RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Barstow
Attn: Barstow City Clerk
220 East Mountain View Street, Suite A
Barstow CA 92311
RECORDING FEE EXEMPT
PURSUANT TO GOVERNMENT CODE
SECTION 27383
(Space Above Line For Recorder's Use)
AGREEMENT AFFECTING REAL PROPERTY -
GROUND LEASE OPTION AGREEMENT
THIS AGREEMENT AFFECTING REAL PROPERTY - GROUND LEASE OPTION AGREEMENT (the "Agreement") is made and entered into on May 17, 2021 by and between the CITY OF BARSTOW, a municipal corporation (referred to hereinafter as "City"), MILESTONE HOUSING GROUP, LLC, a California limited liability company ("Developer"). City and Developer are referred to hereinafter individually as a "Party" and collectively as the "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows:
ARTICLE 1
SUBJECT OF AGREEMENT
1.1 Purpose of this Agreement.
1.1.1 The purpose of this Agreement is to provide for the disposition and development of certain real property located at 555 S. 7th Avenue, Barstow, California and owned in fee simple by the City (the "Site"). The Site is divided into four parcels, consisting of Parcel 1, Parcel 2, Parcel 3, and Parcel 4, as set forth in the Site Map, Exhibit A-1, and Legal Descriptions, Exhibit A-2. Pursuant to this Agreement, the City will, upon successful application and receipt of an Affordable Housing and Sustainable Communities Program ("AHS") Grant, give, and Developer will acquire, a leasehold interest in the Site and develop the Site with an affordable housing rental development on a portion of the Site consisting of Parcel 1 (the "Parcel 1 Project"). To this end, the City agrees to grant Developer an option to enter into a ground lease for the development of Parcel 1 for affordable housing. The Parcel 1 Project option shall be open within the period specified by this Agreement. The City shall also grant Developer an option to acquire, by means of a ground lease or sale, and develop Parcels 2, 3, and 4 (the "Additional 1 256836.3
Parcels Project" and collectively with the Parcel 1 Project, the "Projects"). This Additional Parcels Project option shall be open within a five-year period from the effective date of this Agreement.
1.1.2 It is the intention of the Developer and City that the Additional Parcels Project shall be operated and maintained as either housing (i) that will be affordable to and occupied by persons of moderate, low and very low income, or (ii) as a mixed-use project with stipulations from City as more particularly described in this Agreement.
1.1.3 This Agreement is entered into for the purpose of carrying out development of the Parcel 1 Project, and if exercised by option, the development of the Additional Parcels Project, in a manner that will ensure certain anticipated benefits to both the City and Developer. The benefits to the City under this Agreement include, but are not limited to, the undertaking of proper planning and development as well as the provision of specified additional affordable housing. The City's granting to Developer of a ground leasehold interest to develop the Parcel 1 Project will assist Developer in completing the Parcel 1 Project, and thus, will help secure the benefits of the Parcel 1 Project for Developer and certain public purposes and benefits for the City, particularly significant additional long-term affordable housing. The Parties therefore acknowledge that without the respective commitments on the part of City and Developer, the Parties would not enter into this Agreement.
1.2 The Site. The Site is comprised of that certain property more particularly described in the legal description, as set forth in Exhibit A-2, and incorporated herein by reference. The Site is owned by the City, and, upon satisfaction of the conditions precedent set forth in this Agreement, Parcel 1 of the Site will be leased to Developer from the City pursuant to this Agreement for the development, construction, ownership and operation of the Parcel 1 Project. The Developer shall have an option to either purchase or enter into a ground lease to acquire Parcels 2, 3, and 4 for completion of the Additional Parcels Project, on the terms and conditions in this Agreement.
1.3. Term. The Developer shall have the option to enter into a ground lease with City to develop affordable housing under the requirements of the AHSC grant as part of the Parcel 1 Project until the latter of the following dates: six months after the announcement of the grantees for the 2022 AHSC Grant cycle or December 31, 2022. The City may extend the Parcel 1 Project option for another year, to the latter of the following dates: six months after the announcement of the grantees for the 2023 AHSC Grant cycle or December 31, 2023, at the City's sole discretion.
The Developer shall have the option to enter into a ground lease or disposition and development agreement with City, upon terms and conditions to be negotiated in compliance with this Agreement, to develop the Additional Parcels Project for a five (5) year term expiring on the effective date of this Agreement or such later period as set forth in Section 2.2 hereof.
1.4 General Plan Consistency. The City Council hereby finds this Agreement and the Parcel 1 Project to be consistent with the City's General Plan, as amended to include the Seventh 2 256836.3
Avenue Specific Plan.
1.5 Specific Plan Consistency. The City Council hereby finds this Agreement and the Parcel 1 Project to be consistent with the Seventh Avenue Specific Plan.
1.6 Present Exercise of Police Power. The City Council hereby finds and determines that the execution of this Agreement is in the best interest of the public health, safety and general welfare of the City and its residents, and that adopting this Agreement constitutes a present exercise of its police power.
1.7 Environmental Compliance. The Parcel 1 Project is a land use consistent with the General Plan and Seventh Avenue Specific Plan, namely affordable housing, and is thus considered exempt under CEQA Guidelines Section 15183, Projects Consistent with a Community Plan, General Plan, or Zoning. For the Additional Parcels Project, if the exemption under CEQA Guidelines Section 15183, Projects Consistent with a Community Plan, General Plan, or Zoning is not legally permissible, in the City's sole judgment, the City and Developer agree to meet and confer as to the most appropriate form of environmental review of such approval, provided, however that the City shall retain the authority to determine the most appropriate form of environmental review. The City intends to consider in good faith all requested future permits and approvals as may be needed for Parcel 1 Project and the Additional Parcels Project. The City's consideration of these proposals and entering into this Agreement in no way precludes the City's consideration of alternatives to the proposed Parcel 1 Project and Additional Parcels Project, including a no-action alternative whereby all proposed development would be denied, or approval of alternative proposals that entail greater or lesser density or different land uses. Nothing in this Agreement obligates the City to approve any particular proposed development or course of action for the Additional Parcels Project.
1.8 Schedule of Performance. A Schedule of Performance for the Parcel 1 Project is attached hereto as Exhibit B and incorporated herein by reference (the "Schedule of Performance"). The Schedule of Performance sets forth the times by which the Parties are to perform certain obligations under this Agreement. The Schedule of Performance may be modified from time to time by written agreement of the City and Developer.
1.9 Developer. The Developer is MILESTONE HOUSING GROUP LLC, a California limited liability company. Wherever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as approved by the City as herein provided.
1.9.1 The qualifications and identity of the Developer are of particular concern to the City, and it is because of such qualifications and identity that the City has entered into this Agreement. Except as otherwise provided in this Agreement, no voluntary or involuntary successor-in-interest of the Developer shall acquire any rights or powers under this Agreement, and the Developer shall not assign all or any part of this Agreement without the prior written approval of the City. Any such assignment by the Developer in violation of this Agreement shall be void. This Agreement may be terminated by the City pursuant to Article 8, or City may exercise its remedies under Article 7 hereof if there is a transfer of this Agreement in violation of 3 256836.3
the terms hereof.
1.10 Definitions.
1.10.1 "Additional Entitlements" is defined in Section 4.1.6 of this Agreement.
1.10.2 "Additional Parcels Project" shall mean either (i) a 81 unit transit oriented affordable housing development, which shall include supportive housing for the formerly homeless or senior housing, (ii) a mixed-use project comprised of a transit oriented affordable housing development and some retail, or (iii) a transit oriented housing development that includes a percentage of market rate apartments, or (iv) a mixed-use project of retail and market rate housing, to be developed on Parcels 2,3, and 4 of the Site by the Developer as more fully set forth in this Agreement and any subsequent amendments to this Agreement. The final "Additional Parcels Project" scope and definition will be determined by deliberations between the City and Developer and any use conditions required by the City.
1.10.3 "Agreement" shall mean this Disposition and Development Agreement.
1.10.4 "Affordable Unit" shall mean any of the dwelling units in the Improvements required by this Agreement and/or the Covenants to be rented exclusively to and occupied by an Extremely Low, Very Low, Low or Moderate Income Household.
1.10.5 "AHSC Grant Application" shall mean the grant application filed by Developer, Non-Profit Partner and City for state funding through the Affordable Housing and Sustainable Communities Program for the proposed Parcel 1 Project.
1.10.6 "Annual Rent Payment" is defined in Section 2.1.3 of this Agreement.
1.10.7 "Area Median Income" shall have the meaning set forth therefor in California Health and Safety Code Section 50093, as it may be amended from time to time.
1.10.8 "Basic Concept Drawings" shall mean the drawings and related documents containing the overall plan for the development of the Site.
1.10.9 "Building Permit" shall mean all building and grading permits required to be obtained from the City for the construction of the Improvements.
1.10.10 "CPI" shall mean the Consumer Price Index. If the Consumer Price Index Is discontinued or replaced during the term hereof, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the index had not been discontinued or replaced.
1.10.11 "Developer" is defined in Section 1.9 of this Agreement.
1.10.12 "Developer Indemnifying Parties" is defined in Section 5.1 of this 4 256836.3
Agreement.
1.10.13 "Developer's Parties" means the Developer, its engineers, architects, employees, contractors, consultants, and agents.
1.10.14 "Effective Date" has the meaning set forth on Page 1 of this Agreement.
1.10.15 "Environmental Laws" shall mean all federal, state, local laws, ordinances and regulations relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, release, disposal, or transportation of Hazardous Substances.
1.10.16 "Environmental Response Actions" means any and all activities, data compilations, preparation of studies or reports, interaction with environmental regulatory agencies, obligations and undertakings associated with environmental investigations, removal activities, remediation activities or responses to inquiries and notice letters, as may be sought, engendered, initiated or required in connection with any local, state or federal governmental or private party claims.
1.10.17 "Environmental Response Costs" means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages.
1.10.18 "Financing Plan" shall mean that certain plan set forth in detail in Section
4.2 of this Agreement.
1.10.19 "Force Majeure" means war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts of another party; acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of the City shall not excuse performance by the City), orders issued under a federal, state, or local declaration of emergency, or any other causes beyond the control or without the fault of the party claiming an extension of time to perform.
1.10.20 "Ground Lease" is defined in Section 2.1 of this Agreement for the lease of Parcel 1.
1.10.21 "Hazardous Materials" means any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (7) defined as a "hazardous waste" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903); (8) 5 256836 3
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.
1.10.22 "Hazardous Materials Laws" means all present and future federal, state and local laws, ordinances, regulations, permits, guidance documents, policies, decrees, orders and any other requirements, whether statutory, regulatory or contractual, of governmental authorities relating to health, safety, the environment or the use, handling, disposal or transportation of any Hazardous Materials (including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation Recovery Act, the Clean Water Act, the Clean Air Act, and the applicable provisions of the California Health and Safety Code and the California Water Code, as each such statute may from time to time be amended, and the rules, regulations and guidance documents promulgated pursuant to any such statute).
1.10.23 "City" is defined on Page 1 of this Agreement.
1.10.24 "Parcel 1 Project" shall mean an 81-unit affordable housing development to be on Parcel 1 of the Site by the Developer as more fully set forth in this Agreement and any subsequent amendments to this Agreement.
1.10.25 "Personnel" means a Party's directors, officers, employees, agents, auditors, and consultants.
1.10.26 "Project Budget" is defined in Section 4.1 of this Agreement.
1.10.27 "Non-Profit Partner" shall mean Pacific Housing, Inc., a California nonprofit public benefit corporation, or any other entity so designated by the Developer.
1.10.28 "Revision" is defined in Section 4.1 of this Agreement.
1.10.29 "Schedule of Performance" is defined in Section 1.7 of this Agreement.
1.10.30 "Site" is defined in the Recitals of this Agreement and shall consist of Parcels 1, 2, 3, and 4.
1.10.31 "Total Development Costs" shall mean those costs set forth on the Project Budget, as being the total costs to cause the completion of development of the Parcel 1 Project.
1.11 Financial Intent of the Parties Regarding the Project. Developer and City agree that the City shall be kept whole by Developer with respect to all fiscal aspects of the planning, development, maintenance, and operation of the Project.
1.12. By this Agreement, City desires to obtain the binding Agreement of the Developer to develop the Parcel 1 Project, and to further consider the future development of the 256836.3
Additional Parcels Project, both under this Agreement. In consideration thereof, City agrees to limit the future exercise of certain governmental and proprietary powers to the extent specified in this Agreement. The Parties desire to enter into this Agreement to facilitate development of the Property in a manner that will conform to and complement the goals of the City, provide timely construction of necessary infrastructure, protect adjacent land uses and natural resources, enhance implementation of the City's General Plan, and reduce the economic risk of development to Developer and the City.
ARTICLE 2
GROUND LEASE AND OPTION
2.1 Ground Lease. Subject to certain conditions, as set forth in further detail in this Agreement, the City hereby grants Developer an option to enter into a ground lease of Parcel 1 of the Site for the development of the Parcel 1 Project, containing the following terms and substantially in the form attached hereto as Exhibit D (the "Ground Lease"), if and only if the AHSC Grant Application for the Parcel 1 Project is approved by the state Department of Housing and Community Development, through the Strategic Growth Council.
2.1.1 The Site will be leased to the Developer, and the Developer will accept the Site "as is, where is, with all faults" without any representation or warranty.
2.1.2 The Ground Lease shall have a term of ninety-nine (99) years.
2.1.3 The Developer will make annual rent payments to the City in an amount to be determined as set forth herein. Within thirty (30) days of the City's receipt of notice of approval of the AHSC Grant Application (or earlier if required pursuant to the AHSC Grant Application), the City shall commission an as-is appraisal of the Site with a MAI appraiser who has at least five (5) years of experience with appraisals of similar properties in the area, pursuant to further instructions as mutually agreed on by Developer and City. Notwithstanding the generality of the foregoing, the Site should be appraised on the basis of its highest and best use and also in light of its current zoning restrictions and limitations. The rent payment shall be divided into two payments: the Initial Rent Payment and the Annual Rent Payment. The Initial Rent Payment shall equal the appraised value as determined by the City's Appraiser and shall be paid by Developer within thirty days of the commencement of the Ground Lease. The Annual Rent Payment shall be One Dollar ($1.00) per year for the Ground Lease's term.
2.1.4 The Ground Lease shall be on a "triple-net" basis with Developer solely responsible for all costs and liabilities associated with the Site and the Project during the term of the Ground Lease, including, without limitation, any and all costs and liabilities associated with insurance, property taxes and maintenance of the Site and the Project.
2.1.5 The City shall have no obligation to subordinate its fee interest to any financing of the Developer. Any construction or permanent phase financing shall be secured by Developer's leasehold interest only. The Developer shall indemnify the City from any claims or liens on City's fee interest in the property.
7 256836.3
2.1.6 During the term of the Lease, the Developer shall maintain the Site and the Parcel 1 Project in good order and repair, reasonable wear and tear excepted. If the Developer fails to maintain the Site or the Parcel 1 Project in good order and repair, and such failure continues after a reasonable notice and cure period, the City shall have the right to enter the Site and perform such maintenance and repair at the Developer's expense pursuant to the terms of the Ground Lease, Developer, or another entity approved by City, shall serve as the property manager for the Parcel 1 Project. The City's approval shall be required, and shall not be unreasonably withheld, if the Developer elects to appoint or contract with a third party other than Developer to be the property manager.
2.1.7 The Developer shall use the Site for the development and operation of the Parcel 1 Project and ancillary uses related thereto. The Developer agrees that all housing units in the Parcel 1 Project (81 apartment units, or a higher number as may be allowed under any applicable density bonus provisions) shall be deed-restricted to be rented at San Bernardino County moderate-income or lower rates (i.e. 80% of Area Median Income-AMI in San Bernardino County or less) for the term of this Agreement for at least 55 years from the commencement date of the Ground Lease (other than one manager's unit which shall not be income restricted). The Developer agrees to enter into the necessary agreements to reflect this restriction for Parcel 1.
2.1.8 The City shall have the right to approve any transfers of Developer's leasehold interest under the provisions of Article 6.
2.1.9 For those assignments or transfers which are subject to the approval of the City under Article 6, the City agrees that it will not unreasonably withhold approval of a request made by the Developer for assignment or transfer provided (i) the Developer delivers timely written notice to the City requesting such approval, together with such information concerning the proposed assignee or transferee as may be reasonable to provide necessary data to the City, and (ii) such transfer or assignment of all or any portion of the Developer's rights and/or powers under this Agreement is determined by the City to be in the best interest of the City to carry out the purposes of this Agreement. Such notice shall be accompanied by sufficient evidence regarding the proposed assignee or transferee's financial resources and its development qualifications and experiences in operating the applicable type and respective portion of the improvements, in sufficient detail to enable the City to evaluate the proposed assignee or transferee, shall be in a form reasonably satisfactory to the City.
2.1.10 Within 20 business days after the City receives a written notice requesting its approval of a proposed assignment or transfer for which its consent is required under Section
2.1.8, if the City requires additional data to make its determination, the City shall respond in writing by stating what further information, if any, the City requires in order to determine the request complete and in order to determine whether or not to grant the requested approval. Upon receipt of such response, the Developer shall promptly furnish the City with such further information as the City may reasonably request. Within 45 days after the receipt of a written notice requesting the City's approval of a proposed assignment or transfer pursuant to this Section, the City shall give written notice that it either approves or disapproves such proposed assignment or transfer.
8 256836.3
2.1.11 Limitation and Termination of Restrictions. The restrictions of this Article 2 are not intended to prevent construction and/or permanent loans for the improvements, or any part thereof, which may be secured by the leasehold interest of the Developer or any approved assigned entities under the Ground Lease. The restrictions of this Article 2 shall terminate once the Ground Lease has become binding on the parties in accordance with the further provisions of this Agreement and shall be replaced by applicable restrictions on transfer/assignment contained in the Ground Lease.
2.2 Option for Ground Lease or Purchase of Land for Additional Parcels Project.
Developer shall retain an option for entering into a ground lease for the purposes of developing Parcels 2, 3, and 4 of the Site for the purposes of developing the Additional Parcels Project, which may be exercised only after construction has commenced on the Parcel 1 Project. This option shall be for a five (5) year period from the commencement of construction of the Parcel 1 Project. City agrees to lease Parcels 2, 3, and 4 to Developer subject to the Developer agreeing to develop a minimum of thirty (30) units of housing as part of the Additional Parcels Project and subject to the requirement that the Developer cannot exercise the Additional Parcels Project option until after commencement of construction of the Parcel 1 Project. City and Developer agree to negotiate in good faith regarding the development scope and plan for the Additional Parcels Project, with City's agreement to be to consider, but not necessarily approve, any proposed development of the Additional Parcels Project, as further specified in Section 1.7.
ARTICLE 3
EVIDENCE OF FINANCING.
3.1 Project Budget. The Parties estimate that the Total Development Costs will be as set forth in the Project Budget. The Parties acknowledge that the Project Budget shall serve as a guide for preparation of a more detailed Financing Plan. From time to time after the execution of this Agreement, the Project Budget shall be subject to one or more amendments (each such amendment referred to as a "Revision" in this Agreement).
3.2 Financing Plan. Prior to the date set forth in the Schedule of Performance, Developer shall submit to City a proposed "Financing Plan", for its review, consisting of the following:
(1) a fifteen-year cash flow projection for operation of the Parcel 1 Project; (2) a current Project Budget, updated on the basis of approved permits and entitlements and any design requirements;
(3) a "sources and uses" table, identifying the proposed use of each source of funding for the Parcel 1 Project during the construction period; and (4) if applicable, evidence reasonably satisfactory to City that Developer has sufficient additional funds available and committed to cover the difference, if any, between the Total Development Costs and all funds committed to financing the Total Development 9 256836.3
Costs (as provided by Section 3.3, below). The City's approval (which shall not be unreasonably withheld) shall be required only to the extent that any portion of the Financing Plan would materially differ from the Project Budget. To the extent required by the immediately preceding sentence, the City shall approve or disapprove in writing the proposed Financing Plan within ten (10) business days of receipt thereof. Developer shall provide such agreements and documents evidencing or relating to any of the foregoing as may be reasonably requested by the City for its review, provided, however, Developer shall have an affirmative duty to provide notice to City of a material change in the Project Budget. Developer agrees that the City shall have no responsibility to fund any portion of the Parcel 1 Project nor the Additional Parcels Project, unless separately agreed in a writing approved by the full City Council.
3.2.1 Applications for Tax Credits and Bond allocations and Governmental Loan Programs. In connection with the development of the Financing Plan, Developer shall submit applications for
Tax Credits, including without limitation applications for bond allocations, and
(ii) applicable governmental or quasi-governmental loan programs applicable and available to the Parcel 1 Project, by the date set forth in the Schedule of Performance. Developer shall provide a copy of said applications to City and said applications shall be consistent with the terms of both the Project Budget and the Financing Plan but shall not require the City's approval thereof.
City shall reasonably cooperate with Developer in the submission of application for financing at no material cost to City.
3.3 Evidence of Financing. Developer agrees that it shall have the responsibility to secure and to prove the sum of the sources of construction financing described in the Project Budget shall be sufficient at all times to pay all Total Development Costs as set forth in the most recently approved Project Budget. If the sum of the sources of funds described in the Project Budget is insufficient to pay all Total Development Costs, Developer shall submit evidence reasonably satisfactory to City of sufficient Developer funds to equal said shortfall.
3.4 Loan Documents. As a material obligation under this Agreement, the Developer ground leasehold, and not any underlying fee interest owned by the City, may be pledged as collateral.
ARTICLE 4
SCOPE OF DEVELOPMENT, DESIGN REQUIREMENTS
4.1 Development of the Site by the Developer.
4.1.1 Scope of Development. The Site, to include both the Parcel 1 Project and 10 256836.3
the Additional Parcels Project, shall be developed consistent with the City's General Plan, the Seventh Avenue Specific Plan, and applicable provisions of the Barstow Municipal Code. The Developer shall, if it exercises the ground lease option for Parcel 1, build the Parcel 1 Project to be a minimum 81-unit rental affordable housing development (with one unrestricted manager's unit) as further specified in the Scope of Development plan, in the form set forth on Exhibit C, attached hereto and incorporated herein.
4.1.1.1 The Developer further agrees that, if it seeks to exercise the Additional Parcels Project option, shall provide for City review and approval a proposed development plan for the Additional Parcels Project, which shall be one of the following: (i) a 81 unit transit oriented affordable housing development, which shall include supportive housing for the formerly homeless or senior housing, (ii) a mixed-use project comprised of a transit oriented affordable housing development and some retail, or (iii) a transit oriented housing development that includes a percentage of market rate apartments, or (iv) a mixed-use project of retail and market rate housing, to be developed on Parcels 2,3, and 4 of the Site as more fully refined by subsequent agreement between Developer and City. The Developer and City agree that the Additional Parcel Project shall be developed, however configured, with at least 30 residential units, with a priority for senior residential housing.
4.1.2 Basic Concept Drawings. The Developer will prepare and submit to the City Basic Concept Drawings and related documents containing the overall plan for development of the Site, by the date set forth Schedule of Performance. The Site shall be developed as generally established in the Basic Concept Drawings and related documents Material changes to the Basic Concept Drawings and related documents shall be subject to the approval of the City.
All changes shall be within the limitations of the Scope of Development and the requirement that the Parcel 1 Project be at least 81 units of rental residential affordable housing (with one manager's unit).
4.1.3 Construction Plans, Drawings and Related Documents. The Developer shall prepare and submit to the City all construction plans, drawings, and related documents, which shall generally be consistent with the Basic Concept Drawings.
4.1.3.1 Developer shall provide to City a copy of the final construction plans and drawings for the Parcel 1 Project for City approval. Developer may serve as the general contractor or designate another contractor to be approved by the City to serve as general contractor.
4.1.4 Governmental Agency Permits. Before commencement of demolition, construction or development of any buildings, structures or other work of improvement upon the Site, the Developer shall secure or cause to be secured any and all permits, approvals or entitlements necessary for the commencement of such activity which may be required by the City of Barstow or any other governmental agency with jurisdiction over such construction, development or work.
4.1.5 Building Standards. All construction on the Property shall adhere to all City building codes in effect at the time the plan check or permit is approved per Title 15 of the 11 256836.3
Barstow Municipal Code and to any federal or State building requirements that are then in effect (collectively "the Building Codes").
4.1.6 Additional Entitlements. Any additional governmental or quasi- governmental discretionary approvals needed in connection with the development, construction, financing and/or operation of the Site or Project in accordance with this Agreement (collectively "Additional Entitlements"), shall be obtained by the Developer before the signing of the Ground Lease. Any requests or applications related thereto, shall be delivered to City for City's review prior to submission. The City agrees to reasonably cooperate with Developer's efforts to obtain such Additional Entitlements, at no cost or liability to the City.
4.1.7 Cost of Construction. The cost of developing the Site and constructing all improvements thereon shall be borne by the Developer, as further specified in the approved financing plan.
4.1.8 No Change in Project. After City has approved Final Construction Drawings, Developer shall not make any material changes to approved documents nor shall Developer consent to any construction contract change orders that would materially change any approved document, without the prior written approval of City.
ARTICLE 5
INDEMNIFICATION, INSURANCE
Indemnification. The Developer agrees to and shall indemnify, protect, defend and hold the City, its elected and appointed commissions, officers, agents and employees, from and against any and all damages, claims, costs and liabilities arising out of the personal injury or death of any third party, or damage to the property of any third party (collectively referred to as "Damages") of any kind or nature arising from or as a result of:
5.1.1 any of the activities of Developer, Developer Personnel or Developer Parties (collectively, the "Developer Indemnifying Parties"), under this Agreement, including as may result from any Developer Indemnifying Party's entry upon, or activities upon, the Site; and
5.1.2 any Environmental Response Actions or Environmental Response Costs based upon the actual or claimed generation, storage, handling, transportation, use, presence, placement, migration and/or release of Hazardous Materials by the Developer Indemnifying Parties, at, on, in, beneath or from the Site.
5.1.3 Notwithstanding anything to the contrary herein, the Developer shall not be responsible for and have no obligation to indemnify any of the City, City's Personnel or any other third party for any acts, errors or omissions of the City or its Personnel; or any Damages resulting from or caused by (to any extent) any existing Site conditions (including any obligation created by Section 7.1.2) which are merely discovered and not 12 256836.3
unnecessarily exacerbated by any of the Developer Parties.
5.1.4 If any person not party to this Agreement institutes any administrative, legal or equitable action or other proceeding challenging the validity of any provision of this Agreement, any approval or the sufficiency of any review of this Agreement or any approval under CEQA (each a "Third Party Challenge"), the Parties promptly shall meet and confer as to the most appropriate response to such Third Party Challenge; provided, however, that any such response shall be consistent with this Agreement.
City shall tender the complete defense of any Third-Party Challenge to Developer, and upon acceptance of such tender by Developer: (i) Developer shall defend and indemnify City against any and all reasonable fees and costs arising out of the defense of such Third-Party Challenge; and (ii) City and Developer shall jointly control the defense and/or settlement of such Third Party Challenge. Counsel in any such legal defense shall be selected by Developer and reasonably approved by the City. Developer's obligation to provide such detense includes the obligation to indemnify and hold harmless the City from any and all claims arising from such litigation or administrative challenge, including, but not limited to, damages, claims, judgments, reasonable litigation costs and reasonable attorneys' fees. Developer shall not settle any such proceeding on terms which include the granting of any form of relief to any person not a party to this Agreement, excepting only monetary relief to be paid solely by Developer, without the consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed.
5.1.6 If Developer should fail to accept City's tender of defense as set forth above, City shall defend such Third Party Challenge and control the defense and/or settlement of such Third Party Challenge as City decides (in its sole discretion), and City may take any and all actions it deems necessary and appropriate (in its sole discretion) in connection therewith; provided, however, that City shall seek Developer's consent to any settlement of such Third Party Challenge, which consent shall not unreasonably be withheld or delayed. Developer shall indemnify City against any and all reasonable fees and costs arising out of the City's defense of such Third-Party Challenge, including, but not limited to, any damages, claims, judgments, reasonable litigation costs and reasonable attorneys' fees.
5.1.7 Cooperation. In the event of any administrative, legal, or equitable action other proceeding instituted by any person not a partv to this Agreeme allenging the validity of any provision of this Agreement, or ministeri permit, granted to Developer pursuant to the Entitlements, or the creation of any Community Services District, or other public entity, or Finance District pursuant to approval of this Agreement the parties shall cooperate 13 256836.3
in defending such action to settlement or final judgment. In addition, Developer agrees to defend the City and, at the City's request, to appear and represent the City at Developer's sole cost and expense, in connection with any action challenging the City's approval of any provision of this Agreement. Counsel in any such legal defense shall be selected by Developer and reasonably approved by the City. Developer's obligation to provide such defense includes the obligation to indemnify and hold harmless the City from any and all claims arising from such litigation or administrative challenge, including, but not limited to, damages, claims, judgments, reasonable litigation costs and reasonable attorneys' fees.
Developer shall not settle any such proceeding on terms which include the granting of any form of relief to any person not a party to this Agreement, excepting only monetary relief to be paid solely by Developer, without the consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. Nothing contained herein shall limit the right of the City to appear and defend itself in any administrative or legal proceeding, at the City's expense. The City shall promptly give notice to Developer, within five (5) business days of service of process upon the City Clerk, of any action filed against the City in relation to the Development and shall promptly and fully cooperate with Developer in its defense of any such action filed against the City.
5.1.8 The parties agree that this Section 5.1 shall constitute a separate agreement entered into concurrently, and that this Section 5.1 shall survive termination of this Agreement. Without limiting the generality of the foregoing, if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent Jurisdiction, the parties agree to be bound by the terms of this Section 5.1, which shall survive such invalidation, nullification or setting aside.
5.2 Insurance. Prior to the signing of this Agreement, the Developer shall furnish or cause to be furnished to the City duplicate originals or appropriate certificates of insurance policies providing the coverage set forth in the Ground Lease (to the extent applicable to the period prior to Developer's execution of the Ground Lease) together with additional proof of a policy of commercial general liability insurance in an amount not less than two million ($2,000,000) dollars covering property damage, bodily injury, including death, and personal injury arising out of a single occurrence. Such insurance shall, with respect to matters arising out of this Agreement, name City, its employees, agents, and elected and appointed officials, as additional insureds. Within thirty days of approval of this Agreement, Developer shall submit a certificate of insurance to City evidencing such insurance coverage and shall thereafter maintain a current insurance certificate on file with the City.
ARTICLE 6
ASSIGNMENT
14 256836 3
6.1 Assignments
6.2 Right to Assign. Developer shall have the right to sell, transfer or assign its leasehold interest in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.) to any person, partnership, joint venture, firm, limited liability company, or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with this Agreement.
6.2.2 Before any such sale, transfer, or assignment Developer shall: Notify City, in writing, of such sale, transfer or assignment and shall provide City with an executed agreement by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of the Developer under this Agreement and, in such event and if approved by City, Developer shall be released from all obligations under the Agreement and any vested rights to improve the portion of the Property being transferred. Each Transfer Agreement shall identify each obligation, including its nature and extent, its costs, and the conditions or requirements for completion, of the Developer under this Agreement, and for each identified obligation, expressly state whether the obligation remains outstanding and, if not completed to the City's satisfaction, whether it will be assumed by the Transferee or remain with Developer.
For each obligation identified for assumption by the Transferee, the Transfer Agreement shall further specify the nature and extent of the obligation and how, when, and by what financing mechanism the Transferee will pay for the obligation. Such Transfer Agreement may, if approved by the City in writing: (i) release Developer from obligations under this Agreement, provided that the Transferee expressly assumes such obligations and their costs as described in the Transfer Agreement; (ii) transfer to the Transferee vested rights to improve that portion of the Property being transferred; and (iii) address any other matter deemed by Developer or City to be necessary or appropriate in connection with the transfer or assignment.
6.2.3 Developer shall provide such information when asked by the City, for City to determine to City's reasonable satisfaction such transferee or assignee has sufficient development experience and financial capability to complete the Project and perform all obligations assumed.
6.2.4 Any Transfer Agreement shall be approved by the City Manager.
6.3 If approved by the City Manager, a Transfer Agreement shall be binding on Developer, City and the transferee provided: (i) Developer is not then in default under this Agreement, (il) Developer has provided notice to City of such transfer, and City has approved the transfer as in compliance with this Agreement, and (iii) the Transferee executes and delivers to City a written agreement in which: (a) the name and address of the Transferee is set forth and 15 256836.3
(b) the Transferee expressly and unconditionally assumes each and every obligation of Developer under this Agreement, with respect to Site Property, or portion thereof, transferred, to the extent Developer has not retained a continuing obligation, and (c) City has satisfied itself of Transferee's ability to assume Developer's obligations under this Agreement related to the Transferee's ongoing obligations. Upon recordation of any Transfer Agreement in the Official Records of San Bernardino County, Developer shall automatically be released from those obligations assumed by the Transferee therein only to the extent expressly stated in the Transfer Agreement and as approved by the City in writing.
6.4 Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations expressly assumed by a Transferee pursuant to a Transfer Agreement, to the extent expressly stated in the Transfer Agreement and as approved by the City in writing. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement arising after the effective date of the Transfer Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person.
6.5 Developer's Continuing Responsibilities. Transferee shall be responsible for the obligations under this Agreement and Additional Entitlements identified in a Transfer Agreement for assumption by Transferee. Developer shall be responsible for the obligations under this Agreement, and Additional Entitlements identified in a Transfer Agreement for retention by Developer. Any obligation under this Agreement and Additional Entitlements not expressly assumed by the Transferee in a written approved Transfer Agreement shall remain with Developer
Transfers to Affiliated Parties. Developer, or any "Affiliated Party" of Developer, may at any time and without City's consent or a Transfer Agreement, transfer all or any portion of its rights and obligations under this Agreement to any "Affiliated Party" of such Transferor and, in connection with the transfer of any such obligations, be released from such obligations.
As used herein, the term "Affiliated Party" shall mean any entity that owns fifty-one percent (51%) or a controlling interest in Developer, or any entity in which Developer owns fifty-one percent (51%) or a controlling interest, or any entity sharing common ownership or control of Developer at the time of the execution of this Agreement.
6.7 Any sale, transfer, or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreement.
6.8. The Parties agree and acknowledge that each of the Projects will be separately owned and financed. To the extent required in connection with any financing of any Project, the Developer shall have the right to partially assign those portions of this Agreement applicable to a specific Project to the owner of said Project without assigning the obligations and/or liabilities relating to any other Project, it being the intent of the Parties that the owner of a specific Project shall not be responsible for the obligations related to any other Project.
ARTICLE 7
16 256836.3
DEFAULTS, REMEDIES AND TERMINATION
7.1 Defaults -- General.
7.1.1 Subject to the extensions of time set forth in Section 8.2 and any mutually greed upon extensions of time, tallure or delay by any party to perform any term or provision of his Agreement within the times provided herein after notice and expiration of applicable cur periods constitutes a default under this Agreement. The party who so fails or delays must cure, correct or remedy such failure or delay within thirty (30) days after receipt of written notice of default, or if such cure cannot reasonably be effectuated within such 30-day period, the party in default shall commence to cure, correct or remedy such default within said 30-day period and thereafter continuously pursue completion of such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, as provided herein, then no default shall exist and the noticing party shall take no further action.
7.1.2 The injured party shall give written notice of default to the party in default specifying the default complained of by the injured party. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until expiration of the cure period provided for above. Failure or delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.
7.1.3 Except as otherwise expressly provided in this Agreement, any failure or delay 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 of any such rights or remedies or deprive such 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.
7.2 Default by Developer.
7.2.1 Termination. If City determines that Developer has not complied in good alth with the terms and conditions of the Agreement or any term of the AHSC Grant agreement r any subsequent loan or grant or other enforceable agreement related to the Parcel 1 Proiect c Additional Parcels Project, City may terminate this Agreement, subject to the notice and cure provisions of Section 7.1.
7.3 Default by City. If City defaults under the provisions of this Agreement, Delude per hal hate fy chise prisande me city rovided nes under this grement.
With respect to a default pursuant to this Agreement, Developer shall provide written notice of default as required by Section 7.1.
7.4 Attorneys' Fees and Costs. If an action is commenced between the Parties, the prevailing party in that action shall be entitled to recover from the non-prevailing party all 17 256836 3
reasonable attorneys' fees and costs, witness fees, arbitrators' fees, and court and arbitration costs. "Prevailing party" shall include, without limitation, the following: (a) a party who dismisses an action in exchange for sums allegedly due; (b) the party who receives performance from the other party for an alleged breach of contract or a desired remedy where the performance is substantially equal to the relief sought in an action; (c) the party who receives any award for relief through arbitration; or (d) the party determined to be the prevailing party by a court of law.
7.5 Rights and Remedies. In addition to any other rights or remedies, any Party may institute legal action to cure, correct or remedy any default, to enforce any provision herein, or to enjoin any threatened or attempted violation, including but not limited to actions for declaratory relief, specific performance, injunctive relief, and relief in the nature of mandamus. All the remedies described herein shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy.
7.5.1 Specific Performance Remedy. Due to the size, nature, and scope of the Parcel 1 Project and the Additional Parcels Project, it will not be practical or possible to restore the Site to its natural condition once implementation of this Agreement has begun. After such implementation, Developer and City may both be foreclosed from other choices they may have had to utilize the Property and provide for other benefits. Developer has invested significant time and resources and performed extensive planning and processing of the Parcel 1 Project and Additional Parcels Project in agreeing to the terms of this Agreement and will be investing even more substantial time and resources in implementing the Parcel 1 Project, and possibly developing the Additional Parcels Project, in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts. By the same token, in the event that City issues any permit or other approval for a structure, and the public facilities, improvements, and infrastructure reasonably necessary to provide an adequate level of public services to that structure are not timely completed or Developer otherwise fails to carry out its obligations under this Agreement, including its commitment to apply for, then if received comply with all requirements of, the AHSC Grant as needed to develop the Parcel 1 Project, then it would not be possible to determine a sum of money that would adequately compensate City for the resulting hardship. For the above reasons, City and Developers agree that, notwithstanding any other language in this Agreement, damages would not be an adequate or appropriate remedy if City fails to carry out its obligations under this Agreement, or if Developer fails to timely complete the Parcel 1 Project or otherwise fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Developer if City fails to carry out its obligations under this Agreement, and City hereby agrees that Developer shall be entitled to specific performance in the event of a default by City hereunder. Further, specific performance of this Agreement is the only remedy which would compensate City if Developer fail to timely complete any public facility, improvement, or infrastructure provided for herein that is reasonably necessary to provide an adequate level of public services to any structure for which City has issued a permit or other approval for the Project or otherwise fails to carry out their obligations under this Agreement, and Developer hereby agrees that City shall be entitled to specific performance in such event.
18 256836.3
7.5.2. City and Developer acknowledge that if Developer substantially fails to carry out its obligations under this Agreement, and such Developer fails to cure said default as specified in Section 7.1, then City shall have the right to refuse to issue any permits or other approvals to which such Developer would otherwise have been entitled to pursuant to this Agreement or applicable law.
Force Majeure. Performance by any party of its obligations under this Agreement (other than for payment of money) shall be excused during any period of "Permitted Delay" as hereinafter defined. For purposes hereof, Permitted Delay shall include delay beyond the reasonable control of the party claiming a Permitted Delay (and despite the good faith efforts of such party) including, but not limited to (i) acts of God, (ii) civil commotion, (ill) riots, (iv) strikes, picketing or other labor disputes, (v) shortages of materials or supplies, (vi) damage to work in progress by reason of fire, floods, earthquake or other casualties, (vii) failure, delay or inability of the other party to act, (vili) as to City only, with respect to processing applications for Approvals, the failure, delay or inability of Developer to provide adequate information or substantiation as reasonably required to complete the Annual Review or process applications for Approvals; (ix) delay caused by governmental restrictions imposed or mandated by other governmental entities, except for a failure of the AHSC Grant application to be approved, (x) enactment of conflicting state or federal laws or regulations, (xii) judicial decisions or similar basis for excused performance, and (xili) litigation brought by a third party attacking the validity of this Agreement, the Specific Plan, either Ground Lease, or any related City approval. Any party claiming a Permitted Delay shall notify the other party (or parties) in writing of such delay within thirty (30) days after the commencement of the delay, or within 30 days after receipt of a Default Notice, whichever is later which notice ("Permitted Delay Notice") shall include the estimated length of the Permitted Delay. A Permitted Delay shall be deemed to occur for the time period set forth in the Permitted Delay Notice unless a party receiving the Permitted Delay Notice objects in writing within ten (10) days after receiving the Permitted Delay Notice. In the event of such objection, the parties shall meet and confer within thirty (30) days after the date of the objection with the objective of attempting to arrive at a mutually acceptable solution to the disagreement regarding the Permitted Delay. If no mutually acceptable solution can be reached, either party may take such action as may be permitted under Section 7.1 of this Agreement.
7.8 Termination. This Agreement shall be terminated and of no further effect upon the occurrence of any of the following events, whichever occurs first:
(a) Expiration of the Term without any exercise by the Developer of either the Parcel 1 Project option or the Additional Parcels Project option; (b) Expiration of the Term after the Developer has exercised the Parcel 1 Project option, without exercise of the Additional Parcels Project option; (c) Completion of the Project in accordance with applicable law and the City's issuance of all required occupancy permits and acceptance of all dedications and improvements required under governing law and this Agreement; (d) Entry of final judgment or issuance of a final order directing City to set 19 256836.3
aside, withdraw, or abrogate City's approval of this Agreement or any material part thereof; or (e) The effective date of a party's election to terminate the Agreement as provided in Sections 7.1 and 7.2 of this Agreement.
ARTICLE 8
GENERAL PROVISIONS
8.1 Notices, Demands and Communications Between the Parties. Formal notices.
Demands, and communications between the City and the Developer shall be in writing and sent to the following addresses, or at any other address as that party may later designate by notice, by one or more of the methods set forth below in Article 8.
8.1.1 Addresses/Fax Numbers:
City:
CITY OF BARSTOW
220 E Mountain View St.
Suite A
Barstow, CA 923111
Attention: City Planner
Telephone: (760) 256-3531
With a copy to:
CITY OF BARSTOW
220 E Mountain View St.
Suite A
Barstow, CA 923111
Attention: City Attorney
Developer:
Milestone Housing Group, LLC
Marcus Griffin
51 University Avenue
Los Gatos, CA 95030
Telephone: (650) 980-9555
8.1.2 Notice Methods:
8.1.2.1 Certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid, in the United States mail; or
8.1.2.2 A nationally recognized overnight courier, by priority overnight service, in which case notice shall be deemed delivered one (1) business day after deposit with that courier; or Hand delivery with 20 256836.3
signed receipt for delivery from a person at the place of business of erectivinarya ty and a uhaoe ned ce shaep e diemed or th in which case notice shall be deemed delivere upon receipt; or
8.1.2.3 Electronic transmission or facsimile transmission, if a copy of the notice is also sent the same day by United States mail, in which case notice shall be deemed delivered one (1) business day after the telecopy or facsimile transmission, provided that a transmission report is automatically generated reflecting the accurate transmission of the notice to the receiving party at the fax number specified in Section 8.1.1 above.
8.2 Enforced Delay: Extension of Times of Performance. In addition to the specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults of reasonable nature or due to Force Majeure. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other parties more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by the City and the Developer.
Construction of Agreement. All parties have been represented by counsel in the preparation of this Agreement and no presumption or rule that ambiguity shall be construed against a drafting party shall apply to interpretation or enforcement hereof. Captions on sections and subsections are provided for convenience only and shall not be deemed to limit, amend or affect the meaning of the provision to which they pertain.
8.4 Approval Process. Unless specified otherwise herein, the City shall approve or disapprove submittals under this Agreement within fourteen (14) days following receipt of the submittal from the Developer. In the event City disapproves a submittal pursuant to this Agreement, City shall submit to Developer a notice of disapproval together with a list of reasons for such disapproval. Upon receipt of such notice and list of reasons, Developer shall have twenty (20) days to resubmit revised documents. Upon City's receipt of revised documents, City shall have fourteen (14) days to approve or disapprove the revised documents. Failure by City to approve or disapprove a submittal within the respective times set forth in this Section 8.4 shall be deemed a disapproval of the submittal.
8.5 Severability. If any provisions of this Agreement shall be adjudicated to be invalid, void, or illegal, it shall in no way affect, impact, or invalidate any other provision.
Notwithstanding the foregoing or any other provisions of this Agreement, in the event that any material provision of this Agreement is found to be unenforceable, void, or voidable, Developer or City may terminate this Agreement upon providing written notice to the other parties.
8.6 Prevailing Wage. Developer and its contractors, subcontractors and agents shall 21 256836.3
comply with the California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto and implementing regulations) (all of the foregoing, collectively, "Prevailing Wage Laws"), and shall be responsible for carrying out the requirements of such provisions. If applicable, Developer shall submit to City a plan for monitoring payment of prevailing wages and at Developer's expense shall implement such plan and comply with all applicable reporting and recordkeeping requirements. To the greatest extent permitted by law, Developer shall indemnify, defend (with counsel reasonably approved by City) and hold the Indemnitees harmless from and against all Claims that directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) or the requirement of competitive bidding in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The provisions of this Section 8.6 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Developer's indemnification obligations set forth in this Section shall not apply to claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees and are subject to the additional terms set forth in Section 5. The purpose of this Section 8.6 is not to impose any prevailing wage requirement upon the Developer and/or any Project but rather to confirm that to the extent the payment of prevailing wages is required by any Prevailing Wage Law, the Developer shall comply with said Prevailing Wage Law.
8.7 Governing Law and Venue. This Agreement shall be construed under and in accordance with the laws of the State of California. Each party to this Agreement agrees that the courts located in the County of San Bernardino, State of California shall have sole and exclusive personal jurisdiction over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this agreement. In connection thereto, the parties hereby waive any claim of jurisdiction in another state and specifically consent to personal jurisdiction in the County of San Bernardino, State of California.
8.8 No Joint Venture or Partnership. City and Developer hereby renounce the existence of any form of joint venture, partnership or other association between City and Developer, and agree that nothing in this Agreement or in any document executed in connection with it shall be construed as creating any such relationship between City and Developer.
8.9 Covenant of Good Faith and Fair Dealing. No party shall do anything which shall have the effect of injuring the right of another party to receive the benefits of this Agreement or do anything which would render its performance under this Agreement impossible. Each party shall perform all acts contemplated by this Agreement to accomplish the objectives and purposes of this Agreement.
8.10 Partial Invalidity Due to Governmental Action. In the event state or federal laws 22 256836.3
or regulations enacted after the effective date of this Agreement, or formal action of any governmental entity other than City, prevent compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agree that the provisions of this Agreement shall be modified, extended, or suspended only to the minimum extent necessary to comply with such laws or regulations.
8.11 Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision in this Agreement.
8.12 Recording. No later than ten (10) days after City enters in this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Bernardino.
8.13 Counterparts. It is specifically agreed that this Agreement may be executed in one or more counterparts, all of which shall be taken together to constitute but one and the same instrument and shall be binding upon each party who may sign a counterpart of this instrument.
In order to expedite the transaction contemplated herein, telecopied or internet transmission of PDF file signatures may be used in place of original signatures on this Agreement or any subsequent amendment. City and Developer intend to be bound by the signatures on the transmitted document, are aware that the other party will rely on the transmitted signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.
8.14 Authority to Execute Agreement. The person or persons executing this Agreement on behalf of Developer and City warrant and represent that they have the authority to execute this Agreement and the authority to bind Developer and the City to the performance of their respective obligations hereunder.
8.15 Cancellation or Modification. Any may propose cancellation or modification of this Agreement, but such cancellation or modification shall require the consent of both the City and all other parties hereto retaining leasehold interest in the Site or any portion thereof.
8.16 Entire Agreement, Waivers and Amendments.
8.16.1 This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.
8.16.2 All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the City and the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the City and the Developer.
8.17 Provisions Regarding Tax Credit Financed Projects. To the extent any Project is 23 256836.3
financed in whole or in part with the proceeds of federal and/or state low income housing tax credits ("Tax Credits") allocated by the California Tax Credit Allocation Committee ("TCAC"), the following provisions shall be applicable to said Project:
8.17.1 All income limits, rent limits, utility allowances, and similar matters shall be calculated in accordance with applicable law, TCAC rules, procedures, and regulations.
8.16.2 Developer shall be allowed to transfer its interests in this Agreement and the Ground Lease applicable to a Project financed with Tax Credits to a California limited partnership (a "Tax Credit Partnership") in which affiliates of Developer and Non-Profit Partner serve as the general partners and a Tax Credit equity investor serves as limited partner (a "Tax Credit Limited Partner"), subject to reasonable approval by City through a transfer agreement under Article 6.
8.16.3 The City agrees and acknowledges that TCAC requires all lessors in Tax Cide. The Cily shal cut the CAC Le rider in form anf lease substance reasonably acceptable to the City upon request of TCAC.
8.16.4 The Parties shall negotiate in good faith to incorporate changes to the Ground Lease as are required by TCAC, the AHCS Grant program, the Tax Credit Limited Partner and/or any lender and are typical in Tax Credit financed affordable housing developments.
IN WITNESS WHEREOF, the City and the Developer have executed this Agreement, and agree to be bounds by the terms as of the Effective Date.
CITY:
City of Barstow, a political subdivision of the State
ot Calitornig
By:
City Manager
SO PASTON
ATTEST: ACORPORATED
Plus SEPT. 30, 1947
By:
City Clerk
24 2568363
APPROVED AS TO FORM:
By: Watthew T. Sumer
платанами
City Attorney
DEVELOPER:
Milestone Housing Group, LLC,
a California limited liability company
MIK
Marcus Griffin, Manager
25 256836.3
LIST OF EXHIBITS
Exhibit A-l: Site Map
Exhibit A-2: Legal Descriptions of Parcel 1, Parcel 2, Parcel 3, and Parcel 4 Exhibit B: Schedule of Performance
Exhibit C: Scope of Development
Exhibit D: Form of Ground Lease
26 256836.3
EXHIBIT A-1
SITE MAP
27 256836.3
SHEET 1 OF 2 BHEETS
PARCEL MAP 20276
I THE CITY OF BARSTOW, COUNTY OF SAN BERNARDIN
TATE OF CALIFORNIA, BEING A SUBDIVISION OF LOT 7 C
TRACT NO. 10498 AS RECORDED IN BOOK 144 OF MAPS,
PAGER 5 AND 6, RECORDS OF SAID COUNTY
TALS ENGINEERING, INC FEBRUARY, 2021
OWNERS_STATEMENT: THOMAS E. RAGEN L.8. 0208 SURVEYORS STATEMENT:
WE HEREBY STATE WE ARE ALL AND THE ONLY PARTIES HAVNG ANY RECORD TITLE INTEREST IN & HEREBY STATE THAT THIS
BOABD OF SUPERVISORS CERTICATE:
DATED:
HAVE
TITLE TITLE
THOMAS E RACEN
THE COME OF SASSIN LS. 6205
NOTARY ACKNOWLEDGMENT: CITY ENGINEER'S CERTIFICATE
& HOTARY PUBLIC OR OTHER OFFICER COMPLETING THES CERTICATE VERONES ONLY THE Br: _DEPUTY
INITY OF THE NOMIDUAL WHO SICHED THE DOCUMENT TO WHICH THIS CERTIFICATE I SUBSTANTILLY THE SAME AS IT APPEARED
ATTACHED, AND NOT THE TRUTHFULNESS, ACCURACY, OR VALICITY OF THAT DOCUMENT STATE: OF CALIFORHIA DATED:
COUNTY OF
ON - REFORE ME.
AUDITOR-CONTROLLER/TREASURER/TAX COLLECTORS CERTIFICATE: No. C-68423
A NOTARY PUBLIC, PERSONALLY APPEARED
WHO PROVED TO ME ON THE BASES OF SATSFACTORY EVIDENCE TO BE THE PERSONS) WMOSE HAME(S) IS/ARE SUBSCRIBED TO THE WITHIH IMSTRUMMENT AND ACKNOWLEDGED TO ME THAT BRAD S. MERRELL CITY ENOMEER HE/SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR ALTHORIZED CAPACITY(IES), AND THAT BY RC.E. 49423 HS/HER/THER SCHATURE(S) ON THE INSTRUMENT THE PERSON(S), OR THE ENTITY UPON BEHALF TAKES OR SPECUL ASSESSWENTS NOT YET PAYABLE, ESTATED TO BE !.....
OF WHICH THE PERSON(S) ACTED, EXECUTED THE INSTRUMENT.
DATED: —
LEON PREP IS TO NO CORE, THE LOES OF THE STATE OF CUTORREN THAT THE ENSEN MASON CITY SURVEYORS CERTIEICATE
SOUT OF SIN BE TREASURER RUN COLLECTOR HOTSONS OF THE SUNSH ACT AND HE IS TENGULY COREI THE APRICOLE
WITNESS ANY HAND AND OTTICUL SEAL
DATED:
FINE PRANTED SCHATURE Br: _DEPUTY
UM COLESOM EXPIRES. COMNISSION NO: LS 7342
AY PRONCIPAL PLACE OF BUSHESS IS IN _ can. HATE CT CHANG
CITY SURVEYOR
SIGNATURE OMISSION: CITY CLERKS CERTIFICATE: BAN BERNARDINO COUNTY BECOBOERS CERTIACATE.
THES MAP HAS BEEN FILED UNDER DOCUMENT NUMBER
THES — - 20 — A7 .. Dr
BOOK — • OF PARCEL LAPS AT PAGE
AT THE REQUEST OF
IN THE AUCUNT OF 8
JOURNE V. COUSHO, CTY CLERK DATE BOB DUTTON
ACCENSOR - REPORDER
COUNTY OF SAN BERMARCENO
Br:
DEPUTY RECORDER
SHEET 2 OF 2 SHEETS
- FD WELL MONUVENT
ASING. DN. 15°, PR PARCEL MAP 20276
SSING, SHOT CENTE
N0932"35W 1316.41' (N$S 52'50 1318.44)
411,90" (411.98) 87451' (874.46)
30°
ACT NO. 10498 A8 RECORDED IN BOOK 144 OF MAP
AGES 5 AND 8, RECORDS OF SAID COUNT
TRLS ENGINEERING, INC. FEBRUARY, 2021
02220° THOMAS E. RAGEN L.8. 6205
LOT 6
SURVEYOR'S NOTEB
BENG: N21:00W
PARCEL 1 4. () MOCATES RECORO INTORUIATIOM PER TRUCT MID MA S01D0, 336S N.B. 144/3-8
130 ACRES
M.8S. MONUMENTATION NOTES
609.82) [I TO 1PM/ CONC PLUG, ACCEPTED AS 1° P AS SHORI ON TR 10490, FARE 148/3-8 in
2981
* IP. RCE 720 2 , I 142508 RETACENT OF 1 P, IS 2881 MI LOU OF 1 P.
ER TR 10498
(582.40°) M9 144/5-6 ] D 1 P M/ HAL A TAG. RLEGBLE, ACCEPTED AS SI/18 SEC B$S PER PA 10498, PRE 1M/5-8 LOT 7
M.00,IZ0N) .85609 44.00,12.0N LE BEVENTH AVENUE 362.25' N8932'35 W 424.80 EASEMENTS
266.90 157.90
COLE LACE NO CONUTS, MO ACOSTA PURPOSES PRIOR 2/46 COMERY FORE PARCEL 2 120.00 (N230'14° 62326)
0,74 ACRES
LOT 5
NeS 32'35T 268.90*
PARCEL 4
1.08 ACRES LINE RATA. CURVE RATA
31* NO 21:00 279.57 L1 N7528'28° 50.58° (N743245° 5082) PARCEL 3
081 ACRES
30*
15' aSt
159,629.
39 3g-
15' BSL
SaYS 937
8=42847 L-1586
-E MOUNTAIN VIEW Re66d.oo - 2822
46222925 TE
L*274.77
0-45857 R=700.00 L-51916 3835E 087
LOT DETAILA
CUR: 1-1
EXHIBIT A-2
LEGAL DESCRIPTIONS OF PARCEL 1, PARCEL 2, PARCEL 3, AND PARCEL 4 28 256836.3
BHEET 1 OF 2 BHEETS
PARCEL MAP 20276
N THE CITY OF BARSTOW, COUNTY OF SAN BERNARDING
STATE OF CALIFORNIA, BEING A SUBDIVISION OF LOT 7 OI
TRACT NO. 10498 A8 RECORDED IN BOOK 144 OF MAP8,
PAGES & AND 6, RECORDS OF SAID COUNTY
TRLS ENGINEERING, INC. FEBRUARY, 2021
THOMAS E. RAGEN L.8. 0206
OWNER'S STATEMENT: SURVEYOR'S STATEMENT:
WE HEREBY STATE WE ARE ALL AND THE ONLY PARTIES HAYNG ANY RECORD FILE INTEREST N BOARD OF. SUPERVISORS' CERTIFICATE
DATED:
HAVE MUE
ThE HE AMOUNT OF SAD TAXES AND SPEDAL ASSESSMENTS, AND SAD BOND IS HEREBY ACCEPTED.
DATED: —
LYNHA MONELL THOLAS E RACEI
OF THE COAT OF SO EARNES LS. 6205
NOTARY. ACKNOWLEDGMENT: CITY ENGINEERS CERTIFICATE
BY: _DEPUTY
DOCUMEHT TO
ATTACHED ANDMOTH TRUTHERAPOURECY OR VANTY OTHAT DOCUMENTI
STATE OF CALIFORNIA DATED
COUNTY OF
A NOTARY PUBLIC, PERSONALY APPARE - BETORE ME
AUDITOR-CONTROLLER/TREASURER/TAX COLLECTORS CERTICATE:
WHO PROVED TO ME ON THE BASES OF SATISFACTORY EVIDENCE TO BE THE PERSON(S) WHOSE NAME(S) IS/ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKHOWLEDGED TO ME THAT BRAD S. . MERRELL CITY ENGINEER HE/SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR ALTHORIZED CAPACITY(IES), AND THAT BY RCE 48423 HS/HER/THER SCHATURE(5) ON THE INSTRUWENT THE PERSON(S), OR THE EXITTY UPON BEHALF OF WHICH THE PERSON(S) ACTED, ERICUTED THE INSTRUMENT. DATED: — LEO RE POIS READ ARE TIE US OF TIE STATE OF CUTORNA THAT MIE ENSEN MASON CITY SURVEYORIS CERTIFICATE:
TOR -CONTROLLER/IREASURER/TAX COLLEC
NTY OF SAN BERNARD LOISON OF THE SUE SON ME AN HIS THE CAL MET THE APPACARE
MHESS LT HANG AND ORTICUL SEAL
DATED:
_DEPUTY
MUSE PRONTED SCHATURE
IN COLLISION EXPRES COLLISION NO.:. LS 7382
WN PRONGIEAL PRACT OF BUSHESS IS DI CITY SURVEYOR
SIGNATURE OMISSION CITY CLERKE CERTIECATE BAN BERNARDINO COUNTY RECORDERS CERTIEGATE
THIS LAP HAS BEEN FLED UNDER DOCUMENT MUMBER
_DAY OF - 20 — AT
OF PARCEL MAPS AT PACE
JONAME V. COUSIO, OTY CLEPOC DATE BOB DUTTON
BY: -
DEPUTY RECORDER
BHEET 2 OF 2 SHEETA
• FD WELL MONUMEHT
SING. D
SSING, SHOT CEN PARCEL MAP 20276
N6932:3513.4N9529 1316.44)
411.90* (411.98) 874.51* (674.46)
30°
TALS ENGINEERING, INC. FEBRUARY, 2021
LOT 6 NO 22'20° THOMAS E. RAGEN LS. 0206
SURVEYOR'S NOTES N
1. TAKEN FROM THE CENTERLINE OF SEVENTH AVEMUE AS SHOWN OR RACT MAP NO. 10498, M.B. 144/5-8
BENG: N21:00
2. • INDICATES MONUMENTS FOUND AS NOTED
1. • GOES TO MEN PIPE MITH DRASS TAG STUPID LS 020G
30 30.
PARCEL 1 4. 1) I 155 800D ГОВАТОМ РЕЯ ТРАСТ ЩА На 10400. 130 ACRES
609.82°) MONUMENTATION NOTEB
in •] FD 1° IP W/ CONC PLUG, ACCEPTED AS 1º IP AS SHONNI ON TR 10498, PM 144/3-8 MET.
RCE. 7208 • 720 CUT IT, IS 154,508 RECENT OF 1 P. LS 2881 M LEU OF 1 P.
ER TR 10491
(562.40') MB 144/5-8 13 FD 1P W/NAL & TAG, LLEGELE, ACCEPTED AS S1/16 SEC 6S PER PU 10498, PUB 144/5-6 LOT 7
M.00,IZ.ON) .85609 ML.00,1Z.ON -E SEVENTH AVENUE 582.25' N39 32'35 424.80% EASEMENTS
286.90' 157.90*
CRE LES NO ONES NO MATA PURPOSE FRON /4 COURT FORE
(N23014 B) CENTERLINE OF A 50" WIDE EASEMENT TO SOUTHERN CAL MATER Co. 085735 AS SHOWN OR DEDICATED ON PARCEL HAP
in PARCEl. 2 120,00
0,74 ACRES
LOT 5
Nes 32'35W 288.90
PARCEL 4
1.08 ACRES LINE DATA CURVE DATA
NO 2100° 279.57 LI N782823° 3938' (17532'45° 50.82) C1 4-8935'51° R=15.00 PARCEL 3 BEE 205
081 ACRES
30%
• BEE DETAL A 59.57
15' BS.
(59.62")-
50.59 SOSE BE
-E MOUNTAIN VIEW
4022292 L~274.77
84613637 R=700.00° L~949.15 -58936'3T 0.82
Ra 743150301
LOT 5 DETAIL A
SCALE: 1° - 10
EXHIBIT B
SCHEDULE OF PERFORMANCE
29 256836.3
Milestone Housing LLC: AHSC Project 2021
SCHEDULE OF PERFORMANCE
Action Date
Opening of Escrow. The Developer and Owner shall Concurrently with the Effective Date. open an escrow for conveyance of the Site
Concurrently with the Effective Date.
2. Initial Earnest Money Deposit/Independent Contract
Consideration. Developer shall deposit sums with
Escrow Agent and Owner, respectively.)
Within five (5) days of the Effective
3 Appraisal. Owner shall commission an appraisal for Date. determination of Annual Rental Payment.
4. Title Report. Developer shall obtain Title Reportfrom Within five (5) days of the Effective the Title Company for the Site. Date.
5. Developer's Title Notice. Developer shall notify No later than six (6) days prior to the Owner in writing of any objections to the Title Report end of the Due Diligence Period. and Survey, if applicable.
6. Response. Owner shall deliver its written response to No later than three (3) business days Developer's Title Notice. from receipt of the Developer's Title Notice.
7. Due Diligence Period. Within sixty (60) days of the Effective Date.
8. Supplemental Earnest Money. End of Due Diligence Period.
9. Applications for Tax Credits and Bond allocations and Within 300 days of the Effective Date.
Governmental Loan Programs. Developer shall
submit applications for Tax Credits and governmental
loans and deliver copies of said applications to Owner.
Within 30 days after award to
Submission - Financing Plan. Developer shall submit Developer of a Tax Credit allocation. to the Owner for review and approvalFinancing Plan.
Within 30 days of Effective Date.
Submission - Scope of Development. Developer shall
present the Basic Concept Drawing based on the
Scope of Development.
Within 60 days of after award to
12. Submission - Construction Plans, Drawing and Developer of a Tax Credit allocation.
Related Documents. Developer shall present
construction plans and related documents for review
and approval.
13. Submission- Developer shall present all necessary Prior to the Closing for the Site. permits and entitlements to develop the Project for review and approval.
Barstow
Owner and Developer Deliver Memorandum of Lease Prior to the Closing for the Site. and Ground Lease to Escrow Agent.
15. Closing. The Owner shall convey or cause As soon as practicable after the conveyance of leasehold title to the Site to the satisfaction of all conditions precedent Developer, and the Developer shall accept such to Closing, but not later than December conveyance.
Barstow 2
EXHIBIT C
SCOPE OF DEVELOPMENT
30 256836.3
Milestone Housing LLC: AHSC Project 2021
SCOPE OF DEVELOPMENT
I. GENERAL
The Developer agrees that the Site shall be developed and improved in accordance with the provisions of this Agreement and the plans, drawings and related documents approved by the Owner pursuant hereto.
II. DEVELOPER IMPROVEMENTS ON THE SITE
The Developer shall construct, or cause to be constructed, on the Site, the Project which shall include housing, that will be affordable to and occupied by persons of moderate, low and very low income, or as a mixed-use project comprised of affordable housing as noted above, but with a percentage of space designated as retail, or with a percentage of the housing units designated as market rate rentals, to be determined during deliberations with the Owner and in compliance with stipulations from City of Barstow as more particular described in this Agreement.
The layout and configuration of the components of the Developer's improvements on the Site are to be agreed on between the Owner and Developer.
III. ARCHITECTURE AND DESIGN
The improvements on the Site shall be of high architectural quality, shall be well and scaped, and shall be effectively and aesthetically designed. The plans submitted by the Developer shall describe in detail the architectural character intended for the Developer's improvements on the Site.
IV. LANDSCAPING
Landscaping shall embellish all open spaces upon the Site to integrate the Developer's improvements with adjacent sites within the area. Landscaping includes such materials as paving, trees, shrubs and other plant materials, landscape containers, plaza furniture, top soil preparation, automatic irrigation, landscape and pedestrian lighting. Landscaping shall carry out the objectives and principles of the Owner's desire to accomplish a high-quality aesthetic environment.
V. SCREENING
Trash areas shall be screened on at least three (3) sides and have movable doors or other devices to obscure such areas from view. All fire standpipes and such other fire related mechanical devices shall be screened with plant materials. Rooftop equipment shall be reasonably hidden so as to mitigate views from principal elevations surrounding the development.
VI. APPLICABLE CODES
The Developer's improvements shall be constructed in accordance with the California Building Standards Code and the Municipal Code.
VIl. SITE CLEARANCE AND PREPARATION
The Developer shall perform, or cause to be performed, at its sole cost and expense, the following work:
A. On-Site Clearance
1. On the Site, clear, grub and remove (as may be needed and called for in the approved plans) all on-site pavements, walks, curbs, gutters and other improvements; and
2. Remove or plug utilities, such as storm sewers, sanitary sewers, water systems, electrical overhead and underground systems and telephone and gas systems located on the Site, as may be reasonably required by the Owner.
B. Compaction, Finish Grading and Site Work
The Developer shall compact, finish grade and do such site preparation as is necessary for the construction of the Developer's improvements on the Site.
EXHIBIT D
FORM OF GROUND LEASE
31 256836.3
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Barstow
Attn: Barstow City Clerk
220 East Mountain View Street, Suite A
Barstow CA 92311
RECORDING FEE EXEMPT
PURSUANT TO GOVERNMENT CODE
SECTION 27383
(Space Above Line For Recorder's Use)
GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (the "Lease") is made as of the date of the final signature below ("the Effective Date"), by and between CITY OF BARSTOW ("City" or "Landlord"), a municipal corporation, which operates under the laws of the State of California, having its principal place of business at 220 East Mountain View Street, Suite A, Barstow CA 92311 ("Landlord" or the "City"), and MILESTONE HOUSING GROUP, LLC a California limited liability company having its principal place of business at 51 University Avenue, Los Gatos, California 95030, ("Milestone" or "Tenant") (with the "Landlord" and "Tenant" constituting the "Parties" and each, "Party").
RECITALS
WHEREAS, the real property identified as 555 S. 7th Avenue, Barstow, California located in Barstow, San Bernardino County, California and divided into four parcels, more particularly described on "Exhibit A-1" attached hereto and incorporated herein by reference (the "Site") is owned by City.
WHEREAS, Parcel 1 ("Parcel |") of the Site is the subject of a Ground Lease Option Agreement ("Option Agreement") between City and Milestone Housing Group, LLC, a California limited liability company. Parcel 1 consists of approximately 3.3 acres and is further described as stated in "Exhibit B," attached hereto and incorporated herein by reference.
WHEREAS, Milestone wishes to develop an affordable housing rental development on Parcel 1 (the "Parcel 1 Project") subject to provisions of the Affordable Housing and Sustainable Communities Program ("AHSC"') Grant.
1 256840.3
AGREEMENT
IN CONSIDERATION OF the City leasing Parcel 1 to Milestone, Milestone leasing those premises from the City and the mutual benefits and obligations set forth in this Lease, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Lease agree as follows:
Leased Premises
Contingent on approval of the Development Agreement between City and Milestone and the award of the AHSC Grant, as further specified in the Ground Lease Option Agreement, the City agrees to rent to Milestone Parcel 1 on the terms and conditions in this Lease and in the Ground Lease Option Agreement.
Term
Milestone agrees to lease the Premises for a term of ninety-nine (99) years ("Term"), commencing on the Effective Date (the "Commencement Date") and ending on the date ninety- nine years later ("End Date").
4. Rent
A. Subject to the provisions of this Lease and the Ground Lease Option Agreement, the Milestone will pay a Total Rent Payment composed of two separate payment types: the Initial Rent Payment and the Annual Rent Payment. The "Initial Rent Payment" shall equal to _ which is the appraised fair market value of Parcel 1 as determined by the City's Appraiser, per the terms of the Ground Lease Option Agreement, and shall be paid by Developer within thirty days of the Commencement Date. The "Annual Rent Payment" shall be One Dollar ($1.00) per year. The Parties represent that in entering into this Lease, they have bargained at arm's length, that the amounts paid as rent by Milestone to the City are fair market value considering the geographic location and facts and circumstances of the market and that this Lease is entered into in furtherance of the purpose of constructing affordable housing within the City.
B. Milestone will pay the Annual Rent Payment on or before the first of each year (the "Due Date") and every year thereafter during the Term of this Lease to the City.
5. Notice of Possessory Interest
In accordance with California Revenue and Taxation Code section 107.6, subdivision (a), City provides notice that entering into this Lease may create a possessory interest subject to property taxes payable by Milestone. Milestone or any other party in whom the possessory interest is vested agrees that it shall pay all taxes as may be assessed upon the possessory interest in the leasehold of Parcel 1 created by this Lease subject to any applicable property tax abatement available to Milestone for the development of affordable housing on Parcel 1. 2 256840.3
6. Use and Improvements of Premises
A. Milestone's use and occupancy of Parcel 1 shall be for the purpose of developing the Parcel 1 Project, as further described in the Ground Lease Option Agreement and AHSC Grant approval documentation, and uses which are necessary for such development and which are not excluded by this Lease. Milestone shall not commit any act or omission on Parcel 1 which would be in violation of any statute, regulation or ordinance of the City or any governmental body, quasi-governmental body and regulatory body having jurisdiction over Parcel 1 or the activities conducted thereon. Milestone agrees that it shall only develop Parcel 1 for an affordable housing project with at least 81 units, which must be substantially similar to the approved AHSC Grant and substantially similar to the approved project plan as depicted in Exhibit C, attached hereto and incorporated by reference ("the Project Plans"). Milestone further agrees that all housing units in the Parcel 1 Project (81 apartment units, or the highest allowable number granted under density bonus provisions) shall be deed-restricted to be rented at San Bernardino County moderate-income or lower rates (i.e. 80% of Area Median Income-AMI in San Bernardino County or less) for the term of this Agreement for at least 55 years from the commencement date of the Ground Lease.
Milestone shall have the right to make improvements necessary for the proposed use of the property as outlined in the Ground Lease Option Agreement, but only after receiving any and all required permits or permissions from any governmental body, quasi-governmental body and regulatory body having jurisdiction over Parcel 1 or the activities conducted thereon.
Milestone shall pay all costs for construction or improvements done by it or caused to be done by it on Parcel 1 and shall keep Parcel 1 free and clear of all mechanic's liens resulting from construction done by or for Milestone. However, in the event that any such lien shall be so placed, Milestone shall take all steps necessary to see that said lien is removed within thirty (30) days of its being filed. Milestone may contest any such lien, but Milestone must first post a surety bond in favor of and insuring the City in an amount sufficient to secure the satisfaction or removal of the lien pursuant to the terms of the California Lien Law, and in no event shall such bond be in an amount less than 150% of the lien amounts). Any improvements made by Milestone shall remain on and be surrendered on expiration or termination of the Term, except that the City upon 30 days prior written notice, may require Milestone, at its sole cost, to remove any improvements that Milestone has made to Parcel 1 with the time for removal to be negotiated between the parties at the end of the Term.
C. Milestone covenants that it will carry on and conduct its business from time to time carried on upon Parcel 1 in such manner as to comply with all statutes, bylaws, rules and regulations of any federal, provincial, municipal or other competent authority and will not do anything on or in the Premises in contravention of any of them. The City may, from time to time, impose reasonable rules and regulations regarding Parcel 1 which do not unreasonably interfere with Milestone's use or enjoyment of Parcel 1, conflict with any law, rule or regulation to which Milestone is subject or impose any material cost or expense on Milestone not contemplated herein. Milestone, its assignees, employees, agents, invitees, and licensees shall comply with all such rules and regulations.
3 256840.3
the Milestone and the Milestone persists in such default beyond the 30 days' notice.
3. Upon 30 days' notice, the City may terminate the tenancy under this Lease if the Milestone fails to abate any public or private nuisance that exists on Parcel 1 and the Milestone persists in such default beyond the 30 days' notice.
Termination of Milestone's right to possession of Parcel 1 by written notice to Milestone shall terminate this Lease and Milestone shall immediately surrender possession of Parcel 1 to City. In the event of termination, City shall be entitled to recover from Milestone all damages incurred by City by reason of Milestone's default; or C. City may pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California.
D. City's remedies shall be subject to (i) a Subordination and Non-Disturbance Agreement between Milestone's secured lenders and the City in form and substance typically used in Tax Credit financed affordable housing projects and (ii) an Estoppel Certificate and Agreement between the Tax Credit Limited Partner and the City in form and substance typically used in lax Credit financed affordable housing projects, each in form and substance reasonably acceptable to City; with the caveat that no such agreement can promise or encumber the City's underlying reversionary interest as landlord.
19. Notices
All notices that are required to be given by one party to the other under this Lease shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited with the United States Post Office for delivery by registered or certified mail addressed to the parties at the following addresses, unless such addresses are changed by notice, in writing, to the other party.
If to City:
City Manager
City of Barstow
220 East Mountain View
Barstow CA 92311
If to Tenant:
Milestone Housing Group, LLC.
Marcus Griffin
51 University Avenue
Los Gatos, CA 95030
9 256840.3
D. Prevailing Wage. Milestone and its contractors, subcontractors and agents shall comply with the California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto and implementing regulations) (all of the foregoing, collectively, "Prevailing Wage Laws"), and shall be responsible for carrying out the requirements of such provisions. If applicable, Milestone shall submit to City a plan for monitoring payment of prevailing wages and at Milestone's expense shall implement such plan and comply with all applicable reporting and recordkeeping requirements. To the greatest extent permitted by law, Milestone shall indemnify, defend (with counsel reasonably approved by City) and hold the Indemnitees harmless from and against all Claims that directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) or the requirement of competitive bidding in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Milestone related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The provisions of this section shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Milestone's indemnification obligations set forth in this Section shall not apply to claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees and are subject to the additional terms set forth in this Agreement. The purpose of this Section 6.D. is not to impose any prevailing wage requirement upon the Developer and/or any Project but rather to confirm that to the extent the payment of prevailing wages is required by any Prevailing Wage Law, the Developer shall comply with said Prevailing Wage Law.
8. Utilities and Other Operating Costs
A. In addition to the Annual Rent, without setoff, abatement, or deduction, except as provided below, Milestone will pay all operating costs of the premises, including without limitation utilities, taxes, garbage disposal, interior maintenance, exterior maintenance, and insurance (the "Operating Costs"). Milestone shall pay all Operating Costs directly to the provider; any Operating Costs that are paid by the City shall be considered to be Additional Rent, payable by Milestone to the City.
B. Milestone will pay to the lawful taxing authorities, or to the City, as it may direct as and when the same become due and payable, all taxes, rates, use fees, duties, assignments and other charges that are levied, rated, charged, or assessed against or in respect of all improvements, equipment and facilities of Milestone or in default by Milestone and in respect of any business carried on in Parcel 1 or in respect of the use or occupancy of Parcel 1 by Milestone and every subtenant, licensee, concessionaire or other persons doing business or from Parcel 1 or occupying any portion of Parcel 1.
4 256840.3
Maintenance
A. Milestone at its cost shall maintain, in good condition, all portions of the Premises, including, without limitation, any and all improvements on the Site, reasonable wear and tear excepted.
B. Landlord shall not have any responsibility to maintain Parcel 1 beyond the ettective date of this Ground Lease. Milestone waives the provisions of Civil Code sections 1941 and 1942 with respect to City's obligations for tenantability of Parcel 1 and Milestone's right to make repairs and deduct the expenses of such repairs from the Annual Rent.
10. Environmental Matters
Milestone hereby represents and warrants that:
A. Milestone has not been informed of, nor does Milestone have any knowledge of (i) the presence of any Hazardous Substances (as defined below) on the Site, or (ii) any spills, releases, threatened releases, discharges or disposals of Hazardous Substances that have occurred or are presently occurring on or onto the Site, or (iii) any spills or disposals of Hazardous Substances that have occurred or are presently occurring on any other properties as a result of any construction on or operation and use of the Site.
B. In connection with the operation and use of any of the Site, Milestone has no knowledge of any failure to comply with any applicable local, state or federal environmental laws, regulations, ordinances and administrative and judicial orders relating to the generation, treatment, recycling, reuse, sale, storage, handling, transport and disposal of any Hazardous Substances.
C. In the event that Milestone becomes aware of the release of any Hazardous Substances on, or other environmental condition, problem, or liability with respect to, the Site, Milestone agrees to promptly notify the City in writing of such condition. Milestone further agrees to take actions to investigate and clean up the release of any Hazardous Substances on, or other environmental condition, problem or liability affecting the Premises promptly after Milestone becomes aware of any such condition and to keep the City advised in writing of all such actions taken by Milestone.
D. As used in this Section, "Hazardous Substances" shall mean any substance or material at the level defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous or toxic chemical, a hazardous, toxic or radioactive substance, petroleum or other similar term, by any federal, State or local environmental statute, regulation or ordinance presently in effect or that may be promulgated in the future, as such statutes, regulations and ordinances may be amended from time to time.
e. The representations and warranties set forth in this Section shall survive the expiration or termination of this Lease.
5 256840.3
11. Inspections
At all reasonable times during the term of this Lease and any renewal of this Lease, the Coty and its agents may enter the Site upon reasonable prior written notice to make inspections of the Site to confirm compliance with the terms of this Lease.
12. Severability
If there is a conflict between any provisions of the Lease and applicable legislation of the State of California, the state law will prevail, and such provisions of the Lease will be amended or deleted as necessary in order to comply with state law. Further, any provisions that are required by state law are incorporated in this Lease.
13. Care of Premises
A. Milestone will promptly notify the City of any damage, or of any situation that may significantly interfere with the normal use of the Parcel 1.
B. Milestone will comply with standards of health, sanitation, fire, housing, and safety as required by law. Tenant shall maintain Parcel 1 in a safe and clean condition, free from waste or nuisance.
D. Milestone will not keep or have on the premises any article or thing of a dangerous, flammable, or explosive character that might unreasonably increase the danger of fire other than as typically used in connection with the development, construction and/or operation of an affordable multi-family housing project.
14. Indemnity
Without duplication of Milestone's indemnification, defense and hold harmless obligations hereunder and under the Development Agreement, Milestone hereby indemnifies and Shall detend the City, at Milestone's sole cost and expense and with counsel reasonably approved by the City, and hold the City harmless from any and all claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all costs arising directly or indirectly out of (i) the performance by Milestone of its obligations under this Lease, (ii) the construction of improvements to Parcel 1, (iii) any breach by Milestone of its obligations under this Ground Lease, (iv) any accident, injury or damage whatsoever caused to any person or the property of any person on or about the Parcel 1; (v) the use, occupancy, possession or operation of Parcel and the improvements by Milestone or any of its engineers, architects, employees, contractors, consultants, and agents, or any acts or omissions of Milestone, except for claims or litigation arising through the sole gross negligence or willful misconduct of the City.
15. Insurance
6 256840.3
Milestone shall, throughout the duration of this Lease, secure and maintain insurance to cover Milestone (including its agents, representatives, and employees) in connection with Milestone's performance under this Lease. This Lease identifies the required minimum levels of insurance coverage which Milestone shall obtain; however, Milestone may carry, at its own expense, any additional insurance it deems to be necessary or prudent. Prior to the commencement of any performance under this Lease, Milestone shall furnish to City written proof of insurance (certificates and endorsements), in a form acceptable to the City. Milestone shall provide subsequent written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this Lease. Milestone shall maintain insurance that complies with the following requirements:
a. Workers' Compensation Insurance with statutory limits and employer's liability insurance with limits of not less than two million dollars ($2,000,000) per accident.
b. Milestone shall take out and maintain, at Milestone's sole expense, Commercial General Liability Insurance with coverage in the amount of $5,000,000.00 for one person and $5,000,000.00 for one accident with bodily injury or death and $5,000,000.00 for property damage. The required Commercial General Liability Insurance policy shall include coverage for any bodily injury, death, or property damage liability created by Milestone's construction of affordable housing on Parcel 1.
c. Milestone's insurance will not be canceled, limited, or allowed to expire without renewal until after 30 days advance written notice of any such cancellation, limitation or expiration has been given to the City.
d. All insurance companies providing coverage to Milestone shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California. e. All of the insurance policies required to be obtained by Milestone under this Section shall be with companies and policies whose form is satisfactory and acceptable to City. Each policy shall designate City as an additional named insured. Milestone shall provide City with certificates of insurance (hereinafter "Certificates") issued by each of the insurance companies issuing any of the policies required pursuant to this Section and said Certificates shall provide that the insurance issued thereunder shall not be altered or canceled until after 30 days written notice to City. In the event Milestone fails to take out or maintain any of the insurance required pursuant to this Section, City shall have the right to obtain said policies in form and with companies acceptable to City, and to pay any premiums due thereon. The total amount of any insurance premiums paid by City on Milestone's behalf shall be paid by Milestone to City upon demand and said amounts shall start to bear interest at the rate of ten percent (10%) per annum as of the date of City's demand for payment by Milestone.
7 256840.3
16. Assignment, Subletting, and Encumbering
City's rights to assign this Lease to a governmental agency are and shall remain unqualified. No assignment by City shall release City of any of its obligations under this Lease for any time prior to the date of assignment. Assignments by Milestone are subject to Article 6 of the Ground Lease Option Agreement and require express written approval by the City, unless exempt as a transfer to an Affiliated Party. "Affiliated Party" shall mean any entity that owns fifty-one percent (51%) or a controlling interest in Milestone, or any entity in which Milestone owns fifty-one percent (51%) or a controlling interest, or any entity sharing common ownership or control of Milestone at the time of the execution of this Lease.
17. Default
The occurrence of any of the following shall constitute a default by Milestone:
a. Failure to pay Total Rent Payment and Annual Rent when due if the failure continues for 3 days after notice has been given to Milestone. b. Abandonment and vacation of Parcel 1 (failure to occupy Parcel 1 for 30 consecutive days during the Term after completion of construction other than due to Force Majeure shall be deemed an abandonment and vacation). c. Failure to comply with perform any other provision of this Lease if the failure to perform is not cured within 30 days after notice has been given to Milestone. If the default cannot reasonably be cured within 30 days, Milestone shall not be in default of this Lease if Milestone commences to cure the default within the 30- day period and diligently and in good faith continues to cure the default. d. If Milestone shall become insolvent, make an assignment for the benefit of his or her creditors, file a voluntary bankruptcy proceeding, be subjected to an involuntary bankruptcy proceeding, or if a receiver is appointed for Milestone
18. City's Remedies.
A. In the event of any Default by Milestone, City may at any time thereafter, in its sole discretion, with or without further notice or demand and without limiting City in the exercise of a right or remedy which City may have by reason of such default or breach:
Upon 3 (three) days' prior notice, the City may terminate the tenancy under this Lease if the Milestone has failed to pay any portion of the Total Rent Payment when due:
Upon 30 days' notice, the City may terminate the tenancy under this Lease if the Milestone fails to observe, perform, and keep each and every of the covenants, agreements, stipulations, obligations, conditions, and other provisions of this Lease or Development Agreement to be observed, performed, and kept by 8 256840.3
20. Entire Agreement
This Lease constitutes the entire agreement between the parties with respect to the subject matter covered by this Lease and supersedes all prior understanding and agreements, whether written or oral, between the parties hereto relating to the same subject matter.
21. Governing Law
It is the intention of the parties to the Lease that the tenancy created by this Lease and the ertormance under this Lease, and all suits and special proceedings under this Lease, b onstrued in accordance with and governed, to the exclusion of the law of any other forum, b the laws of the State of California, without regard to the jurisdiction in which any action or special proceeding may be instituted. Milestone will be responsible to pay all costs associated with enforcement of the terms of this Lease including any legal proceedings undertaken in regard to the Lease.
22. General Provisions
A. Prevailing Party. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit.
B. No Continuing Waiver. Any waiver by the City of any failure by Milestone to perform or observe the provisions of this Lease will not operate as a waiver of the City's rights under this Lease in respect of any subsequent defaults, breaches or nonperformance and will not defeat or affect in any way the City's rights in respect of any subsequent default or breach. No right or remedy provided under this Lease is intended to be exclusive of any other right or remedy hereof provided by law or equity. Each right and each remedy shall be cumulative and in addition to every other right or remedy provided under this Lease now or hereafter existing at law, in equity or by statute.
C. Binding on Successors. This Lease will extend to and be binding upon and inure to the benefit of the respective administrators, successors and assigns, as the case may be, of each party to this Lease. All covenants are to be construed as conditions of this Lease.
D. Additional Rent. All sums other than the Total Rent Amount payable by Milestone to the City pursuant to any provision of this Lease will be deemed to be Additional Rent and will be recovered by the City as rental arrears.
E. No Discrimination. Milestone shall not discriminate against any person in relation to Milestone's performance under this Lease (including any employee or applicant) on the basis of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, or sex.
Independent Parties. Nothing in this Lease shall be interpreted as creating a partnership, joint venture, or relationship of principal and agent between City and Milestone.
Amendments in Writing. No amendment of this Lease shall be valid unless it is 10 256840,3
in writing, specifies the nature and extent of the amendment, and is signed by the Parties.
H. Captions, Headings. All captions, headings, or titles in the paragraphs or sections of this Lease are inserted for convenience of reference only and shall not constitute a part of this Lease as a limitation of the scope of the particular paragraphs or sections to which they refer.
1. Execution in Counterparts. This Lease may be executed in counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party. Any executed counterpart to this Lease may be delivered by facsimile, pdf or other electronic means, and any counterpart so delivered shall constitute an original for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written.
LANDLORD
ITY OF BARSTOW a municipal corporatic
tho Cas
By: -
Name: DR. Jim HART
Its: _ InteRin Coy Mananek
APPROVED AS TO FORM: ATTEST:
-CORPORATED
SEPT. 30, 1947
Matther?. Ruine Has
Matthew T. Summers, City Attorney Andrea Flores, City Clerk Milestone
a California limited partnership
By: _
Name:
Its: -
11 256840.3
LIST OF EXHIBITS
Exhibit A: Site Map
Exhibit B: Legal Description of Parcel 1
Exhibit C: Parcel 1 Affordable Housing Project Plans, as Approved by City and AHSC Grant 12 256840.3
EXHIBIT A
SITE MAP
13 256840.3
BHEET 1 OF 2 SHEETE
PARCEL MAP 20276
IN THE CITY OF BARSTOW, COUNTY OF SAN BERNARDINO
STATE OF CALIFORNIA, BEING A BUBDIVIBION OF LOT 7 OF
TRACT NO. 1040B AS RECORDED IN BOOK 144 OF MAPS,
PAGES 5 AND B, RECORDS OF SAID COUNTY
TRLS ENGINEERING, INC. FEBRUARY, 2021
THOMAS E. RAGEN L.8. 0206 SURVEYOR'S STATEMENT:
OWNERS STATEMENT:
WE HEREBY STATE WE ARE ALL AND THE ONLY PARTIES HAYING ANY RECORD TILE INTEREST BOARD OF SUPERMSORS CERTIFICATE:
SET IN SUCH POSITIONS BEFORE
CDMPUIANCE WITH SECTIONS 68405 AND 88495 OF
SUFFICENT TO ENABLE THE SURYEY TO BE RETRACED
DATED:
MALE
TELE HE AMOUNT OF SAID TAXES AND SPECIL ASSESSMENTS, AND SAD BOND IS HEREBY ACCEPTE DATED:
THOMAS E RAGEN
1S. 6205
NOTARY ACKNOWLEDGMENT: SITY ENGINEERS CERTIEICATE
DONT OF THE GONGINE WHO SCED TRE DOCUMENT TO MARCH TORTETE T BY: _DEPUTY
TO WICH THIS CERTIFICATE I
ATTACHED, AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT.
STATE OF CALIFORNA DATED:
COUNTY OF
PET ME
A NOTARY PUBLIC, PERSONALLY APPEARED AUDITOR-CONTROLLER/TREABURER/TAX COLLECTORS CERTIFICATE:
WHO PROVED TO ME ON THE BASES OF SANSFACTORY EVIDENCE TO BE THE PERSON(S) WHOSE CITY ENGALER NAME(S) IS/ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKHOWLEDGED TO ME THAT BRAD S. HERPELI CE. 49423
HE/SHE/THEY EXECUTED THE SAME IN HS/HER/THEIR ALTHORIZED CAPACITY(IES), AND THAT BY
HIS/HER/THEIR SCHATURE(S) DN THE INSTRUMENT THE PERSOM), OR THE DITTY UPON BEHALF OF WHICH THE PERSON(S) ACTED, DIECUTED THE INSTRUMENT.
SEEN PREP TENDER, THE LANS OF THE STATE OF CALFOBON THE THE DISEN MASON CITY SURVEYORS CERTIFICATE:
COAT OF SI BETTERSE AY COLETOR ISON OF THE SENSE ARE AND TA S LET CAL COME THE APPUCARE
MINESS BOY HAND AND OFTICHL SEAL
_DEPUTY DATED:
SCHATURE 8Y: —
NUE PROVED
LS 7982
AN COLLISION DARES. COMNISSION NO.:
AN PRANCIPAL PLACE OF BUSHESS IS IN CRAC JONKSON OTY SURVEYOR LS. 7562
SIGNATUBE OMISSION: CITY GLEAKS CERTIFCATE: BAN BERNARDINO COUNTY RECORDERS CERTIFICATE.
THE SCHATURE OF AN DEFICER THE UNITED STATES OF AMERICA HAS BEEN OMITTED UNDER THIS MAP HAS BEEN FILED UNDER DOCUMENT MUMBER THS- DAY OF -20_A5 12 IN
BOOK OF PARCE. MAPS AT PACE
A TE NO OF
JOHNE V. COUSNO, GAY CLIPK DATE
0в DUTTON
ISSESSOR -RECORDE
COUTY OF SAM BERMARDINO
ET: -
DEPUTY RECORDER
BHEET 2 OF 2 SHEETS
FD WELL MOMUMENT
PARCEL MAP 20276
N89 32'35W 1316.41 (N8952'59 131844)
411.90" (411.98') 87491 (874.46) THE CITY OF BARSTOW, COUNTY OF SAN BERNARDIN 30 ATE OF CALIFORNIA, BENG A SUBDIVISION OF LI
RACT NO. 10488 AB RECORDED IN BOOK 144 OF MAP
131.60 AGES 8 AND 6, RECORDS OF SAID COUNT
TALS ENGINEERING, INC. FEBRUARY, 2021
02220% THOMAS E. RAGEN L.8. 8205
LOT 6
SURVEYORS NOTES
TRACT MAP NO.
BEN: 1
• • INDICATES MOMUMENTS FOUND AS NOTEI
FRES MATE EN BRE WITH DRAS TAC SUPED LS 020
1. () INDICATES RECORD INFORMATION PER TRACT MAP NO. 10+91 'ARCEL B2ZH 1.8. 144/5-8
10365
MONUMENTATION NOTES
• TD I P R/ CONC PALE, ACCEPTED AS 1° IP AS SHORA ON TR 10499, PRA 141/3-8 LS 2981
(N/2100 809.82) 1° IP. RCE 7200
PER TR 10498
582.40%) M₴ 144/5-6 [E] 1O 1 P M/ MAL A TAG, ALECHELE, ACCEPTED AS S1/16 SIC 69 PER PAL 10198, PARE 144/3-8 LOT 7
LE SEVENTH AVENUE 382.25
N3S 32'35W 424 B0* FASEMENTE
NO 21'00 609.35' 268.90 157.90
LE LINES AND CONDUTS, A
AL, PI,OS.ZN)
120.00 PARCEL. 2
0.74 ACRES
LOT 5
NOS 32'357 268.90
PARCEL 4
1.06 ACRES LINE RATA. CURVE DATA
98.62° HO 21:00% 279.57 LI N782978* 59.39' (N763285 50.62) PARCEL 3
0.81 ACRES 36-151814 R=34245 L=95.01
30° 4 S-01'30"11" A-800.00' 1-30.81
- BEE DETAL A 59.57
15' BS0 -& MELOSA AVE.
(59.62
32° 39.30
So936tz 4-22-2923
-E MOUNTAN
ViEW
L-274.77
4m643637 R=700.00" L-3491 - 50530357 082
LOT 5 DETAILA
SCALE 1° - 10
EXHIBIT B
LEGAL DESCRIPTIONS OF PARCEL 1
14 256840.3
SHEET 1 OF 2 BHEETS
PARCEL MAP 20276
I THE CITY OF BARSTOW, COUNTY OF BAN BERNARDIN
TATE OF CALIFORNIA, BEING A BUBDIVISION OF LOT 7 O
RACT NO. 10498 A8 RECORDED IN BOOK 144 OF MAPI
'AGES 5 AND 6, RECORDS OF SAID COUNT
TALS ENGINEERING, ING. FEBRUARY, 2021
THOMAS E. RAGEN L.8. 6206 SURVEYORS STATEMENT:
OWNER'S STATEMENT:
WE HEREBY STATE WE ARE ALL AND THE ONLY PARTIES HAVING ANY RECORD FTLE INTEREST N IE LAND SUEDMOED AS SHOW ON THIS MAP AS REDURED BY SECTION 66445(0) OF TH ARCEL NAP MAP ACT, AND THAT WE CONSENT TO THE PREPALLTION AND RECORDATON OF TI BOARR OF SUPERMISORE CERTIFICATE:
NO FEET THE EAR STARS OF TE COME OF SAN BERLING, STATED _ HAS BEIN DECUTE CATED:
DATED: — LS 6205
YANA MONEL THOMAS E MAGEN
OF THE COUNT OF SMORES LS. 8205
NOTARY ACKNOWLEDGMENT: CITY ENGINEERS CERTIFICATE:
A NOTARY PUBC OR OTHER DICER COMPLETNG THIS CERTICATE VERSES ONLY THE Er: _DEPUTY THE INDMIDUAL WHO SICHED THE DOCUMENT ID WHICH THIS CERRIFCATE IS ALTERATIONS THERETO, AND COMPLIES WITH THE CITY OF BARSTOR LAPICIPAL 0OOE ATTACHED, AND HOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT.
STATE OF CALIFORNA DATEDE
COUNTY OF
ON. BEFORE ME
A NOTARY PUBLIC, PERSONALLY APPEARED AUDITOR-CONTROLLER/TREASURER/TAX COLLECTORS CERTIFICATE:
WHO PROVED TO ME ON THE BASES OF SATISFACTORY EVIDENCE TO BE THE PERSON(S) WHOSE CITY ENGINEER
NAME(S) IS/ARE SUBSCREED TO THE WITH INSTRUMENT AND ACKNOWLEDGED TO ME THAT
HE/SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR AUTHORIZED CAPACTY(IES), AND THAT BY
HIS/HER/THEIR SICHATURE(S) ON THE INSTRUMENT THE PERSON(S), OR THE ENTITY UPON BOWLS OF WHICH THE PERSON(S) ACTED, CUTED THE INSTRUMENT. DATED:— LOSER REN SEND NET THE AS OF ARE STATE OF CHEON THAT PARE ONSEN MASON CITY SURVEYORS CERTIEICATE:
MOTIONS OF THE SENSE A LET HE WAS THE CLEO ME THE ARICARE NATHESS A HUND AND OTTICUL SEN.
DATED: LAND
BY: _DEPUTY дано ланса
NUE PRONTED SCHATURE
IS 7522
WY COMMISION EXPIRES COMMISSION NO.
WE PRONORN PUCE OF BUSHESS IS IN. COUNTY. CRAG JOHNSON CTY SURVEYOR LS. 7562
SIGNATURE OMISSION SITY CLERKS CERTIFICATE BAN BEBNAROINO COUNTY RECORDERS CERTIFCATE.
THIS LAP HAS BEEN FRED UNDER DOCUMENT MUMBER _
THIS - _DAY OF _M. IN
BOOK _ _ OF PARCEL HAPS AT PAGE
AT THE REQUEST ON
IN THE AMOUNT OF $
JOHNE V. COUSINO, OTY CLEPE DATE SESOR RECORD
OUNTY OF SAN BERLIDN
Br: -
DEPUTY RECORDER
SHEET 2 OF & BHEETS
- FD WELL MONUMENT
SING, ON. 1.5. PE PARCEL MAP 20276
SSING, SHOT CENTE
N69 32'35W 1318.41 (N8752'59" 1316.44)
411.90 (411.98') 87451 (874.46')
30%
TRACT NO. 10498 AS RECORDED IN BOOK 144 OF MAPS
PAGES B AND 6, RECORDS OF SAID COUNTY
145.00 TRLS ENGINEERING, INC. FEBRUARY, 2021
THOMAS E. RAGEN L.8. 6206
LOT G N022'20°
SURVEYORS NOTES N
BENG: O2100W
2. • INDICATES MONUMENTS FOUND AS NOTED.
• GOES NOTED TEN SPE MITH BRASS TAG STARD LS. 820S. suer - 30 PARCEL 1 4. () INDICATES RECORD ANTONION PER TRACT MAD NO. 10420 34363 I.E. 144/3-6
3.30 ACRES
MONUMENTATION NOTES
in • FD 1° IP T/ CONC PLUG, ACCEPTED AS 1" IP AS SHOMI ON TR 10498, PMB 144/3-8 -FO 1 1P W/ NAT.
(NO 21:00 609.82') • IP. ACE • TO DO "EM TO EE US 16,508 REACTURIT OF 1° IP, IS 2881 % LEU OF 1 P.
ME 144/5-8
3 FD 1° P W/ HAL * TAO, LLECIBLE, ACCEPTED AS S1/18 SEC 645 PER PM 10498, PHE 144/5-8 LOT 7
382.25
N89'32'35W 424.80' EASEMENTS
5609 1.00,1 ZON 288.90' 157,00°
120.00° PARCEL 2 (NZ30"14°W 623.26)
0.74 ACRES
LOT 5
NOS 32'30 1 260.90
PARCEL 4
1.00 ACRES LINE DATA CURVE DATA
L1 N7428'23° 5038 (N743245° 59.82)
PARCEL 3 BOB EDE
0.B1 ACRES 021:007
30° - BEE DETAIL A
15' ast
cz (59.02)-
s0930GE 21
4-222925
-E MOUNTAN VIEW
4-222925• L-274.77
Sa4365T R=70000° LM54216 -58736'33T 0.82
LOT DETAIL.A
SCALE: 1° - 10
EXHIBIT C
PARCEL 1 AFFORDABLE HOUSING PROJECT PLANS, AS APPROVED BY CITY
AND AHSC GRANT
15 256840.3
SHEET 1 OF 2 HEETS
PARCEL MAP 20276
PAGES 5 AND 8, RECORDS OF SAID COUNTY
TRLS ENGINEERING, INC. FEBRUARY, 2021
THOMAS E RADEN L8. 6205 SURVEYORS STATEMENT:
OMINERE STATEMENT:
• Tet net
BOARD OE SUPERVISORS CERTIEICATE:
DATED
uS $30s
THOMAS E RACEN
NOTARY ACKNOWLEDGHENT:
CITY ENGINEERS CERTECATE
STATE OF CALTORN
COUNTY OF
AUDITOR-CONTROLLER/TREASUBER/TAX COLLECTORS GERTIEGATE:
CTY COMEDI
I CORE MOE RA PEN EN ME AS OF ME STATE OF CAPON AT HE INCIN MASON CITY SURVEYORS CERTIFIGATE:
N DE APPUCARLE
DATA
SADHATURE
ur COUNTSON CAPACS. CONTIN NO: LS T33
NY PRICEAL PLACE OF BUSNESS O ME
CrY SURATOR
SIGNATURE OMISSION CITY CLERKS CERTIECATE BAN BERNARDWO COUNTY, RECOBDEHE CERTIEGATE.
THIS MAP HAS BOTH FLED UNCER COMMONT MAMEON
I THE HAUNT OF 9.
DA V. COUSAND, OTY CUTE DAI? OR DUTTON
T. GURUTY RECRSON
SHEET & OF 3 CHEETS
PARCEL MAP 20276
Ha932357 191041 (NTS254 191640)
11001100) 07659° (074e6)
PAGES 5 AND 0, RECORDS OF BAID COUNTY
TALS ENGINEERING, INC. FEBRUARY, 2021
THOMAS E RAGEN L.8. 8205
LOT 6
SURVEYORS NOTES
* FISH THE EDEDLE OF SOON ME AS POR
PARCEL 1
130 CRO
MONUMENTATION NOTES
•O TO 1° • =/ COME MUG ACCEPTID AS I' PA AS BHORN ON TR 1OV9R, PUD 126/3-4 LOT 7 ] NO 1P •/ MR & TAG, LOBLE, ACCEPTED AS 81/10 SEC AS FOR PU 10H92, PAD 141/3-8 72100% 00038° (N721001 C REVENTH AVENU 499: 2549 a
EASEMENTE
TRIC COMPNEY
Lates are
LOT S
PARCEL 4
1 pe AcREs LINE DATA CURVE DATA
C1 2AEF3331 R-1500 Lo2218 (e-00r00r00" A-1500(=2336)
PARCEL 3 40151514" R-J7845' L-103B4"
R-34243]
Es S0138'11" R-800.00° L=3034)
BEE DETAL A 001201 19000L3
-26777
STREET
272729 1023877
LOT 5