Consent Calendar
City of San Bernardino
Request for Council Action
Date: March 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Alex Qishta, Interim Director of Public Works
Subject: Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 (All Wards)
Recommendation
Adopt Resolution No. 2022 -52 of the Mayor and City Council of the City of San Bernardino, California, rejecting Construction Bids for Connector Pipe Screen (CPS) & Automatic Retractable Screen (ARS) TMDL’S- Track 1.
Background
In April 2015, the State Water Resources Control Board (State Water Board) adopted an amendment to the Water Quality Control Plan for Ocean Waters of California (Ocean Plan) as well as the Water Quality C ontrol Plan for Inland Surface Waters, Enclosed Bays, and Estuaries - collectively referred to as the “Trash Amendments.” The Trash Amendments specify installation of full capture systems from screens, nets, or Hydrodynamic separators to storm drain syste ms to remove trash. The term “full capture system” is used to describe structural controls (i.e., best management practices (BMPs)) that have screen or net openings no larger than five millimeters (about 3/16 of an inch) and are sized to treat the flow rat e associated with a one-year, one-hour storm.
Full capture BMPs are designed to trap all particles five millimeters or greater.
Connector Pipe Screens (CPS) are fastened to a storm drainpipe and have removable front screens which allow access to the pipe for maintenance. The CPS installation also includes stenciling on the side of the catch basin to assist in determining when maintenance is required. Connector pipe screens are expected to be the most cost - effective full capture BMP to prevent the catch ba sin from filling up with sediment and vegetative debris to low capital costs and relatively infrequent maintenance.
In anticipation of this work, CPS TMDLS project was included in the Fiscal Year 2020/21 Capital Improvement Plan (CIP), which was adopted o n June 24, 2020, by the Mayor and City Council. The CIP established Storm Drain DIF Funding in the amount of $150,000 for Connector Pipe Screen (CPS) TMDLS (CIP SD21 -001) to install full capture devices Citywide in storm drain infrastructure to comply with State Water Code Section 13383 and total Maximum Daily Loads (TMDLs) which prohibit trash from entering storm water systems.
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Discussion
Project 13459, to install connector pipe screen, was advertised for public bidding on January 11, 2022, and January 18, 2022, in the San Bernardino County Sun Newspaper, Bid America Plan Room, E-Bid Board Plan Room, and City’s website.
Sealed bids were received and opened on February 3, 2022. The City received two bids as follows:
Bidder City Base Bid
United Storm Water, Inc. City of Industry $ 797,797.12
G2 Construction, Inc. Santa Ana $ 821,600.00
The City has reviewed the bid package and confirmed that United Storm Water, Inc. of City of Industry, California, is the lowest responsible and responsive bidder, w ith a total bid amount of $797,797.12. The lowest bid is significantly above the Engineer’s overall estimate. Staff recommends that the City rejects all bids submitted for the subject project at this time. The proposed project, although necessary, is not of an emergency nature and may be delayed without consequences.
In addition, the Public Code Section 20166 states that the Mayor and City Council has the authority to reject all bids. The specification reiterates the same authority. Staff will reevaluate the project and advertise once a strategy is reached on how to improve bid results.
2021-2025 Key Strategic Targets and Goals
This project is consistent with Key Target No.1d: Improved Operational & Financial Capacity - Minimize risk and litigation exposu re. Approval of this resolution will result in public improvements being constructed that minimize risk and litigation exposure ensuring compliance with State Water Board.
Fiscal Impact:
Available funding for this project is $235,973.05 and lowest bid rec eived was $797,797.12. There is not enough funding available to do the project. No fiscal impact to the City by this action.
Conclusion:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2022 -52, rejecting the Construction Bids for Connector Pipe Screen (CPS) & Automatic Retractable Screen (ARS) TMDL’S- Track 1.
Attachments
Attachment 1 Resolution 2022-52
Attachment 2 Bid Tabulation
Wards: All
Synopsis of Previous Council Actions: None
16 Packet Pg. 520
Resolution No. 2022-52
Resolution 2022-52
March 2, 2022
RESOLUTION NO. 2022-52
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
REJECTING CONSTRUCTION BIDS FOR THE
CONNECTOR PIPE SCREEN (CPS) & AUTOMATIC
RETRACTABLE SCREEN (ARS) TMDL’S- TRACK 1
WHEREAS, in April 2015, the State Water Resources Control Board (State Water Board) adopted an amendment to the Water Quality Control Plan for Ocean Waters of California as w ell as the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries – collectively referred to as the “Trash Amendments.”; and WHEREAS, plans and specifications were released for bid on January 5, 2022, and two bids were received.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Mayor and City Council hereby authorize and direct the City Manager to reject all bids for project entitled “Connector Pipe Screen (Cps) & Automatic Retractable Screen (Ars)TMDL’s- Track 1,” Special Pr ovisions No. 13459 pursuant to California Public Contract Code Section 20166 and San Bernardino Municipal Code Section 3.04.070(E).
SECTION 3. The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
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Attachment: Attachment 1 - Resolution 2022-52 Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 [Revision 1] (8811 : Rejecting Resolution No. 2022-52
Resolution 2022-52
March 2, 2022
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 2nd day of March 2022.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Attachment: Attachment 1 - Resolution 2022-52 Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 [Revision 1] (8811 : Rejecting Resolution No. 2022-52
Resolution 2022-52
March 2, 2022
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-52, adopted at a regular meeting held on the 2nd day of March 2022 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this 3rd day of March 2022.
Genoveva Rocha, CMC, City Clerk
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Attachment: Attachment 1 - Resolution 2022-52 Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 [Revision 1] (8811 : Rejecting BID TABULATION
FOR
CONSTRUCTION OF CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1 SPECIAL PROVISIONS NO. 13459
BID OPENING: 2:00 P.M., Feburary 03, 2022
FILE NO. 1.8772 ACCT. NO. 248‐160‐5504‐8772
Item No. Unit Estimated
Quantity Unit Price Total Unit Price Total
1 LS 1 $31,500.00 $31,500.00 $8,000.00 $8,000.00
2 LS 1 $1,000.00 $1,000.00 $76,600.00 $76,600.00
3 LS 1 $42,500.00 $42,500.00 $16,100.00 $16,100.00
4 LS 0 $0.00 $0.00 $0.00 $0.00
5 EA 1 $636.00 $636.00 $600.00 $600.00
6 EA 10 $636.00 $6,360.00 $600.00 $6,000.00
7 EA 2 $636.00 $1,272.00 $600.00 $1,200.00
8 EA 17 $636.00 $10,812.00 $600.00 $10,200.00
9 EA 10 $636.00 $6,360.00 $650.00 $6,500.00
10 EA 50 $636.00 $31,800.00 $650.00 $32,500.00
11 EA 4 $636.00 $2,544.00 $700.00 $2,800.00
Mobilization
Furnish and Install Certified Full Capture
14”‐15” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
12”‐13” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
8 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Storm Water Pollution and Prevention Plan and NPDES Compliance Catch Basin Cleaning per project plans, specifications, and Appendix Traffic Control & Safety
Furnish and Install Certified Full Capture
25”‐26” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
22”‐24” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
19”‐20” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
17”‐18” inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Apparent Low Bidder
United Storm Water, Inc.
2ND LOW BIDDER
G2 Construction Inc.
Bid Item Description
BID SCHEDULE
CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1
Special Provisions NO. 13459
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Attachment: Attachment 2 - Bid Tabulation (8811 : Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 (All Wards)) BID TABULATION
FOR
CONSTRUCTION OF CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1 SPECIAL PROVISIONS NO. 13459
Apparent Low Bidder
United Storm Water, Inc.
2ND LOW BIDDER
G2 Construction Inc.
BID SCHEDULE
CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1
Special Provisions NO. 13459
Item No. Unit Estimated
Quantity Unit Price Total Unit Price Total
12 EA 1 $636.00 $636.00 $700.00 $700.00
13 EA 18 $636.00 $11,448.00 $700.00 $12,600.00
14 EA 12 $636.00 $7,632.00 $700.00 $8,400.00
15 EA 6 $1,142.00 $6,852.00 $800.00 $4,800.00
16 EA 3 $1,142.00 $3,426.00 $900.00 $2,700.00
17 EA 27 $750.00 $20,250.00 $900.00 $24,300.00
18 EA 2 $888.88 $1,777.76 $700.00 $1,400.00
19 EA 15 $888.88 $13,333.20 $700.00 $10,500.00
20 EA 72 $1,642.88 $118,287.36 $1,400.00 $100,800.00
Bid Item Description
Furnish and Install Certified Full Capture
27 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 7ft – 10ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 3ft – 6ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 1ft ‐ 2ft per project plans, specifications, and Appendix D
Furnish and Install Certified Full Capture Irregularly Shaped Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
48 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
36 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
32 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
Furnish and Install Certified Full Capture
30 inch Connector Pipe Screen (CPS) in existing catch basin per project plans, specifications, and Appendix B
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Attachment: Attachment 2 - Bid Tabulation (8811 : Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 (All Wards)) BID TABULATION
FOR
CONSTRUCTION OF CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1 SPECIAL PROVISIONS NO. 13459
Apparent Low Bidder
United Storm Water, Inc.
2ND LOW BIDDER
G2 Construction Inc.
BID SCHEDULE
CONNECTOR PIPE SCREEN (CPS) TMDL’S – TRACK 1
Special Provisions NO. 13459
Item No. Unit Estimated
Quantity Unit Price Total Unit Price Total
21 EA 30 $2,396.88 $71,906.40 $2,450.00 $73,500.00
22 EA 46 $3,150.88 $144,940.48 $2,800.00 $128,800.00
23 EA 37 $3,904.88 $144,480.56 $4,200.00 $155,400.00
24 EA 21 $4,658.88 $97,836.48 $5,600.00 $117,600.00
25 EA 1 $6,166.88 $6,166.88 $5,600.00 $5,600.00
26 EA 1 $14,040.00 $14,040.00 $14,000.00 $14,000.00
797,797.12$ 821,600.00 $ TOTAL BID SCHEDULE
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 70 ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 30 ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 26ft –29ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 19ft –22ft per project plans, specifications, and Appendix D
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 15ft –18ft per project plans, specifications, and Appendix D
Bid Item Description
Furnish and Install Certified Automatic Retractable Screen (ARS) on Catch Basins with opening from 11ft –14ft per project plans, specifications, and Appendix D
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Attachment: Attachment 2 - Bid Tabulation (8811 : Rejecting Construction Bids for CPS & ARS TMD'S- Track 1 (All Wards))
Consent Calendar
City of San Bernardino
Request for Council Action
Date: March 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Estella Wells, Housing Compliance Specialist
Subject: Authorizing the Execution of Third Amendment to Regulatory Agreement
Recommendation
Adopt Resolution No. 2022 -53 of the Mayor and City Council of the City of San Bernardino, California:
1. Authorizing the execution of the Third Amendment to Regulatory Agreemen t and Declaration of Restrictive Covenants (“Amended Regulatory Agreement”) for Tuscany Apartments (formerly Silverwood Park Apartments) between CF Tuscany 2014, L.P. and the City of San Bernardino , extending the period of affordability for 66 units; and
2. Authorizing the City Manager or designee to execute the agreement.
Background
On May 1, 1996, the Community Development Commission authorized the issuance of $7,000,000 in multi -family housing revenue bonds (the “Bonds”) on behalf of Magellan Silverwood Partners (“Magellan”) to purchase and rehabilitate the Silverwood Park Apartments located at 2225 East Pumalo Street, San Bernardino (the “Project”). The Project consists of 328 housing units of which 66 housing units are set -aside for households whose incomes do not exceed 80% of the area median income (the “Affordable Housing Units”) pursuant to a Redevelopment Agency Regulatory Agreement executed in connection with the issuance of the loan proceeds of the Bonds.
In August 2001, Magellan sold the Proj ect to San Bernardino 328/AV XXX, LLC, an affiliate of Van Daele Communities, LLC who assumed the existing Bonds (approximately $7 million) and obtained secondary financing (approximately $4.2 million) to perform multiple improvements and repairs to the Project.
On April 21, 2003, the Community Development Commission approved the First Amendment to the Regulatory Agreement for the sale of the property from San Bernardino 328/AV XXX, LLC, an affiliate of Van Daele Communities, LLC to MG Tuscany Apartments, L.P. (“MG Tuscany”).
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Pursuant to the Regulatory Agreement in place, specifically sections 2(a), 2(b), 2(c) and 2(d) of the original Regulatory Agreement, the affordable housing restrictions at the subject apartment complex were to expire either when the B onds were paid off, or 15 years from the original date of issuance. Since the original 15 -year term lapsed several years prior, the survival of the Regulatory Agreement was conditioned upon the life of the Bond financing. Once the Bonds used to finance the project were fully paid, the requirement to maintain 66 affordable units would be eliminated and all the units at the property could be converted to market rates.
To preserve the 66 affordable units, MG Tuscany proposed to amend sections 2(a) and 2(b) as follows:
(a) Occupancy Restrictions. Occupancy Restrictions is defined and cited in Section 4 and shall commence on August 1, 2014 and shall end on the date which is 15 years from the commencement date.
(b) Rental Restrictions. The term of the Rental Restrictions as defined and cited in Section 5 shall commence and end according to the term of the Occupancy Restrictions set forth in Section 2(a).
On August 4, 2014, the Mayor and City Council acting as Successor Agency to the Redevelopment Agency appro ved a Second Amendment to the Regulatory Agreement to preserve the 66 affordable units through August 2029.
Discussion
The partnership that currently owns the property, CF Tuscany 2014, L.P., proposes a Third Amendment to the Regulatory Agreement to exten d the affordable housing restrictions on Tuscany Apartments to April 1, 2057 to preserve 66 affordable housing units.
The City, as Successor Agency to the Redevelopment Agency, is required by the Regulatory Agreement to monitor the compliance of CF Tuscan y 2014, L.P. to ensure that the 66 affordable housing units are made available to low -income tenants at affordable rents.
The owners are requesting the extension of the affordable housing restrictions in connection with the refinancing of Tuscany Apartmen ts. Currently, the affordable housing restrictions on Tuscany Apartments are scheduled to expire on August 1, 2029.
The proposed Third Amendment to Regulatory Agreement would allow the Project - owning partnership to extend the affordable housing restriction s to April 1, 2057 (an additional 28 years of affordable housing at Tuscany Apartments). This extension of affordability is financially feasible because of refinancing through a loan insured by HUD. In insuring the loan to be used for this refinancing, HUD requires the Third Amendment and HUD Rider to be executed by the City.
Fiscal Impact
There is no fiscal impact to the City’s General Fund associated with this action. 17 Packet Pg. 528
8826
2021-2025 Strategic Targets and Goals
Adoption of the attached resolution aligns with Key Strategic Target No. 3: Improved Quality of Life . Extending the affordability of the project prolongs affordable housing within the City.
Conclusion
Adopt Resolution No. 2022 -53 of the Mayor and City Council of the City of San Bernardino, California:
1. Authorizing the execution of the Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants (“Amended Regulatory Agreement”) for Tuscany Apartments (formerly Silverwood Park Apartments) between CF Tuscany 2014, L.P. and the Ci ty of San Bernardino , extending the period of affordability for 66 units; and
2. Authorizing the City Manager or designee to execute the agreement.
Attachments
Attachment 1 Resolution No. 2022-53
Attachment 2 Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants
Ward: 4
Synopsis of Previous Council Actions:
May 1, 1996 Community Development Commission authorized the issuance of $7,000,000 in multi-family housing revenue bonds (the “Bonds”) on behalf of Magellan Silverwood Partners (“Magellan”).
April 21, 2003 Community Development Commission approved the First Amendment to the Regulatory Agreement.
August 4, 2014 Mayor and City Council acting as Successor Agency to the Redevelopment Agency approved a Second Amendment to t he Regulatory Agreement to preserve the 66 affordable units through August 2029.
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Resolution No. 2022-53
Resolution 2022-53
March 2, 2022
RESOLUTION NO. 2022-53
RESOLUTION OF THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, AUTHORIZING THE EXECUTION OF THE
THIRD AMENDMENT TO THE REGULATORY
AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (“AMENDED REGULATORY
AGREEMENT”) FOR TUSCANY APARTMENTS
(FORMERLY SILVERWOOD APARTMENTS) BETWEEN
CF TUSCANY 2014, L.P. AND THE CITY OF SAN
BERNARDINO, EXTENDING THE PERIOD OF
AFFORDABILITY FOR 66 UNITS; AND AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO EXECUTE THE
AGREEMENT
WHEREAS, the Issuer and U.S. B ank National Associates, successor by merger to U.S.
Bank Trust National Association formerly known as First Trust of California, National Association (the “Trustee”) entered into certain Indenture of Trust dated as of May 1, 1996 (the Indenture”), in connection with the issuance of the Issuer’s $7,000,000 Variable Rate Demand Multifamily Revenue Bonds (Silverwood Apartments Project) Series 1996 (the “Bonds”); and WHEREAS, the Issuer loaned the proceeds of the Bonds to Magellan Silverwood Partnership, an Arizona general partnership (the "Origin al Borrower), pursuant to the original Loan Agreement, dated as of May 1, 1996 , (“the “Loan Agreement”) among the Issuer, the Trustee, and the Original Borrower; and
WHEREAS, proceeds of the Bond s were used, in part, to construct and pay other costs associated with the construction and development of a multi -family residential renta l housing project originally known as Silverwood Apartments and now known as Tuscany Apartments (the “Project”) located in San Bernardino, California; and
WHEREAS, the Issuer, Original Borrower , and Trustee entered into that certain Regulatory Agreement an d Declaration of Restrictive Covenants (the “Regulatory Agreement”) which was recorded against the Project in the records of the office of the San Bernardino County Recorder as Instrument Number 1996-251735 as a requirement to the issuance of the Bonds; and WHEREAS, the Project was sold to San Bernardino 328/AF XXX, LLC, a California limited liability company in 2001, and San Bernardino 328/AF XXX, LLC caused the delivery to the Trustee of a letter of credit providing credit support for the Bonds issued by Wells Fargo Bank, National Association, to replace the existing letter of credit issued by Bank One, Arizona, NA; and
WHEREAS, to preserve 66 affordable housing units, Owner requested to amend the Regulatory Agreement in place to allow for extension of the affordability covenants; and the
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Attachment: Attachment 1 - Resolution No. 2022-53 Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants for Resolution No. 2022-53
Resolution 2022-53
March 2, 2022
Issuer, the Borrower , and Trustee entered into that certain First Amendment to the Regulatory Agreement and Declaration of Restrictive Covenants (the “Regulatory Agreement”) which was recorded against the Project in the re cords of the office of the San Bernardino County Recorder as Instrument Number 2003-02689378 as a requirement to the issuance of the Bonds; and WHEREAS, the Project was acquired by Tuscany Holdings LLC, a California limited liability company, 2006; and
WHEREAS, the Project was acquired by CF Aventerra, L.P ., a California limited partnership (“Owner”) in 2007; and
WHEREAS, Owner transferred the Project to CF Tuscany 2014, LP, which is permitted under Section 7 of the Regulatory Agreement without an assignment and assumption agreement by virtue of the fact that CF Tuscany 2014, LP had 100% identical ownership as Owner, and the Issuer, the Borrower, and Trustee entered into that certain Second Amendment to the Regulatory Agreement and Declaration of Re strictive Covenants (the “Regulatory Agreement”) to preserve 66 affordable housing units, to allow for extension of the affordability covenants which was recorded against the Project in the records of the office of the San Bernardino County Recorder as Instrument Number 2014-0360059 as a requirement to the issuance of the Bonds; and WHEREAS, the affordable housing restrictions on Tuscany Apartments are set to expire on August 1, 2029; and
WHEREAS, the current property-owning partnership, CF Tuscany 2014, L. P., proposes a third amendment to the Regulatory Agreement , proposing to extend the affordable housing restrictions on Tuscany Apartments for the benefit of the City to April 1, 2057 to preserve 66 affordable housing units.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The City Manager is hereby authorized to execute the Third Amendment to the Regulatory Agreement in place at 2225 Pumalo St . (Tuscany Apartments), attached hereto as Exhibit “A” and incorporated herein.
SECTION 3. The Resolution shall take effect from and after this date of adoption by the Mayor and Common Council.
SECTION 4. The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility
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Attachment: Attachment 1 - Resolution No. 2022-53 Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants for Resolution No. 2022-53
Resolution 2022-53
March 2, 2022
that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 2nd day of March 2022.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Attachment: Attachment 1 - Resolution No. 2022-53 Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants for Resolution No. 2022-53
Resolution 2022-53
March 2, 2022
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that th e attached is a true copy of Resolution No. 2022-53, adopted at a regular meeting held on the 2nd day of March 2022 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this 3rd day of March 2022.
Genoveva Rocha, CMC, City Clerk
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Attachment: Attachment 1 - Resolution No. 2022-53 Third Amendment to Regulatory Agreement and Declaration of Restrictive Covenants for 051022\14232638v6
#14232638v6<CCNDMS> - CF
Tuscany Apts. - Amendment of
Regulatory Agreement
Free recording requested in accordance )
with CA Gov. Code § 27383 )
)
RECORDED AT THE REQUEST OF )
AND WHEN RECORDED MAIL TO: )
)
City of San Bernardino )
290 North D Street )
San Bernardino, CA 92401 )
Attn: Housing Division Manager )
______________________________________________________________________________ APNs: 0285-175-15-0-000 and 0285-175-16-0-000 (Space above for Recorder’s Use)
THIRD AMENDMENT TO REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
THIS THIRD AMENDMENT TO REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS (this “Amendment”) is made and entered into as of this ___ day of ___________, 20 22, by and between CF TUSCANY 2014, L.P. , a California limited partnership (“Owner”), and the CITY OF SAN BERNARDINO , a California municipal corporation (the “City”).
RECITALS
A. The Redevelopment Agency of t he City of San Bernardino, Cali fornia, as predecessor in interest to City (the “Issuer”), and U.S. B ank National Association, successor by merger to U.S. Bank Trust National Association formerly known as First Trust of Cali fornia, National Association (the "Trustee") entered into that certain Indenture of Trust, dated as of May 1, 1996 (the " Indenture"), in connection with the issuance of the Issuer's $7,000,000 Variable Rate Demand Multifamily Housing Revenue Bonds (Silverw ood Apartments Project) Series 1996 (the "Bonds").
B. The Issuer loaned the proceeds o f the Bonds to Magellan Silverwood Partnership, an Arizona General Partnership (the " Original Borrower "), pursuant to the original Loan Agreement, dated as of May 1, 1996, among the Issuer, the Trustee and the Original Borrower.
C. The proceeds of the Bonds were used, in part, to construct and pay other co sts associated with the construction and development of a 66-unit multi-family residential rental housing project originall y known as Silverwood Apartments and now known as Tuscany Apartments (the " Project") located in San Bernardino, California, and more particularly described in the legal description attached hereto as Exhibit A.
D. In connection with the loan of the proceeds of the B onds to the Original Borrower, Issuer, Trustee, and Original Borrower entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1, 1996 and recorded i n the Official
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Records of the County of San Bernardino, California (the “Official Records”) on May 20, 1996 as Document No. 19960177770, re-recorded to correct typographical er rors on July 16 , 1996 as Document No. 19960251735, as amended by that certain First Amendment to Regulatory Agreement and Declaratio n of Restrict ive Covenants dated as of May 1, 2003 and recorded in the Official Records on May 1, 2003 as D ocument No. 2003-0289378, as further amended by that certain Amendment No. 2 to the Regulatory Agreement for the Tuscany Apartments Located at 2225 P umalo Street dated as of July 21, 20 14 and recorded in the Official Records on September 29, 2014 as Document No. 2014-0360059 (collectively, as amended, the “Regulatory Agreement”).
E. Owner is refinancing the Project with a mortgage loan (the “FHA Loan”) in the amount of $43,440,000.00 from Dwight Capital LLC, a Delaware limited liability company (“Lender”), f or th e b enefit of the Project, to be secured by a Multifamily Deed of Trust, Assignment of Lease s and Rent s and Security Agreement, which FHA Loan is insured by the U.S. Department of Ho using and Urban Development ( “HUD”) pursuant to Section 207, pursuant to Section 223(f) of the National Housing Act, as amended.
F. As a condition of insuring the FHA Loan , HUD requires t hat the Regulatory Agreement be amended to include certain restrictions recorded against the Project.
G. In order to preserve the affordabili ty of the Project, Owner has request ed to amend the Regulatory Agreement to extend the afforda bility covenants and the City has agreed to the amendment.
AGREEMENT
NOW, THEREFORE , for g ood a nd valuable c onsideration, the sufficiency of which is hereby acknowledged, the Owner and the City agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Amendment have the meanings set forth in the Regulatory Agreement.
2. Term of Restrictions and Agreement; Sections 2(a) and 2(b). Section s 2(a) and 2(b) of the Regulatory Agreement are hereby deleted in their entirety and replaced with the following language:
(a) Occupancy Restrictions. Occupancy Restrictions as defined and cited in Section 4 shall end on April 1, 2057.
(b) Rental Restrictions. The term of the Rental Restrictions as defined and cited in Section 5 shall commence and end according to the term of the Occupancy Restrictions set forth in Section 2(a).
3. HUD R ider. The “HUD Ri der to Rest rictive Covenants” attached hereto as Exhibit B is hereby added to the Regulatory Agreement and incorporated therein by this reference.
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4. Miscellaneous.
a) Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of California.
b) Ratification. The parties hereto adopt and ratify by reference all of the remaining terms and conditions of the Regulatory Agreement as if said Regulatory Agreement were s et forth herein in full; provided , however, that in the event of any conflict between the Regulatory Agreement and this Amendment, this Amendment shall govern and control.
c) Execution in Counterparts. This Amendment may be simultaneously executed in several counterparts, each of which sha ll be an original and all of which shall constitute one and the same instrument.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on the date first written above.
CITY:
CITY OF SAN BERNARDINO
By: __________________________
Name: __________________________
Title: __________________________
APPROVED AS TO FORM:
By: __________________________
Name: __________________________
Title: __________________________
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#14232638v6<CCNDMS> - CF
Tuscany Apts. - Amendment of
Regulatory Agreement
OWNER:
CF TUSCANY 2014, L.P.,
a California limited partnership
By: AOF/Pacific Aventerra, LLC,
a Delaware limited liability company,
its Managing General Partner
By: AOF/Pacific Affordable Housing Corp.,
a California nonprofit public benefit corporation,
its Manager
By: ________________________
Name: ________________________
Its: ________________________
By: Aventerra Management, LLC,
a Delaware limited liability company,
its Co-General Partner
By: ________________________
Naty Saidoff, Manager
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ACKNOWLEDGEMENT
State of _________________ )
County of ________________)
On _____________, 202 _, before me, __ ____________________ [insert nam e and title of officer), personal appeared____________________________, who proved to me on the basis of satisfactory evidence to be th e p erson(s) whose name(s) is/are subscribed t o the within instrument and acknowledged to me that he/s he/they e xecuted the same in his/her/their authorities capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penal ty of perjur y under t he laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________ [NOTARY SEAL] A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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ACKNOWLEDGEMENT
State of _________________ )
County of ________________)
On _____________, 202 _, before me, ___________ ___________ [insert name and title of officer), personal appeared____________________________, who proved to me on the basis of satisfactory eviden ce to be the person(s) whose nam e(s) is/are subscribe d to the wi thin instrument and acknowledged to me that h e/she/they executed the same in his/her/their authorities capacity(ies), and that by his/h er/their signature(s) on the instrument the p erson(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of per jury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________ [NOTARY SEAL] A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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ACKNOWLEDGEMENT
State of _________________ )
County of ________________)
On _____________, 202 _, before me, ______________ ________ [insert na me and title of officer), personal appeared____________________________, who proved to me on the basis of satisfactory ev idence to be the person(s) whose name(s) is/a re su bscribed to the within instrument and acknowledged to me that he/s he/they executed th e s ame in his/her/their authorities capacity(ies), and that by his/her/their signature(s) on the instrument th e person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjur y under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature__________________________________ [NOTARY SEAL]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The land referred to herein below is situated in the City of San Bernardino, County of San Bernardino, State of California, and is described as follows:
PARCELS 1 AND 2 OF PARCEL MAP NO. 8414, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 95 OF PARCEL MAPS, PAGE(S) 68 AND 69, RECORDS OF SAID COUNTY.
For conveyancing purposes only: APN: 0285-175-15-0-000 (Affects: Parcel 1); and APN: 0285- 175-16-0-000 (Affects: Parcel 2)
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#14232638v6<CCNDMS> - CF
Tuscany Apts. - Amendment of
Regulatory Agreement
EXHIBIT B
HUD RIDER TO RESTRICTIVE COVENANTS
(See attached)
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HUD Rider To Restrictive Covenants
This RIDER TO RES TRICTIVE COVENANTS is made as of February 1 , 20 22, by CF TUSCANY 2014 , L.P., a California limited partnership (“Borrower”), and CITY OF SAN BERNARDINO, a California municipal corporation (“Agency”).
WHEREAS, Borrower has obtained financing from Dwight Capital LLC, a Delaware limited liabili ty company (“Lender”) for the benefit of the proje ct known as Tuscany Apartments (“Project”), which loan is secured b y a Multifamily Deed of Trust, Assignment of L eases and Rents and Secu rity Agreement (“Security Instrument”) dated as of February 1 , 2022 and recorded in the Official Records of the County of San Bernardino, (“Official Records”) concurrently with the Amendment to which this Rider is attached, and is insured by the United States Department of Housing and Urban Development (“HUD”);
WHEREAS, Bor rower’s predecessor -in-interest received tax-exempt bon d financing from the Agency, and Agency required certain restrictions be recorded against the Project in connection with such tax-exempt bond financing; and WHEREAS, Borrower ’s predecessor -in-interest entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1, 1996 and record ed in the Official Records on May 20 , 1996 as Document N umber 19960177770, re-recorded to correct typographical er rors on July 16 , 1996 as Document Number 19960251735, as amende d by that ce rtain First Amendment to Regulat ory Agreement and Declaration of Re strictive Covenants dated as of May 1, 2003 and recorded in the Off icial Records on May 1, 2003 as D ocument Number 2003-0289378, and as further amended by that certain Amendment No. 2 to the Regulatory Ag reement for the Tuscany Apartments Located at 2225 Pumalo Street dated as of July 21, 2014 and recorded in the Official Record s on September 2 9, 2014 as Do cument Number 2014- 0360059 (collectively, as a mended, the “Restrictive Covenants ”) wit h respect to the Project; and
WHEREAS, HUD requires as a condition of its insuring Lender’s financing to the Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien, covenants, and enforcement of the Security Instrument; and WHEREAS, the Ag ency has a greed to subordinate the Restrictive Covenants to the lien of the Mortgage Loan in accordance with the terms of this Rider.
NOW, THEREFORE, in consideration of the fore going and for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the Restrictive Covenants and any provision c ontained in this Rider, the provision contained in this Rider shall govern and be controlling in all respects as set forth more fully herein. (b) The following terms shall have the following definitions:
“Code” means the Internal Revenue Code of 1986, as amended.
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“HUD” means the United States Department of Housing and Urban Development. “HUD Regulatory Agreement” means the Regulatory Agreement between Borrow er and HUD with respect to the Project, as the same may be supplemented, amended or modified from time to time.
“Lender” means Dwight Capital LLC, a Delaware limited liability company , it s successors and assigns.
“Mortgage Loan” means the mortgage loan made by Lender to the Borrower pursuant to the Mortgage Loan Documents with respect to the Project. “Mortgage Loan Documents ” means the Security Instrument, the HUD Regulatory Agreement and all other documents required by HUD o r Lender in connectio n with the Mortgage Loan.
“National Housing Act ” means the National Housing Act, 12 USC § 1701 et seq., as amended.
“Program Obligations” has the meaning set forth in the Security Instrument. “Residual Receipts” has the meaning specified in the HUD Regulatory Agreement. “Security Instrument ” means the mortgage or deed of trust from Borrower in favor of Lender, as the same may be supplemented, amended or modified. “Surplus Cash” has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Restrictive Covenants to the contrary, the provisions hereof are expressly subordinate to (i) the Mortgage Loan Documents, including without limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan Documents and Program Obligations are collectively referred to herein as the “HUD Requirements”).
Borrower covenants that it will not take or permit any action that would result in a violation of the Code, HUD Re quirements or Restrictive Covenants. In the event of any conflict between the provisions of the Restrictive Covenants and the provisions of the HUD Requirements, HUD shall be and remains entitled to enforce the HUD Requiremen ts.
Notwithstanding the foregoing, nothing herein limits the A gency’s ability to enforce the terms of the Restrictive Covenants, provided such term s do not conflict with statutory provisions of the National Housing Act or the regulations related thereto. T he Borrower represents and warrants that to the best of Borrower’s knowledge the Restrictive Covenants impose no terms or requirements that conflict with the National Housing Act and related regulations.
(d) In the event of foreclosure (or deed in lieu of foreclosure), the Restrictive Cov enants (including without limitation, any and all land use covenants and/or restrictions contained herein) shall automatically terminate.
(e) Borrower and the Agency acknowledge that Borrower ’s failure to comply with the covenants provided in the Restrictive Covenants does not and will not serve as a basis for
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default under the HUD Requirements, unless a separate default also arises under the HUD Requirements.
(f) Except for the Agency ’s reporting requirement, in enforcin g t he Restrictive Covenants the Agency will not file any claim against the Project, the Mortgage Loan proceeds, any reserve or deposit required by HUD in connection with the Security Instrument or HUD Regulatory Agreement, or the rents or other income from the property other than a claim against:
(i) Available surplus cash, if the Borrower is a for-profit entity; (ii) Available distributions of surplus cash and residual receipts authorized for release by HUD, if the Borrower is a limited distribution entity; (iii) Available residual receip ts authorized for rele ase by HUD, if the Borrower is a non-profit entity; or
(iv) A HUD-approved collateral assignment of any HAP contract.
(g) For so long as the Mortgage Loan is outstanding, Borrower and Agency shall not further amend the Restrictive Covenants, with the exce ption of cle rical errors or administrative correction of non-substantive matters, without HUD’s prior written consent. (h) Subject to the HUD Regulatory Agreement, the Agency may require the Borrowe r to indemnify and hold the Agency h armless from all loss, cost, damage and expense arising from any claim or procee ding instituted against Agency relating to the subordination and covenants set forth in the Restrictive Covenants, provided, however, that B orrower’s obligation to indemnify and hold the Agency harmless shall be limited to available surplus cash and/or residual receipts of the Borrower.
(i) No action shall be taken in accordance with the rights granted herein to preserve the tax exemption of the interest on the notes or bonds, o r prohibiting the owner from taking any action that might je opardize the tax -exemption, except in strict accord with Program Obligations.
The statements and representations contained in this rider and all supporting docu mentation thereto are true, accurate , and complete. This c ertification has been made, presented , and delivered for the purpose of influencing an official action of HUD in insuring a multifamily loan, and may be relied upon by HUD as a true statement of the facts contained therein.
Warning: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecut ed and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to, 18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802, 24 C.F.R. Parts 25, 28 and 30, and 2 C.F.R. Parts 180 and 2424.
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Request for Future Meeting
City of San Bernardino
Date: March 2, 2022
To: Honorable Mayor and City Council Members
From: Ben Reynoso, Council Member, Ward 5
Subject: Reconsider the Removal of the Oxbow Cement Pile (Ward 5) (Council Member Reynoso)
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