HomeMy WebLinkAboutRES NO 048-01 048-01
RESOLUTION NO.
A RESOLUTION OF THE COUNCIL OF THE CITY OF
BAKERSFIELD REGARDING THE DISPOSITION AND
DEVELOPMENT AGREEMENT FOR THE CALIFORNIA
AVENUE SENIOR HOUSING PROJECT.
WHEREAS, the City of Bakersfield (the "City") has previously acted pursuant to the
Community Redevelopment Law (California Health and Safety Code sections 33000 et.
seq.) to establish a redevelopment agency of the City known as Bakersfield
Redevelopment Agency (the "Agency"); and
WHEREAS, the Agency and Bakersfield City Council have previously completed
proceedings pursuant to the Community Redevelopment Law (the "Law~') to (a) establish
the Southeast Bakersfield Redevelopment Project Area (the "Project Area") and (b)
approve a redevelopment plan (the "Redevelopment Plan") for the Project Area; and
WHEREAS, by cooperative efforts of the City and the Agency, a Disposition and
Development Agreement ("the DDA") has been reached in form and concept with the
Developer, Capital Vision Equities, whereby the Developer will develop a $12 million, 180-
unit senior housing complex ("the Project"); and
WHEREAS, Developer has requested a loan from the City of approximately $1.7
million in federal HOME funds for the Project; and
WHEREAS, Developer has requested a loan from the Agency of approximately
$990,000 of Iow- and moderate-income housing funds for the Project; and
WHEREAS, the City and Agency have approved resolutions authorizing the use of
$990,000 of Iow- and moderate-housing funds from the Downtown Redevelopment Project
Area to be used for the Project; and
WHEREAS, both loans will be repaid with residual receipts (net profits) generated
by the Project; and
WHEREAS, the DDA is contingent upon the Developer receiving a certain amount
of tax credits from the California Tax Credit Allocation Committee ("TCAC"); and
WHEREAS, an ad-hoc committee, consisting of three Council members and three
Agency members was formed to oversee the negotiation and construction of the DDA; and
WHEREAS, the ad-hoc committee has reviewed numerous drafts of the DDA; and
WHEREAS, while the attached DDA is not in final form, nor executed by the
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Developer, the ad-hoc committee is satisfied with the language and voted to forward the
it to the Council and Agency for consideration; and
WHEREAS, while language in the DDA may need to be clarified, the terms and
basic deal points will not change prior to Council and Agency authorization to execute the
DDA.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF BAKERSFIELD as follows:
1. The above recitals are true and correct;
The Disposition and Development Agreement attached hereto is approved
as to form and content.
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I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the
Council of the City of Bakersfield at a special meeting thereof held on MAR ~ 8 Z001., by the
following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
COUNCILMEMBER CARSON, BENHAM, MAGGARD, COUCH, HANSON, SULLIVAN, SALVAGGIO
COUNClLMEMBER ~'~ O1',~ ~.,
COUNClLMEMBER
COUNC[LMEMBER I,J o~,.~
CI~ CLERK a~d Ex ~cio C~rk of the
Council of the City of Bakersfield
MAYOR of Bakersfield
APPROVED as to form:
BART J. THILTGEN
City Attorney
~'~.~,N lC E S~'AN LAN
Deputy City Attorney
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EXHIBIT NO,~
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
The City of Bakersfield
City Clerk
1501 Truxtun Avenue
Bakersfield, CA 93301
Free Recording in Accordance
With Section 6103 of the
California Government Code
AGREEMENT NO..
CITY CENTER SENIOR HOUSING PROJECT
THIS AGREEMENT is made and entered into on , between and
among the CITY OF BAKERSFIELD, a charter city and municipal corporation ("CITY"
herein), BAKERSFIELD REDEVELOPMENT AGENCY, a public body corporate and politic
("AGENCY" herein) and CAPITAL VISION EQUITIES, a California corporation ("CAPITAL"
herein).
RECITALS:
WHEREAS, the Congress of the United States has enacted the "HOME Investment
Partnerships Act" ("the Program" herein) at 42 USC 12741 et. seq. of the Cranston-
Gonzalez "National Affordable Housing Act" and amendments ("the Act" herein); and
WHEREAS, CiTY has submitted certain documents to the Department of Housing
and Urban Development ("HUD" herein) hoping to receive funds pursuant to the Program;
and
WHEREAS, CITY is empowered, under the Program, to administer funds received
under the Program and to enter into agreements with nonprofit organizations; and
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WHEREAS, AGENCY is a redevelopment agency formed pursuant to California
Health and Safety Code sections 33000 et. seq.; and
WHEREAS, CAPITAL desires to build affordable senior rental housing in the City
of Bakersfield; and
WHEREAS, the property upon which CAPITAL desires to build such housing is
located in the Southeast Bakersfield Redevelopment Project Area; and
WHEREAS, CAPITAL desires financial assistance from CITY and AGENCY to
facilitate acquisition of the real property necessary to construct such rental housing and
also to assist with relocating any persons or businesses displaced as a result of such
property acquisition; and
WHEREAS, CITY and AGENCY desire to assist CAPITAL by granting to it funds
from the HOME Program and the AGENCY's Iow- and moderate-income housing set-aside
fund to be used to acquire the real property upon which affordable senior rental housing
will be constructed and to assist in the relocation of any persons or businesses displaced
as a result of such property acquisition.
NOW, THEREFORE, incorporating the foregoing recitals herein, CITY, AGENCY
and CAPITAL mutually agree as follows:
1. DEFINITIONS
Except to the extent modified or supplemented by the Program Agreement between
CITY and HUD, any term defined in the Act or the Program, shall have the same meaning
when used herein.
1.1 "Project" means CAPITAL's acquisition of real property in the Southeast
Bakersfield Redevelopment Project Area upon which 180 units of affordable senior rental
housing will be constructed as well as construction of the units.
1.2 "Project Properties" means those certain real properties which CAPITAL shall
acquire and upon which the senior rental housing shall be constructed. The "Project
Properties" are described in Exhibit "A", attached and incorporated by this reference as
if set out in full.
1.3 "Project Completion" shall have the meaning set forth at 24 Code of Federal
Regulations 92.2.
1.4 "Period of Affordability" means a fifty-five (55) year time period, beginning
at Project Completion, during which period said housing must be affordable to all tenants
in accordance with 24 CFR 92.252.
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1.5 "CITY Loan" means CITY's loan of Program funds to CAPITAL to facilitate
acquisition of the Project Properties and other Project-related expenses.
1.6 "AGENCY Loan" means AGENCY's loan of Iow- and moderate-income
housing set-aside funds to CAPITAL to fund Project-related expenses.
1.7 "The Loans" means collectively the CITY Loan and AGENCY Loan.
1.8 "Complex" means the 180-unit senior rental housing complex and all
buildings appurtenant thereto to be constructed by CAPITAL.
1.9 "Operating Expenses" means actual, approved, reasonable and customary
costs, fees and expenses directly attributable to the operation, recordkeeping,
maintenance, taxes and management of the Complex, including without limitation: a
commercially reasonable property management fee, taxes and assessments; payroll and
payroll taxes for property employees; insurance; security; painting, cleaning, repairs, and
alterations; landscaping; sewer charges, utility charges; advertising, promotion and
publicity, cable television, satellite and other similar services; office, janitorial, cleaning
and building supplies; approved recreational amenities and supplies; purchase, repair,
servicing and installation of appliances, equipment, fixtures and furnishing; fire alarm
monitoring; fees and expenses of accountants, attorneys, consultants and other
professionals. The Operating Expenses shall be reported in the Annual Financing
Statement. Expenses for the purpose of calculating Residual Receipts are subject to CITY
and AGENCY approval and shall be calculated on a cash basis.
1.10 "Operating Reserve Fund" means the fund established to ensure that
operating expenses will be paid.
1.11 "Replacement Reserve Fund" means the fund which shall be used in the
future to replace furniture, fixtures and equipment and to replace various aspects of the
buildings (e.g. roof, landscape, etc.) in the Complex.
1.12 "Residual Receipts" means Revenues reduced by the following items in the
following order (1) Operating Expenses calculated on a cash basis; (2) debt service on
senior Project debt secured by the first position deed of trust; (3) payments to the
Operating Reserve Fund; (4) payments to the Replacement Reserve Fund; (5) repayment
of general partner loans; (6) deferred developer's fees.
1.13 "Revenues" shall mean all income derived from the Complex, including but
not limited to, rent from the units, laundry operations and parking fees. Syndication
proceeds or interest earned on reserves shall not be deemed Revenue.
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2. CONDITIONS OF THE LOANS
The Loans are intended to provide money, in the amount set forth in Section 3,
below, to apply toward the cost of acquisition of the Project Properties and other Project-
related expenses. The scope of work of the Project will include the activities as set out in
Schedule "A" attached and incorporated by reference as if set out in full.
2.1 .The Loans. Subject to the terms and conditions of this Agreement, CITY
agrees to loan to CAPITAL, and CAPITAL agrees to accept from CITY, up to the amount
of money set forth in Section 3 herein. Subject to the terms and conditions of this
Agreement, AGENCY agrees to loan to CAPITAL, and CAPITAL agrees to accept from
AGENCY, up to the amount of money set forth in Section 3.
2.2 Period of Affordabilitv. The "Period of Affordability" shall commence with
Project Completion. If CAPITAL is not in full compliance with the terms of this Agreement
at any time during the term of this Agreement, CITY or AGENCY shall notify CAPITAL of
such noncompliance and CAPITAL shall have sixty (60) days to cure. If CAPITAL fails to
cure the noncompliance in that sixty-day period, CAPITAL shall immediately pay to CITY
and AGENCY, respectively, the full amount of the Loans, and, until CAPITAL so pays, the
unpaid balance of the Loans shall continue to accrue interest.
2.3 Failure to Complete Complex. If, for any reason, after acquisition of Project
Properties, CAPITAL fails to complete the construction of the Complex as set out in
Schedule "A", after being given a reasonable time to so complete it, the Loans shall
become immediately due and payable.
3. CITY'S AND AGENCY'S OBLIGATIONS
3.1 Amount and terms of Loans. CITY shall loan CAPITAL no more than ONE
MILLION, SEVEN HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($1,710,000.00),
subject to the terms of this Agreement. Such loan shall be due and payable thirty-five (35)
years from the date of execution by CAPITAL of a promissory note as required herein,
unless repaid sooner as set forth in this Agreement or the promissory note.
CAPITAL shall pay interest at a rate of three percent (3%) simple interest per year.
CAPITAL shall begin making annual payments of principal and interest on January 1,
2004. Payments shall be made from Residual Receipts based upon the following formula:
CITY shall receive an amount equal to thirty-three percent (33%) of the Residual Receipts
of the Complex and CAPITAL shall receive an amount equal to fifty percent (50%) of
Residual Receipts of the Complex. CITY's share shall be applied first to pay current
annual interest due, then the cumulative interest owed, and then to reduce the principal
amount of the CITY Loan. Upon payment in full of the CITY Loan, CITY shall have no
further right to payment of any portion of Residual Receipts. CITY Loan and all current
and accrued interest thereon shall be due and payable immediately if the Complex, or any
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portion thereof or interest therein, is sold, transferred, assigned or refinanced otherwise
than in accordance with this Agreement.
CAPITAL shall execute a promissory note in favor of the CITY for ONE MILLION,
SEVEN HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($1,710,000.00).
Additionally, after CAPITAL acquires title to all of the Project Properties, CAPITAL shall
execute and record a deed of trust on the Project Properties in favor of CITY. Such deed
of trust shall be no less than a second deed of trust, second only to CAPITAL's permanent
construction lender. In the event that after CAPITAL acquires all the Project Properties,
CAPITAL elects to consolidate the parcels into one larger parcel, the deed of trust shall
be modified to reflect the legal description of the newly-created parcel and the modified
deed of trust shall be recorded and shall remain in second position. CAPITAL shall secure
the requisite subordination agreements to assure that CITY's modified deed of trust
remains in second position. The promissory note and deed of trust referred to herein shall
be in the form which is attached hereto as Exhibit "B" and incorporated herein by
reference.
AGENCY shall loan CAPITAL no more than NINE HUNDRED NINETY THOUSAND
AND NO/100 DOLLARS ($990,000.00), subject to the terms of this Agreement. Such loan
shall be due and payable thirty-five (35) years from the date of execution by CAPITAL of
a promissory note as required herein, unless repaid sooner as set forth in this Agreement.
CAPITAL shall pay interest at a rate of three percent (3%) simple interest per year.
CAPITAL shall begin making annual payments of principal and interest on January 1,
2004. Payments shall be made from Residual Receipts based upon the following formula:
AGENCY shall receive an amount equal to seventeen percent (17%) of the Residual
Receipts of the Complex and CAPITAL shall receive an amount equal to fifty percent
(50%) of Residual Receipts of the Complex. AGENCY's share shall be applied first to pay
current annual interest due, then the cumulative interest owed, and then to reduce the
principal amount of the AGENCY Loan. Upon payment in full of the AGENCY Loan,
AGENCY shall have no further right to payment of any portion of Residual Receipts.
AGENCY Loan and all current and accrued interest thereon shall be due and payable
immediately if the Complex, or any portion thereof or interest therein, is sold, transferred,
assigned or refinanced otherwise than in accordance with this Agreement.
CAPITAL shall execute a promissory note in favor of AGENCY for NINE HUNDRED
NINETYTHOUSAND AND NO/100 DOLLARS ($990,000.00). Additionally, after CAPITAL
acquires title to all of the Project Properties, CAPITAL shall execute and record a deed of
trust on the Project Properties in favor of AGENCY. Such deed of trust shall be no less
than a third deed of trust, subordinate only to CAPITAL's permanent construction lender
and CITY's deed of trust. In the event that after CAPITAL acquires all the Project
Properties, CAPITAL elects to consolidate the parcels into one larger parcel, the deed of
trust shall be modified to reflect the legal description of the newly-created parcel and the
modified deed of trust shall be recorded and shall remain in third position. CAPITAL shall
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secure the requisite subordination agreements to assure that AGENCY's modified deed
of trust remains in third position. The promissory note and deed of trust referred to herein
shall be in the form which is attached hereto as Exhibit "C" and incorporated herein by
reference.
3.2 Disbursement of Funds. CITY shall not be obligated to disburse, or pay to,
CAPITAL, any funds until and after CITY receives Program funds, allocated for this
Project, from the Federal Government. If CITY does not receive such funds CITY, at its
sole option, may terminate or suspend this Agreement, without any liability to CAPITAL,
until CiTY receives such funds. CAPITAL shall not be entitled to any damages from CITY
if CITY refuses to disburse funds until CITY receives funds, even if CAPITAL has
detrimentally relied upon this Agreement.
AGENCY and CITY must make the requisite findings that spending Iow- and
moderate-income housing set-aside monies from the Downtown Redevelopment Project
Area will benefit the Southeast Bakersfield Redevelopment Project Area prior to any such
funds being loaned to CAPITAL. CAPITAL shall not be entitled to any damages from
AGENCY if AGENCY refuses to disburse funds until such a finding is made or if such
finding is not made at all, even if CAPITAL has detrimentally relied upon this Agreement.
Both CITY and AGENCY must adopt a Relocation Plan prior to execution of this
Agreement to assure that all residents displaced as a result of the Project will have decent,
safe and sanitary dwellings into which to move.
This Agreement is contingent upon CAPITAL receiving enough tax credits from the
State of California Tax Credit Allocation Committee ("TCAC") during the 2001 calendar
year to enable it to raise $7,692,946.00. In the event CAPITAL receives tax credits, but
not enough to raise $7,692,946.00, but enough to make the Project feasible, CITY,
AGENCY and CAPITAL shall meet to discuss the possibility of proceeding the Project.
In the event CAPITAL does not receive any tax credits in 2001, the parties shall meet to
determine if CAPITAL can find alternate financing which would make the Project feasible.
If the parties cannot agree to proceed with the Project, this Agreement shall terminate and
CITY and AGENCY shall have no obligation to CAPITAL even if CAPITAL has
detrimentally relied upon some term or terms of this Agreement.
3.3 Disbursement into of Escrow. CiTY and AGENCY agree to disburse
funds for the purchase of the Project Properties as required by this Agreement to CAPITAL
through an escrow account with an escrow company that CITY and AGENCY approve. No
escrow on any of the Project Properties may close until CAPITAL has fulfilled all of its Pre-
Closing Obligations (See Section 4 herein).
3.4 Disbursements Outside of Escrow. In the event that the maximum loan
funds are not expended inside escrow, CiTY and AGENCY agree to pay "claims for
payment" for other Project-related costs. Claims for relocation payments shall be paid
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directly to the displaced person or business as calculated by CITY, AGENCY and
CAPITAL within forty-five (45) days after CITY and AGENCY receives a satisfactory claim
form from the displaced person or business. CITY and AGENCY shall pay other Project-
related "claims for payment" to CAPITAL within forty-five (45) days after CITY and/or
AGENCY receives a satisfactory "claim for payment" and after a properly-designated
CAPITAL official certifies the percentage of the Project completed. CAPITAL shall properly
itemize and document claims for payment to show clearly the items, tasks, or services for
which CAPITAL claims reimbursement. CAPITAL shall also describe the basis for
computation: cost per hour, cost per weight, cost per task, or other measurement as CITY
and/or AGENCY may specify. CITY and/or AGENCY may review the claim for
completeness and accuracy, and may refuse to pay any claim until explained to CITY
and/or AGENCY's satisfaction. CAPITAL grants CITY and/or AGENCY the power to make
an independent determination of the percentage of the Project satisfactorily completed.
4. CAPITAL'S OBLIGATIONS
4.1 Financing of the Pro!ect. The estimated cost of the Project is in excess of
Twelve Million Dollars ($12,000,000.00). In order to facilitate CAPITAL's completion of the
Project, the parties agree as set forth herein. It is the intent of the parties that CAPITAL
shall finance the construction and completion of the Project pursuant to this Agreement.
It is understood that CAPITAL is submitting an application to the California
Tax Credit Allocation Committee to receive tax credits which will then be sold to enable
CAPITAL to raise $7,692,946.00 toward the Project.
CITY and AGENCY's assistance is contingent upon CAPITAL receiving
enough tax credits from the State of California Tax Credit Allocation Committee ("TCAC")
during calendar year 2001 to enable it to raise $7,692.946.00. In the event CAPITAL
receives tax credits, but not enough to raise $7,692,946.00, but enough to make the
Project feasible, CITY, AGENCY and CAPITAL shall meet to discuss the possibility of
proceeding the Project. In the event CAPITAL does not receive any tax credits in 2001, the
parties shall meet to determine if CAPITAL can find alternate financing which would make
the Project feasible. If the parties cannot agree to proceed with the Project, this
Agreement shall terminate and CITY and AGENCY shall have no obligation to CAPITAL
even if CAPITAL has detrimentally relied upon some term or terms of this Agreement.
CAPITAL shall seek conventional financing for all other amounts required to
complete the Project which cannot be paid by CITY's assistance, AGENCY's assistance
and the receipt of the tax credits mentioned above.
4.2 Financing Not Obtained. All financing shall be in place by October 31,
2001. In the event said financing has not been provided or is not available, then, all
parties are relieved of all obligations hereunder and this Agreement is terminated;
provided, however, each party shall return to the other party everything of value received
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from the other party pursuant to this Agreement.
4.3 AcQuisition of the Site. CAPITAL shall acquire fee title to all of the Project
Properties by November 30, 2001. In the event that CAPITAL does not acquire title within
such time, this Agreement shall be terminated and CITY and AGENCY will have no
obligation to CAPITAL, even if CAPITAL has detrimentally relied upon any term or terms
of this Agreement.
If, after CAPITAL, CITY and AGENCY agree that a particular parcel of the Project
Properties is not attainable via voluntary purchase, CITY and/or AGENCY shall explore
the possibility of eminent domain. Neither CITY nor AGENCY guarantee that any parcel
will be acquired using eminent domain. CITY and/or AGENCY shall review each parcel
on a case-by-case basis and, if the requisite findings can be made at a noticed public
hearing, will proceed with condemnation.
4.4 Security for Performance Hereunder. CAPITAL shall cause to be issued,
a performance (completion) bond and a payment bond (labor and materials bond), each
in the amount of one hundred percent (100%) of the estimated cost of their portion of the
Complex, including fixtures, furnishings and equipment, from a surety company admitted
and licensed in California with a Best rating of "A" or better and approved by CITY and
AGENCY, and naming the CITY and AGENCY as beneficiaries. These bonds must be in
a form approved by CITY's legal counsel.
Additionally, CAPITAL shall execute hvo deed of trust on the Project Properties
naming CITY and AGENCY, respectively as beneficiaries. Such deeds of trust shall be
subordinate to any permanent construction loan deed of trust, but shall be in no less than
second and third positions, respectively. Such deeds of trust shall remain on the Project
Properties throughout the term of the Loans or until the Loans are repaid in full.
4.5 Cost of Construction. The cost of constructing the Complex on the Project
Properties shall be borne by CAPITAL. In the event the Complex should cost more to
construct than estimated herein or CAPITAL makes changes to the Complex which
increase the costs, CAPITAL shall pay for and bear full responsibility for all such additional
costs. The assistance provided by CITY and AGENCY shall not exceed the amounts set
forth in Section 3 herein.
4.6 Construction. Operation and Maintenance Standards. CAPITAL shall
construct, operate and maintain the Complex in accordance with the plans and
specifications delivered to CITY and AGENCY by CAPITAL, which plans and specifications
shall have been drawn by architects and engineers of CAPITAL and which are consistent
with CITY's requirements and the Southeast Bakersfield Redevelopment Plan.
4.7 Schedule. CAPITAL shall submit to CITY and AGENCY for review and
approval a schedule outlining the time frame in which all work on the Project will be done.
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This document shall be in the form of Schedule "A", attached hereto. Henceforth, this
schedule shall be referred to as the "Schedule of Performance." CAPITAL shall
commence and complete all construction and development within the times specified in the
Schedule of Performance or such reasonable extension of said times as may be mutually
agreed upon by CITY, AGENCY and CAPITAL. The Schedule of Performance is subject
to revision from time to time if mutually agreed upon in writing between CAPITAL, CITY
and AGENCY. The CITY's City Manager and AGENCY's Executive Director or their
designee, is hereby authorized to approve an extension of no more than one hundred
twenty (120) days to any time set for performance in CAPITAL's Schedule of Performance.
Any extension will automatically add that same amount of time to any act which is to
performed subsequent to the act for which the extension was granted.
CAPITAL shall complete all construction as required herein by January 31,
2003. CAPITAL will produce a Schedule of Performance, which shall call for completion
of the Project by January 31, 2003.
4.8 City and Other Governmental Permits. Before commencement of
construction, demolition or development of any buildings, structures or other work of
improvement upon the Project Properties, or any other work provided for by this
Agreement, CAPITAL shall, at its own expense, secure, or cause to be secured, any and
all permits which may be required by the City of Bakersfield or any other governmental or
private agency affected by or having jurisdiction over such construction, development or
work. Additionally, CAPITAL shall require its construction contractor and all
subcontractors to acquire a seller's permit (as required by Title 18, Section 1521 of the
California Code of Regulations) associated with construction of the Complex on the Project
Properties.
4.9 Riohts of Access. For the purpose of assuring compliance with this
Agreement, representatives of CITY and AGENCY shall have reasonable right of access
to the Project Properties without charges or fees and at normal construction hours during
the period of construction for the purposes of this Agreement, including, but not limited to,
the inspection of the work being performed in constructing the improvements provided,
however, such inspections shall not unreasonably interfere with the construction work in
progress. This provision shall not be construed to replace or modify inspection
requirements arising out of the issuance of building permits or land use entitlements.
4.10 Local. State and Federal Laws. CAPITAL shall carry out the construction
of the ProjectJComplex and all other work and activities provided for in this Agreement in
conformity with all applicable laws. It is understood that CAPITAL is responsible for
compliance with all applicable laws including, but not limited to, the California Labor Code,
California Public Contract Code, the California Health and Safety Code and the California
Government Code. CAPITAL and any of CAPITAL's contractors or subcontractors shall
pay State of California prevailing wages on all work resulting from this Agreement.
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4.11 Certificate of Completion. After completion of all construction to be
completed by CAPITAL, AGENCY shall, upon written request, furnish CAPITAL with a
Certificate of Completion. A Certificate of Completion for improvements upon the Project
Properties shall be in such form as to permit it to be recorded in the Recorder's Office of
Kern County.
AGENCY shall not unreasonably withhold any Certificate of Completion. If
AGENCY refuses or fails to furnish a Certificate of Completion for the Proejct after written
request by CAPITAL, AGENCY shall, within thirty (30) days of the written request, provide
CAPITAL with a written statement of the reasons AGENCY refused or failed to furnish a
Certificate of Completion. The statement shall also contain AGENCY's opinion of the
action CAPITAL must take to obtain a Certificate of Completion. If the reason for such
refusal is confined to the immediate availability of specific items of materials for
landscaping, AGENCY will issue its Certificate of Completion upon the posting of a letter
of credit or performance bond by CAPITAL with AGENCY in an amount representing the
estimated cost of the completion of the work not yet completed. If AGENCY fails to provide
such written statement within said thirty (30) day period, CAPITAL shall be deemed entitled
to the Certificate of Completion. Said security shall remain in force until the unfinished
work is completed.
Such Certificate of Completion is not the notice of completion referred to in
California Civil Code Section 3093.
4.12 In Lieu Tax Increment Payments.
In the event that CAPITAL undertakes some action which would remove the
Project Properties from the tax rolls, CAPITAL Shall pay AGENCY an amount which is
equivalent to the amount of tax increment that AGENCY would have received annually
after the Project is completed. Such payments shall be calculated by AGENCY based
upon the base value of the Project Properties on August, 1999 and the assessed value of
the Project Properties when the Project is completed and reassessed by the County of
Kern Assessor, including any annual increase in value. The amount due AGENCY
hereunder shall be the equivalent of the amount of Iow- and moderate-income set aside
and the other tax increment which would have passed to AGENCY had the Project
Properties remained on the tax rolls. Additionally, CAPITAL shall pay CITY and the other
taxing entities of Kem County an amount which is equivalent to the amount of real property
taxes that CITY and the other taxing entities would have received annually after the Project
is completed. Such payments shall be calculated by CITY based upon the base value of
the Project Properties on August, 1999 and the assessed value of the Project Properties
when the Project is completed and reassessed by the County of Kern Assessor, including
any annual increase in value.
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Such in lieu tax increment payments shall commence and be payable
December 1, 2003 and be due every December 1, with the last payment due December
1,2026. AGENCY and CITY shall send CAPITAL a statement of the in-lieu tax increment
payment which are due by November 1 each year commencing November 1, 2003. Failure
by CAPITAL to pay such in-lieu tax increment payment when due shall be considered a
breach of this Agreement, and CAPITAL shall owe AGENCY and CITY all moneys loaned
to it pursuant to this Agreement.
4.13 Security_ Plan. Prior to execution of this Agreement, CAPITAL shall provide
CITY and AGENCY with a Security Plan outlining the measures CAPITAL will be taking
to ensure the day-to-day security of the residents of the Project, as well as to ensure the
facility is not damaged.
4.14 Federal Law.
4.14.1 Relocation Assistance. This Agreement is subject to the
requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (42 USC 4601), and the HUD implementing regulations.
It is understood and agreed by the parties that some of the Project Properties
are unoccupied and, therefore, no relocation benefits shall be provided to any person or
entity for those Project Properties.
However, a majority of the Project Properties are occupied and, therefore,
any displaced person or business will be entitled to relocation benefits.
CAPITAL shall inform all owners and tenants of their rights under the federal
relocation laws, whichever are applicable. CAPITAL shall give each owner and tenant
contacted the appropriate relocation information brochure entitled "Relocation Assistance
Information" within sixty (60) days of initiation of negotiations for acquisition. Sample of
those brochures are attached hereto as Exhibit "D". Each owner, tenant, lessee or
sublessee shall sign an acknowledgment of receipt of that relocation information brochure.
The form of that acknowledgment is attached hereto as Exhibit "E". CAPITAL shall
submit all acknowledgment receipt forms to CITY's Relocation Agent at the address set
forth in Section 7 herein as soon as possible after they are signed.
No escrow will close on any property until the property owner(s) and/or
tenants, lessees or sublessees have signed a form agreeing that the relocation
requirements have been met. Such form is attached hereto as Exhibit "F".
4.14.2 Federal Labor Standards Provisions. CAPITAL shall comply
with the requirements of the Secretary of Labor in accordance with the Davis-Bacon Act
as amended, the provision of Contract Work Hours and Safety Standards Act, the
Copeland "Anti-Kickback" Act (40 U.S.C. 276a-276a5; 40 U.S.C. 327 and 40 USC. 276c)
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and all other applicable Federal, state and local laws and regulations pertaining to labor
standards insofar as those acts apply to the performance of this Agreement. CAPITAL
shall maintain documentation which demonstrates compliance with hour and wage
requirements of this part, if applicable. Such documentation shall be made available to
CITY for review upon request.
Except with respect to the rehabilitation of residential property designed for
residential use for less than eight families, CAPITAL, and all contractors engaged under
contracts in excess of $2,000 for the construction, alteration, and/or repair of any building
or work financed in whole or in part with Federal funds provided under this Agreement,
shall comply with HUD requirements pertaining to such contracts and the applicable
requirements of the regulations of the Department of Labor under 29 CFR pads 3, 5, and
5.5a, governing the payment of wages and the ratio of apprentices and trainees to
journeymen; provided, that if wage rates higher than those required under such regulations
are imposed by state or local law, nothing hereunder is intended to relieve CAPITAL of its
obligation, if any, to require payment of higher rates. CAPITAL shall cause or require to
be inserted in full, in all such contracts subject to such regulations, the clause, or any
modification thereof, set out in 29 CFR parts 3,5, and 5.5a. CAPITAL shall comply with the
procedures set out in the HUD handbook 1344.1, "Federal Labor Standards Compliance
in Housing and Community Development Programs" (as amended).
4.14.3 Political Activity. CAPITAL shall expend no HOME Program
funds to finance any political activity in contravention of the Hatch Act (Chapter 15 of Title
5 of the United States Code).
4.14.4 Lobbvino. CAPITAL certifies, to the best of its knowledge and
belief, no Federally-appropriated funds have been paid or will be paid, by or on behalf of
CAPITAL, to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress, in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any Federal contract, grant, loan, or cooperative agreement.
If funds, other than Federally-appropriated funds, have been paid or will be
paid to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with this Federal contract, grant, loan, or cooperative
agreement, CAPITAL shall complete and submit, in accordance with its instructions,
Standard Form-LLL, "Disclosure Form to Report Lobbying," Exhibit "G."
CAPITAL shall require the language of this certification to be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and all subrecipients shall to
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certify and disclose accordingly.
4.14.5 Funds for Relioious Purpose. CAPITAL shall permit no
HOME Program funds to be expended for the design, construction, operation, or
maintenance of any facility to be used for sectarian instruction or as a place for religious
worship, except in situations where such use is incidental and does not favor one religious
group over another.
4.14.6 Prohibited Interest of Officials and Employees. No member
of or delegate to the Congress of the United States, and no resident commissioner, shall
be admitted to any share or part of this Agreement or to any benefit to arise from it. No
member, officer or employee of CAPITAL, or its designees or agents, no member of CITY's
Council or AGENCY or any other public official who exercises any functions or
responsibilities with respect to the HOME Program or any other assistance program during
his tenure, or for one year thereafter, shall have any interest, direct or indirect, in any
contract or subcontract, or the proceeds thereof, for work to be performed pursuant to this
Agreement, CAPITAL shall incorporate or cause to be incorporated, a provision prohibiting
such interest in all contracts or subcontracts, relating in any manner to this Agreement.
4.14.7 Equal Emolovment O_ooortunity !Non-discrimination
Clause). CAPITAL shall not discriminate against any employee, or applicant for
employment, because of race, color, religion, sex, national origin, age, disability, or sexual
orientation. CAPITAL shall take affirmative action to ensure that applicants for
employment and employees are treated during employment, without regard to race, color,
religion, sex, national origin, age, disability, or sexual orientation. Such action shall
include, but not be limited to, the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. CAPITAL shall post
in conspicuous places, available to employees and applicants for employment, notices to
be provided by CITY or HUD setting forth the provisions of this nondiscrimination clause.
CAPITAL shall state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, national origin, age, disability, or sexual
orientation.
CAPITAL shall be bound by the equal opportunity clause set out in Exhibit
"H", attached, with respect to its own employment practices when it participates in
federally-assisted construction work; provided, however, the clause is not applicable to any
agency, instrumentality, or subdivision of CAPITAL which does not participate in work on
or under the contract.
4.14.8 Non-discrimination Reo_uirements, Under any related
agreements or contracts, CAPITAL shall provide that no person, on the grounds of race,
color, national origin, religion1 or sex, shall be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity funded in whole
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or in part with HOME Program funds. In addition, HOME Program funds must be made
available in accordance with the following:
4.14.8.1 The requirements of the Fair Housing Act and
implementing regulations at 24 CFR 100.
4.14.8.2 Executive Order 11063 (Equal Opportunity in Housing).
4.14.8.3 Title VI of the Civil Rights Act of 1964 (PL 88-352) and
Title VIII of the Civil Rights Act of 1968 (PL 90-284 nondiscrimination and fair housing on
federally assisted programs).
In addition to the foregoing, CAPITAL will comply with the
nondiscrimination clause listed in Exhibit "1", attached hereto and incorporated herein by
this reference as if set forth in full.
4.14.9 Rehabilitation Act of 1973 and Americans with Disabilities
Act. This Agreement is subject to the provisions of Section 503 and 504 of the
Rehabilitation Act of 1973 (PL 930112), 29 USC 706, and attendant regulations at 24 CFR,
Part 8, which provide that no otherwise qualified, disabled individual shall, solely by
reason of his disability, be excluded from participation in, be denied the benefits of or be
subjected to discrimination under any program or activity receiving federal financial
assistance. CAPITAL shall cause or require to be inserted in full, in all contracts subject
to such regulations, the clause, or any modification thereof, set out in Exhibit "J",
attached hereto and herein incorporated by this reference as if set out in full. This
Agreement is also subject to The Americans with Disabilities Act of 1990 (amended), 42
USC 12101, et. seq.
4.14.10 Non-discrimination Because of A_oe. This Agreement is subject
to the Age Discrimination Act of 1975, as amended, (Title III of Public Law 94-135) and
attendant Code of Federal Regulations at 48 CFR, Part 22, Subpart 22.9. That Act sets
forth that, except as otherwise provided, no person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal financial assistance.
4.14,11 "Section 3" Trainino_. Emolovment. and Business Opportunities.
This Agreement is subject to the requirements of Section 3 of the Housing and Urban
Development Act of 1968 (12 USC 1701u) as amended, HUD regulations issued pursuant
thereto at 24 CFR 135, and any applicable rules and orders of HUD issued thereunder.
CAPITAL shall cause, or require to be inserted in full in all contracts and
subcontracts for work financed, in whole or in part, with assistance provided under this
Agreement, the Section 3 clause set forth in Exhibit "K", attached.
4.14.12 Women- and Minority-Owned Business Enter0rises. CAPITAL
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agrees to abide by the requirements of Executive Orders 11625, 12432 and 12138, the
HUD regulations issued pursuant thereto at 41 CFR Part 24, 41 CFR Subpart 1-1.13, and
any applicable rules and orders cf HUD. The foregoing require the maximum practicable
opportunity to participate, in contracts funded in whole or in part with federal funds, be
provided to women- and minority-owned business enterprises, as subcontractors and
suppliers to contractors performing work, or rendering services as prime contractors or
subcontractors, under federally-funded procurement contracts.
CAPITAL shall include the Utilization of Minority Business Enterprises clause
set forth in Exhibit "L", attached, in all contracts in amounts which may exceed $10,000
(except for contracts for services which are personal in nature).
4.14.13 Affirmative Action for the Vietnam-Era Veterar~-~, CAPITAL shall
comply with 48 CFR, Chapter 1, Subpart 22.13 and shall take affirmative action to employ,
advance in employment, and otherwise treat qualified disabled veterans and veterans of
the Vietnam Era without discrimination based on disability or veteran's status in all
employment practices such as employment, upgrading, demotion, transfer, recruitment,
advertising, layoff, or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. In all contracts or agreements of $10,000
or more relating to this Agreement, CAPITAL shall include, or cause to be included, the
"Affirmative Action for Special Disabled and the Vietnam Veterans Provisions" clause set
out in Exhibit "M", attached.
4.14.14 Lead-Based Paint. This Agreement is subject to the Lead-Based
Paint Poisoning Prevention Act (42 USC 4821, et. seq.) and its implementing regulations
at 24 CFR Part 35.
4.14.15 Environmental Considerations. CITY and CAPITAL want to
assure that the policies of the National Environmental Policy Act of 1969 (NEPA), as
amended, and the California Environmental Quality Act of 1970 (CEQA), as amended, are
most effectively implemented, CITY shall comply with HUD Environmental Review
Procedures (24 CFR Part 58) leading to certification of release of funds for particular
projects, and the CEQA review procedures (Title 14, Section 15000 et. seq. of the
California Administrative Code) in connection with this Project.
This Agreement is subject to the requirements of the Clean Air Act, as
amended, 42 USC 7401 et seq., the Federal Water Pollution Control Act, as amended, 33
USC 1251 et seq., Executive Order 11738, dated September 10, 1973, and the regulations
of the Environmental Protection Agency at 40 CFR Part 15, as amended.
CAPITAL shall cause or require to be inserted in full in all contracts and
subcontracts with respect to any nonexempt (exceed $100,000, or involve a facility the
subject of a conviction under the Clean Air Act, or the Federal Waste Pollution Control Act,
and listed by the Environmental Protection Agency, or not otherwise exempt) transaction,
the clause set out in 48 CFR 52.223-2.
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CAPITAL shall also cause or require to be inserted in full, the certification set
forth in 48 CFR 52.223-1, in each solicitation and resulting contract and contracts it awards
without a solicitation.
CAPITAL shall not use any funds under this Agreement for a facility which
has a conviction under Section 113(c)(1) of the Clean Air Act or Section 309(c) of the
Federal Water Pollution Control Act.
4.15 Home Prooram Reaulations.
CAPITAL shall comply with all applicable provisions of the HOME Program
regulations including, but not limited to, the following:
4.15.1 Housing Quality Standards as defined by 24 CFR 882.109,
local code requirements, local zoning ordinances and the Model Energy Code.
4.15.2 The affordability requirements of 24 CFR 92.252, for a period
of twenty (20) years after Project Completion.
A deed restriction will be recorded on each of the Project Properties requiring
that the rental units remain affordable for a period of fifty-five (55) years after Project
Completion. A copy of the deed restriction is attached as Exhibit "N."
4.15.3
All leases for rental on Project shall comply with 24 CFR
92.253.
4.15.4
with 24 CFR 92.253(d).
CAPITAL must adopt tenant selection policies in conformance
4.15.5 CAPITAL shall market the units only to people having Iow or
very-low incomes. HOME-assisted units shall be available only to tenants who have
annual incomes equal to or less than 60% of the area median income as furnished by
HUD. CAPITAL shall accept referrals from special agencies. However, CAPITAL shall not
give preference or priority to individuals who are referred by those specific agencies.
CAPITAL shall give preference to qualified individuals and families who were displaced
from their homes because of the Project, as well as those who were displaced by the
construction of the Entertainment Portion of the City Center Project. CAPITAL shall make
a good faith effort to solicit applications from throughout the City of Bakersfield. CAPITAL
shall not deny access to the Project on the basis of age, race, ethnicity, gender, or sexual
orientation.
Prior to and during the Period of Affordability CAPITAL shall:
4.15.5.1 Before initially marketing the Complex and taking any
rental applications from any person, deliver to CITY, for review, comment, and approval
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or disapproval, a copy of the marketing plan CAPITAL intends to use to market, and select
occupants of, the Complex; CAPITAL shall change the marketing plan in response to
CITY's comments, so long as such comments conform to all statutory requirements that
pertain to the Complex and the Project Properties, and shall resubmit the marketing plan
for CITY review and approval; CAPITAL shall follow the marketing plan approved by CITY;
4.15.5.2
meets this Agreement.
At all times, maintain the Complex in a manner which
If CAPITAL fails to comply with the provisions of this section, and upon
written notice to CAPITAL from CITY listing areas of noncompliance, fails to initiate
corrective action within sixty (60) days from date of notice, such failure shall constitute a
breach of this Agreement. CITY shall thereupon have the right to repayment from
CAPITAL for the full amount of the loan (plus accrued interest) as provided for in
Paragraph 2.
4.16 California State Law.
4.16.1 Obligation to Refrain from Discrimination. CAPITAL
covenants and agrees for itself, its successors, its assigns and every successor in interest
to the Complex, or any parts thereof, or to any other right in the Project, there shall be no
discrimination against or segregation of any person, or group of persons, on account of
sex, race, color, marital status, creed, religion, national origin or ancestry in the lease,
sublease, transfer, use occupancy, tenure or enjoyment of the Complex, nor shall
CAPITAL itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sub-lessees or
vendees of the Complex. The foregoing covenant shall run with the land. Such covenant
shall be recorded.
4.16.2 Anti-Discrimination Durino Term of This Agreement. As
with all projects in which the AGENCY is involved in any way, CAPITAL, for itself and its
successors and assigns, agrees that in the construction of the Project and in the
operations, management and maintenance provided for in these Agreements to be
performed by CAPITAL:
4.16.2.1 CAPITAL will not discriminate against any employee or
applicant for employment because of race, color, creed, religion, sex, national origin,
ancestry or marital status. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising;
solicitations or advertisements for employees; layoffs or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. CAPITAL
agrees to post in conspicuous places, available to employees and applicants for
employment, notice setting forth the provisions of this nondiscrimination clause.
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4.16.2.2 Notwithstanding the foregoing provisions of this Section,
CAPITAL shall be entitled to employ union labor hereunder pursuant to the rules,
regulations and practices of the applicable unions.
4.16.3 Form of Nondiscrimination and Nonsegregation Clauses
CAPITAL shall refrain from restricting the rental or lease of the property or property rights
on the basis of sex, race, color, marital status, creed, religion, ancestry or national origin
of any person. All such subleases or contracts shall contain or be subject to substantially
the following nondiscrimination or nonsegregation clauses:
4.16.3.1 In Subleases: 'q'he lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming under or through it, and this
lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the
premises herein leased, nor shall the lessee itself, or any person
claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
sublessee, subtenants or vendees in the premises herein leased."
4.16.3.2 In Contracts: 'q'here shall be no discrimination against
or segregation of any person, or group of persons, on account of race, color, creed, sex,
religion, marital status, national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor shall the transferee itself, or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sub-tenants, sublessee or vendees of the premises."
4.16.4 Effect and Duration of Covenants. The Covenants
established in this Agreement to be performed by CAPITAL are binding on CAPITAL and
any successor in interest to the Complex or any parts thereof, for the benefit and in favor
of AGENCY and CITY, their successors and assigns. Except as set forth in the following
sentence, the covenants contained in this Agreement shall remain in effect for fifty-five (55)
years from the date the Project is completed, unless the Agreement provides for their
earlier termination. The covenants against discrimination, as described herein, shall
remain in perpetuity.
4.17 Pre-Closina Obligations. Before close of escrow, CAPITAL shall:
4.17.1 execute agreements to purchase Project Properties and provide
such agreements to CITY and AGENCY;
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4.17.2 pay all costs other than those CITY and AGENCY agree to pay;
4.17.3
accept title to the Project Properties by way of a grant deed;
4.17.4 execute and record deed restrictions on Project Properties as
set forth in 24 CFR 92.504(c)(3), attached as Exhibit "N"; and
4.18 Records and Audits. CAPITAL shall maintain records sufficient to show it
has reasonably complied with all applicable provisions and requirements of this
Agreement.
4.18.1 Records and RePorts. CAPITAL shall create and retain
accurate records of CAPITAL's efforts to market the Complex and results of those efforts.
At least anr~ually, but more often if requested by CITY, CAPITAL will deliver to CITY, a
report which includes, at a minimum, the following:
4.18.1.1 A description of marketing and outreach CAPITAL
carried out during the reporting period, including such items as clipped notices, flyers,
advertisements, and letters;
4.18.1.2 Identification of each applicant's referral source;
4.18.1.3 Race or ethnicity and gender of each applicant;
4.18.1.4 Family income, rent paid to CAPITAL, family size, race
or ethnicity, and gender of each person who is a tenant during the reporting period;
4,18.1.5 Level of revenues, reserves, occupancy rates and
operating and debt-service costs.
4.18.2 Audits. CAPITAL shall arrange, at its own expense, for the
performance of a "Single Audit" of its entire operations by an independent auditor in
accordance with Public Law 98-502 and OMB Circular A-133.
4.18.2.1 Delivery of Audit Results to CITY. The auditor shall
deliver results of said audit to CITY within 30 days of the audit's completion. CiTY's
acceptance of CAPITAL's audit reports does not prohibit CITY from performing any
additional audit work CITY deems to be necessary or as necessary for CITY to comply with
any administrative or audit requirements imposed by the Federal or State government.
4.18.3 Record Retention. As a condition of receiving federal financial
assistance under this Agreement, CAPITAL shall comply with 24 CFR 85.42, "Retention
and Access Requirements for Records." Any agreement between CAPITAL and its
independent auditor shall provide for access, during normal business hours, to the
independent auditor's work papers, by Federal, State, and CITY auditors, or their
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authorized agents. CAPITAL's independent auditor shall retain, for review purposes, audit
work papers for five (5) years from date of audit completion, or until three years after all
audit-related issues are resolved, whichever occurs later. CAPITAL shall maintain all
records related to this Agreement for five (5) years from Project Completion.
4.18.4 Financial-Management System. CAPITAL shall maintain a
financial-management system which complies with 24 CFR 85.20, "Standards for financial
management systems," except paragraph (a) thereof.
4.18.5 Payment Procedure. CAPITAL shall comply with the methods
and procedures for payment outlined in 24 CFR 85.21, "Payment."
4.18.6 Procurement and Allowable Costs. CAPITAL shall comply
with the requirements and standards of 24 CFR 85.36, "Procurement" [except paragraph
(a)], and 24 CFR 85.22, "Allowable Costs."
4.18.7 Subawards and Monitoring. CAPITAL shall comply with the
standards and requirements of 24 CFR 85.35, "Subawards to Debarred and Suspended
Parties"; and 24 CFR 85.40, "Monitoring and Reporting Program Performance" [except
paragraphs (b) through (d) and paragraph (f)]. Pursuant to 24 CFR 92.357, CAPITAL shall
require the certification attached as Exhibit "O" to be attached to all proposals submitted
in connection with subcontracts for work done on the Complex. CITY has the right, but not
the obligation, to monitor and supervise the administration and implementation of the
Complex to insure compliance with the requirements of the Act as it now exists or
hereinafter amended, the federal regulations as now exist or hereafter promulgated
pursuant to the Act, or guidelines developed by the federal government for administering
or implementing the project, or any other statute, rule, regulation, or guideline applicable
to the administration or implementation of the HOME Program.
4.18.8 Enforcement. CAPITAL shall comply with the standards and
requirements of 24 CFR 85.43, "Enforcement," and 24 CFR 85.44, "Termination for
Convenience."
4.18.9 Disallowances and Ad_iustments. CAPITAL shall account to
CITY for any and all Program funds expended by CAPITAL or its officer, employee, agent,
or representative, whether or not such officer, employee, agent or representative was
acting within the scope of his or her employment. CAPITAL shall repay CITY, on demand,
the full amount of any improperly-expended HOME Program funds, and shall comply with
requirements of 24 CFR 85.51, "Later Disallowances and Adjustment." CITY may retain
any funds of CAPITAL in CITY's possession to liquidate (in whole or in part) the debt
resulting from any such improper expenditure.
4.18.10 Collections. CAPITAL shall comply with the standards and
requirements of 24 CFR 85.52, "Collection of Amounts Due."
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4.18.11 CITY Withholdina of Funds. CiTY may withhold funds from
CAPITAL if CAPITAL is not complying with the Act, federal regulations thereunder, terms
of the HOME Program from the federal government to the CITY, regulations of CITY to
facilitate the administration of the HOME Program, the terms of this Agreement, or any
other statute or regulation applicable to the HOME Program or administration. Should
CITY become subject to any penalties because failure by CAPITAL, or CAPITAL's agent,
to comply with all applicable federal, state, and local laws and regulations, CAPITAL shall
be solely liable for any such penalties and shall fully reimburse CITY for any payments
made or funding lost as a result.
5. USES OF THE COMPLEX
CAPITAL covenants and agrees for itself, its successors, its assigns and every
successor in interest that during construction and thereafter, CAPITAL, its successors and
assigns shall devote the Complex as Iow and very-low income housing for senior citizens
for twenty (20) years from the completion of the construction of the Project.
5.1 Landscapina and Maintenance of the $ite~ CAPITAL shall maintain the
Complex, the parking facilities and landscaping in a good condition and shall keep the
Complex free from any accumulation of debris or waste materials prior to and after
construction. Maintenance shall include, but is not limited to, programmed watering,
consistent fertilizing, weed control, cleaning, pruning, trimming, pest control and
cultivating. Landscape structural features shall be maintained in sound structural and
attractive conditions. All plant material shall be serviced by a permanently installed,
electrically automated sprinkler system. Replacement planting must conform to the
original intent of the landscape design. Installation of landscape materials shall be in
accordance with commonly accepted methods of installation. Tress shall be the equivalent
to minimum fifteen gallon container size or larger and shall be vigorous and healthy when
planted. Shrubs shall be a minimum of five gallon container size or larger and shall be
vigorous and healthy when planted. Live vegetative matter shall cover no less than
seventy-five percent (75%) of the required landscaped area at its maturity.
If, at any time, CAPITAL fails to maintain the landscaping as required by this
Agreement or CITY standards, and the condition is not corrected within a reasonable time
from the date of written notice to correct from CITY and/or AGENCY, CITY and/or
AGENCY may perform the necessary landscaping maintenance, and CAPITAL shall pay
all such costs as are reasonably incurred for such maintenance.
6. DEFAULTS. REMEDIES AND TERMINATION.
6.1 Defaults. Subject to the extensions of time for construction pursuant to the
terms set forth in the Schedule of Performance, or otherwise pursuant to this Agreement,
failure or delay by either party to perform any term or provision of this Agreement
constitutes a default under this Agreement. Except as may be otherwise provided herein,
the party who so fails or delays must, upon discovering or receiving notice of such default,
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immediately commence to cure, correct or remedy such failure or delay and shall complete
such cure, correction or remedy with reasonable diligence.
The injured party may give written notice of default to the party in default, specifying
the default complained of by the injured party. Additionally, CITY and AGENCY shall notify
CAPITAL's partners of any default by CAPITAL. Except as required to protect against
further damages, and except as otherwise expressly provided in this Agreement, the
injured party may not institute proceedings against the party in default, nor shall the injured
party be able to enforce any remedies or penalties provided hereunder, until thirty (30)
days after giving such notice and only in the event such default is not cured prior to the
expiration thereof. Delay in giving such notice shall not constitute a waiver of any default
nor shall it change the time of default.
Except as otherwise expressly provided in this Agreement, any failures or delays
by either party in asserting any of its rights Or remedies as to any default shall not operate
as a waiver of any default or any such rights or remedies. Delays by either party in
asserting any of its rights and remedies shall not deprive either party of its right to institute
and maintain any actions or proceedings which it may deem necessary to protect, assert
or enforce any such rights or remedies.
In the event of default, the defaulting party shall be liable to the non-defaulting party
for damages caused by such default. Nothing in this Agreement precludes the instigation
of an action for specific performance of the terms of this Agreement.
6.2 Nonrecourse. The Loans are nonrecourse obligations of CAPITAL. Neither
CAPITAL nor any other party shall have any personal liability for repayment of the Loans.
The sole recourse of CITY and AGENCY for repayment of the principal and interest shall
be the exercise of CITY and AGENCY's rights against the Project Properties.
6.3 Material Default by CAPITAL. A material default by CAPITAL not cured
within the period allowed by this Agreement on any of the terms or conditions of this
Agreement vest in CITY and AGENCY the right to demand repayment of all moneys
loaned to CAPITAL by CITY and AGENCY.
7. MISCELLANEOUS.
7.1 Indemnity. CAPITAL shall indemnify, defend, and hold harmless HUD,
CITY, its officers, agents, employees, AGENCY, its officers, agents and employees against
any and all liability, claims, actions, causes of action or demands whatsoever against
them, or any of them, before administrative or judicial tribunals of any kind whatsoever,
arising out of, connected with, or caused by CAPITAL, CAPITAL's employees, agents or
independent contractors, companies or subcontractors in the performance of, or in any
way arising from, the terms and provisions of this Agreement whether or not caused in part
by a party indemnified hereunder, except as limited by California Civil Code section 2782
or CITY's or AGENCY's sole active negligence or willful misconduct.
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7.2 Insurance. In addition to any other insurance or bond required under this
Agreement, CAPITAL shall procure and maintain for the duration of this Agreement the
following types and limits of insurance ("basic insurance requirements" herein):
7.2.1 Automobile liability insurance, providing coverage on an occurrence
basis for bodily injury, including death, of one or more persons, property damage and
personal injury, with limits of not less than One Million Dollars ($1,000,000) per
occurrence; and the policy shall:
7.2.1.1
Provide coverage for owned, non-owned and hired
autos.
7.2.1.2
Contain an additional insured endorsement in favor of
HUD, the CITY, its mayor, council, officers, agents,
employees, AGENCY, its officers, agents and
employees.
7.2.2 Broad form commercial general liability_ insurance, ISO form CG00
01 11 85 or 88 providing coverage on an occurrence basis for bodily injury, including
death, of one or more persons, property damage and personal injury, with limits of not less
than One Million Dollars ($1,000,000) per occurrence; and the policy shall:
7.2.2.1
Provide contractual liability coverage for the terms of
this Agreement.
7.2.2.2
Contain an additional insured endorsement in favor of
HUD, the CITY, its mayor, council, officers, agents,
employees, designated volunteers, AGENCY, its
officers, agents and employees.
7.2.3 Workers' comoensation insurance with statutory limits and
employer's liability insurance with limits of not less than One Million Dollars ($1,000,000)
per occurrence; and the policy shall contain a waiver of subrogation endorsement in favor
of HUD, the CITY, its mayor, council, officers, agents, employees, designated volunteers,
AGENCY, its officers, agents and employees.
7.2.4 All policies required of CAPITAL shall be primary insurance as to
HUD, the CITY, its mayor, council, officers, agents, employees, designated volunteers,
AGENCY, its officers, agents and employees and any insurance or self-insurance
maintained by them shall be excess of the CAPITAL's insurance and shall not contribute
with it. Additional insured endorsement shall use ISO form CG20 10 11 85 (in no event
with an edition date later than 1990).
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7.2.5 Except for workers' compensation, insurance is to be placed with
insurers with a Bests' rating of no less than A:VlI. Any deductibles, self-insured retentions
or insurance in lesser amounts, or lack of certain types of insurance otherwise required
by this Agreement, or insurance rated below Bests' A:VlI, must be declared prior to
execution of this Agreement and approved by the CITY in writing.
7.2.6 All policies shall contain an endorsement providing the CITY and
AGENCY with thirty (30) days written notice of cancellation or material change in policy
language or terms. All policies shall provide that there shall be continuing liability thereon,
notwithstanding any recovery on any policy. Copies of policies shall be delivered to CITY
and/or AGENCY on demand.
7.2.7 The insurance required hereunder shall be maintained until all work
required to be performed by this Agreement is satisfactorily completed as evidenced by
written acceptance by the CITY, or until termination of this Agreement.
7.2.8 CAPITAL shall furnish CITY's Risk Manager with a certificate of
insurance and required endorsements evidencing the insurance required. The CITY and
AGENCY may withdraw its offer of contract or cancel this contract if certificates of
insurance and endorsements required are not provided.
7.2.9 Full compensation for all premiums which the CAPITAL is required to
pay on all the insurance described herein shall be considered as included in the prices
paid for the various items of work to be performed under the Agreement, and no additional
allowance will be made therefor or for additional premiums which may be required by
extensions of the policies of insurance.
7.2.10 It is further understood and agreed by CAPITAL that its liability to
CITY and AGENCY shall not in any way be limited to or affected by the amount of
insurance obtained and carried by CAPITAL in connection with this Agreement.
7.2.11 Unless otherwise approved by the CITY and AGENCY, if any part of
the work under this Agreement is subcontracted, the "basic insurance requirements" set
forth above shall be provided by, or on behalf of, all subcontractors even if the CITY or
AGENCY has approved lesser insurance requirements for CAPITAL.
7.3 Assignment. Neither this Agreement, nor any interest in it, may be assigned
or transferred by any party without the prior written consent of all the parties. Any such
assignment will be subject to such terms and conditions as CITY and/or AGENCY may
choose to impose.
7.3.1 The qualifications and identity of CAPITAL are of particular concern
to CITY and AGENCY, and it is because of these qualifications and identity that CITY and
AGENCY have entered into this Agreement with the CAPITAL.
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7.3.2 If, prior to the termination of this Agreement, CAPITAL sells, conveys
or transfers title to the Project Propedies or any improvements thereon to any entity of
which CAPITAL is not a managing partner, CAPITAL shall immediately repay all sums
loaned it under this Agreement.
7.4 Bindinq Effect. The dghts and obligations of this Agreement shall inure to
the benefit of, and be binding upon, the parties to the Agreement and their heirs,
administrators, executors, personal representatives, successors and assigns.
7.5 Remedies. The remedies in this Agreement are cumulative and are in
addition to any other remedies in law or equity which may be available to CITY and
AGENCY. The election of one or more remedies shall not bar the use of other remedies
unless the circumstances make the remedies incompatible.
7.6 No Waiver of Default. The failure of any party to enforce against another
party any provision of this Agreement shall not constitute a waiver of that party's right to
enforce such a provision at a later time, and shall not serve to vary the terms of this
Agreement.
7.7 Merger and Modification. This Agreement sets forth the entire Agreement
between the parties and supersedes all other oral or written representations. This
Agreement may be modified only in a writing approved by the CITY Council, the AGENCY
and signed by all the parties.
7.8 Inde_oendent Contractor. This Agreement calls for the performance of the
services of CAPITAL as an independent contractor. CAPITAL is not an agent or employee
of the CITY or AGENCY for any purpose and is not entitled to any of the benefits provided
by CITY or AGENCY to its employees. This Agreement shall not be construed as forming
a partnership or any other association with CAPITAL other than that of an independent
contractor.
7.9 Govemincj Law. The laws of the State of California will govern the validity
of this Agreement, its interpretation and performance. Any litigation arising in any way from
this Agreement shall be brought in Kern County, California.
7.t0 Comorate Authority. Each individual signing this Agreement on behalf of
entities represent and warrant that they are, respectively, duly authorized to sign on behalf
of the entities and to bind the entities fully to each and all of the obligations set forth in this
Agreement.
7.11 Conflicts of Interest. CAPITAL stipulates that corporately, or individually,
the firm, its employees and subconsultants have no financial interest in either the success
or failure of any project which is dependent upon the result of the work prepared pursuant
to this Agreement.
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7.12 Termination of Agreement. This Agreement may be terminated by either
party pursuant to the terms of 24 CFR 85.44. This Agreement shall be in effect from the
date of execution through the Period of Affordability, except that CAPITAL shall retain
records as required in this Agreement.
7.13 Execution. This Agreement is effective upon execution. It is the product of
negotiation and all parties are equally responsible for authorship of this Agreement.
Section 1654 of the California Civil Code shall not apply to the interpretation of this
Agreement.
7.14 Notices. All notices relative to this Agreement shall be given in writing and
shall be personally served or sent by certified or registered mail and be effective upon
actual personal service or depositing in the United States mail. The parties shall be
addressed as follows, or at any other address designated by notice:
CITY OF BAKERSFIELD
City Hall
1501 Truxtun Avenue
Bakersfield, California 93301
AGENCY:
BAKERSFIELD REDEVELOPMENT AGENCY
City Hall
1501 Truxtun Avenue
Bakersfield, California 93301
CAPITAL:
CAPITAL VISION EQUITIES
854 West Adams Boulevard
Los Angeles, California 90007
7.16 Exhibits. In the event of a conflict between the terms, conditions or
specifications set forth in this Agreement and those in exhibits attached hereto, the terms,
conditions, or specifications set forth in this Agreement shall prevail. All exhibits to which
reference is made in this Agreement are deemed incorporated in this Agreement, whether
or not actually attached.
7.16 Further Assurances. Each party shall execute and deliver such papers,
documents, and instruments, and perform such acts as are necessary or appropriate, to
implement the terms of this Agreement and the intent of the parties to this Agreement.
7.17 Negation of Partnership. Neither CITY nor AGENCY shall become or be
deemed a partner or joint venturer with CAPITAL or associate in any such relationship with
CAPITAL by reason of the provisions of this Agreement. CAPITAL shall not for any
purpose be considered an agent, officer or employee of CITY or AGENCY.
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7.18 Non-Interest. No officer or employee of the CITY or AGENCY shall hold any
interest in this Agreement (California Government Code section 1090).
7.19 Recvclino of Materials. CAPITAL shall use its best efforts to ensure that
any material on the Project Properties which is not needed for the Complex construction
shall be recycled.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, the day and year first-above written.
"CITY"
CITY OF BAKERSFIELD
"AGENCY"
BAKERSFIELD REDEVELOPMENT
AGENCY
By: By:
HARVEY L. HALL
Mayor
APPROVED AS TO FORM:
BART J. THILTGEN
City Attorney
THOMAS MISHOE
Chairperson
APPROVED AS TO FORM:
BART J. THILTGEN
General Counsel
By: By:
JANICE SCANLAN
Deputy City Attorney
APPROVED AS TO CONTENT:
ECONOMIC AND COMMUNITY
DEVF.~PMENT DEPARTMENT
Economic DevelopmentDir.
COUNTERSIGNED:
JANICE SCANLAN
DeputyCity ~torney
APPROVED AS TO CONTENT:
ECONOMIC AND COMMUNITY
DEVELOPMENT DEPARTMENT
DONNAKUNZ ~ -
Deputy Executive Dir.
COUNTERSIGNED:
By:
GREGORY J. KLIMKO
Finance Director
By:
GREGORY J. KLIMKO
Finance Officer
MORE SIGNATURES ON FOLLOWING PAGE
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"CAPITAL"
CAPITAL VISION EQUITIES
By:
CHRIS HAMMONDS
Chief Executive Officer
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Date
February 15, 2001
March 1,2001
March 15, 2001
March 1,2001
May 15, 2001
June 15, 2001
August 1,2001
August 2, 2001
October 30, 2001
November 1, 2001
March 30, 2002
April 1, 2002
March 31, 2003
April 1,2003
April-June, 2003
SCHEDULE "A"
SCHEDULE OF PERFORMANCE
Action
Complete relocation survey
Relators initiate discussions with property owners
Execute DDA (Contingent on Tax Credit Approval
DDA Approved
City approves HOME/TI Commitment
NEPA/CEQA actions approved
Target date for execution of six month options/purchase agreements (or
resolutions of necessity)
Commitment letter for pdvate sector financing due
TCAC Application Due
Estimated TCAC decision date
CVE begins draw on City funds to assist with acquisitions
Acquisitions complete
Relocation/Demolition Start
Relocation/Demolition Complete
Construction Start
Construction End
Grand Opening
Lease Up Period
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S-A1
Exhibit "A"
PRELIMINARY LEGAL DESCRIPTION
All of Blocks 6 and 19, including the alleys therein, together with that portion of 11th Street
lying between said Blocks; and all of Block 18, and the alley therein, in the City of
Bakersfield, County of Kern, State of California, as per map filed for record on November
25, 1898 in Book 1, Pages 13 & 14 of Maps in the Office of the Kern County Recorder.
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A-1
EXHIBIT "B"
PROMISSORY NOTE
(With Interest)
(Date)
Property located south of California Avenue, north of 10~h Street
between M and O Streets
(legal description attached hereto)
Bakersfield, California
("the Property")
1. PARTIES
"Borrower~' means a
means THE CITY OF BAKERSFIELD, and its successors and assigns.
"Lender'
2. BORROWER'S PROMISE TO PAY
In return for a loan received from Lender, Borrower promises to pay the sum of ONE MILLION
SEVEN HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($1,710,000.00) (this amount is called
"principal"), with interest, to the order of the Lender. The Lender is THE CITY OF BAKERSFIELD.
3. INTEREST
Interest shall accrue at a rate of one and three percent (3%) per annum. Payment of principal
and accrued interest will be due and payable the first day of each month commencing January, 2003.
4. PROMISE TO PAY SECURED
Borrowe['s promise to pay is secured by a deed of trust that is dated the same date as this Note
and called the "Security Instrument." That Security Instrument protects the Lender from losses which
might result if Borrower defaults under this Note.
This Note is a uniform instrument with limited variations in some jurisdictions. The Secudty
Instrument describes how and under what conditions Borrower may be required to make immediate
payment in full of all amounts owed under this Note. Some of those conditions are described as follows:
(a)
Borrowers compliance; Protection of Lender's Rights in the Property. If Borrower
fails to perform the covenants and agreements contained in the Security Instrument, or
there is a legal proceeding that may significantly affect Lender's dghts in the Property
(such as a proceeding in bankruptcy, probate, for condemnation or fodeiture or to
enforce laws or regulations), then Lender may do and pay for whatever is necessary to
protect the value of the Property and Lender's rights in the Property. Lender's actions
may include paying any sums secured by a lien which has priority over the Security
instrument, appearing in court, paying reasonable attorneys' fee~ and entering on the
Property to make repairs. Although Lender may take action under this paragraph,
Lender does not have to do so.
Any amounts disbursed by Lender under this paragraph shall become additional debt of
Borrower secured by the Security Instrument. Unless Borrower and Lender agree to
other terms of payment, these amounts shall be payable upon notice from Lender to
Borrower requesting payment.
(b) Default. Lender may, require immediate payment in full of all sums due under this Note
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(c)
if:
(i) Borrower defaults by failing, for a period of thirty days, to perform any
obligations contained in the Secudty Instrument.
(ii) Borrower defaults by failing, for a period of thirty days, to perform any
obligations contained in City of Bakersfield Agreement 01- and any amendments
thereto.
Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the
Property or any interest in it is sold or transferred to an entity of which Borrower is not a
managing partner, Lender may, at its option, require immediate payment of this Note.
However, this option shall not be exercised by Lender if exercise is prohibited by federal
law as of the date of the Security Instrument.
If the Lender has required Borrower to pay immediately in full as described above, the
Lender will have the right to be paid back by Borrower for all of its costs and expenses in
enforcing this Note to the extent not prohibited by applicable law. Those expenses
include, for example, reasonable attorneys' fees.
(d) The Note is evidence of the loan made pursuant to City of Bakersfield Agreement No. 01-
5. MANNER OFPAYMENT
The Borrower agrees to pay the entire unpaid principal amount advanced under the Loan
Documents and this Note, on the eadier of thirty-five (35) years from the date first set forth above (the
"Maturity Date"), or upon sale or transfer of the Property, unless demanded eadier pursuant hereto.
Annual payments shall be made in accordance with the terms of City of Bakersfield Agreement No. 01-_
6. BORROWER'S RIGHT TO PREPAY
Borrower has the right to make payments of principal at any time before the Maturity Date.
Borrower may make a full prepayment or partial prepayments without paying any prepayment
cha~ge.
Lender will use all prepayments to reduce the amount of principal that is owed under this Note.
If Borrower makes a partial prepayment, there will be no changes in the Matudty Date unless the Lender
agrees in writing to those changes.
7. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to Borrower
under this Note will be given by delivering it or by mailing it by first class mail to Borrower at the
following address: 854 West Adams Blvd., Los Angeles, California 90007.
Any notice that must be given to the Lender under this Note will be given by mailing it by first
class mail to 1501 Truxtun Avenue, Bakersfield, CA 93301 or a different address if Borrower is given a
notice of that different address.
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8. OBLIGATIONS OF BORROWER UNDER THIS NOTE
The Borrower is fully obligated to keep all of the promises made in this Note, including the
promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is
also obligated to do these things. Any person who takes over these obligations, including the obligations
of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this
Note.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note.
Bo~ower
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LEGAL DESCRIPTION
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RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
The City of Bakersfield
City Clerk
1501 Truxtun Avenue
Bakersfield, CA 93301
Frae Recording in Accordance
With Section 6103 of the
California Government Code
DEED OF TRUST
THIS DEED OF TRUST ("Security Instrument") is made on The trustor is
, a . ("Borrower"). The trustee is
("Trustee"). The beneficiary is THE CITY OF BAKERSFIELD, and whose address is 1501
TRUXTUN AVENUE, BAKERSFIELD, CALIFORNIA 93301 ("Lender'S. Borrower owes Lender the
principal sum of ONE MILLION SEVEN HUNDRED TEN THOUSAND AND NO/100 DOLLARS (U.S.
$1,710,000.00).
This debt is evidenced by Borrower's note dated the same date as this Secudty instrument
("Note"), which provides that the full debt, if not paid earlier, is due and payable thirty-five (35) years
from the date of this Secudty Instrument. This Secudty Instrument secures to Lender: (a) the
repayment of the debt evidenced by the Note, and all renewals, extensions and modifications of the
Note; (b) the payment of all other sums, with interest, advanced under paragraph 5 to protect the
security of this Secudty Instrument; and (c) the performance of Borrower's covenants and agreements
under this Secudty Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys
to Trustee, in trust, with power of sale, the following described property located in Kern County,
California.
SEE ATTACHED LEGAL DESCRIPTION
TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions
shall also be covered by this Security Instruments. All of the foregoing is referred to in this Security
Instrument as "the Property."
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the
dght to grant and convey the Property and that the Property is unencumbered, except for encumbrances
of record. Borrower warrants and will defend generally the title to the Property against all claims and
demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real
property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
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1. Payment of Principal. Borrower shall promptly pay when due the principal of the debt
evidenced by the Note.
2. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and
impositions attributable to the Property which may attain priodty over this Security Instrument, and
leasehold payments or ground rents, if any. Borrower shall pay these obligations on time directly to the
person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid
under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to
Lender receipts evidencing the payments.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner
acceptable to Lender, (b) contests in good faith the lien by, or defends against enforcement of the lien
in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c)
secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this
Security Instrument. If Lender determines that any part of the Property is subject to a lien which may
attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien.
Borrower shall satisfy the hen or take one or more of the actions set forth above within 10 days of the
giving of notice.
3. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements
now existing or hereafter erected on the Property against any hazards, casualties and contingencies,
including floods and fire. This insurance shall be maintained in the amounts and for the pedod that
Lender requires. The insurance carder providing the insurance shall be chosen by Borrower subject to
Lender's approval which shall not be unreasonably withheld. If Borrower falls to maintain coverage
described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the
Property in accordance with paragraph 5.
All insurance policies and renewals shall be acceptable to Lender and shall include a standard
mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires,
Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. In the event
of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof
of loss if not made promptly by Borrower.
Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to
restoration or repair of the Property damaged, if the restoration or repair is economically feasible and
Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's
security would be lessened, the insurance proceeds shall be applied to the sums secured by' this
Security Instrument, whether or not then due, with any excess paid to Borrower. if Borrower abandons
the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has
offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds
to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then
due. The 30-day period will begin when the notice is given.
If under paragraph 17 the Property is acquired by Lender, Borrower's right to any insurance
policies and proceeds resulting from damage to the Property pdor to the acquisition shall pass to Lender
to the extent of the sums secured by this Security Instrument immediately prior to the acquisition.
4. Preservation, Maintenance and Protection of the Property: Borrower's Loan
Application; Leaseholds. Borrower shall not destroy, damage or impair the Property, allow the
Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture
action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result
in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or
Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 10,
by causing the action or proceeding to be dismissed with a ruling that, in Lender's good faith
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determination, precludes forfeiture of the Borrower's interest in the Property or other matedal
impairment of the lien created by this Security Instrument or Lender's secudty interest. Borrower shall
also be in default if Borrower, dudng the loan application process, gave materially false or inaccurate
information or statements to Lender (or failed to provide Lender with any matedal information) in
connection with the loan evidenced by the Note. Borrower shall comply with all the provisions of the
lease.
5. Borrowers Compliance; Protection of Lender's Rights in the Property. Borrower
shall comply with all terms of City of Bakersfield Agreement No. 01-
If Borrower fails to perform the covenants and agreements contained in this Secudty Instrument,
or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a
proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations),
then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's
rights in the Property. Lender's actions may include paying any sums secured by a lien which has
pdodty over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entering
on the Property to make repairs. Although Lender may take action under this paragraph, Lender does
not have to do so.
Any amounts disbursed by Lender under this paragraph shall become additional debt of
Borrower secured by this Secudty Instrument. Unless Borrower and Lender agree to other terms of
payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be
payable, with interest, upon notice from Lender to Borrower requesting payment.
6. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, in connection with any condemnation or other taking of any part of the Property, or for
conveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of
the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument.
Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and
this Secudty Instrument shall be paid to the entity legally entitled thereto.
7. Inspection. Lender or its agent may make reasonable entdes upon and inspections of
the Property. Lender shall give Borrower notice at the time of or pdor to an inspection specifying
reasonable cause for the inspection.
8. Grounds for Acceleration of Debt.
(a)
Default. Lender may, require immediate payment in full of all sums secured by this
Security Instrument if:
(i)
Borrower defaults by failing, for a pedod of thirty days, to perform any other
obligations contained in this Secudty Instrument.
(ii)
Borrower defaults by failing, for a period of thirty days, to perform any other
obligations contained in City of Bakersfield Agreement No. 01~
(b) Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the
Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or
transferred and Borrower is not a natural person) to any entity in which Borrower is not a managing
partner without Lender's prior written consent, Lender may, at its option, require immediate payment in
full of all sums secured by this Security Instrument. However, this option shall not be exemised by
Lender if exercise is prohibited by federal law as of the date of this Security Instrument.
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice
shall provide a period of not less than 30 days from the date the notice is delivered or mailed within
which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay the.se
.
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sums pdor to the expiration of this period, Lender may invoke any remedies permitted by this Security
Instrument without further notice or demand on Borrower.
9. Borrower's Right to Reinstate. if Borrower meets certain conditions, Borrower shall have
the dght to have enforcement of this Security Instrument discontinued et any time prior to the earlier of:
(a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the
Property pursuant to any power of sale contained in this Security Instrument; or (b) entry of a judgment
enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which
then would be due under this Secudty Instrument and the Note as if no acceleration had occurred; (b)
cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this
Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action
as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's dghts in
the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall
continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations
secured hereby shall remain fully effective as if no acceleration had occurred. However, this dght to
reinstate shall not apply in the case of acceleration under paragraph 8(b).
10. Borrower Not Released: Forbearance By Lender Not a Waiver. Extension of the
time for payment or modification of amortization of the sums secured by this Secudty instrument
granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the
original Borrower or Borrower's successors in interest. Lender shall not be required to commence
proceedings against any successor in interest or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Security Instrument by reason of any demand made by the
odginal Borrower or Borrower's successors in interest. Any forbearance by lender in exercising any dght
or remedy shall not be a waiver of or preclude the exercise of any right or remedy,
11. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The
covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns
of Lender and Borrower. Borrower's covenants and agreements shall be joint and several. Any
Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this
Secudty Interest only to mortgage, grant and convey that Borrower's interest in the Property under the
terms of this Secudty Instrument; (b) is not personally obligated to pay the sums secudty by this Security
Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or
make any accommodations with regard to the terms of this Security Instrument or the Note without that
Borrower's consent.
'12. Notices. Any notice to Borrower provided for in this Security Instrument shall be given
by delivering it or by mailing it by first class mail unless applicable law requires use of another method.
The notice shall be directed to the address Borrower designates by notice to Lender. Any notice to
Lender shall be given by first class mail to Lender's address stated herein or any other address Lender
designates by notice to Borrower.
Any notice provided for in this Security Instrument shall be deemed to have been given to
Borrower or Lender when given as provided in this paragraph.
13. Governing Law; Severability. This Security Instrument shall be governed by federal
law and the law of the jurisdiction in which the Property is located, In the event that any provision or
clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect
other provisions of this Security Instrument or the Note which can be given effect without the conflicting
provision. To this end the previsions of this Security Instrument and the Note are declared to be
severable.
14. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this
Security Instrument.
Hazardous Substances. Borrower shall not cause or permit the presence, use,
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disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do,
nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental
Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of
small quantities of Hazardous Substances that are generally recognized to be appropriate to normal
residential uses and to maintenance of the Property.
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or
other action by any governmental or regulatory agency or private party involving the Property and any
Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower
learns, or is notified by any governmental or regulatory authority, that any removal or other remediation
of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all
necessary remedial actions in accordance with Environmental Law.
As used in this paragraph, "Hazardous Substances" are those substances defined as toxic or
hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other
flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials
containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph,
"Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that
relate to health, safety or environmental protection.
16. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the
rents and revenues of the Property. Borrower authorizes Lender or Lender's agent to collect the rents
and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's
agents. However, pdor to Lender's notice to Borrower of Borrower's breach of any covenant or
agreement in the Secudty Instrument, Borrower shall collect and receive all rents and revenues of the
Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an
absolute assignment and not an assignment for additional security only.
If Lender gives notice of breach to Borrower: (a) all rants received by Borrower shall be held by
Borrower as trustee for benefit of Lender, only to be applied to the sums secured by this Security
Instrument, (b) Lender shall be entitled to collect and receive all of the rents of the Property; and (c)
each tenant of the Property shall pay all rants due and unpaid to Lender or Lender's agent on Lender's
written demand to the tenant.
Borrower has not executed any pdor assignment of the rents and has not and will not perform
any act that would prevent Lender from exercising its rights under this paragraph.
Lender shall not be required to enter upon, take control of or maintain the Property before or
after giving notice of breach to Borrower. However, Lender or a judicially appbinted receiver may do so
at any time there is breach. Any application of rents shall not cure or waive any default or invalidate
any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the
debt secured by this Security Instrument is paid in full.
NON-UNIFORM COVENANTS.
Borrower and Lender further covenant and agree as follows:
17. Foreclosure Procedure. If Lender requires immediate payment in full under
paragraph 8, Lender may invoke the power of sale and any other remedies permitted by
applicable law. Lender shall be entitled to collect all expenses incurred in pursuing the
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remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees
and costs of title evidence.
if Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause the
Property t be sold. Trustee shall cause this notice to be recorded in each county in which any
part of the Property is located. Lender or Trustee shall mail copies of the notice as proscribed
by applicable law to Borrower and to other persons prescribed by applicable law. Trustee shall
give public notice of sale to the persons and in the manner prescribed by applicable law. After
the time required by applicable law, Trustee, without demand on Borrower, shall sell the
Property at public auction to the highest bidder at the time and place and under the terms
designated in the notice of sale in one or more parcels and in any order Trustee determines.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the
time and place of any previously scheduled sale. Lender or its designee may purchase the
Property at any sale.
Trustee shall deliver to the purchase Trustee's deed conveying the Property without any
covenant or warranty, express or implied. The recitals in the Trustee's deed shall be prima facie
evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the
sale in the following order; (a) to all expenses of the sale, including, but not limited to,
reasonable Trustee's and attorneys' fees; (b) to all sums secured by this Security Instrument;
and (c) any excess to the person or persons legally entitled to it.
18. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender
shall request Trustee to reconvey the Property and shall surrender this Security instrument and all notes
evidencing debt secured by this Security Instrument to Trustee, Trustee shall reconvey the Property
without warranty and without charge to the person or persons legally entitled to it. Such person or
persons shall pay any recordation costs.
19. Substitute Trustee. Lender, at its option, may from time to time appoint a successor
trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the Recorder of the county in which the Property is located. The
instrument shall contain the name of the odginal Lender, Trustee and Borrower, the book and page
where this Security Instrument is recorded and the name and address of the s. uccessor trustee. Without
conveyance of the Property, the successor trustee shall succeed to all the title, power and duties
conferred upon the Trustee herein and by applicable law. This procedure for substitution of trustee shall
govern to the exclusion of all other provisions for substitution.
20. Request for Notices. Borrower requests that copies of the notices of default and sale
be sent to Borrower's address which is 854 West Adams BIvd, Los Angeles, California 90007.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Secudty Instrument and recorded with it.
Borrower)
NOTARYINFORMATION
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LEGAL DESCRIPTION
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EXHIBIT "C"
PROMISSORY NOTE
(With Interest)
(Date)
Property located south of Califomia Avenue, north of 10"~ Street
between M and O Streets
(legal description attached hereto)
Bakersfield, California
("the Property")
1. PARTIES
"Borrower" means
a . "Lender" means THE BAKERSFIELD REDEVELOPMENT
AGENCY, and its successors and assigns.
2. BORROWER'S PROMISE TO PAY
In retum for a loan received from Lender, Borrower promises to pay the sum of NINE
HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($990,000.00) (this amount is called
"principal"), with interest, to the order of the Lender. The Lender is THE BAKERSFIELD
REDEVELOPMENT AGENCY.
3. INTEREST
Interest shall accrue at a rate of one and three pement (3%) per annum. Payment of principal
and accrued interest will be due and payable the first day of each month commencing January, 2003.
4. PROMISE TO PAY SECURED
Borrower's promise to pay is secured by a deed of trust that is dated the same date as this Note
and called the "Security Instrument." That Secudty Instrument protects the Lender from losses which
might result if Borrower defaults under this Note.
This Note is a uniform instrument with limited variations in some jurisdictions. The Secudty
Instrument describes how and under what conditions Borrower may be required to make immediate
payment in full of all amounts owed under this Note. Some of those conditions are described as follows:
(a)
Borrowers compliance; Protection of Lender's Rights in the Property. If Borrower
fails to perform the covenants and agreements contained in the Security Instrument, or
there is a legal proceeding that may significantly affect Lender's dghts in the Property
(such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to
enforce laws or regulations), then Lender may do and pay for whatever is necessary to
protect the value of the Property and Lender's rights in the Property. Lender's actions
may include paying any sums secured by a lien which has pdority over the Security
instrument, appearing in court, paying reasonable attorneys' fees and entedng on the
Property to make repairs. Although Lender may take action under this paragraph,
Lender does not have to do so.
Any amounts disbursed by Lender under this paragraph shall become additional debt of
Borrower secured by the Secudty Instrument. Unless Borrower and Lender agree to
other terms of payment, these amounts shall be payable upon notice from Lender to
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Borrower requesting payment.
(b)
Default. Lender may, require immediate payment in full of all sums due under this Note
if:
(i) Borrower defaults by failing, for a pedod of thirty days, to perform any
obligations contained in the Security Instrument.
(ii) Borrower defaults by failing, for a pedod of thirty days, to perform any
obligations contained in Agreement RA 01-__/City of Bakersfield Agreement 01-
and any amendments thereto.
(c)
Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the
Property or any interest in it is sold or transferred to an entity of which Borrower is not a
managing partner, Lender may, at its option, require immediate payment of this Note.
However, this option shall not be exercised by Lender if exercise is prohibited by federal
law as of the date of the Secudty Instrument.
If the Lender has required Borrower to pay immediately in full as described above, the
Lender will have the dght to be paid back by Borrower for all of its costs and expenses in
enforcing this Note to the extent not prohibited by applicable law. Those expenses
include, for example, reasonable attorneys' fees.
(d) The Note is evidence of the loan made pursuant to Agreement No. RA 01-
Bakersfield Agreement No. 01-
/City of
5. MANNER OFPAYMENT
The Borrower agrees to pay the entire unpaid principal amount advanced under the Loan
Documents and this Note, on the earlier of thirty-five (35) years from the date first set forth above (the
"Maturity Date"), or upon sale or transfer of the Property, unless demanded earlier pursuant hereto.
Annual payments shall be made in accordance with the terms of Agreement No. RA 01- /City of
Bakersfield Agreement No. 01-
6. BORROWER'S RIGHT TO PREPAY
Borrower has the right to make Payments of principal at any time before the Maturity Date.
Borrower may make a full prepayment or partial prepayments without paying any prepayment
charge.
Lender will use all prepayments to reduce the amount of principal that is owed under this Note.
If Borrower makes a partial prepayment, there will be no changes in the Matudty Date unless the Lender
agrees in writing to those changes.
7. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to Borrower
under this Note will be given by delivering it or by mailing it by first class mail to Borrower at the
following address: 854 West Adams Blvd., Los Angeles, California 90007.
Any notice that must be given to the Lender under this Note will be given by mailing it by first
class mail to 1501 Truxtun Avenue, Bakersfield, CA 93301 or a different address if Borrower is given a
notice of that different address.
8. OBLIGATIONS OF BORROWER UNDER THIS NOTE
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The Borrower is fully obligated to keep all of the promises made in this Note, including the
promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is
also obligated to do these things. Any person who takes over these obligations, including the obligations
of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this
Note.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note.
Bo~ower
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LEGAL DESCRIPTION
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RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
The Bakersfield
Redevelopment Agency
1501 Truxtun Avenue
Bakersfield, CA 93301
Free Recording in Accordance
With Section 6103 of the
California Government Code
DEED OF TRUST
THIS DEED OF TRUST ("Security Instrument") is made on . The trustor is
, a . ("Borrower"). The trustee is
__ ("Trustee"). The beneficiary is THE BAKERSFIELD REDEVELOPMENT AGENCY, and whose
address is 1501 TRUXTUN AVENUE, BAKERSFIELD, CALIFORNIA 93301 ("Lender'3. Borrower owes
Lender the principal sum of NINE HUNDRED NINETY THOUSAND DOLLARS (U.S. $990,000.00).
This debt is evidenced by Borrower's note dated the same date as this Security Instrument
("Note"), which provides that the full debt, if not paid eadier, is due and payable thirty-five (35) years
from the date of this Security Instrument. This Security Instrument secures to Lender: (a) the
repayment of the debt evidenced by the Note, and all renewals, extensions and modifications of the
Note; (b) the payment of all other sums, with interest, advanced under paragraph 5 to protect the
security of this Secudty Instrument; and (c) the per[ormance of Borrower's covenants and agreements
under this Security instrument and the Note. For this purpose, Borrower irrevocably grants and conveys
to Trustee, in trust, with power of sale, the following described property located in Kern County,
California.
SEE ATTACHED LEGAL DESCRIPTION
TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions
shall also be covered by this Security Instruments. All of the foregoing is referred to in this Secudty
Instrument as "the Property."
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the
right to grant and convey the Property and that the Property is unencumbered, except for encumbrances
of record. Borrower warrants and will defend generally the title to the Property against all claims and
demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real
property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
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1. Payment of Principal. Borrower shall promptly pay when due the principal of the debt
evidenced by the Note.
2. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and
impositions attributable to the Property which may attain priodty over this Secudty Instrument, and
leasehold payments or ground rents, if any. Borrower shall pay these obligations on time directly to the
person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid
under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to
Lender receipts evidencing the payments.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner
acceptable to Lender, (b) contests in good faith the lien by, or defends against enforcement of the lien
in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c)
secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this
Security Instrument. If Lender determines that any part of the Property is subject to a lien which may
attain priority over this Secudty Instrument, Lender may give Borrower a notice identifying the lien.
Borrower shall satisfy the hen or take one or more of the actions set forth above within 10 days of the
giving of notice.
3. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements
now existing or hereafter erected on the Property against any hazards, casualties and contingencies,
including floods and fire. This insurance shall be maintained in the amounts and for the period that
Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower subject to
Lender's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage
described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the
Property in accordance with paragraph 5.
All insurance policies and renewals shall be acceptable to Lender and shall include a standard
mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires,
Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. In the event
of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof
of loss if not made promptly by Borrower.
Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to
restoration or repair of the Property damaged, if the restoration or repair is economically feasible and
Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's
security would be lessened, the insurance proceeds shall be applied to the sums secured by this
Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons
the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has
offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds
to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then
due. The 30-day period will begin when the notice is given.
If under paragraph 17 the Property is acquired by Lender, Borrower's right to any insurance
policies and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender
to the extent of the sums secured by this Security Instrument immediately prior to the acquisition.
4. Prese~ation, Maintenance and Protection of the Property: Borrower's Loan
Application; Leaseholds. Borrower shall not destroy, damage or impair the Property, allow the
Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture
action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result
in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or
Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 10,
by causing the action or proceeding to be dismissed with a ruling that, in Lender's good faith
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determination, precludes forfeiture of the Borrower's interest in the Property or other matedal
impairment of the lien created by this Security Instrument or Lender's secudty interest. Borrower shall
also be in default if Borrower, during the loan application process, gave materially false or inaccurate
information or statements to Lender (or failed to provide Lender with any material information) in
connection with the loan evidenced by the Note. Borrower shall comply with all the previsions of the
lease.
5. Borrowers Compliance; Protection of Lender's Rights in the Property. Borrower
shall comply with all terms of Agreement No. RA 01- /City of Bakersfield Agreement No. 01-
If Borrower fails to perform the covenants and agreements contained in this Security Instrument,
or there is a legal proceeding that may significantly affect Lender's rights in the Properly (such as a
preceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations),
then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's
rights in the Property. Lender's actions may include paying any sums secured by a lien which has
pdodty over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entedng
on the Property to make repairs. Although Lender may take action under this paragreph, Lender does
not have to do so.
Any amounts disbureed by Lender under this paragraph shall become additional debt of
Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other terms of
payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be
payable, with interest, upon notice from Lender to Borrower requesting payment.
6. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, in connection with any condemnation or other taking of any part of the Property, or for
conveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of
the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument.
Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and
this Secudty Instrument shall be paid to the entity legally entitled thereto.
7. Inspection. Lender or its agent may make reasonable entdes upon and inspections of
the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying
reasonable cause for the inspection.
8. Grounds for Acceleration of Debt.
(a) Default. Lender may, require immediate payment in full of all sums secured by this
Security instrument if:
(i)
Borrower defaults by failing, for a period of thirty days, to perform any other
obligations contained in this Secudty Instrument.
(ii)
Borrower defaults by failing, for a period of thirty days, to perform any other
obligations contained in Agreement No. RA 01- / City of Bakersfield
Agreement No. 01-
(b) Trensfer of the Property or a Beneficial Interest in Borrower. If all or any part of the
Property or any interest in it is sold or transferred (or if a beneficial interest in Borrewer is sold or
transferred and Borrower is not a natural person) to any entity in which Borrower is not a managing
partner without Lender's prior written consent, Lender may, at its option, require immediate payment in
full of all sums secured by this Security Instrument. However, this option shall not be exercised by
Lender if exercise is prohibited by federal law as of the date of this Security Instrument.
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If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice
shall provide a period of not less than 30 days from the date the notice is delivered or mailed within
which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these
sums prior to the expiration of this pedod, Lender may invoke any remedies permitted by this Secudty
Instrument without further notice or demand on Borrower.
9. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have
the dght to have enforcement of this Secudty Instrument discontinued at any time pdor to the eadier of:
(a) 5 days (or such other pedod as applicable taw may specify for reinstatement) before sale of the
Property pursuant to any power of sale contained in this Security Instrument; or (b) entry of a judgment
enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which
then would be due under this Secudty Instrument and the Note as if no acceleration had occurred; (b)
cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this
Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action
as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's rights in
the Property and Borrower's obligation to pay the sums secured by this Secudty Instrument shall
continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations
secured hereby shall remain fully effective as if no acceleration had occurred. However, this dght to
reinstate shall not apply in the case of acceleration under paragraph 8(b).
10. Borrower Not Released: Forbearance By Lender Not a Waiver. Extension of the
time for payment or modification of amortization of the sums secured by this Security Instrument
granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the
original Borrower or Borrower's successors in interest. Lender shall not be required to commence
proceedings against any successor in interest or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Secudty Instrument by reason of any demand made by the
odginal Bon'ower or Borrower's successors in interest. Any forbearance by lender in exercising any dght
or remedy shall not be a waiver of or preclude the exercise of any dght or remedy.
11. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The
covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns
of Lender and Borrower. Borrower's covenants and agreements shall be joint and several. Any
Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this
Security Interest only to mortgage, grant and convey that Borrower's interest in the Property under the
terms of this Security Instrument; (b) is not personally obligated to pay the sums security by this Security
Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or
make any accommodations with regard to the terms of this Security Instrument or the Note without that
Borrower's consent.
12. Notices. Any notice to Borrower provided for in this Security Instrument shall be given
by delivering it or by mailing it by first class mail unless applicable law requires use of another method.
The notice shall be directed to the address Borrower designates by notice to Lender. Any notice to
Lender shall be given by first class mail to Lender's address stated herein or any other address Lender
designates by notice to Borrower.
Any notice provided for in this Security Instrument shall be deemed to have been given to
Borrower or Lender when given as provided in this paragraph.
13. Governing Law; Severability. This Security Instrument shall be governed by federal
law and the law of the jurisdiction in which the Property is located. In the event that any provision or
clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect
other provisions of this Security Instrument or the Note which can be given effect without the conflicting
provision. To this end the provisions of this Security Instrument and the Note are declared to be
severable.
Senior Housing Project
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March 22, 2001
C-9
14. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this
Security Instrument.
15. Hazardous Substances. Borrower shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do,
nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental
Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of
small quantities of Hazardous Substances that are generally recognized to be appropriate to normal
residential uses and to maintenance of the Property.
Borrower shall promptly give Lender wdtten notice of any investigation, claim, demand, lawsuit or
other action by any governmental or regulatory agency or pdvate party involving the Property and any
Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower
learns, or is notified by any governmental or regulatory authority, that any removal or other remediation
of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all
necessary remedial actions in accordance with Environmental Law.
As used in this paragraph, "Hazardous Substances" are. those substances defined as toxic or
hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other
flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials
containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph,
"Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that
relate to health, safety or environmental protection.
16. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the
rents and revenues of the Property. Borrower authorizes Lender or Lender's agent to collect the rents
and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's
agents. However, pdor to Lender's notice to Borrower of Borrower's breach of any covenant or
agreement in the Secudty Instrument, Borrower shall collect and receive all rents and revenues of the
Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an
absolute assignment and not an assignment for additional secudty only.
If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by
Borrower as trustee for benefit of Lender, only to be applied to the sums secured by this Security
Instrument, (b) Lender shall be entitled to collect and receive all of the rents of the Property; and (c)
each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's
written demand to the tenant.
Borrower has not executed any pdor assignment of the rents and has not and will not perform
any act that would prevent Lender from exemising its dghts under this paragraph.
Lender shall not be required to enter upon, take control of or maintain the Property before or
after giving notice of breach to Borrower. However, Lender or a judicially appointed receiver may do so
at any time there is breach. Any application of rents shall not cure or waive any default or invalidate
any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the
debt secured by this Security Instrument is paid in full.
NON-UNIFORM COVENANTS.
Borrower and Lender further covenant and agree as follows:
17. Foreclosure Procedure, If Lender requires immediate payment in full under
paragraph 8, Lender may invoke the power of sale and any other remedies permitted by
Senior Housing Project
S:~Edcd~Cit¥Center~agrs~seniorhousingdr6.wpd
March 22, 2001
C-10
applicable law. Lender shall be entitled to collect all expenses incurred in pursuing the
remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees
and costs of title evidence.
If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause the
Property t be sold. Trustee shall cause this notice to be recorded in each county in which any
part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed
by applicable law to Borrower and to other persons prescribed by applicable law. Trustee shall
give public notice of sale to the persons and in the manner prescribed by applicable law. After
the time required by applicable law, Trustee, without demand on Borrower, shall sell the
Property at public auction to the highest bidder at the time and place and under the terms
designated in the notice of sale in one or more parcels and in any order Trustee determines.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the
time and place of any previously scheduled sale. Lender or its designee may purchase the
Property at any sale.
Trustee shall deliver to the purchase Trustee°s deed conveying the Property without any
covenant or warranty, express or implied. The recitals in the Trustee's deed shall be prima facie
evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the
sale in the following order; (a) to all expenses of the sale, including, but not limited to,
reasonable Trustee's and attorneys' fees; (b) to all sums secured by this Security Instrument;
and (c) any excess to the person or persons legally entitled to it.
18. Reconveyance. Upon payment of all sums secured by this Secudty Instrument, Lender
shall request Trustee to reconvey the Property and shall surrender this Secudty instrument and all notes
evidencing debt secured by this Secudty Instrument to Trustee, Trustee shall reconvey the Property
without warranty and without charge to the person or persons legally entitled to it. Such person or
persons shall pay any recordation costs.
19. Substitute Trustee. Lender, at its option, may from time to time appoint a successor
trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the Recorder of the county in which the Property is located. The
instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page
where this Security Instrument is recorded and the name and address of the successor trustee. Without
conveyance of the Property, the successor trustee shall succeed to all the title, power and duties
conferred upon the Trustee herein and by applicable law. This procedure for substitution of trustee shall
govern to the exclusion of all other provisions for substitution.
20. Request for Notices. Borrower requests that copies of the notices of default and sale
be sent to Borrower's address which is 854 West Adams BIvd, Los Angeles, California 90007.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Security Instrument and recorded with it.
(BorroweO
NOTARY INFORMATION
Senior Housing Project
S:~Edcd\CityCenter~agrs~seniorhousingdr6,wpd
March 22, 2001
C-11
LEGAL DESCRIPTION
Senior Housing Project
S:~dcd~CityCenter~agrsLseniorhousingdr6.wpd
March 22, 2001
C-12
PROPOSED
CITY__CENTER PROJECT
Relocation Assistance Information for
Owner-Occupants Displaced
From Their Homes
(Residential)
EXHIBIT"_ :Z)"
RESIDENTIAL INFORMATIONAL BROCHURE FOR
OWNER-OCCUPANTS DISPLACED FROM THEIR HOMES
I. INTRODUCTION
This booklet describes the relocation payments and other relocation assistance
provided under the California Relocation Assistance Act (Government Code Section 7260,
et seq.) and the State regulations for relocation assistance (25 Cal. Code Regs. §§ 6000-
6198) to persons displaced by the Developer or Bakersfield Redevelopment Agency
("Agency") or the City of Bakersfield's ("City") acquisition of properties for the CITY
CENTER PROJECT ("the Project"). Your dwelling is in an area which may be acquired for
this purpose. Relocation payments and assistance under federal statutes and regulations
are similar and will not be separately discussed in this document.
If you are notified that you will be displaced by the Project, it is important that
you do not move before you learn what you must do to receive the relocation
payments and other assistance to which you are entitled.
This booklet may not answer all of your questions. If you have more questions
about your relocation, contact the City's Relocation Agent, Janice Scanlan at (661) 326-
3721. Ask your questions before you move; afterwards it may be too late.
II. SUMMARY OF RELOCATION ASSISTANCE
As an eligible displaced person, you will be offered appropriate financial and
advisory relocation assistance, including:
A. Relocation Advisory Assistance
B. Payment for Your Moving Expenses. You will receive either:
· A Fixed Payment for Moving Expenses; or
· Payment for Actual Reasonable Moving and Related Expenses;
C. Replacement Differential Payments
III. FORMS OF ASSISTANCE
A. Relocation Advisory Assistance
When the Bakersfield Redevelopment Agency or the City of Bakersfield or the
Developer offers to purchase the property you occupy, they have an obligation to assist
you in finding comparable replacement housing which is decent, safe and sanitary;
-November 15, 2000 '- Page 1 of 5 Pages -- ,: ~
adequate in size; within your ability tQ pay; and in a suitable location. The relocation staff
will assist you in finding a suitable replacement site and will provide you with referral
listings. The staff will be available should you need assistance in preparing requests for
payment of claims.
B. Payment for MovinR Expenses
Two types of payments for moving expenses are available: a Fixed Moving Payment
or Actual Moving Expenses.
1. Fixed Moving Payment. A Fixed Moving Payment is a fiat amount
based solely upon the number of rooms in the dwelling. A "room" would be room which
normally contains furniture to be moved. For example, a bedroom or kitchen would be a
room, but a bathroom would not. If you choose the Fixed Moving Payment, you must
arrange for your own move and you will bear the cost for any loss, breakage, theft, etc.
incurred.
If you do not own the furniture and you furnish none or only a small amount of your
household equipment, the Fixed Moving Payment will be as follows:
First room $ 325
Each room after that $ 50
If you own the furniture, the Fixed Moving Payment will be as follows:
One room $ 500
Two rooms $ 650
Three rooms $ 800
Four rooms $ 950
Five rooms $1150
Six rooms $1350
Seven rooms $1550
Eight rooms $1750
Each additional room $ 175
2. Actual Moving Expenses. If you do not select the Fixed Moving
Payment, then you may be paid your actual reasonable and necessary moving expenses.
You must receive prior approval from the City's Relocation Agent before moving and have
paid, receipted and itemized bills from the moving company performing the move. "Actual
Moving Expenses" would include such things as the moving company charges, cost of
packing, crating, unpacking and uncrating personal property, storage of personal property
(not to exceed 12 months) and utility disconnection and hookup fees. If you choose the
"Actual Expense" method, you do not get the Fixed Moving Payment mentioned above.
Relocation Assistance for Owner-Occupants
S:\Edcd\CityCenter\owner relocatio n,wpd
-November 15, 2000
-- Page 2 of 5 Pages --
While actually moving is a prerequisite for receipt of either Actual Moving Expenses
or Fixed Moving Payment, in cases of financial hardship, advance payments can be made.
Consult the City's Relocation Agent for more information.
C. Replacement Differential Payments
1. Replacement Housin,q Differential. Long-term owner/occupants
(owners who occupy the property for at least 180 days before the owner receives the first
written offer to purchase from the Developer, the Agency or the City) of homes may qualify
to receive a payment over and above the price the Developer, the Agency orthe City paid
for the property.
A replacement housing differential payment may be made to eligible homeowners
in occupancy who purchase a decent, safe and sanitary replacement home. The payment
is the difference, if any, between the price the Developer, the Agency or the City paid for
the home and the average selling price of a functionally-comparable dwelling or the price
you actually spend to buy a replacement residence, whichever is less.
Additionally, such owner-occupants may be eligible for payment of incidental
expenses associated with the purchase of the replacement dwelling. Such incidentals
include non-recurring (one-time charges) charges (legal fees, preparation of documents,
notary fees, surveys, recording charges, loan application fees and appraisal fees),
compensation for increased interest rate and charges for credit reports.
Under no circumstances may the TOTAL of the replacement housing differential
and the incidental expenses exceed $22,500.
2. Rental Differential. Owners in occupancy for at least 90 days before
the owner receives the first written offer to purchase from the Developer, the Agency or the
City who are unable to rent suitable housing at price levels equal to the actual or market
rent on the property purchased may qualify to receive payments to help them with the
higher rent. Additionally, owners in occupancy in excess of 180 days before the owner
receives the first written offer to purchase the property may elect to receive this differential
instead of purchasing a replacement dwelling.
A rental differential payment may be made to homeowners in occupancy who rent
a decent, safe and sanitary replacement home, duplex or apartment unit. This also applies
to mobile home occupants. By law, this payment may not exceed $5,250 nor exceed a
period of 42 months.
The payment will be equal to the difference, if any, between the cost of renting a
replacement dwelling functionally comparable to your former dwelling and the rental rate
of the former dwelling. For mobile home occupants, the rent refers to pad or space rent.
Relocation Assistance [or Owner~Occupant$
S:\Edcd~CityCenter\ownerreloca[ion.wpd
-November 15, 2000
-- Page 3 of 5 Pages --
3. Down Payments. Owners in occupancy for at least 90 days but less
than 180 days before receipt of the first written offer to purchase the property may qualify
for a down payment to help purchase a replacement home. The down payment cannot
exceed $5,250 and is calculated the same way as the rental differential.
PLEASE NOTE: The Relocation Agent is required to certify that the dwelling you
buy or rent, and occupy, is decent, safe and sanitary in order for you to qualify for the
differential payments. Ensure that the Relocation Agent inspects any dwelling you may
wish to purchase or rent to determine whether it qualifies as decent, safe and sanitary.
Moving expenses and supplemental payments are not considered as income
for the purpose of personal income tax laws. These payments are not considered
income or resources to recipients of public assistance.
4. Other Owner Occupants. A displaced owner in occupancy less than
90 days before receipt of the first written offer to purchase the property will be considered
a displaced person, and will be entitled to Relocation Advisory Assistance and Moving
Expenses (Fixed or Actual) only. Displaced owners who were not in occupancy of a
dwelling at the time the first written offer to purchase was received would be eligible for
Relocation Advisory Assistance only.
5. Non-Resident Owners. Non-resident owners (landlords) are not
entitled to any relocation benefits.
IV. EVICTION
Eviction is permissible only as a last resort and in no way affects eligibility of evicted
displaced persons. Eviction shall only be undertaken for the following reasons: failure to
pay rent; performance of a dangerous, illegal act in the unit; material breach of the rental
agreement and failure to timely correct; maintenance of a nuisance; or refusal to accept
one of a reasonable number of offers of replacement properties.
V. APPEALS
If you disagree with the City's decision as to your right to a relocation payment or
the amount of payment, you may appeal the decision to the City.
The City will inform you of its appeal procedures, and will provide you with a copy
of its grievance and appeal procedures. You have up to six months to file your appeal with
the City; if a project utilizes federal funds, then you have up to 60 days to file your appeal
with the City. If you need help, the City will assist you in preparing your appeal.
If you are not satisfied with the final decision on your appeal, you may seek review
by the courts.
S :\Edcd\CityCenter~owner relocation wpd
-November 15, 2000
-- Page 4 of 5 Pages--
VI. FILING OF CLAIMS
All claims for relocation payments must be submitted within 18 months of the date
on which you receive final payment for your property, or the date on which you move,
whichever is later.
VII. ADDITIONAL INFORMATION
If you have any questions after reading this material, contact Janice Scanlan, the
City Relocation Agent at (661) 326-3721 to discuss your concerns.
Thank you for your cooperation in this process. We will work with you closely to
minimize the relocation burden.
Relocatior~ Assistance for Owner-Occupants
S:'tEdcd\CityCenter~ownerrelocation,wpd
-November 15, 2000
-- Page 5 of 5 Pages -
PROPOSED
CITY CENTER PROJECT_
Relocation Assistance Information"for
Tenants Displaced
From Their Homes
(Residential)
EXHIBIT" ~"
RESIDENTIAL INFORMATIONAL BROCHURE FOR
TENANTS DISPLACED FROM THEIR HOMES
I. INTRODUCTION
This booklet describes the relocation payments and other relocation assistance
provided under the California Relocation Assistance Act (Government Code Section 7260,
et seq.) and the State regulations for relocation assistance (25 Cal. Code Regs. §§ 6000-
6198) to persons displaced by the Developer or Bakersfield Redevelopment Agency
("Agency") or the City of Bakersfield's ("City") acquisition of properties for the CITY
CENTER PROJECT ("the Project"). Your dwelling is in an area which may be acquired for
this purpose. Relocation payments and assistance under federal statutes and regulations
are similar and will not be separately discussed in this document.
If you are notified that you will be displaced by the Project, it is important that
you do not move before you learn what you must do to receive the relocation
payments and other assistance to which you are entitled.
This booklet may not answer all of your questions. If you have more questions
about your relocation, contact the City's Relocation Agent, Janice Scanlan at (661) 326-
3721. Ask your questions before you move; afterwards it may be too late.
II. SUMMARY OF RELOCATION ASSISTANCE
As an eligible displaced person, you will be offered appropriate financial and
advisory relocation assistance, including:
A. Relocation Advisory Assistance
B. Payment for Your Moving Expenses. You will receive either:
· A Fixed Payment for Moving Expenses; or
· Payment for Actual Reasonable Moving and Related Expenses;
C. Replacement Differential Payments
III. FORMS OF ASSISTANCE
A. Relocation Advisory Assistance
When the Bakersfield Redevelopment Agency or the City of Bakersfield or the
Developer offers to purchase the property you occupy, they have an obligation to assist
you in finding comparable replacement housing which is decent, safe and sanitary;
Relocation Assistance for Tenants
S:\Edcd~CityCenteC, tenantr e[ocation.wpd
- November 15, 2000
-- Page 1 of 4 Pages --
adequate in size; within your ability to pay; and in a suitable location. The relocation staff
will assist you in finding a suitable replacemen{ site and will provide you with referral
listings. The staff will be available should you need assistance in preparing requests for
payment of claims.
B. Payment for Movinq Expenses
Two types of payments for moving expenses are available: a Fixed Moving Payment
or Actual Moving Expenses.
1. Fixed Moving Payment. A Fixed Moving Payment is a flat amount
based solely upon the number of rooms in the dwelling. A "room" would be room which
normally contains furniture to be moved. For example, a bedroom or kitchen would be a
room, but a bathroom would not. If you choose the Fixed Moving Payment, you must
arrange for your own move and you will bear the cost for any loss, breakage, theft, etc.
incurred.
If you do not own the furniture and you furnish none or only a small amount of your
household equipment, the Fixed Moving Payment will be as follows:
First room $ 325
Each room after that $ 50
If you own the furniture, the Fixed Moving Payment will be as follows:
One room $ 500
Two rooms $ 650
Three rooms $ 800
Four rooms $ 950
Five rooms $1150
Six rooms $1350
Seven rooms $1550
Eight rooms $1750
Each additional room $ 175
2. Actual Moving Expenses. If you do not select the Fixed Moving
Payment, then you may be paid your actual reasonable and necessary moving expenses.
You must receive prior approval from the City's Relocation Agent before moving and have
paid, receipted and itemized bills from the moving company performing the move. "Actual
Moving Expenses" would include such things as the moving company charges, cost of
packing, crating, unpacking and uncrating personal property, storage of personal property
(not to exceed 12 months) and utility disconnection and hookup fees. if you choose the
"Actuat Expense" method, you do not get the Fixed Moving Payment mentioned above.
Relocation Assistance for Tenants
S:\Edcd\CityCenter~tenantreiocation.w pd
- November 15, 2000
-- Page 2 of 4 Pages --
While actually moving is a prerequisite for receipt of either Actual Moving Expenses
or Fixed Moving Payment, in cases of financial hardship, advance payments can be made.
Consult the City's Relocation Agent for more information.
C. Replacement Differential Payments
1. Rental Differential. Tenants in occupancy for at least 90 days before
the owner receives the first written offer to purchase from the Developer, the Agency or the
City who are unable to rent suitable housing at price levels equal to the actual or market
rent on the property purchased may qualify to receive payments to help them with the
higher rent.
A rental differential payment may be made to renters in occupancy who rent a
decent, safe and sanitary replacement home, duplex or apartment unit. This also applies
to mobile home occupants. By law, this payment may not exceed $5,250 nor exceed a
period of 42 months.
The payment will be equal to the difference, if any, between the cost of renting a
replacement dwelling functionally comparable to your former dwelling and the rental rate
of the former dwelling. For mobile home occupants, the rent refers to pad or space rent.
2. Down Payments. Tenants in occupancy for at least 90 before receipt
of the first written offer to purchase the property may qualify for a down payment to help
purchase a replacement home. The down payment cannot exceed $5,250 and is
calculated the same way as the rental differential.
PLEASE NOTE: The Relocation Agent is required to certify that the dwelling you
buy or rent, and occupy, is decent, safe and sanitary in order for you to qualify for the
differential payments. Ensure that the Relocation Agent inspects any dwelling you may
wish to purchase or rent to determine whether it qualifies as decent, safe and sanitary.
Moving expenses and supplemental payments are not considered as income
for the purpose of personal income tax laws. These payments are not considered
income or resources to recipients of public assistance.
3. Other Tenants. A displaced tenant in occupancy less than 90 days
before receipt of the first written offer to purchase the property will be considered a
displaced person, and will be entitled to Relocation Advisory Assistance and Moving
Expenses (Fixed or Actual) only. Displaced tenants who were not in occupancy of a
dwelling at the time the first written offer to purchase was received would be eligible for
Relocation Advisory Assistance only.
S:\Edcd\CityCenter\tenantrelocation.wpd
- November 15, 2000
-- Page 3 of 4 Pages --
IV. EVICTION
Eviction is permissible only as a last resort and in no way affects eligibility of evicted
displaced persons. Eviction shall only be undertaken for the following reasons: failure to
pay rent; performance of a dangerous, illegal act in the unit; material breach of the rental
agreement and failure to timely correct; maintenance of a nuisance; or refusal to accept
one of a reasonable number of offers of replacement properties.
V. APPEALS
If you disagree with the City's decision as to your right to a relocation payment or
the amount of payment, you may appeal the decision to the City.
The City will inform you of its appeal procedures, and will provide you with a copy
of its grievance and appeal procedures. You have up to six months to file your appeal with
the City; if a project utilizes federal funds, then you have up to 60 days to file your appeal
with the City. If you need help, the City will assist you in preparing your appeal.
If you are not satisfied with the final decision on your appeal, you may seek review
by the courts.
VI. FILING OF CLAIMS
All claims for relocation payments must be submitted within 18 months of the date
on which you receive final payment for your property, or the date on which you move,
whichever is later.
VII. ADDITIONAL INFORMATION
If you have any questions after reading this material, contact Janice Scanlan, the
City Relocation Agent at (661) 326-3721 to discuss your concerns.
Thank you for your cooperation in this process. We will work with you closely to
minimize the relocation burden.
Relocation Assistance for Tenants
S:\Edcd\CityCenter\tenantrelocation.wpd
- November 15, 2000
-- Page 4 of 4 Pages --
PROPOSED
CITY CENTER PROJE___CT
Relocation Assistance
Information for
Businesses and
Non-Profits
EXHIBIT"9 "
RELOCATION ASSISTANCE TO
DISPLACED BUSINESSES AND NON-PROFITS
I. INTRODUCTION
This booklet describes the relocation payments and other relocation assistance
provided under the California Relocation Assistance Act (Government Code Section 7260,
et seq.) and the State regulations for relocation assistance (25 Cal. Code Regs. §§ 6000-
6198) to businesses and non-profits ("businesses" herein) displaced by the Developer or
Bakersfield Redevelopment Agency ("Agency") or the City of Bakersfield's ("City")
acquisition of properties for the CITY CENTER PROJECT ("the Project"). Your business
is in an area which may be acquired for this purpose. Relocation payments and assistance
under federal statutes and regulations are similar and will not be separately discussed in
this document.
If you are notified that you will be displaced by the Project, it is important that you
do not move before you learn what you must do to receive the relocation payments and
other assistance to which you are entitled.
This booklet may not answer all of your questions. If you have more questions
about your relocation, contact the City's Relocation Agent, Janice Scanlan at (661) 326-
3721. Ask your questions before you move; afterwards it may be too late.
II. SUMMARY OF RELOCATION ASSISTANCE
As an eligible displaced business, you will be offered appropriate financial and
advisory relocation assistance, including:
A. Relocation Advisory Assistance.
B. Payment for Your Business Moving Expenses. You will receive either:
A Reimbursement Payment for Actual Reasonable Moving and
Related Expenses (Cal. Regs. § 6090), or
A Fixed Payment, based on your business profitability (restrictive
eligibility requirements apply -- Cal. Regs. § 6100(b));
Reestablishment Expenses, You may be entitled to reasonable costs of
reestablishing your business at its new location in an amount not to exceed
$10,000.
Page 1 of 6 Pages--
III. FORMS OF ASSISTANCE
A. Relocation Advisory Assistance
When the Bakersfield Redevelopment or the City of Bakersfield or the
Developer offers to purchase the property you occupy, they have an obligation to assist
you in finding a comparable replacement location. The relocation staff will assist you in
finding a suitable replacement site and will provide you with referral listings. The staff will
be available should you need assistance in preparing requests for payment of claims.
B. Payment for Movinq Expenses
Every displaced business is entitled to a relocation payment to cover the
reasonable cost of moving. You may choose either a payment for actual reasonable
moving and related expenses, or a fixed payment (if you meet the eligibility requirements).
Every claim for more than $1,000 of actual moving expenses must be
supported by competitive bids from qualified movers· (Cal. Regs. § 6090(g)(2).)
1. Actual Movin,q and Related Expenses.
If you choose a payment for actual reasonable moving and related
expenses, you may include in your claim the cost of:
Transportation of personal property from your present location
to the replacement location. (Generally, transportation costs
are limited to a distance of 50 miles. If you plan to move
beyond 50 miles, discuss your planned move with the City's
Relocation Agent);
· b. Packing, crating, uncrating and unpacking personal property;
Storage of personal property for a reasonable period of time,
if required, but not exceeding 12 months;
Insurance of personal property in connection with the move,
required storage-and the replacement value of property lost,
stolen or damaged not due to the negligence of the owner in
the process of moving where insurance is not readily available;
The cost of disconnecting, dismantling, removing,
reassembling and installing relocated and substitute
machinery, equipment and other personal property. This
includes connection to utilities available nearby and
modifications necessary to adapt such property to the
Relocation Ass[stance to Oisplaced Bu$i~esses. Comm
S:\Edcd\CityOe nter\comm r e[osections wpd
Januan/24, 2001
-- Page 2 of 6 Pages--
replacerqent structure or to the utilities or to adapt the utilities
to the personal property;
Any license, permit or certification required by the displaced
business, to the extent that the cost is:
· necessary to its reestablishment at the replacement
location, and
· does not exceed the cost for the remaining time before
expiration of the existing license, permit or certification;
Reasonable professional services, including architect's,
attorney's and engineer's fees, and consultant's charges,
necessary for:
· planning the move of the personal property;
· moving the personal property; or
· installing the relocated personal property at the
replacement location;
Relettering signs and printing replacement stationery made
obsolete by the move;
The reasonable cost incurred in attempting to sell an item that
is not relocated;
Actual direct loss of personal property. This payment provides
compensation for property that is neither moved nor promptly
replaced with a "substitute item" at the replacement location.
Payment is limited to the lesser of:
· the estimated cost of moving the property, or
· the fair market value of the property for its continued
use at the old location, less any proceeds from its sale.
To be eligible, you must make a good faith effort to sell
the property, unless the City determines that such effort
is not necessary;
Purchase and installation of substitute personal property.
Payment will be limited to the lesser of:
January 24, 2001
-- Page 3 of 6 Pages--
the estimated cost to move the item to the replacement
location, or
the actual cost of the substitute item delivered and
installed at the replacement location, tess any proceeds
from its sale or its trade-in value. It is important that you
discuss your plans with the City before you proceed;
and
Searching fora replacement business location. This payment
may not exceed $1,000 (Cal. Regs. § 6094), and may cover
costs for:
· transportation expenses;
· meals and lodging away from home;
time spent searching for a replacement location, based
on a reasonable salary or earnings of the displaced
person or his/her representative;
reasonable fees paid to real estate agents or brokers to
find a replacement business (not fees related to the
purchase of a site).
The City will explain all eligible moving costs, as well as those which are not eligible.
You must be able to account for all costs that you incur, so keep all your receipts.
Remember, all moving expense claims exceeding $1,000 must be supported by
competitive bid(s).
You may minimize the amount of documentation needed to support your claim if you
elect to "self-move" your property. Payment for "self-move" is based on the amount of an
acceptable Iow bid or estimate obtained by the City. If you "self-move," you may move
your personal property using your own employees and equipment or a commercial mover.
If you and the City cannot agree on an acceptable amount to cover the cost of the "self-
move," you will have to submit full documentation in support of your claim. (Cal. Regs. §
6090(e).)
You may elect to pay your moving costs yourself and be repaid by the City or, if you
prefer, you may have the City pay the mover. In certain conditions of financial hardship,
an advance payment may be arranged. In either case, let the City know before you move.
Select your mover with care.
Relocation Assistance to Olsplaced Businesses Corem
January 24, 2001
-- Page 4 of 6 Pages
When a payment for "actual direct loss of personal property" or "substitute personal
property" is made for an item, the estimated cost of moving the item may be based on the
lowest acceptable bid or estimate obtained by the City. If not sold or traded in, the item
must remain at the old location and ownership of the item must be transferred to the new
owner before you may receive the payment.
Fixed Payment in Lieu of a Payment for Actual Reasonable Movin.q and
Related Expenses (Cal. Re_qs..~ 6100.)
A business may be eligible to receive an inqieu payment, equal to the
average annual net earnings of the business but not less than $1,000 nor more than
$20,000 for expenses incurred in relocating and re-establishing such operation at a
replacement site.
A displaced business organization may choose a fixed payment as stated
above if the City determines that it cannot be relocated without substantial loss of existing
patronage (membership or clientele) and the other eligibility requirements per State
Regulations §§ 6100(b) through (g) are met.
To qualify for this payment, a displaced business:
ao
Must own or rent personal property which must be moved in
connection with the displacement and for which an expense
would be incurred in such move, and the business vacates or
relocates from its displacement site;
Must be unable to relocate without a substantial loss of
existing patronage;
Must not be part of a commercial enterprise having no more
than three other establishments which are not being acquired
for the Project and which is under the same ownership and
engaged in the same or similar business activities; and
d. Must meet certain annual income requirements.
The City's Relocation Agent will inform you as to your eligibility for this
payment and the documentation you must submit to support your claim.
Remember, if you are eligible for and elect to take this payment, you are not
entitled to reimbursement for any other moving expenses.
January 24, 2001
-- Page 5 of 6 Pages--
C. Reestablishment Expenses.
Small businesses (less than 500 employees) and non-profits may be entitled to
reasonable costs of reestablishing their businesses. Such costs cannot exceed $10,000.
Reestablishment expenses would include such things as repairs or improvements to the
replacement property required by law or required to make the replacement site or structure
suitable for conducting the business; signage; utility connections, licenses, etc.
IV. EVICTION
Eviction is permissible only as a last resort and it in no way affects eligibility of
evicted displaced persons. Eviction shall only be undertaken for the following reasons:
failure to pay rent; performance of a dangerous, illegal act in the unit; material breach of
the rental agreement and failure to timely correct; maintenance of a nuisance; or refusal
to accept one of a reasonable number of offers of replacement properties.
V. APPEALS
If you disagree with the City's decision as to your right to a relocation payment or
the amount of payment, you may appeal the decision to the City.
The City will inform you of its appeal procedures, and will provide you with a copy
of its grievance and appeal procedures. You have up to six months to file your appeal with
the City; if a project utilizes federal funds, then you have up to 60 days to file your appeal
with the City. If you need help, the City will assist you in preparing your appeal.
If you are not satisfied with the final decision on your appeal, you may seek review
by the courts.
VI. FILING OF CLAIMS
All claims for relocation payments must be submitted within 18 months of the date
on which you receive final payment for your property, or the date on which you move,
whichever is later.
VII. ADDITIONAL INFORMATION
If you have further questions after reading this material, contact Janice Scanlan, the
City's Relocation Agent at (661) 326-3721 to discuss your concerns.
Thank you for your cooperation in this process. We will work with you closely to
minimize the relocation burden.
RelccatJon Assistance to Displaced Businesses Corem
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-- Page 6 of 6 Pages--
EXHIBIT "E"
ACKNOWLEDGMENT OF RECEIPT OF
RELOCATION BENEFITS BROCHURE
PROPOSED CITY CENTER PROJECT
l, , am presently a residential owner/residential tenant/business owner/business
tenant (circle one) of property located at
On
received a copy of the brochure entitled:
"Relocation Assistance Information for Owner-Occupants Displaced From Their Homes
(Residential)"; or
__ "Relocation Assistance Information for Tenants Displaced From Their Homes (Residential)";
or
~Relocation Assistance Information for Businesses and Non-Profits"
(check one)
(Signature)
(Print Name)
(Date)
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E-1
EXHIBIT "F"
SATISFACTION OF RELOCATION REQUIREMENTS UNDER THE UNIFORM RELOCATION ACT
OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF t974
1. I, , am presently a business owner/business tenantJresidential
owner/residential tenant of property located at
2. I have been formally notified that the property may be acquired in connection with a program or
project to be carried out by the City of Bakersfield, the Bakersfield Redevelopment Agency and Capital
Vision Equities and that such action would make it necessary for me to move permanently from the
property.
3. I have also been advised that such action would make me eligible for relocation payments and other
relocation assistance required by the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended (URA) ef the Housing and Community Development Act of 1974, to
help me relocate successfully. It has been explained to me that the law provides for relocation
advisory assistance.
4. The nature and amounts of such payments and other assistance and benefits have been specifically
described to me in such' a manner and in sufficient detail that I fully understand them.
5. I am satisfied that I have received or will receive all of the relocation benefits to which I am entitled.
(Signature)
(Print name)
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EXHIBIT "G"
CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of any agency, a Member
of Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress1 or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions,
(3) The undersigned shall require that the language of this certification be included in the award
documents for all sub-awards at all tiers (including subcontractors, sub-grants, and contracts under
grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entedng into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
Date Signature-
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EXHIBIT "H"
EQUAL OPPORTUNITY
(48CFR 52.22-26)
(April 1984)
(a) If, during any 12-month period (including the 12 months preceding the award of this contract),
the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an
aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) through
(11) below. Upon request, the Contractor shall provide information necessary to determine the
applicability of this clause.
(b) During performing this contract, the Contractor agrees as follows:
1. The Contractor shall not discriminate against any employee or applicant for employment because
of race, color, religion, sex, or national origin.
2. The Contractor shall take affirmative action to ensure that applicants are employed, and that
employees are treated during emploYment, without regard to their race, color, religion, sex, or national
odgin. This shall include, but not be limited to (i) employment, (ii) upgrading, (iii) demolition, (iv)
transfer, (v) recruitment or recruitment advertising, (vi) layoff compensation, and (viii) selection for
training, including apprenticeship.
3. The Contractor shall post in conspicuous places available to employees and applicants for
employment the notices to be provided by the Contracting Officer that explain this clause.
4. The Contractor shall, in all solicitations or advertisement for employees placed by or on behalf of
the Contractor, state that all qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
5. The Contractor shall send, to each labor union or representative of workers with which it has a
collective bargaining agreement or other contract or understanding, the notice to be provided by the
Contracting Officer advising the labor union or workers' representative of the Contractor's commitments
under this clause, and post copies of the notice in conspicuous places available to employees and
applicants for employment.
6. The Contractor shall comply with Executive Order 11246, as amended, and the rules, regulations,
and orders of the Secretary of Labor.
7. The Contractor shall furnish to the contracting agency all information required by Executive
Order 11246, as amended, and by the rules, regulations, and orders of the Secretary of Labor.
Standard Form 100 (EEO-l), or any successor form, is the prescribed form to be filed within 30 days
following the award, unless filed within 12 months preceding the date of award.
8. The Contractor shall permit access to its books, records, and accounts by the contracting agency
of the Office of Federal Contract Compliance Programs (OFCCP) for the purposed of investigation to
ascertain the Contractor's compliance with the applicable rules regulations, and orders.
9. if the OFCCP determines that the Contractor is not in compliance with this clause or any rule,
regulation, or order of the Secretary of Labor, this contract may be canceled, terminated, or suspended
in whole or in part and the Contractor may be declared ineligible for further Government contracts,
under the procedures authorized in Executive Order 11246, as amended. In addition, sanctions may
be imposed and remedies invoked against the Contractor as provided in Executive Order 11246, as
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amended, the rules, regulations, and orders of the Secretary of Labor, or as otherwise provided by law.
10. The Contractor shall include the terms and conditions of subparagraph (b)(1) through (11) of this
clause in every subcontract or purchase order that is not exempted by the rules, regulations, or orders
of the Secretary of Labor issued under Executive order 11246, as amended, so that these items and
conditions will be binding upon each subcontractor or vendor.
11. The Contractor shall take such action with respect to any subcontract or purchase order as the
contracting agency may direct as a means of enforcing these terms and conditions, including sanctions
for noncompliance; provided, that if the Contractor becomes involved in, or is threatened with, litigation
with a subcontractor or vendor as a result of any direction, the Contractor may request the United
States to enter into the litigation to protect the interests of the United States.
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EXHIBIT "1"
NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
(24CFR, Subtitle A, Part 1, Section 1.5 Assurances Required)
1.5 Assurances Required
(a) General
(1) Every contract for Federal financial assistance to carry out a program or activity to which this
Part 1 applies, executed on or after January 3, 1965, and every application for such Federal financial
assistance submitted on or after January 3, 1965, shall, as a condition to its approval and the extension
of an Federal financial assistance pursuant to such contract or application, contain or be conducted and
the housing, accommodations, facilities, services, financial aid, or other benefits to be provided will be
operated and administered in compliance with all requirements imposed by or pursuant to this Part 1.
In the case of a contract or application where the Federal financial assistance is to provide or is in the
form of personal property or real property or interest therein structures thereon, the assurance shall
obligate the recipient or, in the case of a subsequent transfer, the transferee, for the pedod dudng
which the properly is used for a purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits, or for as long as the recipient
retains ownership or possession of the property, whichever is longer. In all other cases the assurance
shall obligate the recipient for the period during which Federal financial assistance is extended pursuant
to the contract or application. The responsible Department official shall specify the form of the
foregoing assurance for such program or activity, and the extent to which like assurances will be
required of subgrantees, contractors and subcontractors, transferees, successors in Interest, and other
participants of the program or activity. Any such assurance shall include provisions which give the
United States a dght to seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interests therein, acquired
through a program of Federal financial assistance the instrument effecting any disposition by the
recipient of such real property, structures or improvements thereon, or interests therein, shall contain a
covenant running with the land assuring nondiscrimination for the period during which the real property
is used for a purpose for which the Federal financial assistance is extended or for another purpose
involving the provision of similar services or benefits. In the case where Federal financial assistance is
provided in the form of a transfer of real property or interests therein from the Federal Government, the
instrument effecting or recording the transfer shall contain such a covenant.
(3) In program receiving Federal financial assistance in the form, or for the acquisition, of real
property or an interest in real property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving such assistance, the nondiscrimination
requirements of this Part 1 shall extend to any facility located wholly or in part in such space.
(b) Pre-existing contracts - funds not disbursed. In any case where a contract for Federal financial
assistance, to carry out a program or activity to which this Part 1 applies, has been executed prior to
January 3, 1965, and the funds have not been fully disbursed by the Department, the responsible
Department official shall, where necessary to effectuate the purposes of this Part 1, require an
assurance similar to that provided in paragraph (a) of this section as a condition to the disbursement of
further funds.
(c) Pre-existing contract - periodic payments. In any case where a contract for Federal financial
assistance, to carry out a program or activity to which this Part 1 applies, has been executed pdor to
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I-1
January 3, 1965, and provides for pedodic payments for the continuation of the program or activity, the
recipient shall, in connection with the first application for such pedodic payments on or after January 3,
1965:
(1) Submit a statement that the program or activity is being conducted in compliance with all
requirements imposed by or pursuant to this Part 1; and
(2) The assurance required with respect to an institution of higher education, hospital, or any other
institution, insofar as the assurance relates to the institution's practices with respect to admission or
other treatment of persons as students, patients, or clients of the institution or to the opportunity to
participate in the provision of services or other benefits to such persons, shall be applicable to the
entire institution unless the applicant establishes, to the satisfaction of the responsible Department
official, that the institution's practices in designated parts or programs of the institution will in no way
affect its practices in the program of the institution for which Federal financial assistance is sought, or
the beneficiaries of or participants in such program. If in any such case the assistance sought is for the
construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility
and to facilities operated in connection therewith.
(e) Elementary and secondary schools. The requirements of this section with respect to any
elementary or secondary school or school system shall be deemed to be satisfied or such school or
school system (1) is subject to a final order of a court of the United States for the desegregation of such
school or school system, and provides an assurance that it will comply with such order, including any
future modification of such order, or (2) submits a plan for the desegregation of such school or school
system which the responsible official of the Department of Health and Human Services determines is
adequate to accomplish the purposes of the Act and this Part 1 within the eadiest practicable time, and
provides reasonable assurance that it will carry out such plan.
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EXHIBIT "J"
AFFIRMATIVE ACTION FOR
HANDICAPPED WORKERS
(48 CFR 52.222-36)
(April 1984)
(a) General.
(1) Regarding any position for which the employee or applicant for employment is qualified, the
contractor shall not discriminate against any employee or applicant because of physical or mental
handicap. The contractor agrees to take affirmative action to employ, advance in employment, and
otherwise treat qualified handicapped individuals without discrimination based upon their physical or
mental handicap in all employment practices such as:
(i) Employment;
(ii) Upgrading;
(iii)Demotion or transfer;
(iv) Recruitment;
(v) Advertising;
(vi) Layoff or termination;
(vii)Rates of pay or other forms of compensation; and
(viii) Selection for training, including apprenticeship.
(2) The contractor agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor (Secretary) issued under the Rehabilitation Act of 1973 (20 U.S.C. 793) (the Act), as
amended.
(b) Postings.
(1) The Contractor agrees to post employment notices stating (i) the Contractor's obligation
under the law to take affirmative action to employ and advance in employment qualified handicapped
individuals and (ii) the dghts of applicants and employees.
(2) These notices shall be posted in conspicuous places that are available to employees and
applicants for employment. The shall be in a form prescribed by the Director, Office of Federal
Contract Compliance Programs, Department of Labor (Director), and provided by or through the
Contracting Officer.
(3) The Contractor shall notify each labor union or representative or workers with which it has a
collective bargaining agreement or other contract understanding, that the Contractor is bound by the
terms of Section 503 of the Act and is committee to take affirmative action to employ, and advance in
employment; qualified physically and mentally handicapped individuals.
(c) Noncompliance. If the Contractor does not comply with the requirements of this clause, appropriate
actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant
to the Act.
(d) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or
purchase order in excess of $2,500 unless exempted by rules, regulations, or orders of the Secretary.
The Contractor shall act as specified by the Director to enforce the terms including action for
noncompliance.
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J-1
EXHIBIT "K"
SECTION 3
TRAINING EMPLOYMENT AND BUSINESS OPPORTUNITY
A. The work to be performed under this contract is on a project assisted under a program providing
direct Federal financial assistance from the Department of Housing and Urban Development and is
subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as
amended, 12 U.S.C. 1701u. Section 3 requires that to the greatest extent feasible opportunities for
training and employment be given to lower income persons residing within the unit of local government
or the metropolitan area (or non-metropolitan County), as determined by the Secretary of Labor, in
which the project is located and contracts for work in connection with the project be awarded to
business concerns residing in the same metropolitan area (or non-metropolitan County) as the project.
B. The parties to this contract will comply with the provisions of said Section 3 and the regulations
issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135,
and all applicable rules and orders of the Department issued thereunder prior to the execution of this
contract. The parties to this contract certify and agree that they are under no contractual or other
disability which would prevent them from complying with these requirements.
C. The contractor will send to each labor organization or representative of workers with which he has
a collective bargaining agreement or other contract or understanding, if any, a notice advising the said
labor organization or workers' representative of his commitments under this Section 3 clause and shall
post copies of the notice in conspicuous places available to employees and applicants for employment
or training.
D. The contractor will include this Section 3 clause in every subcontract for work in connection with
the project and will, at the direction of the applicant for or recipient of Federal Financial assistance,
take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation
of regulations issued by the Secretary of Housing and Urban Development, 24 CFR 135. The
contractor will not subcontract with any subcontractor where it has notice or knowledge that the latter
has been found in violation of regulations under 24 CFR 135 and will not let any subcontract unless the
subcontractor has first provided it with a preliminary statement of ability to comply with the
requirements of these regulations.
E. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 135, and all
applicable rules and orders of the Department issued thereunder prior to the execution of the contract,
shall be a condition of the federal financial assistance provided to the project, binding upon the
applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these
requirements shall subject the applicant or recipient, its contractors and subcontractors, it successors,
and assigns to those sanctions specified by the grant or loan agreement or contract through which
Federal assistance is provided, and to such sanctions as are specified by 24 CFR 135.
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EXHIBIT "L"
UTILIZATION OF WOMEN AND MINORITY
BUSINESS ENTERPRISES
(a) It is the policy of the Govemment that women and minority owned business enterprises shall have
the maximum practicable opportunity to participate in the performance of Government contracts.
(b) The Contractor agrees to use his/her best efforts to carry out this policy in the award of
subcontracts to the fullest extent consistent with the efficient performance of this contract. As used in
this contract, the term "minority business enterprise" means a business, at least 50 percent of which is
owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the
stock of which is owned by women or minority group members. For the purposes of this definition,
minodty group members are Negroes, Spanish-speaking Amedcan persons, American-Oriental,
Amedcan Indians, American-Eskimos, and American Aleuts. Contractors may rely on wdtten
representations by subcontractors regarding their status as minority business enterprises in lieu of an
independent investigation.
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L-1
EXHIBIT "M"
AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND
THE VIETNAM ERA VETERANS PROVISIONS
(48 CRF 52.222-35)
(October 1985)
(A) Definitions.
"Appropriate office of the State employment service system," as used in this clause, means the local
office of the Federal-State national system of public employment offices assigned to serve the area
where the employment opening is to be filled, including the District of Columbia, Guam, Puerto Rico,
Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands.
Opening that the contractor proposed to fill from within its own organization," as used in this clause,
means employment openings for which no one outside of the Contractor's organization (including any
affiliates, subsidiaries, and the parent companies) will be considered and includes any openings that
the Contractor proposed to fill from regularly established "recall" lists.
"Openings that the Contractor proposes to fill under a customary and traditional employer-union hidng
arrangement," as used in this clause, means employment openings that the Contractor proposes to fill
from union halls, under their customary and traditional employer-union hidng relationship.
"Suitable employment openings," as used in this clause -
(1) includes, but is not limited to, openings that occur in jobs categorized:
(i) Production and nonproduction;
(ii) Plant and office;
(iii)Laborers and mechanics;
(iv) Supervisory and nonsupervisory;
(v) Technical; and
(vi) Executive, administrative and professional positions compensation on a salary basis of less
than $25,000 a year; and
(2) Includes full-time employment, temporary employment, but not openings that the Contractor
proposes to fill from within its own organization or under a customary and traditional employer-union
hidng arrangement, nor openings in an educational institution that re restricted to students of that
institution.
The Contractor agrees as follows:
(b) General
The Contractor shall not discriminate against any employee or applicant for employment because the
individual is a special disabled or Vietnam Era veteran. The Contractor agrees to take affirmative
action to employee, advance in employment, and otherwise treat qualified special disabled veterans
and Vietnam Era veterans without discrimination based upon their disability or veterans status in all
employment practices such as:
(i) Employment;
(ii) Upgrading;
(iii)Demotion or transfer;
(iv) Recruitment;
(v) Advertising;
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(vi) Layoff ortermination;
(vii) Rates of pay or other forms of compensation; and
(viii) Selection for training, including apprenticeship.
(2) The Contractor agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor (Secretary) issued under the Vietnam Era Veterans' Readjustment Assistance Act of
1972 (the Act), as amended.
(c) Listing Openings.
(1) The Contractor agrees to list all suitable employment openings existing at contract award or
occurring during contract performance, at an appropriate office of the State employment service
system in the locality where the opening occurs, these openings include those occurring at any
Contractor facility, including one not connected with performing this contract. An independent
corporate affiliate is exempt from this requirement.
(2) State and local government agencies holding Federal contract of $10,000 or more have also
list all their suitable openings with the appropriate office of the State employment service.
(3) The listing of suitable employment openings with the State employment service system is
required at least concurrently with using any other recruitment source or effort and involves the
obligations or placing a bona fide job order, including accepting referrals of veterans and nonveterens.
this listing does not require hiring any particular job applicant or hiring from any particular group of job
applicants and is not intended to relieve the Contractor from any requirements of Executive orders of
regulations concerning nondiscrimination to employment.
(4) Whenever the Contractor becomes contractually bond to the listing terms of this clause, it shall
advise the State employment service System, in each State where it has establishments, of the name
and location of each hiring location in the State. As long as the Contractor is contractually bound to
these terms and has so advised the State system, it need not advise the State system of subsequent
contracts. The Contractor may advise the State system when it is no longer bound by this contract
clause.
(5) Under the most compelling circumstances, an employment opening may not be suitable for
listing, including situations when (i) the Government's need cannot reasonably be supplied, (ii) listing
would be contrary to national security, or (iii) the requirement of listing would not be in the
Government's interest.
(d) Applicability.
(1) This clause does not apply to the listing of employment openings which occur and are filled
outside the 50 states, the Distdct of Columbia, Puerto Rico, Guam, Virgin Islands, American Samoa,
and the Trust Territory of the Pacific Islands.
(2) The terms of paragraph (c) above of this clause do not apply to openings that the Contractor
proposes to fill from within its own organization or under a customary and traditional employer-union
hiring arrangement. This exclusion does not apply to a particular opening once an employer decides to
consider applicants outside of its own organization or employer-union arrangement for that opening.
(e) Positions
(1) The Contractor agrees to post employment notices stating (i) the contractor's obligation under
the law to take affirmative action to employ and advance in employment qualified special disabled
veterans and veterans of the Vietnam Era, and (ii) the dghts of applicants and employees.
(2) These notices shall be posted in conspicuous places tat are available to employees and
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M-2
applicants for employment. They shall be in a form prescribed by the Director, Office of Federal
Contract Compliance Program, Depadment of Labor (Director), and provided by or through the
Contracting Officer.
(3) The Contractor shall notify each labor union or representative or workers with which it has a
collective bargaining agreement or other contract understanding, that the Contractor is bound by the
terms of the Act, and is committed to take affirmative action to employ, and advance in employment,
qualified special disabled and Vietnam Era veterans.
(f) Noncompliance.
If the Contractor does not comply with the requirements of this clause, appropriate actions may be
taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act.
(g) Subcontracts.
The Contractor shall include the terms of this clause in every subcontract or purchase order of $10,000
or more unless exempted by rules, regulations, or orders of the Secretary. The Contractor shall act as
specified by the Director to enforce the terms, including action for noncompliance.
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EXHIBIT "N"
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
City of Bakersfield
City Clerk
1501 Truxtun Avenue
Bakersfield, CA 93301
Free Recording in Accordance
With Section 6103 of the
California Government Code
DECLARATION OF RESTRICTIONS
RECITALS
This Declaration of Restrictions is made as of this . day of
2001, by .(hereinafter ca ed "CAP TAL").
This Declaration is an exhibit to that certain "HOME Investment Partnerships Program" agreement
between the Partnership and the CITY OF BAKERSFIELD, a charter city and municipal corporation.
Said agreement is Agreement No. 01- in the files of City's Clerk.
This Declaration of Restrictions affects that certain land (hereinafter called "said land") in said City,
Kern County, California, having the following legal description:
SEE ATTACHED LEGAL DESCRIPTION
This Declaration of Restrictions shall be, and is intended to be effective for a period of fifty-five (55)
years from the date of completion of the Project which is being constructed on said land. After such
time, these restrictions on said land shall expire and become extinguished.
NOW, THEREFORE, for value received, CAPITAL, on behalf of itself and its successors and assigns,
hereby declares and adopts the following restrictions as to said land, for the benefit of said land, and
acknowledge and assert that said restrictions touch and concern said land:
Section 1. Definitions
(a) For purposes of this Declaration, the "Kern county median income" shall be determined pursuant to
the regulations published by the United States Department of Housing and Urban Development
("HUD") or its successor.
(b) For purposes of this Declaration, the term "affordable rent level" means rent (including utility
allowance) equal to 30% of household income. Utility allowance shall be in accordance with those
utility allowances published by HUD for the Section 8 program adjusted by number of bedrooms.
(c) For the purposes of this Declaration, "household income" means the current adjusted gross income,
as calculated for federal income tax purposes, of the household and includes the adjusted gross
income (similarly calculated) of all persons 18 years of age or older who reside permanently within the
household.
Senior Housing Project
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Section 2. Residential Rental Property
CAPITAL agrees said land is to be owned, managed and operated as a project for residential senior
rental property. Except as expressly provided in this Declaration, the private living quarters ("units")
described in Section 4 below shall be continuously occupied, or held vacant and available for
occupancy, by tenants at the rental levels and with the incomes set forth in Section 4 (Rental
Restrictions).
Section 3. Record Keeping
CAPITAL shall obtain, complete, and maintain on file, an "income certification," dated immediately
before each tenant's initial occupancy. CAPITAL shall vedfy the income certification data the
applicants provide is accurate, CAPITAL must certify tenants before they move in and must recertify
them each year thereafter. CAPITAL shall maintain complete and accurate records pertaining to the
restricted units, and shall permit any authorized City representative to inspect CAPITAL's books and
records including, but not limited to, those records pertaining to the occupancy of the units.
Section 4. Rental Restrictions
A. CAPITAL agrees that the units on said land shall be restricted as follows.
1. Rent Levels:
a. CAPITAL shall offer 80% of the units at rental levels HUD establishes as "affordable" only to
persons with household incomes not exceeding 60% of the median income.
B. CAPITAL shall offer 20% of the units at rental levels HUD establishes as "affordable" only to persons
with household incomes not exceeding 50% of the median income.
2. Household Incomes:
a. Tenants whose income does not exceed 60% of the median income may occupy 100% of the units.
Section 5. Sale or Transfer of the Property
CAPITAL shall not sell, transfer, or otherwise dispose of said land, or any portion of it, or any interest in
it without the prior written consent of the City of Bakersfield ("City"). City will not, however,
unreasonably withhold consent to sell or transfer.
Section 6. Independent and Severable Provisions
If a court of competent jurisdiction should hold any part of this Declaration to be unenforceable or
invalid, such holding shall not render any other part unenforceable or invalid. Each part of this
Declaration is severable and independently enforceable to the fullest extent permitted by law.
Section 7. Nondiscrimination.
CAPITAL covenants and agrees for itself, its successors, its assigns and every successor in interest to
said land, or any parts thereof, or to any other right in said land, there shall be no discrimination against
or segregation of any person, or group of persons, on account of sex, race, color, marital status, creed,
religion, national origin or ancestry in the lease, sublease, transfer, use occupancy, tenure or enjoyment
of said, nor shall CAPITAL itself, or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sub-lessees or vendees of said land. The
foregoing covenant shall run with the land.
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CAPITAL will not discriminate against any employee or applicant for employment because of race,
color, creed, religion, sex, national odgin, ancestry or marital status. Such action shall include, but not
be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; solicitations or advertisements for employees; layoffs or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. CAPITAL agrees to post in
conspicuous places, available to employees and applicants for employment, notice setting forth the
provisions of this nondiscrimination clause.
CAPITAL covenants and agrees for itself, its successors, its assigns and every successor in interest
that it shall devote said land to the uses specified in the Southeast Bakersfield Redevelopment Plan
and Agreement 01- and any amendments thereto, for the pedods of time specified herein.
CAPITAL shall maintain the improvements, the parking facilities and landscaping in a good condition
and shall keep the Complex (as defined in Agreement No. 01- ) free from any accumulation of
debris or waste materials prior to and after construction. CAPITAL shall also maintain the landscaping
required to be planted, if any, in a healthy condition.
CAPITAL
By:
CHRIS HAMMONDS
Chief Executive Officer
ATTEST
Senior Housing project
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EXHIBIT "0"
CERTIFICATION REGARDING DEBARMENT
Instructions for Certification
By signing and submitting this document, the prospective recipient of Federal assistance funds is
providing the certification as set out below.
The certification in this clause is a matedal representation of fact upon which reliance was placed when
this transaction was entered into. If it is later determined that the prospective recipient of Federal
assistance funds knowingly rendered an erroneous certification, in addition to other remedies available
to the Federal Government, the City of Bakersfield may pursue available remedies, including
suspension and/or debarment.
The prospective recipient of Federal assistance funds shall provide immediate written notice to the City
of Bakersfield, if at any time the prospective recipient of Federal assistance funds learns that its
certification was erroneous, when submitted or has become erroneous by reason of changed
circumstances.
The terms "covered transaction", "debarred1', "suspended", "ineligible", "lower tier covered transaction",
"participant", "proposal" and "voluntarily excluded" as used in this clause, have the meanings set out in
the Definitions and Coverage sections of rules implementing Executive Order 12549.
The prospective recipient of Federal assistance funds agrees by submitting this certification that,
should the proposed covered transaction be entered into, prospective recipient shall not knowingly
enter into any lower tier covered transaction with a person who is debarred, suspended, declared
ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by
the City of Bakersfield.
The prospective recipient of Federal assistance funds further agrees by submitting this certification that
it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion -- Lower Tier Covered Transactions", without modification, in all lower tier covered
transactions and in all solicitations for lower tier covered transactions.
A participant in a covered transaction may rely upon a certification of a prospective participant in a
lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from
the covered transaction, unless it knows that the certification is erroneous. A participant may decide
the method and frequency by which it determines the eligibility of its principals.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in
order to render in good faith the certification required by this clause. The knowledge and information of
a participant is not required to exceed that which is normally possessed by a prudent person in the
ordinary course of business dealings.
Except for transactions authorized in these instructions, if a participant in a covered transaction
Senior Housing Project
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knowingly enters a lower tier covered transaction with a person who is suspended, debarred, ineligible,
or voluntarily excluded from participation in this transaction, in addition to other remedies available to
the Federal Government, the City of Bakemfield may pursue available remedies, including suspension
and/or debarment.
Dated
Signature
Pdnt Name
Title
Senior Housing Project
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