISHED BY THE AMENDED 2002 Property AGREEMENT AND
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Packet Pg. 247 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
THIS REGULATORY AGREEMENT IS SUBSTANTIALLY BELOW THE FAIR MARKET
RENT FOR THE REQUIRED AFFORDABLE UNITS.
6. Occupancy Limits. To the greatest extent allowable by law, the maximum
occupancy of the Units at the 2002 Property shall not exceed more than such number of persons as is
equal to two persons per bedroom, plus one. Thus, for the two (2) bedroom Units, the maximum
occupancy shall not exceed five (5) persons. For the three (3) bedroom Units, the maximum
occupancy shall not exceed seven (7) persons.
Section 3. Participant Verification and Program Compliance.
1. Income Verification and Certification. Participant will obtain and maintain
on file an Income Verification from each tenant (for each Unit and not merely from the Required
Units), dated immediately prior to the initial occupancy of such tenant in the Rental Project.
On August 15, 2019 and annually thereafter, Participant shall file with City or
its designee a Certificate, containing all information required to demonstrate that rents and income
levels for units comply with the requirements hereof regarding Affordable Rent and containing such
information as City additionally requires, in a form prescribed by City. Each Certificate shall cover
the immediately preceding fiscal year; a fiscal year for this purpose constitutes a calendar
commencing as of July 1 of a calendar year and ending as of June 30 of the immediately following
calendar year.
In addition, and without limitation to the preceding paragraph: (i) each Owner
shall engage a professional property manager that has been approved by City; and (ii) each Owner
shall submit quarterly (as of the 15th day of each August, November, February, and Mary which
occurs after the recording of this Regulatory Agreement) a report which sets forth all revenues and
expenses incurred with that portion of the Rental Project owned by such Owner, as prepared by such
property manager and signed by the property manager and the Owner. The provisions of this
paragraph shall remain in effect until the fifth (5th) anniversary of the recording of this Regulatory
Agreement.
2. Reporting Amounts. City requires that Participant monitor affordability of
dwelling units. In connection therewith, Participant shall monitor and report on each Unit, and not
merely the Affordable Units, and submit the annual reports required by Section 3 of Article II of this
Regulatory Agreement. City relies upon the information contained in such reports to satisfy its own
reporting requirements and to monitor performance hereunder. In the event Participant fails to
submit to City or its designee the Certification as required by Section 3(a), Participant shall be in
noncompliance with this Regulatory Agreement. In the event Participant remains in noncompliance
for thirty (30) days following receipt of written notice from City of such noncompliance under
Sections 3(a) and 3(b) of Article II hereinabove, then Participant shall, without further notice or
opportunity to cure, pay to City Two Hundred Fifty Dollars ($250.00) per Required Affordable Unit
for each year Participant fails to submit a Certificate covering each and every housing unit on the
2002 Property.
Section 4. Affordable Rent. All of the Required Affordable Units shall be rented at
rent which does not exceed Affordable Rent.
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1. Increases in Tenant Income. The units shall qualify as affordable housing as
required despite a temporary non-compliance with the 2002 HOME Agreement, if the non-
compliance is caused by increases in the incomes of existing tenants and if actions satisfactory to
HUD are being taken to ensure that all vacancies are filled in accordance with this section until the
non-compliance is corrected. Tenants who no longer qualify as low-income families must pay fair
market rent.
2. Adjustment of Affordable Rent. HUD may adjust the Affordable Rent
established for the Project under paragraph (1) of this section, only if HUD finds that an adjustment
is necessary to support the continued financial viability of the Project and only by an amount that
HUD determines is necessary to maintain financial viability of the Project.
3. Market Rent. Where the income of a tenant household may increase after its
initial occupancy to a level at which such tenant no longer qualifies as “low-income”, Participant
may thereafter increase the rent payable by such tenant to a fair market rent for the size of the
Affordable Unit which such tenant occupies; provided however, that at such time as such tenant may
no longer lawfully occupy the Affordable Unit the rent payable for such Affordable Unit shall be
reset to an Affordable Rent for the HOME Eligible Household who next occupies that Affordable
Unit.
Section 5. Tenant Protections.
1. Rental Agreement/Lease. The Participant shall execute or cause to be
executed a written rental agreement/lease in a form with each tenant household identifying by name
all permitted occupants, both adults and minors, occupying each Affordable Unit. The rental
agreement/lease between tenants occupying the Affordable Units and Owner must be for not less
than one year, unless by mutual agreement between the tenant and the Owner.
2. Prohibited Rental Agreement/Lease Terms. The rental agreement/lease may
not contain any of the following provisions:
a. Agreement to be sued. Agreement by the tenant to be sued, to admit
guilty, or to a judgment in favor of the Owner in a lawsuit brought in connection with the lease;
b. Treatment of property. Agreement by tenant that the Owner may
take, hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement by
the tenant concerning disposition of personal property remaining in the unit after the tenant has
moved out of the unit. The Owner may dispose of this personal property in accordance with state
law;
c. Excusing Owner from responsibility. Agreement by the tenant not to
hold Owner or Owner’s agents legally responsible for any action or failure to act, whether intentional
or negligent;
d. Waiver of notice. Agreement of the tenant that the Owner may
institute a lawsuit without notice to the tenant;
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e. Waiver of legal proceedings. Agreement by the tenant or household
members without instituting a civil court proceeding in which the tenant has the opportunity to
present a defense, or before a court decision on the rights of the parties;
f. Waiver of a jury trial. Agreement by the tenant to waive any right to
a trial by jury;
g. Waiver of right to appeal court decision. Agreement by the tenant to
waive the tenant’s right to appeal, or to otherwise challenge in court, a court decision in connection
with the lease; and
h. Tenant chargeable with cost of legal actions regardless of outcome.
Agreement by the tenant to pay attorneys’ fees or other legal costs even if the tenant wins in a court
proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if
the tenant loses.
3. Termination of Tenancy. The Owner may not terminate the tenancy or refuse
to renew the lease of a tenant of the Project except for serious or repeated violation of the terms and
conditions of the lease; for violation of applicable federal, state, or local law; or for other good cause.
Any termination, except for termination for non-payment of rent, or refusal to renew must be
preceded by not less than thirty (30) days by the Owner’s service upon the tenant of a written notice
specifying the grounds for the action.
4. Tenant Selection. Owner shall not refuse to rent a Unit to a holder of a Rental
Voucher or a Rental Certificate or comparable document evidencing participation in the Section 8
Program or other tenant-based assistance program. Participant must adopt written tenant selection
policies that:
a. Are consistent with the purpose of providing housing for HOME
Eligible Households;
b. Are reasonably related to HOME Program eligibility and the
applicants’ ability to perform the obligations of the lease;
c. Give reasonable consideration to the housing needs of families that
would have a federal preference under Section 960.211 of Title II of the Cranston-Gonzalez National
Affordable Housing Act of 1992; and
d. Provide for:
(1) The selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable; and
(2) The prompt written notification to any rejected applicant of
the grounds for any rejection.
5. Tenant Certification. Owner shall require every tenant of the 2002 Property
to certify that he or she will not participate in illegal or gang related activities.
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6. Compliance with Use and Occupancy Laws. Owner agrees that for each
lease, the Owner shall comply with all applicable state and local laws, statutes, ordinances, rules and
regulations, which in any way restrict the use and occupancy and resale of the 2002 Property.
Section 6. Nondiscrimination. Owner shall refrain from restricting the rental, sale or
lease of the 2002 Property, or any portion thereof, on the basis of race, color, creed, religion, sex,
marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall
contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(1) In deeds: “The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall
the grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land.”
(2) In leases: “The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following conditions:
“That there shall be no discrimination against or segregation of any
person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in
the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the premises herein leased.”
(3) In contracts: “There shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d)
of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the
premises which are the subject of this Regulatory Agreement, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall
run with the land.”
The covenants established in this Regulatory Agreement shall,
without regard to technical classification and designation, be binding for the benefit and in favor of
City, its successors and assigns, City and any successor in interest to the 2002 Property, together with
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any property acquired by Owner pursuant to this Regulatory Agreement, or any part thereof. The
covenants against discrimination as set forth in this Section 1 of Article II shall remain in effect in
perpetuity.
Section 7. Keeping of Animals. No animals of any kind shall be raised, bred or kept on
the 2002 Property, except that domesticated dogs, cats or other household pets may be kept by the
tenants in the Rental Project at the discretion of Owner and subject to compliance with all laws.
However, no animal shall be kept, bred or maintained for any commercial purpose or for fighting
purposes. Nothing permitted herein shall derogate in any way the right of Owner to further restrict
keeping of pets.
Section 8. Parking of Vehicles. Owner shall not permit the parking, storing or keeping
of any vehicle except wholly within the parking areas designated for the Required Affordable Units.
Owner shall not permit the parking, storing or keeping of any large commercial type vehicle (dump
truck, cement mixer truck, oil or gas truck, etc.), or any recreational vehicle over twenty (20) feet in
length (camper unit, motor home, trailer, mobile home or other similar vehicle), boats over twenty
(20) feet in length, or any vehicle other than a private passenger vehicle, upon any portion of the
Common Areas, including parking spaces. For purposes of this Section 8, a pickup truck with a
pickup bed mounted camper shall be considered a private passenger vehicle; provided however, that
no such vehicle shall be used for residential purposes while parked on the premises.
Owner shall not permit major repairs or major restorations of any motor vehicle, boat, trailer,
aircraft or other vehicle to be conducted upon any portion of the Common Area, including the
parking areas, except for emergency repairs thereto and then only to the extent necessary to enable
movement of the vehicle to a proper repair facility. No inoperable vehicle shall be stored or kept in
the Common Area. Owner shall give the vehicle owner not less than four (4) days, nor more than
seven (7) days’ notice and an opportunity to remove any vehicle parked, stored or kept in violation of
the provisions of this Regulatory Agreement. Notice shall consist minimally of a reasonably diligent
attempt to personally notify the vehicle owner or alternatively leaving written notice on the subject
vehicle. After due notice and opportunity have been given to the vehicle owner, Owner shall have
the right to remove, at the vehicle owner’s expense, any vehicle parked, stored or kept in violation of
the provisions of this Regulatory Agreement.
Section 9. Maximum Occupancies. No persons shall be permitted to occupy any
Apartment within the Rental Project in excess of applicable limit of maximum occupancy set by the
City Code and the laws of the State of California.
Section 10. Fences and Electronic Installations. Owner shall not install or knowingly
permit to be installed on the exterior of any improvement or building on any fences or any antenna or
other television or radio receiving device, excepting satellite dishes having a diameter of eighteen
inches (18”) or less, without prior written consent of City. This prohibition shall not prohibit the
installation of cable television or subscription wires or receiving devices.
Section 11. Structural Change. Nothing shall be done on the 2002 Property in, on or to
any building which would materially structurally change the exterior or the interior bearing walls of
any such building or structure, except as otherwise provided herein. Nothing herein shall affect the
rights of Owner to repair, alter or construct improvements on the buildings on the 2002 Property
unless such repair, alteration or improvement would impair the structural integrity and/or exterior
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appearance of said buildings. Nothing herein shall be deemed to prohibit work ordered to be
performed by the City building official.
Section 12. Miscellaneous Requirements. The requirements of this Section 12 shall
apply to each Owner with respect to those portions of the 2002 Property owned by such Owner
A. Equal Opportunity. As set forth in section 92.350 of the HOME Regulations, no
person shall be excluded from participation in, be denied the benefits of or be subjected to
discrimination under any program or activity funded in whole or in part with HOME funds.
B. Affirmative Marketing. As required by Section 92.351 of the HOME Regulations,
Owner must adopt affirmative marketing procedures and requirements. These must include:
Compliance with the provisions of the City of San Bernardino HOME Investment Partnership
Program and Title 24, Part 574.603 of the HOPWA affirmative fair marketing guidelines, and as
applicable, other Federal, State and Local law prohibiting discrimination in the lease or rental or in
the use, occupancy or tenure of enjoyment of the 2002 Property, or any part thereof on the basis of
marital status, race, color, religion, ancestry, sex, gender identity, sexual orientation, age, national
origin, HIV, Acquired Immune Deficiency Syndrome (AIDS) or AIDS related condition (ARC),
physical handicap, or on the basis of their receipt of, eligibility for, housing assistance programs.
The Owner or any person claiming authority under or through them will not establish or permit any
such practices of discrimination or segregation with references to the selection, location, number, use
or occupancy of tenants or lessees in the project. All criteria shall be applied equitably and all
information considered on an applicant shall be related solely to the attributes and behavior of
individual members of the household as they may affect residency, in addition to tenancy/rental
history, ability to pay rent, credit worthiness and other qualifying factors. The Owner will accept
forms of rental assistance (Section 8 or other acceptable forms) as long as the payment standards and
requirements of the voucher meet HOME or HOPWA regulations and program standards.
All rental advertisements will bear the fair housing logotype and slogan, and any information sheets
will also indicate accessibility to the disabled. A Fair Housing poster will be conspicuously displayed
in the rental office and where the initial lease/rent-up process will occur.
The Owner will take reasonable steps to maximize the utilization of accessible units by eligible
individuals whose disability requires the accessibility features of the particular unit. To this end, any
vacant, accessible unit will first be offered to a current, disabled tenant of the development. The
disabled occupant must require the features in the vacant unit and must be occupying a unit not
having such features. If no such occupant exists, the property manager will then offer the unit to a
qualified occupant on the waiting list who has a disability requiring the accessibility features of the
unit.
The application will include a section to be filled out by applicants requesting an accommodation
with details on the applicant’s special needs for accessible features or other accommodations.
Applicants will not be required to disclose a disability under any circumstances unless requesting
accommodation. Special outreach efforts will be made to the disability community through notices
describing the availability of all units, specific information regarding the availability and features of
accessible units, eligibility criteria, and application procedures.
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Flyers will be mailed to Independent Living Centers and other agencies serving those with
disabilities (see agency list attached).
Training
1. Owner shall provide property management staff with all relevant regulations and Fair
Housing provisions. All property management staff shall be required to follow the
procedures and policies adopted by the corresponding Owner.
2. Training programs shall include marketing, outreach, data collection, reporting, and
record keeping. Property management staff shall annually receive instruction
regarding fair housing laws and Affirmative Marketing Plan.
Marketing and Outreach
1. All advertising shall display the Equal Housing Opportunity logo or the phrase
“Equal Housing Opportunity.”
2. Consistent with the resident population this project was designed to serve, the
marketing of the 2002 Property will ensure equal access to the appropriate size unit
for all persons in any category protected by federal, state, and local laws governing
discrimination. There will be no local residency requirements for applicants nor will
preference be given to local residents for this project.
Special marketing outreach consideration will be given to the following underserved
populations:
a. African-Americans
b. Asians and Pacific Islanders
c. Hispanics
d. American Indian
3. Marketing shall include the use of newspapers of general circulation in the City of
San Bernardino and surrounding cities. Owner will place notices in newspapers,
specialized publications, and newsletters to reach potential residents. Applications,
notices, and all publications will include a Fair Housing and Equal Opportunity Logo,
and the Accessibility Logo. Community media advertisement of the project will be
through the following local newspapers or suitable substitution:
a. San Bernardino Sun
b. Vietnamerican Magazine
c. El Chicano, Inland Community News
4. Owner will contact local civic and community organizations representative of the
ethnic and cultural diversity of the area in order to disseminate information about the
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project. Where necessary Owner will publish its marketing materials in multiple
languages in order to better reach potential applicants in the area with language
limitations.
5. In order to meet HOPWA affirmative marketing regulations, Owner will also market
to persons with HIV which are on the waiting list of Foothill Aids Project (“FAP”)
and will outreach to IEHP and any other neighborhood-based agencies which serve
that population.
6. Other neighborhood-based, nonprofit housing agencies that maintain waiting lists or
make referrals for below market rate housing will be contacted.
Agency Name Address Telephone #
a. Housing Authority of the
County of San Bernardino
715 E. Brier Drive, San
Bernardino, CA 92408
(909) 890-0644
b. HPI, Inc. 715 E. Brier Drive, San
Bernardino, CA 92408
(909) 332-6390
c. FAP 670 N. Arrowhead Avenue,
Suite A-B, San Bernardino, CA
92401
(909) 884-2722
d. IEHP Housing/ Care
Programs
10801 Sixth Street, Suite 120
7. Marketing and outreach efforts will begin approximately 90-days prior to the project
completion date to ensure a timely lease-up.
Race and Ethnic Data Collection and Reporting
1. Any family who asks shall receive an application package containing the following:
Instruction sheet; Application; and form HUD-27061-H “Race and Ethnic Data
Reporting Form.” Owner is required to offer each household member the opportunity
to complete the form. Completed documents for the entire household shall be stapled
together and placed in the household’s file.
2. Program Integrity Manager – A staff member shall be designated by the
corresponding Owner as the coordinator (Program Integrity Manager) for the
marketing of the 2002 Property as held by such Owner as well as oversee the
admission of residents. The Program Integrity Manager will keep Owner apprised of
the occupancy process through monthly marketing reports which will include the
number of applicants to the 2002 Property, unit preference, number of actual
occupants, ineligible applicants, and cancellations.
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Compliance Assessment
1. Owner will review the Affirmative Marketing Plan every five years and update as
needed to ensure compliance. The advertising sources will be included in the review
to determine if past sources should be changed or expanded.
2. Owner will annually assess the success of affirmative marketing actions for the 2002
Property. If the demographic data of the applicants and residents are not represented
within the context of existing neighborhood composition, Owner will review its
procedures to determine what changes, if any, might be made to make the affirmative
marketing efforts more effective.
Record Keeping
1. Owner shall establish and maintain an Affirmative Marketing file to hold
advertisements, flyers, and other public information documents to demonstrate that
the appropriate logo and language have been used. Additionally, the Owner shall
keep records of its activities in implementing the affirmative marketing plan,
including other community outreach efforts and its annual analysis.
2. Owner shall keep up-to-date records based on census data, applications, and surveys
about community residents, applicants, residents of the project, and records about
tenant selection or rejection.
3. Owner shall provide HUD and HOME staff access to any pertinent books,
documents, papers or other records of their HOME-assisted properties, as necessary,
for determining compliance with civil rights and nondiscrimination requirements.
C. Displacement, Relocation and Acquisition. Owner must ensure that it has taken all
reasonable steps to minimize the displacement of persons as a result of this Project assisted with
HOME funds.
D. Lead-Based Paint. It is understood that the Project is subject to 24 CFR Part 35.
This requirement shall be met as required by that section and any cost of rehabilitation on the 2002
Property shall be disclosed to the City as such should testing and abatement be undertaken.
E. Conflict of Interest. Owner will hereby comply with all requirements set forth
regarding conflict of interest provisions as they apply in Section 92.356 of the HOME Regulations.
F. Debarment and Suspension. As required in Section 92.357 of the HOME
Regulations, Owner will comply with all debarment and suspension certifications.
G. Flood Insurance. Under the Flood Disaster Protection Act of 1973, HOME funds
may not be used with respect to the acquisition or rehabilitation of a project located in an area
identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards,
unless:
1. The community in which the area is situated is participating in the National
Flood Insurance Program, or less than a year has passed since FEMA notification regarding such
hazards; and
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2. Flood insurance is obtained as a condition of approval of the commitment.
Section 13. Compliance with Laws. Owner shall comply with all applicable laws in
connection with the development and use of the 2002 Property, including without limitation the Fair
Housing Act (42 U.S.C. § 3601, et seq., and 24 C.F.R. § 100.300, et seq.). Owner is a sophisticated
party, with substantial experience in the acquisition, development, financing, obtaining financing for,
marketing, and operation of affordable housing projects, and with the negotiation, review, and
preparation of agreements and other documents in connection with such activities. Owner is familiar
with and has reviewed all laws and regulations pertaining to the acquisition, development and
operation of the Rental Project and has obtained advice from any advisers of its own choosing in
connection with this Regulatory Agreement.
ARTICLE III
DUTIES OF PARTICIPANT: MAINTENANCE RESPONSIBILITIES; MANAGEMENT
Section 1. General Maintenance. Owner shall maintain the 2002 Property and all
improvements thereon, including lighting and signage, in good condition, free of debris, waste and
graffiti, and in compliance with the terms of all applicable provisions of the City Code. Owner shall
maintain in accordance with the “Maintenance Standards,” as hereinafter defined, the improvements
and landscaping at the 2002 Property. Such Maintenance Standards shall apply to all buildings,
signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements
and any and all other improvements on the 2002 Property. To accomplish the maintenance, Owner
shall either staff or contract with and hire licensed and qualified personnel to perform the
maintenance work, including the provision of labor, equipment, materials, support facilities, and any
and all other items necessary to comply with the requirements of this Regulatory Agreement.
Owner and its maintenance staff, contractors or subcontractors shall comply with the
following standards as to the 2002 Property (the “Maintenance Standards”):
a. The 2002 Property shall be maintained in conformance and in
compliance with the United States Department of Housing and Urban Development Uniform
Physical Condition Standards (24 CFR 5.703 and as provided under 24 CFR 92.251(a)) and all other
provisions of this Regulatory Agreement. The 2002 Property shall be maintained in good condition
and in accordance with the industry custom and practice generally applicable to comparable first
quality affordable housing projects in the County.
b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road
conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials;
control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for
support of trees.
c. Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to
mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the
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maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
City agrees to notify Owner in writing if the condition of the 2002 Property does not meet
with the Maintenance Standards and to specify the deficiencies and the actions required to be taken
by Owner to cure the deficiencies. Upon notification of any maintenance deficiency, Owner shall
have thirty (30) days within which to correct, remedy or cure the deficiency. If the written
notification states the problem is urgent relating to the public health and safety of City, then Owner
shall have forty-eight (48) hours to rectify the problem. In the event Owner does not maintain the
2002 Property in the manner set forth herein and in accordance with the Maintenance Standards, City
shall have, in addition to any other rights and remedies hereunder, the right to maintain the 2002
Property, or to contract for the correction of such deficiencies, after written notice to Owner, and
Owner shall be responsible for the payment of all such costs incurred by City.
Section 2. Program Maintenance. In addition to routine maintenance and repair,
Owner shall perform the following programmed maintenance on the Improvements:
a. Interior painting and window covering replacement at least every
seven (7) years;
b. Exterior painting at least every ten (10) years;
c. Repair and resurfacing of parking areas and walkways at least every
seven (7) years; and
d. Replacement of all deteriorated or worn landscaping at least every
five (5) years.
Upon the request of Owner, the CED Director, at his/her sole and absolute discretion, may grant a
waiver or deferral of any program maintenance requirement. Owner shall keep such records of
maintenance and repair as are necessary to prove performance of the program maintenance
requirements.
Section 3. Management of the 2002 Property.
a. Property Manager. Owner shall manage or cause the 2002 Property,
and all appurtenances thereto that are a part of the 2002 Property, to be managed in a prudent and
businesslike manner, consistent with good property management standards for other comparable first
quality, well-managed affordable rental housing projects in the County. Owner may contract with a
property management company or individual property manager to operate and maintain the 2002
Property in accordance with the terms of this Section 3.a. (“Property Manager”); provided, however,
the selection and hiring of the Property Manager (and each successor or assignee) is and shall be
subject to the prior written approval of CED Director (or designee) in his discretion. The Property
Manager shall manage the 2002 Property in accordance with the definitions of Affordable Rent
contained in this Regulatory Agreement, the tenant selection requirements contained in this
Regulatory Agreement and the definitions relating to income and age contained in this Regulatory
Agreement. Any fee paid to the Property Manager for social services provided to the tenants shall be
exclusive of the fee paid to the Property Manager relating to the management of the 2002 Property.
Owner shall conduct due diligence and background evaluation of any potential third party property
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manager or property management company to evaluate experience, references, credit worthiness, and
related qualifications as a property manager. Any proposed property manager shall have significant
and relevant prior experience with affordable housing projects and properties comparable to the 2002
Property and the references and credit record of such property manager/company shall be
investigated (or caused to be investigated) by Owner prior to submitting the name and qualifications
of such proposed property manager to the CED Director for review and approval. A complete and
true copy of the results of such background evaluation shall be provided to the CED Director.
Approval of a Property Manager by CED Director shall not be unreasonably delayed but shall be in
his discretion, and the CED Director shall use good faith efforts to respond as promptly as practicable
in order to facilitate effective and ongoing property management of the 2002 Property by one
qualified Property Manager. The replacement of the Property Manager by Owner and/or the
selection by Owner of any new or different Property Manager shall also be subject to the foregoing
requirements.
b. Property Management Plan. Prior to the recording of this Regulatory
Agreement, but in no event later than thirty (30) days after such recording, Owner prepared and
submitted to the CED Director for review and approval, a management plan which includes a
detailed plan and strategy for long term marketing, operation, maintenance, repair and security of the
2002 Property, inclusive of social services for the residents of the Required Affordable Units, and the
method of selection of tenants, rules and regulations for tenants, and other rental policies for the 2002
Property (“Property Management Plan”). The ongoing management and operation of the 2002
Property shall be in compliance with the approved Property Management Plan. During the Required
Covenant Period, Owner and its Property Manager may from time to time submit to the CED
Director proposed amendments to the Property Management Plan, the implementation of which shall
be subject to the prior written approval of the CED Director.
c. Record Keeping. Throughout the Term, each Owner shall comply
with all applicable record keeping and monitoring requirements set forth in Section 92.508 of the
HOME Regulations and as they may be amended and shall annually complete and submit to City a
Certification of Continuing Program compliance in the form attached as Exhibit C and provided to
Owner by City. Owner shall keep all records and documents pertaining to the Project for five (5)
years after the expiration of the Regulatory Agreement.
Representatives of the City shall be entitled to enter the 2002 Property, upon
at least twenty-four (24) hour notice, to monitor compliance with this Regulatory Agreement, to
inspect the records of the Project with respect to the Affordable Units, and to conduct an independent
audit of such records. The Owner agrees to cooperate with the City in making the 2002 Property
available for such inspection. If for any reason the City is unable to obtain the Owner’s consent to
such an inspection, the Owner understands and agrees that the City may obtain at Owner’s expense
an administrative inspection warrant or other appropriate legal order to obtain access to and search
the 2002 Property. Owner agrees to maintain records in a business-like manner and make such
records available to the City upon twenty-four (24) hour notice. Unless the City otherwise approves,
such records shall be maintained throughout the Term.
d. Gross Mismanagement. During the Required Covenant Period, and in
the event of “Gross Mismanagement” (as defined below) of the 2002 Property, CED Director and/or
City shall have and retain the authority to direct and require any condition(s), acts, or inactions of
Gross Mismanagement to cease and/or be corrected immediately, and further to direct and require the
immediate removal of the 2002 Property Manager and replacement with a new qualified and
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approved Property Manager, if such condition(s) is/are not ceased and/or corrected after expiration of
thirty (30) days from the date of written notice from CED Director. If Owner or Property Manager
has commenced to cure such Gross Mismanagement condition(s) on or before the 20th day from the
date of written notice (with evidence of such submitted to the CED Director), but has failed to
complete such cure by the 30th day (or such longer period if the cure cannot reasonably be
accomplished in thirty (30) days as reasonably determined by the non-defaulting party), then Owner
and its Property Manager shall have an additional 10 days to complete the cure of Gross
Mismanagement condition(s). In no event shall any condition of Gross Mismanagement continue
uncured for a period exceeding forty-five (45) days from the date of the initial written notice of such
condition(s), except that the conditions described in subdivisions (d) and (e) below may exist for up
to, but no longer than, seventy-five (75) days without triggering City’s right to remove the Property
Manager as described in the immediately following sentence as long as Owner is diligently working
to cure such conditions of Gross Mismanagement. If such condition(s) do persist beyond such
period, CED Director shall have the sole and absolute right to immediately and without further notice
to Owner (or to Property Manager or any other person/entity) to remove the Property Manager and
replace the Property Manager with a new property manager of the CED Director’s selection at the
sole cost and expense of Owner. If Owner takes steps to select a new Property Manager that
selection is subject to the requirements set forth above for selection of a Property Manager.
For purposes of this Regulatory Agreement, the term “Gross
Mismanagement” means management of the 2002 Property in a manner which violates the terms
and/or intention of this Regulatory Agreement to operate a high quality affordable housing complex,
and shall include, but is not limited to, any one or more of the following:
(a) Leasing to tenants who exceed the prescribed income levels;
(b) Allowing tenants to exceed the prescribed occupancy levels without
taking immediate action to stop such overcrowding;
(c) Under-funding required reserve accounts;
(d) Failing to timely maintain the 2002 Property in accordance with the
Property Management Plan and Maintenance Standards;
(e) Failing to submit timely and/or adequate annual reports to City as
required herein;
(f) Fraud or embezzlement of funds, including without limitation funds
in the reserve accounts;
(g) Failing to fully cooperate with the San Bernardino Police Department
or other local law enforcement agency(ies) with jurisdiction over the 2002 Property, in maintaining a
crime-free environment within the 2002 Property or in implementing measures recommended by the
San Bernardino Police Department;
(h) Failing to fully cooperate with the San Bernardino Fire Department or
other local public safety agency(ies) with jurisdiction over the 2002 Property, in maintaining a safe
and accessible environment within the 2002 Property or in implementing measures recommended by
the San Bernardino Fire Department;
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(i) Failing to fully cooperate with the San Bernardino Planning and
Building Department, or other local health and safety enforcement agency(ies) with jurisdiction over
the 2002 Property, in maintaining a decent, safe and sanitary environment within the 2002 Property
or in implementing measures recommended by the San Bernardino Building & Planning Department;
(j) Maintaining or allowing the 2002 Property to be maintained as a
public nuisance or in a manner in conflict with any provision of the City Code; and
(k) Spending funds from the Capital Replacement Reserve account for
items that are not defined as eligible costs, including eligible capital and/or replacement costs, under
the standards imposed by generally accepted accounting principles (“GAAP”) (and/or, as applicable,
generally accepted auditing principles).
Notwithstanding the requirements of the Property Manager to correct any condition
of Gross Mismanagement as described above, Owner is obligated and shall use its best efforts to
correct any defects in property management or operations at the earliest feasible time and, if
necessary, to replace the Property Manager as provided above. Owner shall include advisement and
provisions of the foregoing requirements and requirements of this Regulatory Agreement within any
contract between Owner and its Property Manager for the 2002 Property.
e. Code Enforcement. Owner acknowledges and agrees that City, and
their employees and authorized agents, shall have the right to conduct code compliance and/or code
enforcement inspections of the 2002 Property and the individual dwelling units (and not limited to
the Required Affordable Units), both exterior and interior, at reasonable times and upon reasonable
notice (not less than forty-eight (48) hours prior notice, except in an emergency) to Owner and/or an
individual tenant. If such notice is provided by City representative(s) to Owner, then Owner (or its
Property Manager) shall immediately and directly advise any affected tenant of such upcoming
inspection and cause access to the area(s) and/or Units at the 2002 Property to be made available and
open for inspection. Owner shall include express advisement of such inspection rights within the
lease/rental agreements for each Unit in the 2002 Property in order for each and every tenant and
tenant household to be aware of this inspection right.
Section 4. Capital Reserve Requirements. Commencing upon the closing of the
Primary Permanent Loan, Owner shall annually set aside an amount of not less than Three Dollars
($300.00) per dwelling unit into a segregated interest bearing trust account (“Capital Replacement
Reserve”). Funds in the Capital Replacement Reserve shall be used only for capital repairs,
improvements and replacements to the 2002 Property, including fixtures and equipment, which are
normally capitalized under GAAP. The non-availability of funds in the Capital Replacement
Reserve does not in any manner relieve or lessen Owner’s obligation to undertake any and all
necessary capital repairs, improvements, or replacements and to continue to maintain the 2002
Property in the manner prescribed herein. Not less than once per year, Owner, at its expense, shall
submit to the CED Director an accounting for the Capital Replacement Reserve. Capital
improvements and repairs to, and replacements at the 2002 Property shall include only those items
with a long useful life, including without limitation the following: carpet and drapery replacement;
appliance replacement; exterior painting, including exterior trim; hot water heater replacement;
plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air
conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing
repair and replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer
line replacement; water line replacement; gas line replacement; lighting fixture replacement; elevator
ATTACHMENT NO. 3-22
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replacement and upgrade work; miscellaneous motors and blowers; common area furniture
replacement; and common area repainting. Pursuant to the procedure for submittal of each Annual
Budget for the 2002 Property to CED Director by Owner, CED Director will evaluate the cumulative
amount on deposit in the Capital Replacement Reserve account for the 2002 Property and exercise
his/her sole, reasonable discretion to determine if existing balance(s) in, proposed deposits to,
shortfalls, if any, and/or a cumulative unexpended/unencumbered account balance in such Capital
Replacement Reserve account are adequate to provide for necessary capital repairs and improvement
to the 2002 Property.
Section 5. Operating Budget. Commencing as of November 1, 2018 and annually
thereafter on or before November 1 of each year following the issuance of the first certificate of
occupancy issued by the City’s building official for, Owner shall submit to City on not less than an
annual basis an operating budget for the 2002 Property (“Operating Budget” or “Annual Budget”),
which budget shall be subject to the written approval of CED Director or designee, which approval
shall not be unreasonably withheld. The CED Director’s discretion in review and approval of each
proposed annual Operating Budget shall include, without limitation, authority to review individual
categories, line items, and accounts, such as the following: extent, type, and amount for social
services at or associated with the Project; existing balance(s) in and proposed deposits to the Capital
Replacement Reserve for the 2002 Property to evaluate shortfalls and/or cumulative
unexpended/unencumbered deposits (provided that required annual deposits thereto are not required
to exceed $300/per unit); reasonableness and conformity to prevailing market rates in San Bernardino
County and rates and fees for goods and services to be provided Owner or any of its parent,
affiliated, or subsidiary entities, etc. for the 2002 Property.
Owner shall, or shall cause the Property Manager to, set aside an Operating Reserve for the
2002 Property in a separate interest bearing trust account a target amount equal to $300 per Unit or, if
different, that amount approved by the CED Director under an Operating Budget or Annual Budget.
Owner shall, not less than once per every twelve (12) months, submit to the CED Director evidence
reasonably satisfactory to City of compliance herewith.
Section 6. Duty to Prevent Hazardous Material Contamination. During the
development and operation of the 2002 Property, Owner shall take all necessary precautions to
prevent the release of any Hazardous Materials into the environment on or under the 2002 Property.
Such precautions shall include compliance with all Governmental Requirements with respect to
Hazardous Materials. Owner shall notify City, and provide to City a copy or copies, of any notices
of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist
orders, reports filed pursuant to self-reporting requirements and reports filed or applications made
pursuant to any Governmental Requirement relating to Hazardous Materials and underground tanks,
and Owner shall report to City, as soon as possible after each incident, any unusual, potentially
important incidents in the event of a release of any Hazardous Materials into the environment.
For purposes of this Section 6, “Governmental Requirements” means all laws, ordinances,
statutes, codes, rules, regulations, orders and decrees of the United States, the state, the County, City,
or any other political subdivision in which the 2002 Property is located, and of any other political
subdivision, agency or instrumentality exercising jurisdiction over City, Owner or the 2002 Property.
For purposes of this Section 6, “Hazardous Materials” means any substance, material, or
waste which is or becomes regulated by any local governmental authority, the County, including the
San Bernardino County Health Care Authority, the Regional Water Quality Control Board, the State
ATTACHMENT NO. 3-23
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of California (including the Department of Toxic Substances Control), other state, regional or local
governmental authority, or the United States Government, including, but not limited to, any material
or substance which is (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted
hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law),
(ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act),
(iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under
Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
biphenyls, (viii) designated as “hazardous substances” pursuant to Section 311 of the Clean Water
Act (33 U.S.C. §1317), (ix) defined as a “hazardous waste” pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (x) defined as
“hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601, et seq. Notwithstanding the foregoing,
“Hazardous Materials” shall not include such products in quantities below attainment levels
identified in one or more of the enactments identified above as Governmental Requirements,
including those product and amounts as are customarily used in the construction, maintenance,
rehabilitation, management, operation and residence of residential developments or associated
buildings and grounds, or typically used in residential activities in a manner typical of other
comparable residential developments, or substances commonly ingested by a significant population
living within the 2002 Property, including without limitation alcohol, aspirin, tobacco and
saccharine.
Section 7. Compliance With Laws. Owner shall carry out the design, development and
operation of the 2002 Property in conformity with all applicable laws, including all applicable state
labor standards, City zoning and development standards, building, plumbing, mechanical and
electrical codes, and all other provisions of the City Code, and all applicable disabled and
handicapped access requirements, including without limitation the Americans With Disabilities Act,
42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Section 8. Exterior Building Maintenance. All exterior, painted surfaces shall be
maintained at all times in a clean and presentable manner, free from chipping, cracking and defacing
marks. Any such defacing marks shall be cleaned or removed within a reasonable period of time as
set forth herein.
Section 9. Front and Side Exteriors. Owner shall at all times maintain the front
exterior and yard in a clean, safe and presentable manner, free from defacing marks or any disrepair
and any visible side exteriors. Owner shall hire maintenance personnel to maintain and/or repair any
front exterior or yard or visible side yard and exterior of any lot or building.
Section 10. Graffiti Removal. All graffiti, and defacement of any type, including marks,
words and pictures must be removed and any necessary painting or repair completed by the later to
occur of (i) seventy-two (72) hours of their creation or (ii) seventy-two (72) hours after notice to
Owner.
ATTACHMENT NO. 3-24
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Section 11. Driveways. All driveways must be paved and maintained with impervious
material in accordance with the City Code. In addition, all water must be made to drain freely to the
public part of the waterway without any pooling.
Section 12. Exterior Illumination. Owner shall at all times maintain adequate lighting
in all entrance ways, garages and parking areas. Adequate lighting means outdoor, night lighting
designed and installed, which provides no less than one (1.0) foot candles in the parking areas and no
less than one and one-half (1-1/2) foot candles in the walking areas or common areas and no less than
0.2 foot candles at the point of least illumination.
Section 13. Front Setbacks. All front setback areas that are not buildings, driveways or
walkways shall be adequately and appropriately landscaped in accordance with minimum standards
established by City and shall be maintained by Owner. The landscaping shall meet minimum
standards set from time to time by City.
Section 14. Trash Bins. All trash shall be collected and placed at all times in an
enclosable bin to be placed in a designated refuse/trash bin area. The designated area shall be located
so that the bin will, to the extent possible, be readily accessible from the street.
Section 15. Prohibited Signs. No exterior sign of any kind shall be displayed to the
public view on or from any portion of the 2002 Property without the approval of City and appropriate
City departments if any as required by the City Code.
ARTICLE IV
OBLIGATION TO MAINTAIN, REPAIR AND REBUILD
Section 1. Maintenance by Owner. Owner shall, at its sole cost and expense, maintain
and repair the 2002 Property and the improvements thereon keeping the same in a decent, safe and
sanitary manner, in accordance with the United States Department of Housing and Urban
Development (“HUD”) Uniform Physical Condition Standards (24 CFR 5.703 and as provided under
24 CFR 92.251(a)), and in good condition and making all repairs as they may be required by this
Regulatory Agreement and by all applicable City Code and Uniform Code provisions. Owner shall
also maintain the landscaping required to be planted in a healthy condition. If, at any time, Owner
fails to maintain the Rental Project or any portion thereof, and said condition is not corrected after
the expiration of forty-five (45) days from the date of written notice from City, then City may
perform the necessary maintenance and Owner shall pay such costs as are reasonably incurred for
such maintenance. Payment shall be due within fifteen (15) days of receipt of an invoice from City.
Section 2. Damage and Destruction Affecting Project - Owner’s Duty to Rebuild. If
all or any portion of the 2002 Property and the improvements thereon is damaged or destroyed by fire
or other casualty, it shall be the duty of Owner to rebuild, repair or reconstruct said portion of the
2002 Property and/or the improvements in a timely manner which will restore it to Code compliance
condition.
In furtherance of the requirements of this Section 2, Owner shall keep the construction on the
2002 Property insured by carriers at all times satisfactory to City against loss by fire and such other
hazards, casualties, liabilities and contingencies as included within an all risk extended coverage
hazard insurance policy, in an amount of the full replacement cost of the constructions. In the event
of loss, Owner shall give prompt notice to the insurance carrier and to City.
ATTACHMENT NO. 3-25
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If the 2002 Property is abandoned by Owner, or if Owner fails to respond to City within
thirty (30) days from the date notice is mailed by City to Owner that the insurance carrier offers to
settle a claim for insurance benefits, City is authorized to collect and apply the insurance proceeds at
City’s option either to restoration or repair of the 2002 Property.
Section 3. Variance in Exterior Appearance and Design. In the event the Rental
Project sustains substantial physical damage due to a casualty event, Owner may apply to the City for
approval to reconstruct, rebuild or repair in a manner which will provide different exterior
appearance and lot design from that which existed prior to the date of the casualty.
Section 4. Time Limitation. Upon damage to the 2002 Property or the Rental Project
or other improvements, Owner shall be obligated to proceed with all due diligence hereunder and
commence efforts to begin reconstruction within two (2) months after the damage occurs and
complete reconstruction within six (6) months after commencement of construction or demolition
and vacate within two (2) months, unless prevented by causes beyond their reasonable control, in
which event reconstruction shall be commenced at the earliest feasible time.
ARTICLE V
ENFORCEMENT
Section 1. Remedies. Breach of the covenants contained in the Regulatory Agreement
may be enjoined, abated or remedied by appropriate legal proceeding by City.
This Regulatory Agreement does not in any way infringe on the right or duties of the City to
enforce any of the provisions of the City Code including, but not limited to, the abatement of
dangerous buildings.
Section 2. Nuisance. The result of every act or omission whereby any of the covenants
contained in this Regulatory Agreement are violated in whole or in part is hereby declared to be and
constitutes a nuisance, and every remedy allowable at law or equity, against a nuisance, either public
or private, shall be applicable against every such result and may be exercised by any owner or its
successors in interest, without derogation of City’s rights under law.
Section 3. Right of Entry. In addition to the above general rights of enforcement, City
shall have the right through its agents and employees, to enter upon any part of the project area for
the purpose of enforcing the California Vehicle Code, and the ordinances and other regulations of
City, and for maintenance and/or repair of any or all publicly owned utilities. In addition, City has
the right of entry at reasonable hours and upon and after reasonable attempts to contact Owner, on
any lot to effect emergency repairs or maintenance which Owner has failed to perform. Subsequent
to sixty (60) days written notice to Owner specifically outlining Owner’s noncompliance, City shall
have the right of entry on the 2002 Property at reasonable hours to enforce compliance with this
Regulatory Agreement which Owner has failed to perform.
Section 4. Costs of Repair. The costs borne by City of any such repairs or maintenance
emergency and/or non-emergency, shall become a charge for which Owner shall be responsible.
Section 5. Cumulative Remedies. The remedies herein provided for breach of the
covenants contained in this Regulatory Agreement shall be deemed cumulative, and none of such
remedies shall be deemed exclusive.
ATTACHMENT NO. 3-26
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Section 6. Failure to Enforce. The failure to enforce any of the covenants contained in
this Regulatory Agreement shall not constitute a waiver of the right to enforce the same thereafter.
Section 7. Enforcement and Nonliability. City may from time to time make such
efforts, if any, as it shall deem appropriate enforce and/or assist in enforcing this Regulatory
Agreement. However, City will not be subject to any liability for failure to affirmatively enforce any
provision of this Regulatory Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Covenant Against Partition. By acceptance of its interest in the 2002
Property, Owner shall be deemed to covenant for itself and for its heirs, representatives, successors
and assigns, that it will not institute legal proceedings or otherwise seek to effect partition of its right
and interest in the interest being conveyed to Owner, or the burdens running with the land as a result
of this Regulatory Agreement.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions which shall remain in all force
and effect.
Section 3. Term. This Regulatory Agreement shall run with and bind the interest of
Owner in the 2002 Property, and shall inure to the owner(s) of any property subject to this
Regulatory Agreement, his legal representatives, heirs, successors and assigns, and be enforceable by
City, for a term equal to the Required Covenant Period as defined in the Amended 2002 Property
Agreement, provided; however, that the covenants regarding nondiscrimination set forth in Section 4
of Article II of this Regulatory Agreement shall remain in effect for perpetuity.
Section 4. Construction. The provisions of this Regulatory Agreement shall be
liberally construed to effectuate its purpose of creating a uniform plan for the development and
operation of rental housing available at Affordable Rent for Extremely Low Income Households,
Very Low Income Households, , as more particularly set forth herein. The article and Section
headings have been inserted for convenience only, and shall not be considered or referred to in
resolving questions of interpretation or construction.
Owner shall be obligated by this Regulatory Agreement to comply with the provisions
hereof.
Section 5. Amendments. This Regulatory Agreement may be amended only by the
written agreement of Owner (as to the affected properties) and City.
Section 6. Hold Harmless. In addition to the provisions regarding defense, indemnity,
or hold harmless as provided under the First Amendment, each Owner agrees to defend and to hold
City, and its officers, agents, employees, representatives, elected and appointed boards and officials
harmless from liability for damage or claims for any type of damage including, but not limited to,
personal injury and claims for property damage, which may arise from the activities of such Owner
or those of such Owner’s contractors, subcontractors, agents, employees or other persons acting on
such Owner’s behalf and which relate to the 2002 Property. Each Owner agrees to and shall defend
City, and its officers, agents, employees, representatives, elected and appointed boards and officials
ATTACHMENT NO. 3-27
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from any action for damages caused or alleged to have been caused by reason of such Owner’s
activities in connection with the 2002 Property, this Regulatory Agreement, or the First Amendment.
Section 7. Encroachments. None of the rights and obligations of Participant or 7
Arrow Properties created herein shall be altered in any way by encroachments due to settlement or
shifting of structures or any other cause. There shall be valid easements for the maintenance of said
encroachments so long as they shall exist; provided, however, that in no event shall a valid easement
for encroachment be created in favor of Owner if said encroachment occurs due to the willful
conduct of said Owner.
Section 8. Waivers. Failure by a Party to insist upon the strict performance of any of
the provisions of this Regulatory Agreement by another Party or the failure by a Party to exercise its
rights under or upon a default by another Party herein shall not constitute a waiver or a Party’s right
to demand strict compliance from such other Party or Parties in the future.
Section 9. Captions and Pronouns. The captions and headings of the various sections
of this Regulatory Agreement are for convenience only, and are not to be construed as confining or
limiting in any way the scope or intent of the provisions hereof. Whenever the context requires or
permits, the singular shall include the plural, the plural shall include the singular, and masculine,
feminine and neuter shall be freely interchangeable.
Section 10. Notices. Any notice permitted or required to be delivered as provided herein
to Participant, 7 Arrow Properties or other Owner shall be in writing and may be delivered either
personally or by certified mail. Notice to City shall be made by certified mail to the CED Director or
his designee at 300 N. “D” Street, Third Floor, San Bernardino, California 92401-1734 (with a copy
to Stradling Yocca Carlson & Rauth, Attention: Mark J. Huebsch, 660 Newport Center Drive, Suite
1600, Newport Beach, California 92660), and shall be effective upon receipt. Notice to Owner shall
be made by certified mail to such Owner at the address provided to City by such Owner. As of the
date of this Regulatory Agreement, the address for notice of Participant is 10606 Trademark Pkwy
No., #210A, Rancho Cucamonga, California 91703, and the address for notice to 7 Arrow Properties
is 233 Harrison Avenue, Claremont, California 91711-4324; such notice shall be effective upon
receipt or, if earlier, within seven (7) calendar days from the date notice is transmitted by a Party to
an Owner at the address of record for such Owner as communicated to the City. Such address may
be changed from time to time by notice in writing.
ATTACHMENT NO. 3-28
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CITY OF SAN BERNARDINO,
a municipal corporation
By:
Andrea M. Miller, City Manager
ATTEST:
By:
Georgeann Hanna, City Clerk
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By: ________________________________
Name: ________________________________
7 ARROW PROPERTIES:
By: 7 ARROW PROPERTIES LLC, a California
limited liability company
By: 7 Arrow Properties, a California nonprofit
public benefit corporation
By: ______________________________________
Name:
Authorized Signatory
ATTACHMENT NO. 3-29
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
THE PORTION OF LOTS 1 AND 2, BLOCK 71, OF THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SAID LOT 2 WITH THE EAST LINE OF
CRESCENT AVENUE, (FORMERLY MYERS STREET), IN SAID BLOCK; THENCE SOUTH ALONG THE
EAST LINE OF SAID CRESCENT AVENUE, 112.5 FEET TO A POINT MIDWAY BETWEEN THE NORTH
AND SOUTH LINES OF THE SOUTH ONE-HALF OF THE NORTH ONE-HALF OF SAID LOTS 1 AND 2,
THENCE EAST 137.5 FEET; THEN NORTH 112.5 FEET TO THE NORTH LINE OF SAID LOT 1; THENCE
WEST 137.5 FEET TO THE POINT OF BEGINNING.
APN 0140-134-23-0-000
951 Crescent Street
THE EAST 50.00 FEET OF THAT PORTION OF LOT 4 BLOCK 33, SAN BERNARDINO, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 7, PAGE 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT POINT ON THE NORTH LINE OF WABASH STREET, 60.00 FEET WIDE, SAID POINT
BEING 161.15 FEET EAST OF THE WEST LINE OF SAID LOT 4; THENCE NORTH 150.00 FEET; THENCE
EAST 100.00 FEET; THEN SOUTH 150.00 FEET TO THE NORTH LINE OF SAID WABASH STREET;
THENCE WEST ALONG THE NORTH LINE OF SAID WABASH STREET, 100.00 FEET TO THE POINT OF
BEGINNING.
APN 0146-163-31
162 West Wabash Street
THE SOUTH 50 FEET OF THE NORTHERLY 100 FEET OF PORTION OF LOT 5, BLOCK 33 OF RANCHO
SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, ASP PER MAP RECORDED IN BOOK 7, PAGES(S) 2, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 41.25 FEET EAST AND 17.78 FEET NORTH OF THE SOUTHWEST CORNER OF
LOT 5, BEING THE NORTHEAST CORNER OF 13TH STREET AND “B” STREET (NOW MOUNTAIN
VIEW); THENCE NORTH 308.97 FEET ALONG THE EAST LINE OF B STREET TO THE SOUTH LINE OF A
60 FOOT STREET; THENCE EAST PARALLEL TO THE SOUTH LINE OF SAID LOT 5, 119.9 FEET TO AN
IRON PIPE; THEN SOUTH PARALLEL WITH THE EAST LINE OF B STREET, 308.97 FEET TO THE
NORTH LINE OF 13TH STREET; THENCE WEST ALONG THE NORTH LINE 13TH STREET, 119.9 FEET
TO THE POINT OF BEGINNING.
APN 0146-193-24
1331 North Mountain View Avenue
EXHIBIT “A” TO ATTACHMENT NO. 3-1
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EXHIBIT B
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
Date: , 201_
The following information contained in this Certificate of Continuing Program Compliance
(“Certificate”) with respect to the _____________ (__) rental units located at
______________________ [list addresses] (the “Sites”), is being provided by
_______________________ (the “Owner”) as the owner of the Sites to the City of San Bernardino
(the “City”) pursuant to that certain unrecorded First Amendment to HOME Agreements by and
among Frazee Community Center, Inc., 7 Arrow Properties LLC, and the City dated as of March 1,
2019 (the “First Amendment”), and that Restated 2002 Properties Regulatory Agreement (the
“Regulatory Agreement”) as described in in the First Amendment. All capitalized terms not defined
herein shall have the respective meanings set forth therefor in the First Amendment and, if not
defined therein, the Regulatory Agreement:
(A) The total number of Required Affordable Units residential units which are completed,
habitable, and available for occupancy is __. The total number of such units occupied is
__________.
(B) The following residential units are considered to be occupied by Eligible Households
based on the information set forth below:
Number of
Units/Address
Unit
Size
Date Unit
Became
Available
Name of
Tenant
Number
of
Persons
Residing
in Unit Ethnicity
Total
Adjusted
Gross
Income
Initial
Occupancy
Date
(C) The Owner has obtained a “Certification of Tenant Eligibility” in the form prescribed
or previously approved by the City, from each Tenant named in (B) above, and each such
Certification is being maintained by the Owner in its records with respect to the Sites. Attached
hereto is the most recent “Certification of Tenant Eligibility” for each Tenant named in (B).
EXHIBIT “B” TO ATTACHMENT NO. 3-1
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(D) In renting the residential units at the Sites, the Owner has not given preference to any
particular group or class of persons (except for persons who qualify as HOME Eligible Households);
and none of the units listed in (D) above have been rented for occupancy entirely by students, no one
of which is entitled to file a joint return for federal income tax purposes. All of the residential units
at the Sites have been rented pursuant to a written lease, and the term of each lease is at least
__________ months.
(E) The information provided in this Certificate is accurate and complete, and no matters
have come to the attention of the Owner which would indicate that any of the information provided
herein, or in any “Certification of Tenant Eligibility” obtained from the Tenants named herein, is
inaccurate or incomplete in any respect.
EXHIBIT “A” TO ATTACHMENT NO. 3-2
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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Packet Pg. 273 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
13.b
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ATTACHMENT NO. 4
PRIVATE PURCHASE AND SALE AGREEMENTS
[to come: a copy of each of the Arrowhead Private Party Purchase Agreement and the Wabash
Private Party Purchase Agreement]
ATTACHMENT NO. 4-1
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ATTACHMENT NO. 5
PARTICIPANT CERTIFICATE
_______________ __, 2019 (the “Date of Certificate”)
City of San Bernardino
Attention: CED Director
290 North “D” Street, Third Floor
San Bernardino, California 92401-1734
Re: First Amendment to HOME Agreements by and among the City of San Bernardino (“City”),
Frazee Community Center, a California non-profit corporation (“Participant”), and 7 Arrow
Properties LLC, a California limited liability company (“7 Arrow Properties”), dated as of
April 1, 2019 (the “First Amendment”)
Ladies and Gentlemen:
The undersigned as Participant under the First Amendment does hereby state, declare, certify,
represent and warrant to the City of San Bernardino (the “City”), which is the successor to the
housing activities and assets of the Redevelopment Agency of the City of San Bernardino (“Former
Agency”) for all purposes of the First Amendment as well as the 2002 Agreement and the 2004
Agreement, and to the officers, agents and employees of the City as follows:
1. Participant has reviewed, executed and is familiar with the terms of the First
Amendment. All capitalized terms herein shall have the meanings established therefor in the First
Amendment, including for this purpose the Restated 2002 Properties Regulatory Agreement and the
2004 Properties Regulatory Agreement (unless not defined therein, in which event capitalized terms
shall have the respective meanings set forth herein; if not defined in the First Amendment or herein,
capitalized terms shall have the respective meanings established therefor in the 2002 Agreement and
the 2004 Agreement as applicable).
2. Each of the First Amendment, the 2002 Agreement and the 2004 Agreement (as the
2002 Agreement and the 2004 Agreement are modified by the First Amendment) is in full force and
effect and, as modified by the First Amendment, shall remain in full force and effect.
3. As of the First Amendment Date, each parcel comprising the Site is subject to
covenants recorded among the official land records of the County Recorder of the County of San
Bernardino which restrict the use of the Site to rental housing that is restricted to occupancy by
households at certain income levels and at rents which do not exceed affordable rents as provided
under the 2002 Agreement and the 2004 Agreement.
4. All of the insurance policies required by Section 9 of the First Amendment are in full
force and effect.
5. The Required Affordable Units shall be occupied in accordance with the First
Amendment and, as modified by the First Amendment, the 2002 Agreement and the 2004
Agreement.
ATTACHMENT NO. 5-1
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6. The representations and warranties of Participant contained in the First Amendment
are true and correct as of the Date of Certificate.
7. Except as affirmatively described in the First Amendment, no event of default by
Participant has occurred under one or more of the 2002 Agreement, the 2004 Agreement, or the First
Amendment and no event hall have occurred which, with the giving of notice or the passage of time
or both, would constitute an event of default by Participant under one or more of the 2002
Agreement, the 2004 Agreement, or the First Amendment.
8. Participant has not, prior to the Date of Certificate, transferred the 2002 Agreement,
the 2004 Agreement, the First Amendment, the Site or any portion thereof, or any rights of
Participant therein.
9. Participant affirms that Section 10 of the First Amendment shall survive closing,
including without limitation the provisions thereof under which Participant shall defend, indemnify
and hold harmless the City from any claims, losses, liabilities, and damages as set forth in Section 10
and/or in connection with the design and/or construction of the Improvements and/or the effect of
liens or stop notices.
10. Participant has received no notice from any governmental agency that there are
Hazardous Materials on the Site and is not aware of the presence of Hazardous Materials on the Site
in excess of amounts permitted by law.
11. Participant is operating and in good standing as a qualified limited partnership under
the laws of the State of California and as reflected in the records of the California Secretary of State.
12. Participant remakes to City each and every representation and/or warranty made to
City or Former Agency under the 2002 Agreement, the 2004 Agreement, and/or the First
Amendment.
Participant executes this Participant Certificate for the benefit and protection of City with full
knowledge that City is relying on this Participant Certificate in consenting to the conveyance of
Disposition Parcels by Participant to 7 Arrow Properties under the First Amendment.
IN WITNESS WHEREOF, the undersigned, as Participant, has executed this Participant
Certificate as of the date first written above.
PARTICIPANT
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By: __________________________________
Name: ________________________________
Title: _________________________________
ATTACHMENT NO. 5-2
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ATTACHMENT NO. 6
MASTER DEED OF TRUST
WHEN RECORDED MAIL TO:
City of San Bernardino
300 N. “D” Street, Third Floor
San Bernardino, California 92401-1734
Attention: Georgeann Hanna, City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
(This document is exempt from the payment of a recording fee
pursuant to Government Code Section 27383.)
APNs:
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST is made as of ____________ __, 2019 by and among FRAZEE
COMMUNITY CENTER, INC., a California nonprofit public benefit corporation, herein called
TRUSTOR, whose address is 10606 Trademark Pkwy, No., #210A, Rancho Cucamonga, California
91730, [to come: name of title insurer], herein called TRUSTEE, and the CITY OF SAN
BERNARDINO, a municipal corporation and charter city herein called BENEFICIARY or CITY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property
(the “Property”) in the City of San Bernardino, County of San Bernardino, State of California,
described as:
SEE EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF.
together with the rents, issues and profits thereof, subject, however, to the right, power and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits
for the purpose of securing (1) that certain Promissory Note more particularly described below,
ATTACHMENT NO. 6-1
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executed and delivered pursuant to an unrecorded agreement entitled “First Amendment to HOME
Agreements” by and among Trustor, Beneficiary, and 7 Arrow Properties LLC, a California limited
liability company (“7 Arrow Properties”) dated as of April 1, 2019 (the “Agreement”; a copy of the
Agreement is on file with the Beneficiary as a public record). All capitalized terms not defined
herein shall have the meanings established therefore under the Agreement unless the context requires
otherwise. This Deed of Trust secures payment under that certain promissory note of even date
hereof, made by Trustor in favor of Beneficiary (the “Promissory Note”), and extensions or renewals
thereof, in the principal sum of U.S. $720,026.80, with the balance of the indebtedness, due and
payable on occurrence of an event of acceleration as defined in the Promissory Note, (2) the
affordability requirements as set forth in Exhibit “B” hereto, (3) the performance under the
Agreement (including without limitation the attachments thereto) and under each agreement of
Trustor incorporated by reference or contained herein (including without limitation the “Restated
2004 Properties Regulatory Agreement” [as defined in the Agreement]), and (4) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor, or his/her successors
or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed
of Trust. Exhibits “B” and “C” are attached hereto and incorporated herein by reference.
To protect the security of this Deed of Trust, and with respect to the property above
described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform
and be bound by each and all of the terms and provisions set forth in subdivision A, and it is mutually
agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of
trust recorded in San Bernardino County on August 18, 1964, at Book 6213, Page 768, shall inure to
and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3
and 4 hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of
Trust for all purposes as fully as set forth at length herein, and Beneficiary may charge for a
statement regarding the obligation secured hereby, provided the charge therefor does not exceed the
maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale
hereunder be mailed to him/her at his/her address hereinbefore set forth.
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By: __________________________________
Name: __________________________________
ATTACHMENT NO. 6-2
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EXHIBIT “A” TO DEED OF TRUST
LEGAL DESCRIPTION
Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.15 FEET OF LOT 3, BLOCK 33,
RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7, PAGE 2, OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-163-43-0-000
1441-1443 NORTH MOUNTAIN VIEW AVENUE
LOT 3 OF TRACT NO. 1957, KIMMEL’S MAGNOLIA TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 55, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THE
EAST 5.00 FEET THEREOF.
APN 0146-163-02-0-000
1495 NORTH MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
LOT 11, OF TRACT NO. 1785 OF THE NIECE SUBDIVISION, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26,
PAGE 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-132-18-0-000
1501-1503 NORTH PERSHING AVENUE
THE PORTION OF LOTS 1 AND 2, BLOCK 71, OF THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SAID LOT 2 WITH THE EAST LINE OF
CRESCENT AVENUE, (FORMERLY MYERS STREET), IN SAID BLOCK; THENCE SOUTH ALONG THE
EAST LINE OF SAID CRESCENT AVENUE, 112.5 FEET TO A POINT MIDWAY BETWEEN THE NORTH
AND SOUTH LINES OF THE SOUTH ONE-HALF OF THE NORTH ONE-HALF OF SAID LOTS 1 AND 2,
THENCE EAST 137.5 FEET; THEN NORTH 112.5 FEET TO THE NORTH LINE OF SAID LOT 1; THENCE
WEST 137.5 FEET TO THE POINT OF BEGINNING.
APN 0140-134-23-0-000
951 Crescent Street
THE SOUTH 50 FEET OF THE NORTHERLY 100 FEET OF PORTION OF LOT 5, BLOCK 33 OF RANCHO
SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, ASP PER MAP RECORDED IN BOOK 7, PAGES(S) 2, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
EXHIBIT “A” TO ATTACHMENT NO. 6-1
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BEGINNING AT A POINT 41.25 FEET EAST AND 17.78 FEET NORTH OF THE SOUTHWEST CORNER OF
LOT 5, BEING THE NORTHEAST CORNER OF 13TH STREET AND “B” STREET (NOW MOUNTAIN
VIEW); THENCE NORTH 308.97 FEET ALONG THE EAST LINE OF B STREET TO THE SOUTH LINE OF A
60 FOOT STREET; THENCE EAST PARALLEL TO THE SOUTH LINE OF SAID LOT 5, 119.9 FEET TO AN
IRON PIPE; THEN SOUTH PARALLEL WITH THE EAST LINE OF B STREET, 308.97 FEET TO THE
NORTH LINE OF 13TH STREET; THENCE WEST ALONG THE NORTH LINE 13TH STREET, 119.9 FEET
TO THE POINT OF BEGINNING.
APN 0146-193-24
1331 North Mountain View Avenue
ATTACHMENT NO. 6-2
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EXHIBIT “B”
(RIDER TO DEED OF TRUST)
This Rider to Deed of Trust is made and delivered pursuant to and in implementation of that
certain unrecorded agreement entitled “First Amendment to HOME Agreements” entered into by and
among the Trustor, the Beneficiary, and 7 Arrow Properties LLC, a California limited liability
company (“7 Arrow Properties”) dated as of April 1, 2019 (the “Agreement”), a copy of which is on
file as a public record with the Beneficiary at 300 N. “D” Street, Third Floor, San Bernardino,
California 92401-1734 and is incorporated herein by reference. Unless definitions of terms have
been expressly set out at length herein, each term shall have the same definition as set forth in the
Agreement. Trustor and Beneficiary further covenant and agree as follows:
1. Acceleration of Payment; Events of Acceleration. In addition to those other events
of acceleration incorporated by reference into the Deed of Trust, the whole of the Note Amount and
all other payments due hereunder and under the Agreement shall, at the election of the City, become
due and immediately payable to the Beneficiary by the Trustor upon the occurrence of any one of the
following events: (a) the sale or transfer of the Property, including, without limitation, the lease,
exchange or other disposition of the Property or any interest therein, whether voluntary or
involuntary, except (i) the rental of individual dwelling units to occupants consistent with the
Agreement and the Restated 2004 Properties Regulatory Agreement, or (iii) a sale or transfer which
under applicable law would not, by itself, permit the Beneficiary to exercise a due on sale or due on
encumbrance clause, or (b) the refinancing of the lien of a deed of trust senior to this deed of trust for
a loan amount in excess of the sum of the then current loan balance secured by such senior lien and
loan closing costs, or (c) such time as the Property is not operated in conformity with the Agreement,
including without limitation the Restated 2004 Properties Regulatory Agreement or Trustor is in
default of any other obligation under the Agreement and/or the Restated Properties Regulatory
Agreement.
IN WITNESS WHEREOF, Trustor has executed this Rider to Deed of Trust as of the date
first set forth above.
TRUSTOR
FRAZEE COMMUNITY CENTER, INC., a
California nonprofit public benefit corporation
By:
By:
Its:
EXHIBIT “B” TO ATTACHMENT NO. 6-1
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EXHIBIT “C”
RIDER TO DEED OF TRUST
Exhibit C to Deed of Trust with Assignment of Rents dated as of April 1, 2019, executed by
Frazee Community Center, Inc., a California nonprofit public benefit corporation (“Trustor”) to [to
come: name of title insurer], as Trustee, for the benefit of City of San Bernardino, a municipal
corporation and charter city, as “Beneficiary” (“Deed of Trust”).
1. DEFAULT – OTHER DEEDS OF TRUST, REGULATORY AGREEMENT, AND
AGREEMENT. A default under any of the following shall, at Beneficiary’s option,
constitute a default under this Deed of Trust:
(a) A default under that certain unrecorded agreement entitled First Amendment to
HOME Agreements” (“Agreement”) dated as of April 1, 2019, by and among
Trustor, Beneficiary, and 7 Arrow Properties LLC, a California limited liability
company (“7 Arrow Properties”) or any breach under the Note (all capitalized terms
not defined herein shall have the meanings established therefore under the
Agreement). A copy of the Agreement is on file with Beneficiary as a public record;
(b) A default under any other deed of trust encumbering the property which has a priority
senior to this Deed of Trust; or
(c) A default under the “Restated 2004 Properties Regulatory Agreement” (as executed
and recorded pursuant to the Agreement).
2. NON-IMPAIRMENT. Except as supplemented and/or modified by this Deed of Trust, all
of the terms, covenants and conditions of the Other Deeds of Trust and the other loan
documents executed in connection therewith shall remain in full force and effect.
3. DUE ON SALE OR ENCUMBRANCE. In the event of any Transfer (as defined below) of
the Property, or any portion thereof or interest therein, Beneficiary shall have the absolute
right at its option, without prior demand or notice, to declare all sums secured hereby
immediately due and payable. As used herein, the term “Transfer” means and includes the
direct or indirect sale, transfer, conveyance, mortgage, further encumbrance, assignment, or
other alienation of the Property, or any portion thereof or interest therein, whether voluntary,
involuntary, by operation of law or otherwise, the execution of any installment land sale
contract, sales agreement or similar instrument affecting all or a portion of the Property,
granting of an option to purchase any portion of or interest in the Property or any interest
therein, or the lease of all or substantially all of the Property or of all or substantially all of
the improvements situated on the Property. “Transfer” shall not include the leasing of
individual dwelling units on the Property so long as Trustor complies with the provisions of
the Agreement relating to such leasing activity. Failure of Beneficiary to exercise the option
to declare all sums secured hereby immediately due and payable upon a Transfer will not
constitute waiver of the right to exercise this option in the event of any subsequent Transfer.
EXHIBIT “C” TO ATTACHMENT NO. 6-1
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CERTIFICATE OF ACCEPTANCE
This is to certify that the fee interest in real property conveyed under the foregoing Deed of Trust by
Frazee Community Center, Inc., a California nonprofit public benefit corporation, to the City of San
Bernardino (the “City”) as to the following property: The land referred to herein is situated in the
State of California, County of San Bernardino, described as follows:
Real property in the City of San Bernardino, County of San Bernardino, State of California,
described as follows:
[to come: legal description of the Retained Parcels].
APN:
is hereby accepted by the City Manager of the City on behalf of the City pursuant to authority
conferred by action of the City Council as governing board of the City by its Resolution No. __, and
the Grantee consents to recordation thereof by its duly authorized officer.
CITY OF SAN BERNARDINO
Dated: ________________, 201_ By:
Andrea M. Miller
Its: City Manager
ATTACHMENT NO. 6-2
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
13.b
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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ATTACHMENT NO. 7
MEMORANDUM OF AGREEMENT
Requested By and
When Recorded Return To:
City of San Bernardino
Attention:
290 North “D” Street, Third Floor
San Bernardino, California 92401-1734
Attention: Executive Director
This document is exempt from the payment of a
recording fee pursuant to Government Code
Section 6103.
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (“Memorandum”), dated as of __________
__, 2019, is entered into by and among the CITY OF SAN BERNARDINO, a municipal corporation
and charter city (“City”), FRAZEE COMMUNITY CENTER, INC., a California nonprofit public
benefit corporation (“Participant”), and 7 ARROW PROPERTIES LLC, a California limited liability
company (“7 Arrow Properties”).
1. First Amendment to HOME Agreements. City, Participant, and 7 Arrow
Properties have entered into an unrecorded instrument entitled “First Amendment to HOME
Agreements” dated as of April 1, 2019 (the “First Amendment”); a copy of the First Amendment is
on file with the City as a public record.
2. Prior Agreements and Certain Related Instruments. City is the successor in
interest to the housing assets of the Redevelopment Agency of the City of San Bernardino (“Former
Agency”). Former Agency and Participant previously entered into an unrecorded agreement entitled
“Frazee Community Center, 2002 HOME-Community Housing Development Organization (CHDO)
Loan Agreement” dated as of January 7, 2002 (the “2002 Agreement”) and a second agreement
entitled “Frazee Community Center, 2004 HOME-Community Housing Development Organization
(CHDO) Loan Agreement” dated as of July 19, 2004 (the “2004 Agreement”). A copy of each of the
2002 Agreement and the 2004 Agreement is on file with the City as a public record. The 2002
Agreement and the 2004 Agreement are collectively referred to herein as the “Original Agreements.”
ATTACHMENT NO. 7-1
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3. Original Agreements Amended. The Original Agreements have been substantively
amended as more particularly provided in the First Amendment. The First Amendment affects that
certain property described in Exhibit “A” hereto. The First Amendment, which is on file as a public
record with the City at its offices, is deemed to be incorporated herein.
4. Purpose of Memorandum. This Memorandum is prepared for recordation purposes
only, and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In
the event of any inconsistency between the terms, conditions, provisions and covenants of this
Memorandum and the Agreement, the terms, conditions, provisions and covenants of the Agreement
shall prevail.
PARTICIPANT:
FRAZEE COMMUNITY CENTER, INC.
a California nonprofit public benefit corporation
By:
Name:
Title:
CITY:
CITY OF SAN BERNARDINO,
a municipal corporation and charter city
By:
City Manager
7 ARROW PROPERTIES:
7 ARROW PROPERTIES LLC, a California
limited liability company
By: 7 Arrow Properties, a California nonprofit
public benefit corporation
By: ______________________________________
Name:
Authorized Signatory
ATTACHMENT NO. 7-2
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EXHIBIT “A”
LEGAL DESCRIPTION
Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.15 FEET OF LOT 3, BLOCK 33,
RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7, PAGE 2, OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-163-43-0-000
1441-1443 NORTH MOUNTAIN VIEW AVENUE
LOT 3 OF TRACT NO. 1957, KIMMEL’S MAGNOLIA TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 55, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THE
EAST 5.00 FEET THEREOF.
APN 0146-163-02-0-000
1495 NORTH MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
LOT 10, BLOCK “B”, EDELEN TRACT, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 5 OF MAPS, PAGE 35,
RECORDS OF SAID COUNTY.
APN 0146-162-22-000
1379 NORTH ARROWHEAD AVENUE
LOT 11, OF TRACT NO. 1785 OF THE NIECE SUBDIVISION, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26,
PAGE 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN 0146-132-18-0-000
1501-1503 NORTH PERSHING AVENUE
THE PORTION OF LOTS 1 AND 2, BLOCK 71, OF THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 1, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SAID LOT 2 WITH THE EAST LINE OF
CRESCENT AVENUE, (FORMERLY MYERS STREET), IN SAID BLOCK; THENCE SOUTH ALONG THE
EAST LINE OF SAID CRESCENT AVENUE, 112.5 FEET TO A POINT MIDWAY BETWEEN THE NORTH
AND SOUTH LINES OF THE SOUTH ONE-HALF OF THE NORTH ONE-HALF OF SAID LOTS 1 AND 2,
THENCE EAST 137.5 FEET; THEN NORTH 112.5 FEET TO THE NORTH LINE OF SAID LOT 1; THENCE
WEST 137.5 FEET TO THE POINT OF BEGINNING.
APN 0140-134-23-0-000
951 Crescent Street
EXHIBIT “A” TO ATTACHMENT NO. 7-1
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THE EAST 50.00 FEET OF THAT PORTION OF LOT 4 BLOCK 33, SAN BERNARDINO, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 7, PAGE 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT POINT ON THE NORTH LINE OF WABASH STREET, 60.00 FEET WIDE, SAID POINT
BEING 161.15 FEET EAST OF THE WEST LINE OF SAID LOT 4; THENCE NORTH 150.00 FEET; THENCE
EAST 100.00 FEET; THEN SOUTH 150.00 FEET TO THE NORTH LINE OF SAID WABASH STREET;
THENCE WEST ALONG THE NORTH LINE OF SAID WABASH STREET, 100.00 FEET TO THE POINT OF
BEGINNING.
APN 0146-163-31
162 West Wabash Street
THE SOUTH 50 FEET OF THE NORTHERLY 100 FEET OF PORTION OF LOT 5, BLOCK 33 OF RANCHO
SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, ASP PER MAP RECORDED IN BOOK 7, PAGES(S) 2, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 41.25 FEET EAST AND 17.78 FEET NORTH OF THE SOUTHWEST CORNER OF
LOT 5, BEING THE NORTHEAST CORNER OF 13TH STREET AND “B” STREET (NOW MOUNTAIN
VIEW); THENCE NORTH 308.97 FEET ALONG THE EAST LINE OF B STREET TO THE SOUTH LINE OF A
60 FOOT STREET; THENCE EAST PARALLEL TO THE SOUTH LINE OF SAID LOT 5, 119.9 FEET TO AN
IRON PIPE; THEN SOUTH PARALLEL WITH THE EAST LINE OF B STREET, 308.97 FEET TO THE
NORTH LINE OF 13TH STREET; THENCE WEST ALONG THE NORTH LINE 13TH STREET, 119.9 FEET
TO THE POINT OF BEGINNING.
APN 0146-193-24
1331 North Mountain View Avenue
ATTACHMENT NO. 7-2
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
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Packet Pg. 291 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
13.b
Packet Pg. 292 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
___________________________________________________________
Title(s)
___________________________________________________________
Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: _____________________________________
Signer is representing:
Name Of Person(s) Or Entity(ies)
___________________________________________________________
___________________________________________________________
___________________________________________________________
Number Of Pages
___________________________________________________________
Date Of Documents
___________________________________________________________
Signer(s) Other Than Named Above
13.b
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ATTACHMENT NO. 8
RELEASE AND RECONVEYANCE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of San Bernardino
290 North “D” Street, Third Floor
San Bernardino, CA 92401-1734
Attention: CED Director
APN: [to come] Space Above This Line for Recorder
SUBSTITUTION OF TRUSTEE AND FULL RECONVEYANCE
The City of San Bernardino, a municipal corporation and charter city (“City”) is the housing
successor agency to the Redevelopment Agency of the City of San Bernardino (“Former Agency”)
with respect to that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing dated as of _______ __, 2___ with respect to property as described therein (the “Property”) as
to which ______________________, a _______________________ (“Owner”), as recorded on
__________ __, 2___ as Document No. 20__-_______ (the “Deed of Trust”) among the official land
records in the office of the County Recorder of San Bernardino County, California, showing as
beneficiary the Former Agency. City, as the housing successor entity to the Former Agency, holds
all interest of the Former Agency under the Deed of Trust. The City is being substituted as the
trustee under the Deed of Trust; the Deed of Trust is to be reconveyed, without warranty, to “the
person or persons legally entitled thereto,” and affects that estate held by Owner or its successors in
interests to the property previously made subject to the Deed of Trust.
The City hereby accepts said appointment as Trustee under the Deed of Trust and, as
successor Trustee pursuant to the request of the City (in its capacity as holder of the promissory note
secured thereby) and in accordance with the provisions of the Deed of Trust does hereby reconvey
without warranty to the person or persons legally entitled thereto all estate now held by it under the
Deed of Trust.
(signature on following page)
ATTACHMENT NO. 8-1
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CITY OF SAN BERNARDINO
Name: Andrea M. Miller
Title: City Manager
ATTACHMENT NO. 8-2
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Packet Pg. 295 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO ________ )
On ___________________ before me, ____________________________________, Notary Public,
personally appeared _____________________________________________________, who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
ATTACHMENT NO. 8-3
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ATTACHMENT NO. 9
7 ARROW PROPERTIES CERTIFICATE
_______________ __, 2018 (the “Date of Certificate”)
City of San Bernardino
Attention: CED Director
290 North “D” Street, Third Floor
San Bernardino, California 92401-1734
Re: First Amendment to HOME Agreements by and among the City of San Bernardino (“City”),
Frazee Community Center, a California nonprofit public benefit corporation (“Participant”),
and 7 Arrow Properties LLC, a California limited liability company (“7 Arrow Properties”),
dated as of April 1, 2019 (the “First Amendment”)
Ladies and Gentlemen:
The undersigned as 7 Arrow Properties under the First Amendment does hereby state,
declare, certify, represent and warrant to the City of San Bernardino (the “City”), which is the
successor to the Redevelopment Agency of the City of San Bernardino (the “Former Agency”) for all
purposes of the First Amendment as well as the 2002 Agreement and the 2004 Agreement, and to the
officers, agents and employees of the City as follows:
1. 7 Arrow Properties has reviewed, executed and is familiar with the terms of the First
Amendment (including without limitation the attachments thereto), as well as the 2002 Agreement,
the 2004 Agreement, and the Private Party Purchase and Sale Agreements. All capitalized terms
herein shall have the meanings established therefor in the First Amendment including for this
purpose the Restated 2002 Properties Regulatory Agreement and the 2004 Properties Regulatory
Agreement (unless not defined therein, in which event capitalized terms shall have the respective
meanings set forth herein; if not defined in the First Amendment or herein, capitalized terms shall
have the respective meanings established therefor in the 2002 Agreement and the 2004 Agreement as
applicable).
2. Insofar as these pertain to the Disposition Parcels, 7 Arrow Properties agrees that
each of the First Amendment, the 2002 Agreement and the 2004 Agreement (as the 2002 Agreement
and the 2004 Agreement are modified by the First Amendment) is in full force and effect and, as
modified by the First Amendment, shall remain in full force and effect following the Disposition
Conveyances.
3. All of the insurance policies required by Section 9 of the First Amendment, insofar as
these are to be provided as to the Disposition Parcels, shall be in full force and effect as of the
occurrence of the Disposition Conveyances.
4. 7 Arrow Properties shall cause the Disposition Parcels to be operated in conformity
with the Restated 2002 Properties Regulatory Agreement and, insofar as it pertains to the Disposition
Parcels, the First Amendment and, to the extent applicable to the Disposition Parcels and as modified
by the First Amendment, the 2002 Agreement and the 2004 Agreement.
ATTACHMENT NO. 9-1
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Packet Pg. 297 Attachment: CED.HOME Assisted Properties.Frazee Properties Sale.Att 1 (6035 : Sale of HOME- Assisted Properties)
5. The representations and warranties of 7 Arrow Properties contained in the First
Amendment are true and correct as of the Date of Certificate.
6. No event of default by Participant has occurred under the First Amendment and no
event hall have occurred which, with the giving of notice or the passage of time or both, would
constitute an event of default by 7 Arrow Properties under the First Amendment.
7. 7 Arrow Properties has not, prior to the Date of Certificate transferred the First
Amendment, the Disposition Parcels, or any rights of 7 Arrow Properties therein.
8. Participant affirms that Section 10 of the First Amendment shall survive closing,
including without limitation the provisions thereof under which 7 Arrow Properties shall defend,
indemnify and hold harmless City from any claims, losses, liabilities, and damages as set forth in
Section 10 and/or in connection with the design and/or construction of the Improvements and/or the
effect of liens or stop notices.
9. 7 Arrow Properties has received no notice from any governmental agency that there
are Hazardous Materials on the Disposition Parcels and is not aware of the presence of Hazardous
Materials on the Disposition Parcels in excess of amounts permitted by law.
10. 7 Arrow Properties is operating and in good standing as a limited liability company
under the laws of the State of California and as reflected in the records of the California Secretary of
State.
11. 7 Arrow Properties remakes to City each and every representation and/or warranty
made to City under the First Amendment.
7 Arrow Properties executes this 7 Arrow Properties Certificate for the benefit and protection
of City with full knowledge that City is relying on this Participant Certificate in consenting to the
conveyance of the Disposition Parcels by Participant to 7 Arrow Properties.
IN WITNESS WHEREOF, the undersigned, as 7 Arrow Properties, has executed this 7
Arrow Properties Certificate as of the date first written above.
7 ARROW PROPERTIES:
By: 7 ARROW PROPERTIES LLC, a California
limited liability company
By: 7 Arrow Properties, a California nonprofit
public benefit corporation
By: ______________________________________
Name:
Authorized Signatory
ATTACHMENT NO. 9-2
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ATTACHMENT NO. 10
MASTER PROMISSORY NOTE
PARTICIPANT NOTE
PROMISSORY NOTE SECURED BY DEED OF TRUST
[$720,026.80] San Bernardino, California ______________, 2019
FOR VALUE RECEIVED, FRAZEE COMMUNITY CENTER, INC., a California nonprofit
public benefit corporation (the “Participant” or “Maker”), promises to pay to the San Bernardino
Housing City, a municipal corporation and charter city (the “City” or “Holder”), at its offices at 300
N. “D” Street, Third Floor, San Bernardino, California 92401-1734, or at such other place as City
may from time to time designate in writing, (a) the principal sum of [Nine Hundred Sixty Seven
Thousand Two Hundred Three Dollars and Eighty Cents ($720,026.80)]; and (b) all costs and
expenses payable hereunder. All amounts payable hereunder together constitute the “Note Amount.”
R E C I T A L S
A. This Promissory Note (the “Note”) is made pursuant to that certain unrecorded First
Amendment to HOME Agreements by and among Maker, Holder, and 7 Arrow Properties LLC (“7
Arrow Properties”) dated as of April 1, 2019 (the “First Amendment”).
B. Capitalized terms not described herein shall have the meanings ascribed to them in
the First Amendment.
NOW, THEREFORE, Participant agrees as follows:
1. Agreement. The principal sums hereunder have been loaned by the Redevelopment
Agency of the City of San Bernardino (the “Former Agency”), and City, as the housing successor
entity to all housing assets of the Former Agency (including without limitation those amounts
previously loaned by the Former Agency to Participant or its predecessors in interest), is entitled to
receive payments hereunder in accordance with and pursuant to the First Amendment, which is a
public record on file in the office of the City Clerk of the City. The terms of the First Amendment
are incorporated herein and made a part hereof to the same extent and with the same force and effect
as if fully set forth herein. A breach under any of the provisions of the First Amendment shall be a
default hereunder, and a breach hereunder shall be a default by Participant under the First
Amendment. Maker and Holder agree and acknowledge that in the event Participant fully performs
under the First Amendment, the result would be that payment will not be required under this Note,
the overriding purpose of this Note being to provide assurance for the performance by Participant
under the First Amendment. This Note shall be nonrecourse.
2. No Interest. Excepting only to the extent the provisions of Section 10 hereof
become applicable no interest shall accrue on the unpaid principal amount of this Note.
3. Payment. The entire balance due under this Note shall be paid to City, or otherwise
satisfied as provided below, and subject to Section 7 hereof to the extent applicable, upon the first to
ATTACHMENT NO. 10-1
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occur of: (i) the sale or other conveyance of the Retained Parcels or portion thereof; (ii) the
occurrence of October 19, 2029 (the “Maturity Date”); or (iii) the uncured breach of Participant
under the First Amendment, this Note or the Master Deed of Trust.
4. Form of Payments. All amounts due hereunder are payable in immediately
available funds and lawful monies of the United States of America.
5. Application of Payments. All payments shall be applied first to costs and fees
owing hereunder, second to the payment of accrued interest and third to the payment of principal.
6. Prepayment. At any time, Participant may prepay in whole or in part the
outstanding principal balance under this Note, together with all accrued and unpaid fees, costs and
expenses payable hereunder, without penalty.
7. Credits. In the event Participant causes the Retained Parcels, including all
improvements thereon, to be operated in strict conformity with the First Amendment, and, to the
extent applicable to the Retained Parcels, the Restated 2002 Properties Regulatory Agreement and
the Restated 2004 Properties Regulatory Agreement, as determined in good faith by the CED
Director, City shall apply a credit against the principal amount hereunder an amount determined as
follows: an amount equal to one-eleventh (1/11th) of the original principal amount of this Note for
each “Year” (as defined below) that Participant has caused the Retained Parcels, including all
improvements thereon, to be operated in strict conformity with the First Amendment and, to the
extent applicable to the Retained Parcels, the Restated 2002 Properties Regulatory Agreement and
the 2004 Restated Regulatory Agreement. For the purposes of this Section 7, the initial “Year”
means that period which commences as of the First Amendment Date and ending as of October 19,
2019; thereafter, a “Year” shall constitute each period beginning as of October 20, 2019 and ending
as of October 19, 2020, with such procedure being followed as to each subsequent annual period
until the Maturity Date.
8. Security. Upon satisfaction of the Conditions Precedent, as defined in the First
Amendment, any remaining unpaid balance hereunder (including accrued interest, fees and costs), at
the option of the CED Director of City in his or her sole and absolute discretion, are secured by the
Master Deed of Trust of even date herewith. The terms of the Master Deed of Trust are incorporated
herein and made a part hereof to the same extent and with the same force and effect as if fully set
forth herein. To the extent any unpaid balance hereunder is so secured by the Master Deed of Trust,
a default under any of the provisions of the Master Deed of Trust shall be a default hereunder, and a
default hereunder shall be a default under the Master Deed of Trust.
9. Acceleration and Other Remedies. Upon: (a) the occurrence of an Event of
Default which has not been cured to the extent permitted under the First Amendment, or
(b) Participant selling, contracting to sell, giving an option to purchase, conveying, leasing,
encumbering, or alienating the Retained Parcels, or any interest in the Retained Parcels, or suffering
its title, or any interest in the Retained Parcels to be divested, whether voluntarily or involuntarily,
other than sales to Program Participants of Homebuyer Properties in conformity with the First
Amendment, without the prior written consent of City, City may, at City’s option, declare the
outstanding principal amount of this Note, together with the then accrued and unpaid interest thereon
and other charges hereunder, and all other sums secured by the Master Deed of Trust, to be due and
payable immediately, and upon such declaration, such principal and interest and other sums shall
immediately become and be due and payable without demand or notice, all as further set forth in the
ATTACHMENT NO. 10-2
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Master Deed of Trust. All costs of collection, including, but not limited to, reasonable attorneys’
fees and all expenses incurred in connection with protection of, or realization on, the security for this
Note, may be added to the principal hereunder, and shall accrue interest as provided herein. City shall
at all times have the right to proceed against any portion of the security for this Note in such order
and in such manner as such City may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of City in exercising any right hereunder,
under the First Amendment or under the Master Deed of Trust shall not operate as a waiver of such
right, or of any other right. No single or partial exercise of any right or remedy hereunder or under
the First Amendment or any other document or agreement shall preclude other or further exercises
thereof, or the exercise of any other right or remedy. The acceptance of payment of any sum payable
hereunder, or part thereof, after the due date of such payment shall not be a waiver of City’s right to
either require prompt payment when due of all other sums payable hereunder or to declare an Event
of Default for failure to make prompt or complete payment.
10. Alternate Rate. Upon the occurrence of any Event of Default, or upon the maturity
hereof (by acceleration or otherwise), the entire unpaid principal sum, at the option of City, shall bear
interest, from the date of occurrence of such Event of Default or maturity and after judgment and
until collection, at the “Alternate Rate”, such rate being the highest interest rate then permitted by
law by a City within the State of California. Interest calculated at the Alternate Rate, when and if
applicable, shall be due and payable immediately without notice or demand. Participant agrees that
in the event of any Event of Default, City will incur additional expense in servicing the loan
evidenced by this Note and will suffer damage and loss resulting from such Event of Default;
Participant agrees that in such event City shall be entitled to damages for the detriment caused
thereby, which damages are extremely difficult and impractical to ascertain. Therefore, Participant
agrees that the Alternate Rate (as applied to the unpaid principal balance, accrued interest, fees, costs
and expenses incurred) is a reasonable estimate of such damages to City, and Participant agrees to
pay such sum on demand.
11. Waivers. Participant and all endorsers, guarantors and sureties hereof jointly and
severally waive presentment, protest, notice of protest, notice of dishonor, diligence in collection,
and the benefit of any exemption under any homestead exemption laws, if applicable.
12. Consents. Participant and all endorsers, guarantors and sureties consent to: (a) any
renewal, extension or modification (whether one or more) of the terms of the First Amendment or the
terms or time of payment under this Note, (b) the release or surrender or exchange or substitution of
all or any part of the security, whether real or personal, or direct or indirect, for the payment hereof,
(c) the granting of any other indulgences to Participant, and (d) the taking or releasing of other or
additional parties primarily or contingently liable hereunder. Any such renewal, extension,
modification, release, surrender, exchange or substitution may be made without notice to Participant
or to any endorser, guarantor or surety hereof, and without affecting the liability of said parties
hereunder.
13. Successors and Assigns. Whenever “City” is referred to in this Note, such reference
shall be deemed to include the City and its successors and assigns, including, without limitation, any
subsequent assignee or holder of this Note. All covenants, provisions and agreements by or on
behalf of Participant, and on behalf of any makers, endorsers, guarantors and sureties hereof which
are contained herein shall inure to the benefit of City and City’s successors and assigns.
ATTACHMENT NO. 10-3
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14. Usury. It is the intention of Participant and City to conform strictly to the Interest
Law, as defined below, applicable to this loan transaction. Accordingly, it is agreed that
notwithstanding any provision to the contrary in this Note, or in any of the documents securing
payment hereof or otherwise relating hereto, the aggregate of all interest and any other charges or
consideration constituting interest under the applicable Interest Law that is taken, reserved,
contracted for, charged or received under this Note, or under any of the other aforesaid agreements or
otherwise in connection with this loan transaction, shall under no circumstances exceed the
maximum amount of interest allowed by the Interest Law applicable to this loan transaction. If any
excess of interest in such respect is provided for in this Note, or in any of the documents securing
payment hereof or otherwise relating hereto, then, in such event:
(a) the provisions of this paragraph shall govern and control;
(b) neither Participant nor Participant’s heirs, legal representatives, successors or
assigns shall be obligated to pay the amount of such interest to the extent that it is in excess of the
maximum amount of interest allowed by the Interest Law applicable to this loan transaction;
(c) any excess shall be deemed canceled automatically and, if theretofore paid,
shall be credited on this Note by City or, if this Note shall have been paid in full, refunded to
Participant; and
(d) the effective rate of interest shall be automatically subject to reduction to the
Maximum Legal Rate of Interest (as defined below), allowed under such Interest Law, as now or
hereafter construed by courts of appropriate jurisdiction. To the extent permitted by the Interest Law
applicable to this loan transaction, all sums paid or agreed to be paid to City for the use, forbearance
or detention of the indebtedness evidenced hereby shall be amortized, prorated, allocated and spread
throughout the full term of this Note. For purposes of this Note, “Interest Law” means any present or
future law of the State of California, the United States of America, or any other jurisdiction which
has application to the interest and other charges under this Note. The “Maximum Legal Rate of
Interest” means the maximum rate of interest that City may from time to time charge Participant, and
under which Participant would have no claim or defense of usury under the Interest Law.
15. Costs of Enforcement. Participant agrees to pay upon demand all reasonable costs
and expenses, including attorneys’ fees and disbursements (including appeals), incurred by City of
this Note to enforce the terms hereof. In addition to the foregoing award of attorneys’ fees, City shall
be entitled to its attorneys’ fees incurred in any post-judgment proceedings to enforce any judgment
in connection with this Note. This provision is separate and several and shall survive the merger of
this provision into any judgment.
16. Miscellaneous. Time is of the essence hereof. If this Note is now, or hereafter shall
be, signed by more than one party or person, it shall be the joint and several obligation of such parties
or persons (including, without limitation, all makers, endorsers, guarantors and sureties), and shall be
binding upon such parties and upon their respective successors and assigns. This Note shall be
governed by and construed under the laws of the State of California. Participant irrevocably and
unconditionally submits to the jurisdiction of the Superior Court of the State of California for the
County of San Bernardino or the United States District Court of the Central District of California, as
City hereof may deem appropriate, in connection with any legal action or proceeding arising out of or
relating to this Note. Participant also waives any objection regarding personal or in rem jurisdiction
or venue.
ATTACHMENT NO. 10-4
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“PARTICIPANT”
FRAZEE COMMUNITY CENTER, INC., a
California nonprofit public benefit corporation
By:
Its:
Printed Name:
ATTACHMENT NO. 10-5
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Manning & Kass Agreement
On October 30, 2018, the City executed an agreement with Manning & Kass Ellrod,
Ramirez, Trester LLP to provide legal services on the claim and subsequent lawsuit of
Emma Sanchez et al. The original agreement was entered into by the City Manager in
accordance with her signature authority. The amount expended under this agreement
was not-to-exceed $50,000. If the case is not settled, the cost of litigation will likely
exceed this sum.
Discussion
Cole Huber has successfully addressed a number of the litigation matters identified in
the above-referenced agreements. Nevertheless, several litigation matters are still
active and it makes financial sense for Cole Huber to continue handling these cases at
this time to avoid the costs associated with another law firm familiarizing itself with the
matters so close to their conclusion. As a result, an amendment of the original
agreements would be appropriate. The proposed amendment to the agreement would
eliminate the not-to-exceed limit. This would allow the City Attorney’s Office to continue
to review the firm’s bills and manage them in accordance with the Office budget and
without the need for further Council action.
Manning & Kass Ellrod, Ramirez, Trester, LLP is currently in the process of handling the
claim and subsequent lawsuit identified in the above-reference agreement. Manning &
Kass has significant expertise to continue handling these sorts of claims to avoid the
cost associated with another law firm familiarizing itself with the matter. As a result, an
amendment to restate the original agreement would be appropriate. The proposed
amendment to the agreement would restate the agreement and eliminate the
expenditure limit. This would allow the City Attorney’s Office to continue to review the
firm’s bills and manage them in accordance with the Office budget and without the need
for further Council action.
2018-19 Goals and Objectives
The proposed actions align with Goal No. 6: Operate in a Fiscally Responsible and
Business-Like Manner. The proposed amendments are necessary with multiple litigation
cases pending. It is appropriate, and business-like, for the City to pay vendors for the
services rendered.
Fiscal Impact
Funding for special counsel was included in the City Attorney’s FY 2018/19 budget
within account number 001-050-0005-5503. The City Attorney’s Office recently reduced
its FY 2018/19 budget during the mid-year cycle and is expected to provide additional
reductions in FY 2019/20. The costs involved with this item will be managed as part of
the budget.
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Conclusion
It is recommended that the Mayor and City Council adopt Resolution No. 2019-55,
authorizing the City Manager to execute amendments to the Professional Services
Agreements with Cole Huber LLP and the Retainer Agreement with Manning & Kass
Ellrod, Ramirez, Trester LLP to remove the not-to-exceed caps.
Attachments
Attachment 1 Resolution No. 2019-54
Attachment 2 Original Professional Services Agreements
Ward: Citywide
Synopsis of Previous Action:
On March 2, 2015, the Mayor and City Council adopted Resolution No. 2015-45 with Cota Cole &
Huber, now Cole Huber LLP, to provide legal services in cases seeking enforcement of the City’s
ban on Marijuana Dispensaries.
On September 6, 2017, the Mayor and City Council adopted Resolution No. 2017-69 with Cota
Cole & Huber, now Cole Huber LLP, to provide legal services for litigation related to Measure O.
On July 9, 2018, the City Manager executed an agreement with Cota Cole & Huber LLP for the
provision of legal services relating to various litigation matters.
On October 30, 2018, the City Manager executed an agreement with Manning & Kass Ellrod,
Ramirez and Trester, to provide representation on the case entitled In re: Richard John Sanchez.
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Resolution No. 2019-54
RESOLUTION NO. 2019-54 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE CITY MANAGER TO EXECUTE
AMENDMENTS TO THE PROFESSIONAL SERVICES
AGREEMENTS WITH COLE HUBER LLP AND THE
RETAINER AGREEMENT WITH MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
WHEREAS, on March 2, 2015, the Mayor and City Council adopted Resolution No.
2015-45 with Cota Cole & Huber, now Cole Huber LLP, to provide legal services in cases
seeking enforcement of the City’s ban on Marijuana Dispensaries. Council approved an increase
to the attorney’s fees cap on December 21, 2015. On December 19, 2016, the City Manager
authorized the First Amendment to Resolution 2015-45. Resolution No. 2016-160 authorized an
increase in the attorney’s fees to $150,000; and
WHEREAS, on September 6, 2017, the Mayor and City Council adopted Resolution No.
2017-69 with Cota Cole & Huber, now Cole Huber LLP, to provide legal services for litigation
related to Measure O. Council approved increases to the attorney’s fees cap on September 6,
2017, January 3, 2018 and May 2, 2018. The current cap is $175,000; and
WHEREAS, On July 9, 2018, the City executed an agreement with Cota Cole & Huber
LLP, now Cole Huber LLP, to provide legal services relating to a variety of litigation matters
and several transactional matters during a period of transition in the City Attorney’s Office. The
original agreement was entered into by the City Manager in accordance with her signature
authority. On December 19, 2018, the City executed an Amended and Restated Professional
Services Agreement and established a not-to-exceed cap on attorney’s fees at $150,000; and
WHEREAS, On October 30, 2018, the City executed an agreement with Manning &
Kass Ellrod, Ramirez, Trester LLP to provide legal services on the claim and subsequent lawsuit
of Emma Sanchez et al. The original agreement was entered into by the City Manager in
accordance with her signature authority. The amount expended under this agreement was not-to-
exceed $50,000; and
WHEREAS, the City Council now wishes to amend the aforementioned agreements to
remove the not-to-exceed caps to enable the City Attorney’s Office to continue to review the
applicable firm’s bills and manage them in accordance with the Office budget and without the
need for further Council action.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
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Resolution No. 2019-54
SECTION 2. The City Manager is hereby authorized to execute amendments to the
Professional Services Agreements with Cole Huber LLP, dated March 12, 2015 (marijuana
dispensaries), May 3, 2017 (Measure O), and July 9, 2018 (general litigation, amended and
restated on December 20, 2018) to remove the applicable not-to-exceed limits.
SECTION 3. The City Manager is hereby authorized to execute an amendment to the
Retainer Agreement with Manning & Kass Ellrod, Ramirez, Trester LLP, dated October 4, 2018
(In re: Richard John Sanchez) to remove the applicable not-to-exceed limit.
SECTION 4. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this ordinance are declared to be severable.
SECTION 6. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this 3rd day of April, 2019.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
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Resolution No. 2019-54
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. 2019-__, adopted at a special meeting held on the 3rd day of April, 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
VACANT _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this 3rd day of April, 2019.
______________________________
Georgeann Hanna, MMC, City Clerk
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1
Staff Report
City of San Bernardino
Request for Council Action
Date: April 3, 2019
To: Honorable Mayor and City Council Members
From: Andrea M. Miller, City Manager
By: Teri Ledoux, Assistant City Manager
Rita Conrad, Interim Director of Finance
Subject: FURTHER REVIEW AND DISCUSSION OF THE MID-YEAR
FINANCIAL REVIEW – FISCAL YEAR 2018/19
Recommendation
Further review and discuss the Mid-Year Financial Review-Fiscal Year 2018/19, review
and consider alternatives to address the deficit in the Gas Tax Fund and Maintenance
of Obligation Effort (MOE), and provide direction.
Background
Mayor Valdivia called a Special Meeting on March 27, 2019, for a Budget Study
Workshop. Following discussion about the meeting notice and availabi lity of agenda
materials, the City Council requested the City Manager agendize further discussion of
the Mid-Year Financial Review – Fiscal Year 2018/19 for the April 3, 2019 meeting and
include with the agenda report all information distributed at the Mar ch 27, 2019 meeting.
The Mid-Year Financial Review-Fiscal Year 2018/19 was presented to the Mayor and
City Council on March 6, 2019. The City Council discussed revenues and expenditures
in the current fiscal year in the General Fund and other funds including the Gas Tax and
Measure I Funds, the reserves and reserve policy, and the City’s financial condition.
Following the discussion, the City Council approved a motion receiving and filing the
report and authorizing the Director of Finance to Amend the FY 2018/19 Budget as
outlined in the Mid-Year Financial Review-Fiscal Year 2018/19 Report.
Thereafter, at the regular meeting on March 20, 2019, the Mayor and City Council
received a Work Plan Update on the FY 2018/19 Capital Improvement Program , which
reiterated information related to the funding appropriated for capital projects presented
at the prior meeting.
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Discussion
Mid-Year Financial Review-Fiscal Year 2018/19
On March 6, 2019, staff presented the Mid-Year Financial Review-Fiscal Year 2018/19.
Attachments 1 and 2 are the staff report and accompanying PowerPoint presented at
this meeting. Information related to the funding of capital projects was reiterated at the
March 20, 2019 meeting. Attachments 3 and 4 are the staff report and PowerPoint
related to the CIP Work Plan Update. Attachment 5 is the City Manager’s FY 2018/19
Budget Transmittal Letter which provides context for the budget process and the City’s
financial condition and was included with the Budget adopted by the City Council on
June 20, 2018.
As part of the Financial Review, staff reported that during the City’s financial audit of FY
2017/2018, which we are currently finalizing, it was recommended the City separate
HUTA (Highway User Tax Account) Gas Tax funds and SB 1 funds that were previously
comingled in a single fund. After this separation, it became apparent that the Gas Tax
fund was in a deficit position – a fact masked by the excess fund balance associated
with SB 1 funds. Other factors also contributed to this deficit and is addressed further
below.
Staff projected that if the entirety of the Gas Tax budget for FY 2018/19 (Operating and
Capital) were to be expensed, the Gas Tax fund would end the year with a deficit of
over $9 million. In order to begin remedying this situation, staff recommended, and
Council approved, identifying alternative sources of funding for the remainder of this
fiscal year. By doing this, it is projected that the Gas Tax fund projected deficit of $9
million will likely be reduced to $7.5 million by the end of this fiscal year:
Going forward, with the end goal of eliminating the Gas Tax Fund deficit in mind, staff
will determine what costs can be shifted from the Gas Tax Fund to the General Fund in
the context of what additional costs the General Fund can shoulder. Further, staff
indicated we would provide alternatives and make recommendations to remedy the
deficit in the Gas Tax Fund.
Though not planned, over-extending the Gas Tax fund did have the positive effect of
accelerating road improvements that otherwise would not have been made in the
current year. This also enabled the City to avoid deeper cuts to the organization in FY
2018/19 that would have affected programs and services including street maintenance
and repairs. As we approach next year, these costs will have to be funded by the
General Fund to cure the reliance on the Gas Tax, which will also assist in resolving
deficiencies in reaching General Fund’s Maintenance of Effort (MOE) required in order
to receive Measure I funding. MOE requirements are similar in nature to grant matches.
The City has not met its MOE obligation since 2010.
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Following the March 6 staff presentation, the City Council authorized the Director of
Finance to Amend the FY 2018/19 Budget as outlined in the Mid -Year Financial
Review-Fiscal Year 2018/19 Report.
Questions Presented by the Mayor’s Office
At the March 27, 2019 Special Meeting, the Mayor’s Office was prepared to present a
PowerPoint related to the Mid-Year Budget and Key Findings. Additionally, the Mayor’s
Office indicated there were questions related to the Mid-Year budget analysis. These
documents were not included with the package of materials submitted to the City Clerk
for publication with the agenda for the March 27 meeting. Attachments 7 and 8 are
copies of the Mayor’s Office PowerPoint and Key Findings. These questions are similar
to the topics discussed in a meeting of the Mayor’s Office, City Manager and Interim
Finance Director on March 14, 2019.
The questions posed by the Mayor’s Office and the responses are below:
1. What was the basis for the UUT projection of $25 million? I asked for back up
material to justify the forecasting you referenced in your response to me. Please
provide the backup material.
As a preliminary matter, as indicated in the March 6 Mid-Year Review report and
presentation, General Fund revenues overall are currently projected to be close to
original targets at $126.97 million ($37,500 less than budgeted). Two significant
negative variances are projected for General Fund revenues: Utility Users Tax (UUT)
and Water Fund contributions. These negative variances are offset by positive revenue
variances anticipated in other categories, primarily development related revenues in
both the Community and Economic Development and Public Works Departments.
The Mid-Year Review reflected that total UUT is estimated at $23.75 million, which is
$1,500,000 less than budgeted due to continued downward pressure on revenues
related to energy efficiency programs and the resulting lighter demand for electric and
gas. The reduction in landline phone service and the increase in satellite over cable
television service have also contributed to reduced revenues. Weather, which impacts
demand of utility services, also impacts the ability to accurately predict revenue levels.
This projection was based on overly optimistic assumptions related to energy
consumption and was incorrect. Back up material used to support this revenue
projection is not available as it was based on a review of information and data and the
cognitive process and cannot be recreated.
2. Why were the Prop 218 issues with the water transfer not identified before the
budget was finalized?
The City and Water Department jointly entered into a study to determine the appropriate
amount of reimbursement to the City from the Water Department for services provided
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by the City. The study has not yet been completed by the outside consultant and a draft
is currently being reviewed by staff and legal counsel. Based on preliminary conclusions
and Proposition 218 requirements, it is highly probable the amount budgeted will not be
attained. Once this determination was made, the decision was made to amend the
budget at mid-year to provide a more accurate estimate. The Water Fund contribution
is now projected to be $3.45 million, $673,800 less than budgeted. The actual amount
billed to the Water Department in FY 2017/18 was based on a preliminary draft of the
study ($3.968 million). For FY 2018/19 the estimate used for budget purposes was
based on the same draft study but included an approximate 4% cost-of-living
adjustment and assumptions about the reimbursement rates supported by a study
which had not yet been concluded. It is important to note that although the Water
Department has been billed by the City for FY 2017/18 in the amount of $3.968 million,
the Water Department has not yet submitted p ayment. Once the study is concluded a
there is a possibility that a portion of the outstanding billing from FY 2017/18 will need to
be written-off. Additionally, once the study has been concluded it is possible that the
estimate for this fiscal year will need to be adjusted based on final results. We
anticipate the study results will be available for implementation in the FY 2019/20
budget.
3. Why did the police department not fill $1.7 million worth of positions which were
approved in the budget? What efforts were made by the Police Chief to recruit and
fill those vacancies? How much did he spend on recruiting efforts?
Over the last few years, the City has made significant headway in filling vacancies
throughout the City, and in particular, the Police Department. Hiring police officers is an
expensive, time-consuming, and comprehensive process. While we would like to fill all
of the positions, the goal is to find and hire the most qualified staff. At the same time,
there is natural attrition related to retirements and other service separations that impact
the net overall gains in staffing. Savings from salary and benefits in the Police
Department over the last three years has trended in the range of $2 million to $3 million.
In addition to the traditional recruitment practices, staff has broadened efforts using
social media targeted to audiences more likely to be interested in law enforcement
careers, and we are recruiting locally in the hope of attracting local talent. We are also
working to reduce attrition related to separations from City service. Funding is included
in the Human Resources, City Manager and Police Department Budgets for recruitment
efforts.
4. Why did we not budget for our bankruptcy costs, knowing we had just spent over $6
million in the prior year on bankruptcy costs? Why are we paying for those costs
from our reserves?
As was noted in the Mid-Year Review, bankruptcy costs, both contract legal costs and
litigation/settlement costs are expected to total approximately $4.2 million this fiscal
year. Total combined bankruptcy related costs last fiscal year were approximately $6.2
million. Early projections for next fiscal year (FY 2019/20) are in the range of $1.5 to $2
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million. Bankruptcy costs are collected in a special fund for tracking purposes but costs
are covered by the General Fund.
In prior years’ budgets it was difficult to project costs; rather than include the costs in the
budget, the costs were covered by a transfer from General Fund reserves at year -end.
At the end of last FY, $6.2 million in reserves were used to cover bankrup tcy costs, per
the FY 2017/18 Year-End Report presented to the Mayor and Council on November 21,
2018. As bankruptcy related costs wind down and costs are easier to estimate, staff
recommends including these costs in the General Fund on a go forward basis ; this will
provide more accurate data for planning of City financial resources.
Given the nature of these costs, it is appropriate to either budget for the expenses
annually in the operating budget or cover the costs through a transfer at the end of the
fiscal year. These are General Fund expenses, and as there were not sufficient annual
revenues in FY 2018/19 to fund the projected expenditures, this requires the use of
reserves.
More important, this illustrates the challenge that has faced the City for a number of
years – the growth in annual expenses is outpacing the growth in revenue. In FY
2018/19, General Fund operating revenues were estimated at $127 million, a $2.5
million decrease or 2% decrease over the prior year actuals of $129.5 million.. This
included the anticipated $1.8 million in increased revenue from the County of San
Bernardino as a result of the Amendment to the Vehicle License Fee (VLF) Swap
Agreement between the City and the County reducing the share of VLF revenues
transferred to the County for fire protection that was approved by the Mayor and City
Council in April 2018. So, as revenues have remained relatively flat , annual General
Fund budgeted costs (based on adopted budget and net of CIP and BK costs)
increased to $126.2 million, up by $6.4 million or more than 5% over the prior year.
5. How did we spend millions more of our gas tax fund than we were projected to
receive? How did we end up with a $7 million deficit? Whether the SB1 money and
the Gas Tax money was commingled or not, it does not e xplain how we would over
spend by millions.
The FY 2018/19 Mid-Year report presented to the Mayor and Council on March 6 th,
2019 projected a budget deficit in the HUTA (Highway Users Tax Account) Gas Tax
fund of approximately $9.1 million if nothing was done to slow spending or move
projects to other funding sources. The Mid-Year report also reported that if projects
could be moved to other funding sources and spending slowed, this deficit could be
reduced to approximately $6.7 million. Public Works has updated their spending
projection based on their ability to find alternative funding sources and reduce spending
where possible; accordingly the updated deficit is projected to be $7.5 million. It should
be noted that although the $7.5 million deficit must be remedied this fiscal year, a
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number of CIP projects, tree trimming improvements, and road maintenance repairs
were completed with this spending.
During the budget preparation process last May and June, a number of factors
contributed to this problem. FY 2017/18 was the first year the City began receiving SB1
Gas Tax funds and it was not realized that these funds should be segregated from the
regular HUTA Gas Tax revenue. This co -mingling of funds contributed to masking the
negative beginning fund balance in the HUTA Gas Tax fund of $1.28 million.
Further complicating the issue was the turnover of staff within the Finance Department
and the three-year backlog of annual audits and financial reports. The Finance
Department has seen the departure of the following positions: the Deputy Director, the
Payroll Supervisor and the Principal Accountant. Additionally, the Finance Director
retired in December of 2018. As discussed in the FY 2018/19 Mid-Year Report, this is
the third Finance Director since 2014 and 17 additional employees have left the
department during that same timeframe. The Council approved upgrading the vacant
Principal Accountant to Accounting Manager on March 6, 2019 and the Payroll
Supervisor position was recently filled. This along with the current recruitment for a
Deputy Director and a permanent Finance Director should alleviate these issues in the
future.
Unfortunately all this contributed to the over-budgeting of expenditures in the HUTA Gas
Tax Fund. The Gas Tax Fund, a special revenue/restricted fund, cannot remain in a
deficit position. By the end of this fiscal year this will have to be remedied in one of two
ways. Both options and the pros and cons are discussed below.
6. Why did the budget claim $13 million would be spent on CIP projects knowing we do
not have those funds. They council approved only $3.5 million from reserves for CIP
projects.
This was a poor choice of nomenclature. The se projects should have been identified as
unfunded in FY 2018/19 , the goal was to ensure these projects were in the future year
capital plans for planning purposes. In the future, these projects will be identified with a
notation that funding will need to be identified.
Alternatives/Options for Consideration to Address the Gas Tax Fund Deficit
Option 1 (Recommended)
The recommended option is to transfer $7.5 million of expenditures fr om the HUTA Gas
Tax fund to the General Fund by June 30, 2019. This will require dipping into the City’s
Economic Reserve by this amount. Based on most recent projections, combined
General Fund reserves are estimated to be $32.5 million. Transferring $7.5 million of
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Gas Tax expenditures will reduce estimated General Fund reserves at June 30, 2019 to
$25 million.
Per the City’s General Fund Reserve Policy adopted by the Mayor and Council on
November 21, 2018, the 10% Economic Contingency reserve must be replenished over
a five year period.
The recommendation to transfer $7.5 million in expenditures will not only eliminate the
deficit in the Gas Tax Fund, but it will also solve the City’s Measure I Maintenance of
Effort (MOE). The MOE is similar to a grant match. In order for the City to receive
annual Measure I Funds, it must show that it is spending at least $1 .08 million annually
in the General Fund toward street maintenance, tree trimming, or other qualifying
roadway maintenance and improvement programs. This $1.08 million is our MOE. Per
the most recent Measure I audit, the City has not met this requirement between the
years of 2013 through 2017, for an accumulated total of $6.4 million. Of this amount,
approximately $4.9 million must be corrected by FY 2019/20 or the City will be in
jeopardy of losing its Measure I allocation. The remaining $1.5 million m ust be
corrected over FY 2020/21 and FY 2021/22.
Option 2 (Not-Recommended)
The other way to remedy the HUTA Gas Tax Fund deficit is for the General Fund to
loan the Gas Tax Fund $7.5 million (an interfund loan) and set up a repayment
schedule over 5 years with interest charged at the annual LAIF interest rate, currently
$1.38%. The estimated payment to the General Fund annually would be approximately
$1.56 million.
Analysis of Reserve Policy Targets
General
Fund
Reserves at
7/1/2018
Mid-Year
Estimate of
Projected
Available
Reserves
6/30/19
Use of
Economic
Contingency
for Gas Tax
Deficit
Revised
Estimate of
Projected
Available
Reserves
6/30/19
Operating Reserve:
Emergency Reserve - 15% of adopted budget 18,900,000$ 18,900,000$ 18,900,000$
Economic Contingency Reserve -10% of adopted budget 12,600,000 12,600,000 (7,500,000) 5,100,000$
Special Reserves:-
Risk Management Reserve 1,983,200 541,200 541,200$
Reserve for Continuing Appropriations/Carryovers 1,512,500 - -$
City Facilities/CIP Reserve 4,000,000 500,000 500,000$
Unassigned 0
Combined Reserves:38,995,700$ 32,541,200$ (7,500,000) 25,041,200$
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It is important to understand that this option would also initially reduce General Fund
reserves by $7.5 million. As the Gas Tax Fund repays the General Fund back, reserves
would be replenished.
This method of remedying the Gas Tax Fund deficit is not recommended for a number
of reasons. First, this would not have the benefit of assisting with resolving our
Measure I Maintenance of Effort issue as easily and quickly. Assuming $5 million in
HUTA Gas Tax revenue (conservatively based on State projections ), after allocating
$1.56 million as a loan repayment to the General Fund, the Gas Tax Fund would only
have the capacity for approximately $3.5 million in operational costs. The General Fund
would have to pick up $2.67 million in costs annually that previously were budgeted in
Gas Tax. While this additional shift of expenditures to the General Fund will eventually
help with reaching our accumulated MOE for Measure I, it would not occur in the
timeframe needed to cure the $6.4 million backlog.
Additionally, an interfund loan will potentially muddy the waters with State Gas Tax
Auditors and opens the City up to more issues.
Option 1 cleanly resolves both the Gas Tax Fund deficit and the Measure I MOE issue
and resets the Gas Tax Fund. With Option 1, next year’s Gas Tax Fund is projected to
have $5 million to $5.5 million in revenue (we will update this when we get updated
projections from the State). The Gas Tax Fund will be able to support $5 million in
operations. $5 million will not cover all the o perations that were previously budgeted in
Gas Tax but now expenditures will be in line with revenues.
Fiscal Year 2019/20 Budget
Preparation of the FY 2019/20 Proposed Budget is underway. Staff is continuing to
work on the budget, forecasting revenues, identifying expenditures, and we will be
prepared in late-April/May 2019 to have a series of discussions with the City Council.
There have been repeated warnings about the structural def icit in the operating budget.
This was a major contributor to the City’s bankruptcy. The Plan of Adjustment and
Recovery Plan, approved by the Council and submitted to the Court, identified t hat the
Bankruptcy process was the beginning of a path toward financial sustainability and
continued work was needed.
The Plan provides that the City will:
Continue to identify alternative methods of delivering services such as
contracting out or regionalizing.
Reduce crime and address the perception of San Bernardino as a dangerous
City through implementation of the Police Resources Plan which includes
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increasing staffing levels, investing in law enforcement technology, and
replacing the fleet.
Invest in the City’s infrastructure.
Implement Charter reform.
Enhance revenues through new or increased taxes, fee adjustments .
As we approached FY 2018/19, the City was faced with a $5 million deficit between the
projected revenues and expenses. Cuts were required. An estimated $4.9 million in
one-time and ongoing costs proposed by Departments for items such as new permitting
and other updated software, replacement vehicles that have exceeded the useful life,
equipment, and program expansions were not included . Automatic annual adjustments
to automobile allowance was eliminated resulting in an annual savings of $8,400.
Moderate maintenance and operation as well as utility rate adjustments and minor
program enhancements were included in an effort to provide an improved level of
maintenance and management of services and infrastructure to the community. These
targeted increases were largely offset by the elimination of positions and reductions in
other discretionary maintenance and operating costs.
While we were able to balance the FY 2018/19 Budget, even with the reductions in
expenditures in the current year, the Financial Model reflected a deficit of $5 million in
FY 2019/20 growing to more than $7 million in future fiscal years without further
structural changes and revenue growth. Based on initial budget preparation analysis, it
appears the General Fund deficit will be higher than the $5 million estimate. Staff
continues to work to reduce this anticipated deficit.
During the FY 2018/19 budget discussions, staff brought forward a number of potential
revenue and cost cutting measures, some of which have been implemented and others
have not. Items that have been or are being implemented include: service delivery
changes to animal control services, City Attorney services, and weed abatement. Items
considered last year by the City Council that are not currently being explored include:
graffiti removal, administrative and legislative support function staffing.
Revenue opportunities were also discussed last fiscal year including: Cannabis Tax
(Approved Nov. 2018) and Measure Z (RFPs for Polling and Education have been
issued). Comparisons were provided for Sales and Use Tax, UUT, and TOT rates in
area cities, and staff recommends these discussions in preparation for the November
2020 ballot.
Program changes that could result in increased revenue were also discussed.
Following direction by the City Council, analyses of the following are being prepared for
further consideration by the City Council: Street Sweeping/Parking Restrictions (early
Fall 2019); Fee and Cost Study (early Fall 2019) and Development Impact Fee (DIF)
Analysis (Winter 2019).
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Given the precarious financial condition, staff routinely recommends that any new
proposed expenditures be discussed in the broader budget context and that the long-
term financial impacts of the additional costs be considered prior to approval. This is
intended to ensure policy makers understand the long-term financial implications of
decisions.
Staff is continuing to look for solutions to the issues facing the City, and the greater
challenge is addressing our stagnant revenues and increasin g costs. Some of the
major issues or challenges facing the City in the upcoming budget year, many of which
are also addressed in the Budget Transmittal Letter, include:
Every City in the state is addressing how to deal with the increasing PERS
costs over the next 20 years. Next year, the unfunded liability payment alone
is increasing by $3.7 million to $23.7 million. This number is expected to
grow to over $40 million in FY 2024/25 based on long-term projections
provided by PERS. (this does not account for the normal PERS contributions
that will also have to be budgeted).
Normal PERS costs are expected to increase by $910,600 million to $8.2 in
FY 2019/20..
The City has entered into MOUs with our labor groups that will result in an
increase in personnel costs of $1.7 million (Safety – 3.5% COLA; Misc – 2%
COLA plus increases in health insurance contributions); the City has also
promised a class and compensation study next year and implementation of
the salary adjustments the following year.
Grants are expiring and the costs will have to be absorbed by the General
Fund.
During the FY 2018/19 budget development process, the backlog of deferred
maintenance throughout the community was conservatively estimated at
$182.2 million.
Measure Z, which is projected to result in $8.89 million in revenue this fis cal
year, expires in 2022.
Public Safety continues to be one of the City’s top priorities. The Police
Department’s Five-Year Staffing Plan calls for the addition of 40 positions.
The target year to meet this goal is FY 2019/20. The estimated cost to
achieve this goal on an annual basis is $6.6 million.
The City continues to face on-going financial challenges. Relatively overall flat
revenues, increased costs to maintain existing service levels, deferred maintenance on
City facilities, Public Safety needs, and employee attraction and retention issues
continue to present challenges. The City’s energy needs to be focused on:
Working collaboratively to build revenues and create an environment that
encourages investment
Continuing to remain fiscally prudent
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Identifying alternative service delivery models, like the recent decision to
contract animal control services
Using the Plan of Adjustment and Ten-Year Financial Model, which projects
future cost increases, to make informed budget decisions
Recognizing that the needs and demands exceed our available resources
today and will into the near future:
o Every decision we make matters.
o We have to evaluate programs in the context of the overall budget and
financial position and weigh the programs being proposed against
other programs and determine the priority because we cannot do it all
right now.
The City can achieve financial stability.
2018-19 Goals and Objectives
Receiving and reviewing the FY 2018/19 Mid-Year Financial Report aligns with Goal
No. 6: Operate in a fiscally responsible and business-like manner. It is important for the
Mayor and City Council to be aware of the financial well-being of the City in order to
make decisions that best serve the community.
Fiscal Impact
The fiscal impacts were previously discussed at March 6 and March 20, 2019 meetings.
Depending on the direction related to the replenishment of the Gas Tax Fund, there
could be an impact to the economic uncertainty reserve account.
Conclusion
It is recommended that the City Council receive and file this report and provide direction
related to the replenishment of the Gas Tax Fund.
Attachments
Attachment 1 March 6, 2019, City Council Agenda Report titled, “Mid-Year
Financial Review – Fiscal Year 2018/19” – Distributed at the March
27, 2019 Mayor and City Council Meeting
Attachment 2 March 6, 2019, PowerPoint on the Mid-Year Financial Review –
Fiscal Year 2018/19
Attachment 3 March 20, 2019, City Council Agenda Report titled, “Capital
Improvement Work Plan Update for FY 2018/19 ” – Distributed at
the March 27, 2019 Mayor and City Council Meeting
Attachment 4 March 20, 2019, PowerPoint on the Capital Improvement Work
Plan Update for FY 2018/19
Attachment 5 City Manager’s FY 2018/19 Budget Transmittal Letter
Attachment 6 Email exchange dated March 27, 2019, between the City Manager
and the Chief of Staff related to the attendan ce of staff at the March
27, 2019 Special Meeting of the City Council (distributed at the
March 27, 2019 meeting)
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Attachment 7 PowerPoint distributed by the Mayor’s Office at the March 27, 2019
Special City Council Meeting titled, “Office of the Mayor, Mid-Year
Budget Review”
Attachment 8 Office of Mayor John Valdivia, Mid-Year Budget Review Key
Findings
Attachment 9 Email Exchange dated March 28, 2019 between the City Manager
and the Chief of Staff related to the List of Questions from the
Mayor’s Office related to the Mid-Year Budget Report
Ward: All Wards
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Packet Pg. 470 Attachment: CM.Neighborhood Resource Center.REPORT (6038 : Implementation of a Neighborhood Resource Center, Matching Grants Fund
It is proposed the Customer & Neighborhood Services Office assume the duties of the
Neighborhood Resource Center, Leadership Program and Matching Fund Program as
outlined below:
1. Neighborhood Resource Center– It is proposed the Neighborhood Resource
Center will be established within the Neighborhood and Customer Service
Operations Office. The location is easily accessible and visible to the community.
The office will include information on the Neighborhood Association Council,
neighborhood services, upcoming events, information on city services and other
resources that will benefit the community. In addition, the office provides
enhanced collaboration with neighborhood associations in the community,
building initiatives and support of quality of life by strengthening community
image. Consolidating the management of all of these operations under one office
with the necessary expertise will provide for a centralized location of all
neighborhood services.
2. Leadership Program– The City’s Leadership Program will be operated out of
the Neighborhood and Customer Service Operations Office. The Leadership
Program will be an annual 5 week training program. Participants who complete
the course, and partner with a team will be awarded up to $1k in matching
funding for a qualified community project, as described below. To keep costs
minimal, staff will facilitate the training and reach out to establish volunteer
speakers for the program. Staff will maintain a list of graduates and continue
efforts of partnerships. Planning and development of the program will be
established by staff working with the neighborhood associations.
3. Matching Grants Program (Community Sparks)– Community Sparks matching
grants program will also be operated out of the Customer and Neighborhood
Services Office. The purpose of Community Sparks is to provide matching dollars
for neighborhood improvement, organizing, or projects developed and
implemented by community members. Central to Community Sparks is the
community match which will require awardees to match their award with
contributions from the community whether as volunteer time, donated materials,
donated professional services, or cash contributions. Awardees will be
neighborhood groups, community organizations, informal groups, and business
groups who want to do a project to build stronger community connections. The
total budget for this program will be $18,000, with grants awarded up to
$1k/each. The return to the City is at least double the amount awarded, as
participants must provide matching commitment. This program has been very
successful in other cities in uniting communities. Staff will work with the
community to develop guidelines and application for this program.
In order to successfully facilitate these additional services, one (1) part-time staff
member in the Customer and Neighborhood Services Office will be necessary to
accomplish the goals of the program. Detailed description for each program is outlined
in Attachment 1.
3/29/2019 10:09 AM
16.a
Packet Pg. 471 Attachment: CM.Neighborhood Resource Center.REPORT (6038 : Implementation of a Neighborhood Resource Center, Matching Grants Fund
If the plan is approved, staff will begin meeting with the Neighborhood Association
Council and community to begin preparing the program for the Leadership Program,
guidelines and application for the Community Grants Program and researching
literature and resources for the Neighborhood Resource Center. The programs are
anticipated being executed after July 2019. Therefore, it would be necessary to include
funding for these programs in the amount of $49,500 in the FY 2019/20 Budget.
The cost associated for the additional services is estimated at $49,500:
2018-19 Goals and Objectives
The proposal aligns with Goal No. 1 Implement the City Vision by developing programs
and operating systems to publicize, promote, support and implement the guidance
provided by the Mayor and City Council.
Fiscal Impact
The financial impact to the City associated with the proposed changes for FY 2019/20 is
$49,500.
Conclusion
It is recommended that the Mayor and City Council review, discuss and consider the
implementation of the Neighborhood Resource Center and Leadership Program for
fiscal year 2019/20.
Attachments
Attachment 1 Neighborhood Services Program proposed key services
Attachment 2 Proposed Structure
Attachment 3 Neighborhood Service Program by Neighborhood Association
Council
Neighborhood Resource Center 28,300
20,000 Part-time staff up to 1k hours @ $20/hr
250 Part-time staff mileage reimbursement
3,700 Supplies for community use/rental
1,250 Printing for Neighborhood Associations
350 Canva annual subscription (Creating fliers)
2,000 T-shirts for volunteers
750 Office Supplies
Leadership Program 3,200
1,500 Leadership Program graduation/recognition dinner
250 City/Neighborhood Leadership Program banner
1,200 Leadership Program & community meetings supplies
250 Printing materials (door decals, lamination, poster boards)
Matching Fund Program 18,000
18,000 Community Grants for projects up to $1k/ea
49,500Customer & Neighborhood Services Totals
Ward: All
On January 28, 2019, the Mayor and City Council directed the City Manager to return with a
proposal for Neighborhood Resource Center and Leadership Program.
3/29/2019 10:09 AM
16.a
Packet Pg. 472 Attachment: CM.Neighborhood Resource Center.REPORT (6038 : Implementation of a Neighborhood Resource Center, Matching Grants Fund
Attachment 1
Neighborhood Services Program
City of San Bernardino
“Build up the neighborhoods and you build up the city"
Program Description:
The Neighborhood Services Program is a joint project of the Neighborhood
Association Council of San Bernardino and the City of San Bernardino. The
program provides resources and opportunities for residents to build strong
communities and improve the quality of life in their neighborhoods. The program
empowers residents to advocate for their neighborhoods, to build community
connectedness, and to engage with their city government. Building strong
communities promotes public safety and reduces crime. When residents feel
good about where they live they take pride in their city.
The Neighborhood Services Program consist of 3 components: (1) Neighborhood
Resource Center, (2) Neighborhood Leadership Program, (3) Neighborhood
Matching Fund Program.
Neighborhood Resource Center:
Assist Neighborhood Associations and community organizations to increase their
effectiveness in addressing concerns and improve their neighborhoods.
• Provide information on city services.
• Provide resources on community building strategies, i.e. Community Tool
Kit, planning guides to beautification projects, community gardening, tree
planting, social enhancement and educational projects, etc.
• Information on Healthy Communities and Crime Prevention Through
Environmental Design (CPTED).
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Packet Pg. 473 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 1 (6038 : Implementation of a Neighborhood Resource Center, Matching Grants
Attachment 1
• Master directory of neighborhood associations, community organizations
and community events.
• Information on fundraising and community grants.
• Printing of neighborhood association meeting fliers.
Neighborhood Leadership Program:
Civic leadership development program free to community members who live
within the city. Provides hands-on strategies for community building, accessing
city government services and community engagement. Annual leadership training
promotes volunteerism, supports the work of neighborhood associations, and
prepares the next generation of community advocates.
• 5 week training program. Participants must be 18 years and over.
• Participants attend orientation and commit to complete training.
• Participants complete community projects as part of training.
• Participants work with neighborhood associations and other community
groups to complete community projects.
• Volunteer instructors from business, finance, community foundations, non
profits and government agencies.
• Contributing sponsors cover the cost of materials, T shirts, and food.
• Program selects city area for community projects.
• Program graduates participants and maintains network of leadership
alumni.
• Report to the Community highlights volunteer community projects.
‘Small Sparks’ Neighborhood Matching Fund Program:
Supports local grassroots community projects in San Bernardino City’s
neighborhoods. Provides $500 dollars in funds to match neighborhood
contributions of volunteer labor, materials, and other donations to support
neighborhood projects developed and implemented by community members.
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Packet Pg. 474 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 1 (6038 : Implementation of a Neighborhood Resource Center, Matching Grants
Attachment 1
• Groups eligible for funds include neighborhood associations, community
groups or organizations who want to do a project to improve their
neighborhood.
• Participation in the project must be free and open to all community
members.
• Must involve community members in creating and completing the project.
• Must demonstrate match requirements.
• Project must build community and benefit a significant number of
community members.
• Match funds for community projects may include physical neighborhood
improvement and beautification, social and educational enhancements that
build community; and public safety and crime prevention that improve the
quality of life and support healthy communities.
Neighborhood Services Program Advisory:
The program will establish a neighborhood advisory group comprised of
Neighborhood Association members and City staff to provide ongoing support
and advice to the program , assist in the development of program services, and
Identify best practice standards in neighborhood outreach and community
engagement. Advisory members would act as advocates for the Neighborhood
Service Program providing a connection to and ongoing exchange of information
and ideas between neighborhood community members and the city.
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Packet Pg. 475 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 1 (6038 : Implementation of a Neighborhood Resource Center, Matching Grants
Attachment 2
Neighborhood Services Program
Proposed Key Services
Proposed Key Services:
1. Neighborhood Matching Fund Program (Community Sparks)
• Partner with the Neighborhood Association Presidents to establish guidelines
for the program.
• Establish an application form outlining guidelines for the community to follow.
• Create and implement calendar and deadlines for application submittal and
approval process.
• Monitor and manage the funding for Community Sparks, matching fund
program.
• Provide guidance, information and suggestions for community projects.
• Award up to $500 in matching funding for community projects, when funding
is available and criteria is met.
• Award Leadership Academy graduate groups up to $1,000 in matching
funding for community projects. This would be awarded up to 8 groups, for a
total of $8,000 per annual leadership academy.
2. Neighborhood Leadership Program
• Develop a program for the Neighborhood Leadership Program (NLP) in
partnership with the Neighborhood Association Council.
• Coordinate with the NAC to Identify topics of interest that benefit residents.
• Identify volunteer speakers for the program based on identied topics.
• Schedule annual five week course.
• Award NLP graduate groups up to $1k in matching funding for community
projects.
• Coordinate a graduation dinner for the NLP graduates.
• Identify location for the in house training course.
• Coordinate certificate of recognition at a City Council meeting.
• Maintain a list of graduates and keep graduates informed on upcoming events
and partnership opportunities.
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Packet Pg. 476 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 2 (6038 : Implementation of a Neighborhood Resource Center, Matching Grants
3. Neighborhood Resource Center
• Neighborhood Resource Center will serve as the location for staff to provide
copies of fliers for neighborhood associations meetings and events.
• The Neighborhood Resource Center within the existing Customer and
Neighborhood Services Office (Also referred to as the City Information
Center).
• Coordinate neighborhood associations and community involvement with
quarterly cleanups.
• Revise window decals to reflect the City’s Information Center & Neighborhood
Resource Center.
• Provide copies of resourceful information on city services and events.
• Manage the Neighborhood Matching Fund program.
• Provide information on fundraising suggestions and locations for events.
• Guidance on establishing neighborhood associations, community meetings,
support.
• Provide information on Healthy Communities and Crime Prevention Through
Design (CPTED).
• Partner with the community to establish neighborhood projects.
• Maintain network of Leadership Program graduates.
• Create a Neighbohood Resource page on the City’s website and inlcude
community projects, events and meeting dates.
• Seek sponsors for cleanups and community projects.
• Coordinate annual community meetings with City leaders.
• Maintain a list of facilities available for use by the community and assist with
securing facilities for meetings and events.
• Manage system for rental use of materials for community meetings and
events including:
o Projector
o Portable projection screen
o Easels
o Coffee urn
o Portable flier rack
o Ice chest
o Money box
o Foldable tables
o Foldable chairs
o Table cloth w/logo
o Canopy & sandbags
o Portable speaker/microphone
16.c
Packet Pg. 477 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 2 (6038 : Implementation of a Neighborhood Resource Center, Matching Grants
16.d
Packet Pg. 478 Attachment: CM.Neighborhood Resource Center.ATTACHMENT 3 (6038 : Implementation of a Neighborhood Resource Center, Matching
17.a
Packet Pg. 479 Attachment: CED.CCB Update Staff Report (6039 : Commercial Cannabis Business Update)
Discussion
On March 20, 2019, staff mailed letters to the applicants informing them of the action
taken by the Mayor and City Council, approving 16 applications. Staff continues to
communicate with those applicants with approved Commercial Cannabis Business
permits. The intent is to assist the applicant through the next steps of the process. As
part of the next steps, the applicants were asked to prepare Tenant Improvement Plans
for review and consideration by all applicable City and County departments, including
the Building & Safety Division, Water Department and San Bernardino County Fire
Department. Additionally, the applicants are required to obtain the appropriate
approvals and licensing from the State of California. Lastly, some applicants have
informed the City that they are currently working to secure financing from outside
sources to fund their business endeavors.
Following the February 21, 2019 special meeting, staff has updated the illustrative
Commercial Cannabis Maps to reflect those applications that were approved and those
that were not approved, and the types of Commercial Cannabis Businesses. There are
also a number of additional maps that have been blown up to better identify the location
of these applications (see attachments).
As was discussed at the February 21, 2019 special meeting, staff has reviewed all
applications and prepared a Zoning Verification Letter to ensure consistency with the
Commercial Cannabis Business regulations. Subsequent to further review, it was
identified that to ensure future consistency with the Zoning Code, sections of the Zoning
Code should be amended to include a Commercial Cannabis Business land use
classification to the Land Use Table 06.01 found in Chapter 19.06 (Commercial Zones)
and Table 08.01 in Chapter 19.08 (Industrial Zones). Staff is seeking direction from the
Mayor and City Council to proceed with this amendment.
Ordinance MC-1503 includes the appropriate General Plan consistency findings
necessary to support the approval of the 16 Commercial Cannabis Business permits.
Staff is specifically seeking direction from the City Council on the following three areas:
1. Do nothing at this time and wait for resolution of litigation;
2. Increase the number of cannabis permits by particular business types to
accommodate all the applicants who presented at the public hearing; and
3. Discuss expansion based on a certain number only and then decide how to award
permits using the existing multi-step process or some modified version.
17.a
Packet Pg. 480 Attachment: CED.CCB Update Staff Report (6039 : Commercial Cannabis Business Update)
Financial Impact
Commercial Cannabis Business Permit awardees will be required to pay all fees in
accordance with each step of the process moving forward, including Plan Check fees,
Regulatory fees upon Permit issuance and Business Registration fees.
2018-2019 Goals and Objectives
Facilitating business activity in the City aligns with Goal No. 3: Create, Maintain and
Grow Jobs and Economic Value in the City.
Attachments
Attachment 1 Map of Award vs. Not Awarded CCB Applicants by Type
17.a
Packet Pg. 481 Attachment: CED.CCB Update Staff Report (6039 : Commercial Cannabis Business Update)
5TH ST
MILL ST
RIALTO AVE G STLITTLE MOUNTAINDRALABAMA STUNIVERSITYPKWYCENTRAL AVEE STHIGHLAND AVE
WATERMAN AVEBASELINE ST
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5
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4
City of San BernardinoAwarded/Not AwardedCCB Permits By Type
Author: Ruth Parish, IT Dept, Printed: 3/27/2019,8:01:22 AM, Path:I:\_MXDs\DS\Cannabis\Feb2019 Approved Permits\Awarded-NotAwarded-CCBPermits-Feb2019-11x17.mxd
±CCB ApplicationsType by Symbol
Not Awarded
Awarded
CCB ApplicationsType by Color
Distribution
Manufacturing
Cultivation
Microbusiness
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend 17.b
Packet Pg. 482 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
6 TH ST
5TH ST
4TH ST
ARROWHEAD AVERI A LT O AVE
2 N D ST E STI STSIERRA WAYD STG STH ST3RDDMOUNTAIN VIEW4TH
§¨¦21 5
3
1
City o f Sa n Be rnardinoAwarded/N ot AwardedCCB Pe rmi ts By Type
Au t h o r : R u t h P a r i sh , I T D e p t, P r i n t e d : 3 /2 7 /2 0 1 9 ,9 :0 1 :5 5 A M , P a th :I:\_MX D s\D S \C a n n a bis\Awarded and Not\Awarded-NotAwarded-CCBPermits-Feb2019-8x11.mxd
µCCBAppl icati on sType by S ymbol
Not Aw arded
Aw arded
CCBAppl icati on sType by Col or
Distribution
Manu facturing
Cultiv ation
Micro business
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend 17.b
Packet Pg. 483 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
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5
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City o f Sa n Be rnardinoAwarded/N ot AwardedCCB Pe rmi ts By Type
Au t h o r : R u t h P a r i sh , I T D e p t, P r i n t e d : 3 /2 7 /2 0 1 9 ,8 :5 9 :2 4 A M , P a th :I:\_MX D s\D S \C a n n a bis\Awarded and Not\Awarded-NotAwarded-CCBPermits-Feb2019-8x11.mxd
µCCBAppl icati on sType by S ymbol
Not Aw arded
Aw arded
CCBAppl icati on sType by Col or
Distribution
Manu facturing
Cultiv ation
Micro business
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend 17.b
Packet Pg. 484 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
HI GH LA ND AVE
H STG STMT VERNON AVECAJONBLVD
E ST27 TH ST
16 T H
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City o f Sa n Be rnardinoAwarded/N ot AwardedCCB Pe rmi ts By Type
Au t h o r : R u t h P a r i sh , I T D e p t, P r i n t e d : 3 /2 7 /2 0 1 9 ,9 :0 0 :1 4 A M , P a th :I:\_MX D s\D S \C a n n a bis\Awarded and Not\Awarded-NotAwarded-CCBPermits-Feb2019-8x11.mxd
µCCBAppl icati on sType by S ymbol
Not Aw arded
Aw arded
CCBAppl icati on sType by Col or
Distribution
Manu facturing
Cultiv ation
Micro business
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend 17.b
Packet Pg. 485 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
WATERMAN AVEMILL ST
ORANGE SHOW RD
CENTRAL AVE
AUTOPLAZADRINLAND CENTER DRI STARROWHEAD AVEE STG STDCAMINO REALHHUFF
§¨¦215
3
1
City of San BernardinoAwarded/Not AwardedCCB Permits By Type
Author: Ruth Parish, IT Dept, Printed: 3/27/2019,9:03:57 AM, Path:I:\_MXDs\DS\Cannabis\Awarded and Not\Awarded-NotAwarded-CCBPermits-Feb2019-8x11.mxd
µCCBApplicationsType by Symbol
Not Awarded
Awarded
CCBApplicationsType by Color
Distribution
Manufacturing
Cultivation
Microbusiness
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend
17.b
Packet Pg. 486 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
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3
City of San Bernardino
Awarded/Not Awarded
CCB Permits By Type
Author: Ruth Parish, IT Dept, Printed: 3/27/2019,9:04:52 AM, Path:I:\_MXDs\DS\Cannabis\Awarded and Not\Awarded-NotAwarded-CCBPermits-Feb2019-8x11.mxd
µCCB
Applications
Type by Symbol
Not Awarded
Awarded
CCB
Applications
Type by Color
Distribution
Manufacturing
Cultivation
Microbusiness
Retail
Wards
1st Ward
2nd Ward
3rd Ward
4th Ward
5th Ward
6th Ward
7th Ward
Legend
17.b
Packet Pg. 487 Attachment: CED.CCB Update.Att 1 (6039 : Commercial Cannabis Business Update)
18.a
Packet Pg. 488 Attachment: MCC.SCAG Regional Council District 7 Election Voting Members. REPORT (6040 : Selection of SCAG Regional Council District 7
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino select
five (5) voting for the Regional Council District 7 Election on Friday, April 5, 2019 at 5:30
p.m. at the SCAG San Bernardino Regional Office, Historic Santa Fe Depot, 1170 West
Third Street, Suite 140, San Bernardino, California.
Attachment
Attachment 1- SCAG – Second Notice of Election for Regional Council District 7
Representative
18.a
Packet Pg. 489 Attachment: MCC.SCAG Regional Council District 7 Election Voting Members. REPORT (6040 : Selection of SCAG Regional Council District 7
18.b
Packet Pg. 490 Attachment: MCC.SCAG Regional Council District 7 Election Voting Members. Attachment 1 (6040 : Selection of SCAG Regional Council
18.b
Packet Pg. 491 Attachment: MCC.SCAG Regional Council District 7 Election Voting Members. Attachment 1 (6040 : Selection of SCAG Regional Council
20.a
Packet Pg. 492 Attachment: FN.Business Registration Liens. Staff Report (6041 : Business Registration Liens)
of the property. If there is still no response after the second letter, a certified letter is
sent indicating the same information. If there is no response to the certified letter, a lien
hearing notice is mailed with a Business Registration application to allow the owner to
comply or close the account before proceeding into the lien process.
If letters are returned because the owners address is unknown, the City will continue the
same process using the new address collected by the Post Office. If no forwarding
address is provided by the Post Office, the matter is dismissed.
Exhibit A to the Resolution (attached) represents accounts that are not in compliance as
of 5:30 p.m. March 20, 2019, when this report was submitted to the agenda process.
Those accounts that were addressed between March 20, 2019 and April 3, 2019, will be
removed from the list that is forwarded to the County; liens will not be placed on those
properties.
2018-2019 Goals and Objectives
The approval of the placement of liens on the subject properties for unpaid Business
Registration taxes and penalties is consistent with Goal No. 6: Operate in a fiscally
Responsible and Business-Like Manner. The program helps to insure greater
compliance with the municipal code within the business community and will generate
additional revenue through this enhanced compliance effort by Business Registration
staff.
Fiscal Impact
The anticipated amount of additional revenue to be collected through the lien process is
$143,000.
Conclusion
It is recommended that the Mayor and City Council adopt Resolution No. 2019-52,
imposing liens on certain properties for unpaid business registration taxes and penalties
and instruct the Director of Finance to remove any properties from the Business
Registration Lien List (Exhibit A to the Resolution) which are resolved prior to the
hearing.
Attachments
Attachment 1 Resolution; Exhibit A
Ward: All
On August 1, 2018, the Mayor and City Council adopted Resolution No. 2018-226,
imposing liens on certain parcels of real property located within the City of San Bernardino
for uncollected Business Registration fees.
On February 21, 2018, the Mayor and City Council adopted Resolution No. 2018-50,
imposing liens on certain parcels of real property located within the City of San Bernardino
for uncollected Business Registration fees.
3/29/2019 10:15 AM
20.a
Packet Pg. 493 Attachment: FN.Business Registration Liens. Staff Report (6041 : Business Registration Liens)
Resolution No. 2019-52
RESOLUTION NO. 2019-52 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
IMPOSING LIENS ON CERTAIN PARCELS OF REAL
PROPERTY LOCATED WITHIN THE CITY OF SAN
BERNARDINO FOR UNCOLLECTED BUSINESS
REGISTRATION FEES
WHEREAS, section 5.04.076 of the San Bernardino Municipal Code requires whenever
appropriate fees and penalties cannot be collected after proper notification to the owner, the total
uncollected fees and penalties shall become an assessment; and
WHEREAS, Owners of properties listed on Exhibit “A” were issued a first notice, final
notice, certified notice and a Lien Hearing notice of the rental property requirements for the City
of San Bernardino; and
WHEREAS, Due notice was given to the person or persons having an interest in said
property and pursuant to the notice dated April 3, 2019, a hearing was held by the Mayor and
City Council to hear protests and to assess the fees imposed on said property.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference. The City of San Bernardino, pursuant to its authority under San Bernardino Municipal
Code Section 5.04.076 does hereby impose liens on the real property described in Exhibit “A,”
attached hereto and incorporated herein by reference, for uncollected business registration fees
and all future fees and penalties.
SECTION 2. The matter having now come before the Mayor and City Council for
confirmation of the imposition of the liens imposed, the fees set forth on Exhibit “A” are found
to have been uncollectible after proper notification to the property/business owner pursuant to
proceedings under Section 5.04.076 of the San Bernardino Municipal Code.
SECTION 3.The statements of fees on file with the Finance Department are hereby
confirmed and adopted as special assessments against the properties listed in Exhibit “A” hereto.
SECTION 4. Director of Finance is directed to remove paid liens and those addressed
prior to the meeting of April 3, 2019, from Exhibit “A” prior to forwarding the list to the County.
SECTION 5. That the City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
20.b
Packet Pg. 494 Attachment: FN.Business Registration Liens.Attachment 1 Resolution (6041 : Business Registration Liens)
Resolution No. 2019-52
SECTION 6. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this ___ day of __________, 2019.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
20.b
Packet Pg. 495 Attachment: FN.Business Registration Liens.Attachment 1 Resolution (6041 : Business Registration Liens)
Resolution No. 2019-52
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
VACANT _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2019.
______________________________
Georgeann Hanna, MMC, City Clerk
20.b
Packet Pg. 496 Attachment: FN.Business Registration Liens.Attachment 1 Resolution (6041 : Business Registration Liens)
Exhibit A
ORDER NO FIRST NAME ADDRESS 1 CITY STATE POSTAL CODE ADDRESS2 ACCT#APN AMOUNT PRIORTOLIEN WARD
1 Jimmy Gutierrez/Brando Ayala/Carlos Flores 943 E 2nd St San Bernardino CA 92408-1273 943 E 2nd St 75413 0279 291 13 297 172 1
2 Alondra & Hugo Mora 318 E 17th St San Bernardino CA 92404-4904 1040 W 2nd St 67415 0138 272 26 561 436 1
3 Ivonne Gonzalez 1098 E 2nd St Apt B San Bernardino CA 92408-1272 1098 E 2nd St 950965 0279 301 58 561 436 1
4 Miguel Mendoza 1735 Westwood Pl Pomona CA 91768-1544 275 E 3rd St 72134 0135 251 13 801 676 1
5 David & Jean Housepian 1616 Davidson St Loma Linda CA 92354-1709 1103 E 3rd St 64169 0279 301 08 1017 892 1
6 Hector Lopez 1556 Union St San Bernardino CA 92411-2545 1119 W 5th St 7146 0138 192 17 345 220 1
7 Vijay & Hitesh Solanki 10151 Arrow Ste 10 Alta Loma CA 91730-4765 551 W 7th St 75260 0134 022 04 633 508 1
8 Carmen Leandro 842 W 7th St San Bernardino CA 92410-3009 842 W 7th St 73304 0140 262 20 561 436 1
9 Pedro Serna 1364 W 8th St San Bernardino CA 92411-2645 1364 W 8th St 65798 0139 232 32 561 436 1
10 Alon Ralty LLC 13425 S Figueroa St Los Angeles CA 90061-1143 285 E 9th St 75271 0140 241 07 2112 1987 1
11 VDLFT LLC 320 N Hollenbeck Ave Covina CA 91723-1821 107 E 10th St 67839 0140 171 01 561 436 1
12 Leonardo,Adelina, Cristobal Mendoza 2655 Gage Ave El Monte CA 91733-2212 726 N Arrowhead Ave 72892 0140 282 53 561 436 1
13 Jose Olvera 744 Forestview Ave Bassett CA 91746-2852 330 N D St 72203 0134 251 55 4731 4606 1
14 Elizabeth & Mayra Alvarez 735 Davidson Ave San Bernardino CA 92411-2709 735 Davidson Ave 73410 0139 294 27 345 220 1
15 Scott Marquez 525 Vista Flora Newport Beach CA 92660-4016 1065 W Evans St 58936 0144 154 07 309 184 1
16 Valley Equities LLC 15332 Antioch St #144 Pacific Palisades CA 90272-3628 444 N H St 74009 0134 092 23 1073 948 1
17 Frank J Hays 979 244th St Harbor City CA 90710-1802 773 N H St 46219 0140 263 33 1017 892 1
18 Claudette M Goode 1634 Turrill Ave San Bernardino CA 92411-1442 162 E King St 42215 0135 291 26 321 196 1
19 Aleyda & Rocio Penaloza 1163 W King St San Bernardino CA 92410-1704 1163 W King St 75411 0138 303 02 537 412 1
20 Sergio Lopez 6965 Barton St San Bernardino CA 92404-6203 1457 W Kingman St 946775 0138 174 11 357 232 1
21 Jose & Esther San Inocencio 3948 Vineland Ave Baldwin Park CA 91706-4340 657 N L St 75385 0138 061 22 297 172 1
22 Joe & Margartet 935 N L St San Bernardino CA 92411-2840 1039 N L St 907768 0139 121 47 1029 904 1
23 Gabriela Sanchez 8050 Surrey Ln Alta Loma CA 91701-1224 1187 N L St 65521 0139 081 38 573 448 1
24 Fernando Lara/Esmeralda Lopez 1284 N Lugo Ave San Bernardino CA 92040-5227 1284 N Lugo Ave 949817 0146 231 13 357 232 1
25 Felix Olguin 4070 Acre Ln San Bernardino CA 92407-3604 796 N Mount Vernon Ave 51882 0139 281 22 561 436 1
26 Victor Portillo 1288 N Mount Vernon Ave San Bernardino CA 92411-1855 1288 N Mount Vernon Ave 58745 0143 181 23 561 436 1
27 Peter Truong 728 N Mountain View Ave San Bernardino CA 92401-1138 728 N Mountain View Ave 73392 0140 292 09 561 436 1
28 Gloria Hailes PO Box 115 Montclair CA 91763-0115 996 N Mountain View Ave 46622 0140 161 09 561 436 1
29 Hernan Ramirez 1147 Perris St San Bernardino CA 92411-2326 1147 Perris St 9424 0139 091 38 1017 892 1
30 Del Mar Investments Inc 5137 Walnut Ave Lynwood CA 90262-3954 815 Preston St 68554 0147 242 02 1041 916 1
31 Trina & Hai Tran 4193 Foxborough Dr Fontana CA 92336-0420 1025 N Tippecanoe Ave 75446 0278 072 48 513 388 1
32 Luis Vargas 572 Union St San Bernardino CA 92410-2937 572 Union St 61266 0140 202 18 561 436 1
33 Frances Sandoval/Jesus Sandoval 1012 W Olive St San Bernardino CA 92411-2323 1371 Union St 48809 0139 232 19 1017 892 1
20.c
Packet Pg. 497 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
34 Jose Barajas Gallardo 1524 Union St San Bernardino CA 92411-2545 1524 Union St 6842 0139 223 23 561 436 1
35 Juan Diaz 827 Victoria St San Bernardino CA 92410-3121 835 Victoria St 73990 0134 012 08 1089 964 1
36 Amparo Ramos/Susan Flores 981 W Evans St San Bernardino CA 92411-1913 1156 Vine St 43875 0139 291 25 1017 892 1
37 Eugene Phillips Jr PO Box 30226 San Bernardino CA 92413-0226 172 W 9th St 27957 0140 162 20 417 292 2
38 Blanca Burgos/Severian Beltran 8300 Quimby St Paramount CA 90723-2729 180 E 11th St 75285 0140 082 16 549 424 2
39 Mario Perez 248 E 11th St San Bernardino CA 92410-3744 248 E 11th St 70900 0140 092 24 257 132 2
40 Farzana Naeem 8080 Park Lawn Ct Fontana CA 92336-3831 285 W 11th St 72170 0140 101 29 297 172 2
41 Xiuxhen Wang/Maosong Sun 1087 Hawkwood Wy Allen TX 75013-5827 254 W 14th St 75581 0146 161 11 513 388 2
42 Luz Zamorano 969 W 14th St San Bernardino CA 92411-1901 969 W 14th St 75390 0144 221 06 777 652 2
43 Raphael & Loron Robinson 15565 Pisa Ln Fontana CA 92336-4613 163 E 15th St 58902 0146 172 31 481 356 2
44 United Capital Management 357 E 17th St Apt C San Bernardino CA 92404-4957 357 E 17th St 72489 0147 042 08 561 436 2
45 The Housing Specialist 364 E 16th St San Bernardino CA 92404-5102 376 E 17th St 49813 0147 041 17 345 220 2
46 Hector Erami 13351 Wexford Ave Moreno Valley CA 92555-8425 754 W 17th St 75570 0145 074 04 273 148 2
47 CTR Partnership LP 905 Calle Amanecer Ste 300 San Clemente CA 92673-6277 260 E 18th St 75356 0146 091 33 537 412 2
48 CTR Partnership LP 905 Calle Amanecer Ste 300 San Clemente CA 92673-6277 266 E 18th St 74356 0146 091 32 525 400 2
49 CTR Partnership LP 905 Calle Amanecer Ste 300 San Clemente CA 92673-6277 272 E 18th St 962392 0146 091 31 525 400 2
50 CTR Partnership LP 905 Calle Amanecer Ste 300 San Clemente CA 92673-6277 278 E 18th St 962393 0146 091 30 525 400 2
51 Dagmel Residential Properties 7596 Eads Ave Ste 102 La Jolla CA 92037-4892 832 W 20th St 938245 0145 012 15 777 652 2
52 William Cline 5270 Pomona Blvd Los Angeles CA 90022-1713 363 E 28th St 49902 0150 154 10 321 196 2
53 Rodrigo Gonzalez 4124 La Rica Ave Baldwin Park CA 91706-3148 1388 N Arrowhead Ave 6351 0145 212 24 561 436 2
54 Barbara Tadesse 9426 Yakima Ln NW Quincy WA 98848-9143 1725 N Arrowhead Ave 72319 0146 072 03 345 220 2
55 Silver Tiger Group LLC 7942 Claudette Dr Riverside CA 92509-0157 2098 Belle St 61032 0146 061 14 1041 916 2
56 Brad Dunn Family Trust PO Box 825 Bridgeport CA 93517-0825 2139 Belle St 75364 0146 032 05 297 172 2
57 Tim Ledbetter PO Box 1944 Crestline CA 92325-1944 756 Campus Way 59043 0145 043 04 345 220 2
58 Wing Cheng 25461 Flamingo Rd San Bernardino CA 92410-4149 1335 Canyon Rd 72070 0273 172 37 325 196 2
59 Johnny & Arcelia Salazar 14324 Marilla Ave Norwalk CA 90650-5241 1303 Cedar St 49801 0273 181 30 321 196 2
60 Gethin Williams PO Box 173859 Denver CA 90217-3859 1500 N D St 69887 0145 142 28 329 204 2
61 Tic Park West 27 LLC 836 Raymond Ave Long Beach CA 90804-4631 1563 N D St 73313 0145 143 17 922 797 2
62 Juan Tapia 2551 Davidson Ave San Bernardino CA 92405-3015 2916 Davidson Ave 933219 0148 263 05 561 436 2
63 Jose Antonio Landeros 1165 E 56th St Los Angeles CA 90011-4723 1501 N E St 932943 0145 181 12 561 436 2
64 John Evans 4901 Lewis Rd Agoura CA 91301-2453 1139 N G St 918313 0140 031 30 333 208 2
65 First Coastal Trust 1624 Orchard Dr Newport Beach CA 92660-1316 1324 N G St 75262 0145 193 11 1253 1128 2
66 Barbara Pecina 1912 N G St San Bernardino CA 92405-3827 1912 N G St 70919 0145 044 22 801 676 2
67 Lindsey Smeets 2719 Coronado Dr Fullerton CA 92835-1719 2135 N G St 51137 0145 021 28 561 436 2
20.c
Packet Pg. 498 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
68 Robert L Culp 1703 Garden Dr San Bernardino CA 92404-5503 1703 Garden Dr 943257 0147 232 19 309 184 2
69 Ricardo Gomez 2914 Manitou Ave Lincoln Heights CA 90031-3009 655 W Highland Ave 75519 0145-021-19 273 148 2
70 Leticia Vazquez 1228 N Lugo Ave San Bernardino CA 92404-5227 1228 N Lugo Ave 7304 0146 231 20 561 436 2
71 Anton Christensen/Alice Alvarado 1210 E 33rd St San Bernardino CA 92404-2604 1705 N Lugo Ave 75492 0146 084 01 513 388 2
72 Jenafer Cruz 1703 Ybarra Dr City Industry CA 91748-3155 348 Magnolia Ave 72248 0145 143 03 561 436 2
73 Regina Rhymes 4444 CasaGrande Cir Apt 61 Cypress CA 90630-2551 587 Magnolia Ave 46580 0145 174 12 297 172 2
74 Lawrence Jones 12625 Frederick St Ste 188 Moreno Valley CA 92553-5216 669 Magnolia Ave 60474 0145 172 13 561 436 2
75 The Arbors PO Box 3007 Corona CA 92878-3007 2878 Mira Monte Dr 908141 0148 302 23 799 674 2
76 The Arbors PO Box 3007 Corona CA 92878-3007 2894 Mira Monte Dr 908140 0148 302 22 609 484 2
77 The Arbors PO Box 3007 Corona CA 92878-3007 2920 Mira Monte Dr 908138 0148 302 32 799 674 2
78 Arturo Ramos 7704 Alderwood Ave Eastvale CA 92880-8527 1713 N Mountain View Ave 75564 0146 076 02 273 148 2
79 Moises Castrejon 116 Anned Dr Placentia CA 92870-5634 748 W Olive St 66684 0140 023 15 1041 916 2
80 Eastgate Equity 921 N Harbor Blvd Ste 207 La Habra CA 90631-3103 767 W Olive St 73501 0140 024 03 333 208 2
81 Julie Cunningham 2830 La Salle Ave Costa Mesa CA 92626-5702 1042 N Pershing Ave 73978 0140 101 09 333 208 2
82 Tawni Flot 12300 Morrison St Moreno Valley CA 92555-1805 1050 N Pershing Ave 72818 0140 101 08 417 292 2
83 Jesus Martinez 2160 Pepper Dr Highland CA 92346-2424 1526 N Pershing Ave 72131 0146 131 12 561 436 2
84 Haldon & Ann Mathews Tr 1324 Roxbury Dr San Bernardino CA 92404-5464 1324 Roxbury Dr 68487 0147 142 01 1041 916 2
85 Lorelay Virbia/VDLFT LLC 302 N Hollenbeck Ave Covina CA 91723-1821 1555 Sepulveda Ave 68321 0146 143 03 561 436 2
86 1159 N Sierra Way Trust 1159 N Sierra Way San Bernardino CA 92410-3637 1159 N Sierra Way 60211 0140 081 24 1017 892 2
87 Pacifica L 27 LLC 1785 Hancock St Ste 100 San Diego CA 92110-2051 1071 N Stoddard Ave 65856 0140 053 20 1017 892 2
88 One Team LLC 7456 Sequoia Ln Highland CA 92346-7731 807 W Virginia St 64247 0145 192 30 321 196 2
89 Yuriria Sandoval PO Box 55 Etiwanda CA 91739-0055 1428 Wall Ave 75345 0146 181 10 297 172 2
90 Hanhsing Li 6375 San Andres Ave Cypress CA 90630-5321 1435 N Waterman Ave 50870 0147 091 33 309 184 2
91 CTR Partnership LP 905 Calle Amanecer Ste 300 San Clemente CA 92673-6277 1850 N Waterman Ave 962394 0146 091 36 525 400 2
92 IMG Cares LLC 9030 W Sahara Ave Ste 169 Las Vegas NV 89117-5744 2349 W Atchison St 75553 0142 681 47 513 388 3
93 Eduardo & Sagrario Panuco 1064 W Belleview St San Bernardino CA 92410-2316 1064 W Belleview St 70924 0137 041 20 801 676 3
94 Irma Caldera 1192 W Belleview St San Bernardino CA 92410-2355 1190 W Belleview St 65044 0137 031 17 345 220 3
95 Angelica Paredes/Efrain Salazar 5858 Chiquita Ln San Bernardino CA 92404-3208 1231 Birch St 75576 0137 133 06 513 388 3
96 West Center Drive Realty LLC 899 Tamarisk Rd Palm Springs CA 92262-5735 184 W Caroline St 72148 0164 321 83 993 868 3
97 Frank Garcia 1192 Chestnut St San Bernardino CA 92410-2602 1192 Chestnut St 60387 0137 171 29 357 232 3
98 Shahabuddin Khaled 1378 Coral Tree Ln San Bernardino CA 92408-3673 1378 Coral Tree Ln 75427 0281 323 27 1017 892 3
99 Marquimary Rothman 160 S Old Springs Rd Ste 170 Anaheim CA 92808-1250 1520 Coulston St 70705 0281 322 44 357 232 3
100 Jesus Gutirrez 18608 Brown St Perris CA 92570-8152 1977 Deer Creek Rd 61844 0142 611 16 321 196 3
101 Marianito Garcia 1530 Gould St San Bernardino CA 92408-2978 1530 Gould St 44151 0281 122 16 345 220 3
20.c
Packet Pg. 499 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
102 Rene & Aida Rengifo 250 N Grape Ct San Bernardino CA 92410-1632 250 N Grape Ct 65488 0138 251 24 561 436 3
103 West Center Drive Realty LLC 899 Tamarisk Rd Palm Springs CA 92408-4172 2211 Hunts Ln 72147 0164 321 82 993 868 3
104 Clark Winch 218 Lonetree Irvine CA 92603-0141 845 S Lassen Ave 63221 0142 671 65 561 436 3
105 Luis Avalos/Eliseo Hurtado 1900 S Campus Ave Apt 40E Ontario CA 91761-5481 805 S Marvin Dr 6292 0142 671 30 561 436 3
106 Jose Portillo 1514 N Ash Ave Rialto CA 92376-2903 1163 Oak St 75151 0137 171 08 345 220 3
107 Kristal & Fabian Granados 79641 Port Royal Ave Bermuda Dunes CA 92203-1265 1183 Oak St 7662 0137 171 05 357 232 3
108 Sylvia & Orlando Ornelas 395 S State St San Bernardino CA 92410-2132 395 S State St 73249 0142 393 23 561 436 3
109 Christopher Dean PO Box 1129 San Bernardino CA 92402-1129 1878 Wallace Ct 6693 0280 292 17 561 436 3
110 Michael Yepez 3085 E 17th St Highland CA 92346-2430 3085 E 17th St 72522 1191 271 66 561 436 4
111 Walter Castillo 3482 20th St Highland CA 92346-4553 3482 E 20th St 75428 1191 314 36 537 412 4
112 New Horizons PO Box 18142 Long Beach CA 90807-8142 3494 21st St 959209 1191 301 17 309 184 4
113 Ward Land Corp 1000 Bryant Rd Long Beach CA 90815-4417 3528 21st St 60259 1191 301 20 333 208 4
114 Yolanda Macias 3420 Broadmoor Blvd San Bernardino CA 92404-2406 162 E 39th St 75402 0154 464 52 297 172 4
115 Derrick Myers 2120 Sea Ridge Dr Long Beach CA 90755-3779 259 E 49th St 75258 0154 126 03 1067 942 4
116 Raymond Beltran 4467 Acacia Ave San Bernardino CA 92407-3535 4467 Acacia Ave 75499 0154 133 04 517 392 4
117 Thomas Walker 1140 Sano Ct Arcadia CA 91007-6230 4645 Brentwood Ln 73082 0154 681 05 561 436 4
118 Arlene Benson 4400 W Florida Ave Spc 286 Hemet CA 92545-3885 1804 Colwyn Ave 8470 1191 271 08 1041 916 4
119 Antonio & Maria Pineda/Grecia Gutierrez 6428 Cold Mountain Way San Bernardino CA 92407-5197 5496 N D St 73137 0154 602 08 561 436 4
120 Larry & Lucy Vizard PO Box 10591 Beverly Hills CA 90213-3591 2010 Foothill Blvd 75420 0155 381 01 1017 892 4
121 Bobby Long & Vivian Long 22869 Vista Grande Colton CA 92324 2536 E Highland Ave 70815 0285 742 18 309 184 4
122 Dong Bai Xu 6113 Oak Ave Temple City CA 91780-1654 3311 E Highland Ave 63258 1191 282 36 777 652 4
123 Pinewood Irrevocable Trust 16570 Sagebrush St Chino Hills CA 91709-4713 3696 E Highland Ave 75330 1200 011 09 369 244 4
124 Sophanna Un 1480 E Marshall Blvd Apt 14 San Bernardino CA 92404-7037 1480 E Marshall Blvd Apt 14 75449 0155 581 14 273 148 4
125 Del Rosa Apartments LLC PO Box 3233 Mission Viejo CA 92690-1233 1585 E Marshall Blvd 69829 0155 111 05 357 232 4
126 Daisy & Edgar Ramirez 2327 Sierra View Ct Riverside CA 92503-0636 5207 Mayfield Ct 75405 0154 713 06 297 172 4
127 Thomas Walker 1140 Sano Ct Arcadia CA 91007-6230 4710 Olivewood Ln 73081 0154 681 24 321 196 4
128 Rohit Trikha 2979 Crooked Branch Way San Jacinto CA 92582-2706 3450 Rainbow Ln 962171 1191 313 48 1017 892 4
129 MEM Investments Inc 11105 Schmidt Rd El Monte CA 91733-2803 3559 Rainbow Ln 73010 1191 315 16 333 208 4
130 Jean Collin Dearborn 3072 Broadmoor Blvd San Bernardino CA 92404-2316 5110 Sierra Rd 59621 0154 093 03 561 436 4
131 Randolph & Jocelyn Orencia 11030 Arrow Rte Ste 106 Rancho Cucamonga CA 91730-4825 4826 Village Green Way 73075 0266 561 12 561 436 4
132 Daniel David Jr 29812 Havenwood Ln Highland CA 92346-6260 5242 Yosemite Dr 52681 0154 544 13 561 436 4
133 Marc Cummings 130 The VLG Unit 106 Redondo Beach CA 90277-2570 742 W 36th St 40040 0151 172 05 561 436 5
134 Frank Barlage 11177 Caribou Ave Apple Valley CA 92308-7864 1380 W 48th St 49615 0266 401 51 1029 904 5
135 Vernon Coleman 704 S Arrowhead Ave Rialto CA 92376-6842 1380 W 48th St Unit 109 9096 0266 402 26 561 436 5
20.c
Packet Pg. 500 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
136 Adam Castaneda 5823 Green Pine Ct Etiwanda CA 91739-2240 517 Acacia Way 60547 0152 012 59 561 436 5
137 MCM Quality Investments LLC 15816 Willow Dr Fontana CA 92337-9066 6322 Acorn Cir 75346 0261 271 28 297 172 5
138 Reanell Gasaway 5009 Alta Dr San Bernardino CA 92407-2991 5009 Alta Dr 51229 0266 332 49 561 436 5
139 Vernonikka Lattin 739 W 141st St Gardena CA 90247-2115 6668 N Ashlynn Way 957724 0261 711 06 561 436 5
140 Angelica Lopez 6283 N Beechwood Ave San Bernardino CA 92407-4027 6283 N Beechwood Ave 75395 0261 271 94 537 412 5
141 Damon Poliakon 6476 Alexis Ct San Bernardino CA 92407-2178 6475 Bethany Way 68596 0261 581 42 561 436 5
142 Cyrille Moore/Wei Zheng 760 Stonegate Dr Wexford PA 15090-7592 1123 Big Canyon Dr 75296 0266 661 33 1029 904 5
143 Dagmel Residential Properties 2724 N Waterman Ave Ste E San Bernardino CA 92404-3972 2234 Cincinnati Ct 62951 0261 441 15 345 220 5
144 Goldlink Investment LLC 2370 W College Ave San Bernardino CA 92407-2494 2370 W College Ave 66488 0266 511 82 561 436 5
145 Goldlink Investment LLC 5516 Dahlia St San Bernardino CA 92407-2425 5516 Dahlia St 68608 0266 511 01 561 436 5
146 William Rippon 1440 W Edgehill Rd Apt 32 San Bernardino CA 92405-5144 1400 W Edgehill Rd Apt 80 951181 0148 372 80 1041 916 5
147 William Rippon 1440 W Edgehill Rd Apt 32 San Bernardino CA 92405-5411 1440 W Edgehill Rd Apt 32 66055 0148 371 34 561 436 5
148 Julio Arias 1440 W Edgehill Rd Apt 67 San Bernardino CA 92405-5127 1440 W Edgehill Rd Apt 67 66026 0148 371 69 561 436 5
149 Ikenna Achara 1480 W Edgehill Rd Apt 25 San Bernardino CA 92405-5122 1480 W Edgehill Rd Apt 25 65377 0148 361 25 561 436 5
150 Connie Figueroa 6551 N Jordan Ln San Bernardino CA 92407-1942 6551 N Jordan Ln 958974 0261 671 38 333 208 5
151 Northgate Equity Group 767 N Hill St Ste 102 Los Angeles CA 90012-2363 1460 Kendall Dr Unit 11 65342 0266 412 11 1029 904 5
152 Yi-Mei Yu PO Box 7775 San Francisco CA 94120-7775 1460 Kendall Dr Unit 16 63591 0266 412 16 561 436 5
153 Northgate Equity Group 767 N Hill St Ste 102 Los Angeles CA 90012-2363 1460 Kendall Dr Unit 29 65340 0266 412 29 1040 915 5
154 Northgate Equity Group 767 N Hill St Ste 102 Los Angeles CA 90012-2363 1460 Kendall Dr Unit 54 65341 0266 412 54 1059 934 5
155 Niemeyer Family Trust 14314 Encanto Dr Victorville CA 92392-5464 2546 Kendall Dr 75439 0261 221 10 1005 880 5
156 Eleanor Carey Liv Tr PO Box 961227 Fort Worth TX 76161-0227 3260 Little Mountain Dr Apt C 65908 0148 292 26 561 436 5
157 Martha Daschbach PO Box 1157 Davis CA 92517-1157 1269 W Lynwood Dr 56738 0148 252 22 321 196 5
158 Melvin Avenue Trust 6928 N Melvin Dr San Bernardino CA 92407-5173 6928 N Melvin Dr 68205 0261 621 20 561 436 5
159 David & Kathy Barbrow 416 N Pasadena Ave Glendora CA 91741-6905 1548 Ranch Rd 69817 0266 311 06 357 232 5
160 Brad Dunn Family Trust PO Box 825 Bridgeport CA 93517-0825 3042 Roberds Ave 75354 0148 313 07 297 172 5
161 Ronald Sharrit 3238 Roberds Ave San Bernardino CA 92405-1809 3238 Roberds Ave 50170 0148 331 32 273 148 5
162 Felipe Lopez 3661 Shandin Cir San Bernardino CA 92407-4309 3661 Shadin Cir 72640 0266 671 36 561 436 5
163 Nadya Mendoza Cuellar 1499 Sheridan Rd San Bernardino CA 92407-2812 1499 Sheridan Rd 75432 0266 172 01 525 400 5
164 Jimmy Johnson 4909 Village Green Way San Bernardino CA 92407-2948 5439 N Valles Dr 65659 0151 361 33 561 436 5
165 Dagmel Residential Properties 7596 Eads Ave Ste 102 La Jolla CA 92037-4892 4957 Vail Ln 68979 0266 332 34 777 652 5
166 Vivian Chen 117 S Garfield Ave Alhambra CA 91801-3832 6415 N Ventura Ave 73346 0261 431 09 1041 916 5
167 Joann Obst 30865 Bel Monte Ct E Temecula CA 925952-4408 6495 N Ventura Ave 8165 0261 431 01 801 676 5
168 $PO0261-271-46 6405 N Walnut Ave San Bernardino CA 92407-4014 6405 N Walnut Ave 73337 0261 271 46 297 196 5
169 Wing Kwok Cheng 9010 Newport Ave Apt 5 Fontana CA 92335-4734 1536 W 9th St 75459 0139 164 15 273 148 6
20.c
Packet Pg. 501 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
170 Kelvin & Alfonso Herrera 2717 9th St Rialto CA 92376-4501 2717 9th St 75502 0142 372 21 753 628 6
171 Nora N Hernandez Rentals 655 Perris St San Bernardino CA 92411-2821 1387 W 10th St 933804 0139 172 12 561 436 6
172 Helen Gaderson 1750 N Verde Ave Rialto CA 92376-2750 1497 W 16th St 57084 0143 101 20 537 412 6
173 Ceferino Angulo 1213 W 17th St San Bernardino CA 92411-1406 1213 W 17th St 75491 0144 111 03 517 392 6
174 Clay Finley 2110 65th Ave Phila PA 19138-2502 1761 W 20th St 64011 0143 283 10 1041 916 6
175 Cheryl Levy/James Ford/Chrystine Smith 1819 W 20th St San Bernardino CA 92411-1112 1819 W 20th St 67994 0143 284 09 561 436 6
176 Michael & Jeudy Cullen 23985 Encanto Ct Colton CA 92324-9217 1529 W 21st St 70683 0143 032 41 309 184 6
177 Mary Samra 3826 28th St Highland CA 92346-1903 3826 28th St 62571 1199 131 21 561 436 6
178 Benjamin & Kathy De Leon 4279 Bronson St San Bernardino CA 92407-6801 3179 N Bronson St 72776 0262 281 14 561 436 6
179 Sinullah & Khalda Khan 7814 Orion Ave Lake Balboa CA 91406-2026 2735 W Court St 66132 0142 272 07 285 160 6
180 Claudette M Goode 1634 Turrill Ave San Bernardino CA 92411-1442 1221 Cummings Way 42216 0144 112 12 321 196 6
181 Humberto Rivera 2204 W Evans St San Bernardino CA 92411-1520 2204 W Evans St 72225 0143 371 14 561 436 6
182 William & Dorothy Stuart 1387 Garner Ave San Bernardino CA 92411-1820 1387 Garner Ave 66436 0144 201 52 1041 916 6
183 Jose Luis Alva Alfaro 8849 Sierra Ave Fontana CA 92335-8584 1879 Herrington Ave 950244 0143 063 71 777 652 6
184 The Arbors PO Box 3007 Corona CA 92878-3007 2878 Herrington Ave 908146 0148 301 15 793 668 6
185 The Arbors PO Box 3007 Corona CA 92878-3007 2879 Herrington Ave 908142 0148 302 25 793 668 6
186 Orange-Lemon Limited Partnership PO Box 3007 Corona CA 92878-3007 2894 Herrington Ave 62850 0148 301 08 573 448 6
187 The Arbors PO Box 3007 Corona CA 92878-3007 2895 Herrington Ave 908143 0148 302 33 769 644 6
188 The Arbors PO Box 3007 Corona CA 92878-3007 2913 Herrington Ave 908144 0148 302 34 793 668 6
189 Ruben & Pamela Perez 3530 June St San Bernardino CA 92407-6027 1136 Magnolia Ave 929491 0144 171 20 333 208 6
190 Hoa Phan 1517 S Old Fashion Way Anaheim CA 92804-6119 1894 Magnolia Ave 70019 0143 403 04 357 232 6
191 Orlando & Annette Mayes 1366 Colorado Ave San Bernardino CA 92411-1524 1960 Magnolia Ave 49875 0143 302 16 561 436 6
192 Freddy Rodriguez 12017 Deana St El Monte CA 91732-2824 1239 W Orange St 75584 0139 072 08 273 148 6
193 Ibrahim-Mohammad/Halfa Haifa 16333 Oak Leaf Ln Fontana CA 92336-5902 2817 Rosarita St 71040 0262 271 24 777 652 6
194 Rivera Family Revocable Living Trust 23056 Hampton Ct Grand Terrace CA 92313-5342 738 N San Carlo Ave 61502 0142 033 14 561 436 6
195 Rosa Garcia 417 S Tamarisk Ave Rialto CA 92376-6785 417 S Tamarisk Ave 62000 0142 641 57 561 436 6
196 Juan Cuadros/Silvia Arellano 1135 Tiajuana St San Bernardino CA 92411-2141 1135 Tiajuana St 58270 0139 052 03 549 424 6
197 Alex Fresnares/Garciel De Hernandez 11741 Morgan Ln Garden Grove CA 92840-2533 2471 Union St 55902 0269 381 19 561 436 6
198 Leticia Wvalle 1130 Western Ave San Bernardino CA 92411-2146 1130 Western Ave 75383 0139 053 14 537 412 6
199 Shirley Murillo 1420 W King St San Bernardino CA 92410-1608 1419 Western Ave 74105 0143 113 21 1077 952 6
200 Marcos Ochoa 1247 E Swanee Ln West Covina CA 91790-1849 439 W 23rd St 62604 0149 221 07 561 436 7
201 Alberto Pardini 3985 Hawk Dr Riverside CA 92509-0423 471 W 23rd St 52454 0149 221 04 801 676 7
202 Antonio Padilla 495 W 23rd St San Bernardino CA 92405-3719 495 W 23rd St 72161 0149 221 01 561 436 7
203 857 W 23rd Street Trust 4533 W 162nd St Lawndale CA 90260-2842 857 W 23rd St 74169 0149 191 25 993 868 7
20.c
Packet Pg. 502 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
Exhibit A
204 Dagmel Residential Properties 7596 Eads Ave Ste 102 La Jolla CA 92037-4892 1031 W 23rd St 938240 0148 241 03 777 652 7
205 Tong Wu & Yao Li 3734 Delmas Ter Apt 5 Los Angeles CA 90034-5151 1679 W 28th St 69937 0268 314 04 609 484 7
206 Sotiria Bacoyianis 131 W Wells St San Gabriel CA 91776-3225 147 E 34th St 42941 0153 072 14 561 436 7
207 Jacqueline Britton/Raymond Hans 28855 Edward View Dr Highland CA 92346-5083 370 E 38th St 59723 0154 382 38 1017 892 7
208 Andre Lathon 310 N Indian Hill Blvd PMB 406 Claremont CA 91711-4611 619 E 40th St 64705 0154 421 04 1041 916 7
209 Jesus & Araceli Mora 3455 Belle St San Bernardino CA 92404-2231 3455 Belle St 66733 0153 051 30 561 436 7
210 Date Manor PO Box 3007 Corona CA 92878-3007 1226 E Date St 52489 0272 111 30 1393 1268 7
211 Del Rosa Apartments LLC PO Box 4554 Mission Viejo CA 92690-4554 3192 Del Rosa Ave 59468 0155 111 82 777 652 7
212 Del Rosa Apartments LLC PO Box 4554 Mission Viejo CA 92690-4554 3196 Del Rosa Ave 60937 0155 111 81 777 652 7
213 Pingora Loan Servicing LLC 425 Phillips Blvd Ewing NJ 08618-1430 2743 N E St 75537 0149 121 20 273 148 7
214 Eric Alvarez 547 Echo Ct San Bernardino CA 92404-1715 547 Echo Ct 62086 0154 331 29 561 436 7
215 Nicole Figueroa 3076 Genevieve St San Bernardino CA 92405-2510 3076 Genevieve St 59316 0152 213 04 561 436 7
216 Mortenza Khanian 311 N Robertson Blvd #827 Beverly Hills CA 92011-1705 3588 Genevieve St 64681 0152 073 03 132 257 7
217 Rufino Brito PO Box 94 Downey CA 90241-0094 370 E Gilbert St 68541 0147 062 29 561 436 7
218 Mayra Rosas 3486 N Golden Ave San Bernardino CA 92404-6617 3486 N Golden Ave 72293 0153 334 10 561 436 7
219 Kevin Orozco 10641 Church St Rancho Cucamonga CA 91730-6862 2705 Lawrence Ave 75297 0150 363 01 309 184 7
220 M & A Enterprises LLC 4200 W 102nd St Inglewood CA 90304-1538 2936 Loma Ave 73603 0155 451 07 1096 971 7
221 Walter Valiente 2661 N Lugo Ave San Bernardino CA 92404-3646 2661 N Lugo Ave 8201 0150 241 63 561 436 7
222 Hernandez Family Trust 3198 Valencia Ave San Bernardino CA 92404-2454 3243 N Lugo Ave 66375 0153 072 34 297 172 7
223 Community Redeveloper LP 11432 South St #135 Artesia CA 90703-6611 2741 Park Ave 72810 0272 132 37 947 822 7
224 Moshi & Marine Saleh 2865 Park Haven Dr Rialto CA 92376-7244 2865 Park Haven Dr 66894 0142 534 25 561 436 7
225 Hilda & Oscar Trejo 3152 N Sierra Way San Bernardino CA 92405-2543 3152 N Sierra Way 63254 0152 184 07 1017 892 7
226 Sergio Chavez 3904 N Sierra Way San Bernardino CA 92405-2346 3904 N Sierra Way 72590 0154 272 09 561 436 7
227 Khue Pham 2064 Sunrise Ln #2 San Bernardino CA 92404-5839 2064 Sunrise Ln 75366 1191 051 40 741 616 7
228 Patricia Postomian 7111 Forest Hills Rd West Hills CA 91307-1338 2235 Sunrise Ln 935239 1191 061 37 337 212 7
229 Willie Hicks 7225 Tiara Ave Highland CA 92346-6028 2504 Taylor Rd 70798 0272 361 12 561 436 7
230 Ramona Williams 1496 W Temple St San Bernardino CA 92411-2124 1496 W Temple St 9551 0139 174 25 801 676 7
231 Elsa Hernandez 2710 Valencia Ave San Bernardino CA 92404-4042 2722 Valencia Ave 9394 0150 293 13 561 436 7
TOTAL $143,104 $114,499
20.c
Packet Pg. 503 Attachment: FN.Business Registration Liens.Attachment 1 Exhibit A (6041 : Business Registration Liens)
21.a
Packet Pg. 504 Attachment: CM.MCC Meeting cancellation 4-17-19 (6042 : Cancellation of April 17, 2019 City Council Meeting)
2018-19 Goals and Objectives
The consideration of cancelling the April 17, 2019 City Council Meeting for Spring Break
aligns with Goal No. 5: Improve City Government Operations.
Fiscal Impact
No fiscal impact.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino,
California, approve the cancellation of the April 17, 2019 City Council Meeting and the
April 3rd meeting be adjourned to May 1, 2019.
Ward:
Synopsis of Previous Council Actions:
On January 16, 2019, the Mayor and City Council adopted Ordinance No. MC-1511 amending
Section 2.58.010 of Chapter 2.58 Title 2 of the San Bernardino Municipal Code relating to Meetings.
3/29/2019 11:00 AM
21.a
Packet Pg. 505 Attachment: CM.MCC Meeting cancellation 4-17-19 (6042 : Cancellation of April 17, 2019 City Council Meeting)