Item 10 - Levy Affiliated Holdings LLC - Amended DBA for two Senior Housing Projects

Agenda Item No.

CITY OF YUCAIPA

AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado Director of Development Services/City Engineer P tY g
Benjamin Matlock, Deputy Director of Community Development/City Plann%l Christian Farmer, Assistant PlannerCf
FOR: City Council Meeting of May 13, 2024
SUBJECT: Levy Affiliated Holdings, LLC. (Case No. 24-042/DBA): An amended Density Bonus Agreement for the development of two (2) associated senior housing projects, which total 62 total units across two sites.

RECOMMENDATION:

That the City Council authorize the City Manager to execute the attached amended Density Bonus Agreement (DBA) for the associated Levy Senior Housing Project (Case No. 21-084 and 094) which will set forth the reporting requirements and covenants that are necessary to ensure that the target senior units remain consistent with the original density bonus request associated with the approved entitlements.

BACKGROUND/DISCUSSION:

Division 3, Chapter 1, Article 7 of the City's Development Code contains provisions for processing density bonus projects, which are designed to provide incentives for the production of housing for very low-income, low-income, moderate -income, and senior households in accordance with State Law, by allowing additional units to offset the costs of providing affordable housing. Pursuant to the City's Development Code, a 100% increase in density is permitted for senior housing projects; however, before the Project is constructed, a formal Density Bonus Agreement (DBA) is required to be approved by the City Council.

At the regular Planning Commission Meeting of March 2, 2022, the Planning Commission approved Case No. 21-084 and Case No. 21-094. This included a Conditional Use Permit with Architectural Review and Density Bonus Agreement to permit the Senior Housing Projects, as well as Land Use Compliance Reviews for the entry monument signs with a Minor Variance for encroachments into the building setback. As noted in the staff reports and Conditions of Approval for the approved entitlements, the applicant is required to record and execute DBAs for Case No. 21-084/CUP/DBA & Case No. 21-094/CUP/DBA concurrently. Density Bonus Agreements for the project were previously recorded; however, the applicant has proposed an amendment following concerns from their lender about the language that was included in the previous documents. The contents of the amended DBAs remain substantively the same, but provide updated language to resolve the lender's concern and has been reviewed by the City Attorney.

The DBAs include provisions to ensure that the Project qualifies as a Senior Housing Project consistent with state law, that the site -specific developments comply with age restrictions, and that they additionally both provide the appropriate multi -family site amenities and individual unit amenities pursuant to Section 88.0215 and Section 88.0210 of the City's Development Code across the two (2) affiliated sites. It should be noted that this process is a procedural action to meet the previously approved project's conditions of approval now prior to the issuance of building permits for construction.

Attachments:

1. Amended Density Bonus Agreement (DBA) 21-084

2. Amended Density Bonus Agreement (DBA) 21-094
Approved
<'�---�'__----------

ATTACHMENT

RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:

City of Yucaipa
34272 Yucaipa Blvd.

Yucaipa, CA 92399
Attn: City Clerk
With a copy to:

Shaoul Levy
201 Wilshire Boulevard, 2nd Floor
Santa Monica, CA 9040
APNs: 0319-121-24

SPACE ABOVE THIS LINE FOR RECORDER'S
USE
Exempt from Recording Fees Pursuant to Government Code Section 27383

DENSITY BONUS AGREEMENT
(SENIOR HOUSING; RENTAL PROJECT)
THIS DENSITY BONUS AGREEMENT ("Agreement") is dated as of May 13, 2024, and is entered into by and between E Street Yucaipa QOZB LLC, a California limited liability company (the "Developer"), and the CITY OF YUCAIPA, a California municipal corporation (the "City").

RECITALS
A. California Government Code Section 65915(b)(1)(C) provides that a city shall give a density bonus as described in Government Code Section 65915(f), upon application by a developer if the developer agrees to construct a senior citizen housing development, as defined in Section 51.3 of the California Civil Code, and that all cities shall adopt an ordinance that specifies how Section 65915 will be implemented.

B. The City has implemented California Government Code Section 65915(b)(1) and (f) by enacting Yucaipa Development Code Sections 83.010705 et seq. (in Division 3, Chapter 1, Article 7 of the Development Code), which, subject to certain limitations, contemplates a density bonus to encourage development of senior housing.

C. Developer has requested City to consider the approval of a density bonus agreement which will grant such a density bonus for Developer's development of the real property in the City described on Exhibit "A" ("Site").

D. The Developer proposes to construct a sixty-two (62) unit rental Senior Citizen Housing Development across two (2) project sites approved as Case No. 21-084/CUP/DBA for a Conditional Use Permit and Density Bonus Agreement for the development of a thirty (30) unit age -restricted project for individuals who are 55 years or older located at APN: 0319-121-24 and Case No. 21-094/CUP/DBA for a Conditional Use Permit and Density Bonus Agreement for the development of a thirty-two (32) unit, age - restricted housing project for individuals who are 55 years or older located at APN: 0319-012-40 (collectively, the "Project").

AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:

Definitions. In this Agreement, the following terms shall have the following meaning:
a. "City" is the City of Yucaipa, California.
b. "Project" is the development described in Recital D above.

C. "Qualified Occupant" shall mean households consisting of a person who is fifty- five (55) years of age or older and any qualified permanent residents under the applicable provisions of California Civil Code Section 51.3 and the federal Fair Housing Act (except to the extent the Project utilizes federal funds whose programs have more stringent definitions for senior projects, in which case those definitions will apply).

2. Binding Effect of Agreement. The Developer hereby subjects the Site and development thereon to the covenants, reservations and restrictions as set forth in this Agreement in perpetuity. The City and the Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall encumber and "run with" the Site and be binding upon the Developer's successors and assigns and successor to any interest in the Project.

Each and every contract, deed or other instrument hereinafter executed, covering or conveying the development or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

3. Restrictions on Units; Qualified Occupant. Sixty-two (62) of the units in the Project (each, a "Senior Unit", and, collectively, the "Senior Units") shall be rented to and occupied by households which include at least one Qualified Occupant.

4. Term. The term of this Agreement shall continue until the later of. (i) the date that is 55 years after the first rental of a unit to a Qualified Occupant; or (ii) the date on which construction commences, in accordance with applicable law and permits, on a project that is not a senior rental housing project after the demolition or destruction of the Project.

5. No Conversion. During the term hereof, all residential units in the Project shall remain rental units. During the term hereof, no apartment unit in the Project shall be eligible for conversion from rental units to condominiums, townhomes or any other common interest subdivision without consent of the City Council.

6. On -site Manager. [INTENTIONALLY OMITTED]

7. Submission of Materials and Annual Review. Prior to occupancy of a Senior Unit, Developer shall submit to City its occupant selection procedures which shall detail the methods which Developer shall use to advertise the availability of Senior Units in the Project and screening mechanisms which Developer intends to use to limit the occupancy of the Senior Units to Qualified Occupants.

On or before [October 24] of each year following the first leasing of any Senior Unit, the Developer, or its representative, shall file a certificate of continuing program compliance with the City. Each such report shall contain such information as City may require including, but not limited to, the following:
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a. A project occupancy profile;
b. A description of the physical condition and maintenance procedures for the Project, including apartment units, landscaping, walkways and recreational areas.

C. The number of persons per unit;
d. Qualified Occupant name and address (unit);
e. Initial occupancy date;
f. Copies of all documents used by Developer to certify the occupant household as a Qualified Occupant.
g. Copies of the leases (rent may be redacted).

City shall be allowed to conduct physical inspections of the Project as it shall deem necessary, provided that said inspections do not unreasonably interfere with the normal operations of the Project and reasonable notice is provided. City shall repair any damage and shall defend, indemnify and hold Developer harmless from and against any claims, liabilities, damages, costs, or expenses incurred by Developer and caused by City's inspections and investigations.

Development Incentive(s). Pursuant to Government Code Section 65915(b)(1) and (f) and Yucaipa Municipal Code Section 83.010715(b)(4), the City grants Developer the following incentives for development of the Project: A 100% Density Bonus to allow a Project that provides 14.69 du/ac subject to the following:
a. Operation of the 30-unit age -restricted housing project (Case No. 21- 084/CUP/DBA) site located at APN: 0319-121-24, shall be contingent on occupancy and operation of the affiliated 32-unit age -restricted housing project (Case No. 21-094/CUP/DBA) site located at APN: 0319- 012-40;
b. Project entitlements for Case Nos. 21-084/CUP/DBA shall expire on March 15, 2025, but may qualify for a maximum of one (1) extension of time for a period not to exceed three (3) years; C. By March 15, 2028, should the Project entitled in Case No. 21-084 be out of compliance with State Law requirements for a Senior Citizen Housing Development, the development of the portion of the Project entitled in Case No. 21-084, in its then existing condition, shall be discontinued, operation of the sites shall cease, and a new entitlement application shall be submitted for a rental Senior Citizen Housing Development consistent with Density Bonus Procedures.

9. Project Design Amenities for Senior Citizens. The Project open space, buildings and individual units shall be designed with physical amenities catering to the needs and desires of the senior citizen residents. The following physical amenities shall be included in the Project:
bedrooms;
a. Senior Unit sizes shall be a minimum of 900 square feet and provide two (2) -3-

b. All common access areas in the Project such as entryways, walkways, and hallways shall be wide enough to accommodate wheelchairs; C. The Project shall meet all applicable current requirements for access and design imposed by law as administered by the City building and safety department, including, but not limited to, the Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.), and the regulations promulgated at Title 24 of the California Code of Regulations that relate to access for persons with disabilities or handicaps;
d. The Project shall be designed and constructed to encourage social contact by providing sidewalks to connect the units to the proposed landscaped amenities. Common open space area will also be provided by a recreation area with a barbeque island and shade structures. e. The Project provides a Major Variance to permit a 43 percent reduction in the required parking, resulting in 34 spaces in lieu of 60 spaces, and a Minor Variance for the reduction of the rear yard setback along the southern property line to permit a setback of 14 feet in lieu of 15 feet. f. The portion of the Project entitled in Case No. 21-084 shall be completed and available for occupancy (i.e., a certificate of occupancy shall have been issued) by March 15, 2025 (subject to delays beyond the control of Developer). However, the City Manager may extend such deadline, provided the extensions(s) are in writing.

Indemnification. Developer shall defend, indemnify and hold City and its elected officials, officers, agents and employees harmless from claims, liabilities, losses, damages and costs and expenses arising from or relating to: (i) personal injuries, including death, and property damage which may arise from the activities of Developer or those of its contractor, subcontractor, agent, employee or other person acting on its behalf which relate to the Project; and (ii) any fair housing claims. Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the sole negligence or sole willful misconduct of the City.

10. Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions:
a. If a warranty, representation or statement made or furnished by Developer to City and is inaccurate in any material respect when it was made; b. A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in Section 14 below.

11. Enforcement. In the event of a default under the provisions of this Agreement by the owner of one of the two sites identified in Recital D above is not corrected within thirty (30) days after such notice is given, then City may, without further notice, declare a default as to that site alone under this Agreement and City may then enforce against that site alone as any normal violation of the standards and provisions of the Yucaipa Development Code, or Yucaipa Municipal Code, applicable to this Agreement. A default against one of the two sites shall have no effect on the rights and obligations under this Agreement of the owner of the other site not in default. However, notwithstanding the foregoing, City may at any time apply to any court, state or federal, for injunctive relief against any violation by the owner of the site in default of any provision of this Agreement. All other remedies at law or equity which are not otherwise provided for in this Agreement are available to the parties in the event that there is a breach of this Agreement. 0 12. Developer Representation Re: Priority. Developer represents and warrants that this Agreement, when recorded, is senior and prior to all deeds of trust and other liens, except for liens for property taxes and assessments not yet due.

13. No Waiver of Remedies. City does not waive any claim of defect in performance by Developer if upon periodic review City does not enforce or terminate this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

14. Rights of Lenders. Should Developer place or cause to be placed any encumbrance or lien on the Project, or any part thereof, subordinate to this Agreement, the beneficiary ("Lender") of said encumbrance or lien, including, but not limited to, deeds of trust, shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to:
a. Do any act or thing required of Developer under this Agreement, and any such act or thing done or performed by Lender shall be as effective as if done by Developer itself, b. Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien;
C. Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and
d. Acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed.

None of b., c. or d. shall, however, affect the continuing validity of this Agreement.

15. Notice to Lender. If Developer shall have provided City in writing with the name of the Lender and a copy of its recorded deed of trust showing its address for notices, then City shall give written notice of any default or breach under this Agreement by Developer to such Lender and if the default can be cured by the payment of money, City shall give Lender the opportunity after service of the notice to cure the breach or default within sixty (60) days after delivery of said notice.

16. Notices. Any notice required to be given by the terms of this Agreement by either party to the other shall be provided by certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto in a notice given pursuant to this Section.

Developer: Shaoul Levy Cam: City of Yucaipa
201 Wilshire Boulevard, 2" d Floor 34272 Yucaipa Blvd.

Santa Monica, CA 90401 Yucaipa, CA 92399
Attn: Benjamin Matlock

17. Attorneys' Fees. In any proceedings arising from the enforcement of this Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs 962

and its reasonable attorneys' fees incurred during the proceeding as may be fixed within the discretion of the court.

18. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California.

19. Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

20. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder of the County of San Bernardino prior to the issuance of any building permit(s) for the Project.

21. Time of Essence. Time is of the essence of every provision hereof in which time is a factor.

IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth herein.

MVELOPER_
E Street Yucaipa QOZB LLC,
a California limited liability company
I�
Name: Shaoul Levy
Title: Manager
CITY:

CITY OF YUCAIPA,
a municipal corporation
Chris Mann, City Manager
ATTEST:
, Ana V. Sauseda, MMC
Director of General Services/City Clerk
APPROVED AS TO FORM:
am
Steven Pacifico, City Attorney
S,

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA )

COUNTY OF )
On , before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
ye

EXHIBIT "A"

LEGAL DESCRIPTION OF THE SITE(S)

THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN BERNARDINO CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 9 ACCORDING TO MAP OF SUBDIVISION NO. 2, OF A PART OF YUCAIPA VALLEY, AS PER PLAT RECORDED IN BOOK 17, PAGES 99 AND 100 OF MAPS, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF SAID BLOCK 9 AT THE INTERSECTION OF

THE CENTER LINES OF SECOND STREET (FORMERLY THIRD AVENUE) AND AVENUE E (FORMERLY ARIZONA STREET) THENCE SOUTH 335.14 FEET ALONG THE CENTER LINE OF SECOND STREET; THENCE SOUTH 89 DEG 17' WEST 280 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89 DEG I T WEST 282.46 FEET, MORE OR LESS, TO AN ANGLE POINT IN THE WESTERLY LINE OF SAID BLOCK 9; THENCE ALONG THE WESTERLY LINE OF SAID BLOCK NORTH 14 DEG Y WEST 92.5 FEET; THENCE NORTH 34 DEG 30' EAST 306.1 FEET TO THE NORTHWESTERLY CORNER OF SAID BLOCK 9; THENCE EAST 131.4 FEET; MORE OR LESS, TO A POINT 280 FEET WEST OF THE EAST LINE OF SAID BLOCK 9; THENCE SOUTH PARALLEL WITH THE CENTER LINE OF SECOND STREET 335.14 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.

ASSESSOR'S PARCEL NUMBERS(S): 0319-121-24.

THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN BERNARDINO CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 14, SUBDIVISION NO.3, OF A PART OF YUCAIPA VALLEY, IN THE

CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 19 OF MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEAST CORNER OF SAID BLOCK 14, IN THE CENTERLINE OF FOURTH STREET (FORMERLY FIRST AVENUE); THENCE ALONG THE SOUTH LINE OF SAID BLOCK 14, NORTH 870 49' WEST 658.9 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE ALONG THE WEST LINE OF SAID BLOCK 14, NORTH 233.1 FEET; THENCE EAST 658.68 FEET TO THE CENTERLINE OF FOURTH STREET; THENCE SOUTH 00 03' 30" WEST 258.2 FEET ALONG THE SAID CENTERLINE OF FOURTH STREET TO THE POINT OF BEGINNING.

NOTE: THE MAP OF THE ABOVE DESCRIBED SUBDIVISION, RECITES THAT AREAS AND DISTANCES OF SAID LOT ARE COMPUTED TO STREET CENTERS.

EXCEPTING THEREFROM PARCELS 1 AND 2 OF PARCEL MAP NO. 15443, AS PER MAP RECORDED IN BOOK 195 OF PARCEL MAPS, PAGES 72 TO 73
INCLUSIVE, RECORDS OF SAID COUNTY.

ASSESSOR'S PARCEL NUMBERS(S): 0319-012-40
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ATTACHMENT 2

RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:

City of Yucaipa
34272 Yucaipa Blvd.

Yucaipa, CA 92399
Attn: City Clerk
With a copy to:

Shaoul Levy
201 Wilshire Boulevard, 2nd Floor
Santa Monica, CA 9040
APNs: 0319-012-40

SPACE ABOVE THIS LINE FOR RECORDER'S
USE
Exempt from Recording Fees Pursuant to Government Code Section 27383

DENSITY BONUS AGREEMENT
(SENIOR HOUSING; RENTAL PROJECT)
THIS DENSITY BONUS AGREEMENT ("Agreement") is dated as of May 13, 2024, and is entered into by and between 4th Street Yucaipa QOZB LLC, a California limited liability company (the "Developer"), and the CITY OF YUCAIPA, a California municipal corporation (the "City").

B. The City has implemented California Government Code Section 65915(b)(1) and (f) by enacting Yucaipa Development Code Sections 83.010705 et se . (in Division 3, Chapter 1, Article 7 of the Development Code), which, subject to certain limitations, contemplates a density bonus to encourage development of senior housing.

C. Developer has requested City to consider the approval of a density bonus agreement whicll will grant such a density bonus for Developer's development of the real property in the City described on Exhibit "A" ("Site").

D. The Developer proposes to construct a as a sixty-two (62) unit rental Senior Citizen Housing Development across two (2) project sites approved as Case No. 21-084/CUP/DBA for a Conditional Use Permit and Density Bonus Agreement for the development of a thirty (30) unit age - restricted project for individuals who are 55 years or older located at APN: 0319-121-24 and Case No. 21- 094/CUP/DBA for a Conditional Use Permit and Density Bonus Agreement for the development of a thirty-two (32) unit, age -restricted housing project for individuals who are 55 years or older located at APN:
0319-012-40 respectively (collectively, the "Project"). -1-

AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:

Definitions. In this Agreement, the following terms shall have the following meaning:
a. "City" is the City of Yucaipa, California.
b. "Project" is the development described in Recital D above.

3. Restrictions on Units; Qualified Occupant. Sixty-two (62) of the units in the Project (each. a "Senior Unit", and, collectively, the "Senior Units") shall be rented to and occupied by households which include at least one Qualified Occupant.

4. Term. The term of this Agreement shall continue until the later of: (i) the date that is 55 years after the first rental of a unit to a Qualified Occupant; or (ii) the date on which construction commences, in accordance with applicable law and permits, on a project that is not a senior rental housing project after the demolition or destruction of the Project.

6. On -site Manager. [INTENTIONALLY OMITTED]

a. A project occupancy profile;
b. A description of the physical condition and maintenance procedures for the Project, including apartment units, landscaping, walkways and recreational areas.

8. Selection of Qualified Occupant. Developer shall determine the eligibility for occupancy of Senior Units under the terms of this Agreement. Verification of eligibility shall be based on the following information and any other information reasonably requested by City: Reasonable documentation of age of each Qualified Occupant (such as birth certificate; current driver's license; etc.) Development Incentive(s). Pursuant to Government Code Section 65915(b)(1) and (f) and Yucaipa Municipal Code Section 83.010715(b)(4), the City grants Developer the following incentives for development of the Project: A 100% Density Bonus to allow a Project that provides 14.69 du/ac subject to the following:
a. Operation of the 32-unit age -restricted housing project (Case No. 21- 094/CUP/DBA) site located at APN: 0319-012-40 shall be contingent on occupancy and operation of the affiliated 30-unit age -restricted housing project (Case No. 21-084/CUP/DBA) site located at APN: 0319- 121-24;
b. Project entitlements for Case Nos. 21-094/CUP/DBA shall expire on March 15, 2025, but may qualify for a maximum of one (1) extension of time for a period not to exceed three (3) years; C. By March 15, 2028, should the Project entitled in Case No. 21-094 be out of compliance with State Law requirements for a Senior Citizen Housing Development, the development of the portion of the Project entitled in Case No. 21-094, in its then existing condition, shall be discontinued, operation of the sites shall cease, and a new entitlement application shall be submitted for a rental Senior Citizen Housing Development consistent with Density Bonus Procedures.

b. All common access areas in the Project such as entryways, walkways, and hallways shall be wide enough to accommodate wheelchairs; C. The Project will meet all applicable current requirements for access and design imposed by law as administered by the City building and safety department, including, but not limited to, the Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.), and the regulations promulgated at Title 24 of the California Code of Regulations that relate to access for persons with disabilities or handicaps;
d. The Project shall be designed and constructed to encourage social contact by providing sidewalks to connect the units to the proposed landscaped amenities. Common open space area will also be provided by a recreation area with a barbeque island and shade structures. e. The Project shall be completed and available for occupancy (i.e., a certificate of occupancy shall have been issued) by March 15, 2025 (subject to delays beyond the control of Developer).

However, the City Manager of City may extend such deadline, provided the extension(s) are in writing. f. The portion of the Project entitled in Case No. 21-094 shall be completed and available for occupancy (i.e., a certificate of occupancy shall have been issued) by March 15, 2025 (subject to delays beyond the control of Developer). However, the City Manager may extend such deadline, provided the extensions(s) are in writing.

10. Indemnification. Developer shall defend, indemnify and hold City and its elected officials, officers, agents and employees harmless from claims, liabilities, losses, damages and costs and expenses arising from or relating to: (i) personal injuries, including death, and property damage which may arise from the activities of Developer or those of its contractor, subcontractor, agent, employee or other person acting on its behalf which relate to the Project; and (ii) any fair housing claims. Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the sole negligence or sole willful misconduct of the City.

11. Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions:
a. If a warranty, representation or statement made or furnished by Developer to City and is inaccurate in any material respect when it was made; b. A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in Section 14 below.

12. Enforcement. In the event of a default under the provisions of this Agreement by the owner of one of the two sites identified in Recital D above is not corrected within thirty (30) days after such notice is given, then City may, without further notice, declare a default as to that site alone under this Agreement and City may then enforce against that site alone as any normal violation of the standards and provisions of the Yucaipa Development Code, or Yucaipa Municipal Code, applicable to this Agreement. A default against one of the two sites shall have no effect on the rights and obligations under this Agreement of the owner of the other site not in default. However, notwithstanding the foregoing, City may at any time apply to any court, state or federal, for injunctive relief against any violation by the owner of the site in default of any provision of this Agreement. All other remedies at law or equity which are not otherwise provided for in this Agreement are available to the parties in the event that there is a breach of this Agreement. 0 13. Developer Representation Re: Priority. Developer represents and warrants that this Agreement, when recorded, is senior and prior to all deeds of trust and other liens, except for liens for property taxes and assessments not yet due.

14. No Waiver of Remedies. City does not waive any claim of defect in performance by Developer if upon periodic review City does not enforce or terminate this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

15. Rights of Lenders. Should Developer place or cause to be placed any encumbrance or lien on the Project, or any part thereof, subordinate to this Agreement, the beneficiary ("Lender") of said encumbrance or lien, including, but not limited to, deeds of trust, shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to:
a. Do any act or thing required of Developer under this Agreement, and any such act or thing done or performed by Lender shall be as effective as if done by Developer itself; b. Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien;
C. Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and
d. Acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed.

None of b., c. or d. shall, however, affect the continuing validity of this Agreement.

16. Notice to Lender. If Developer shall have provided City in writing with the name of the Lender and a copy of its recorded deed of trust showing its address for notices, then City shall give written notice of any default or breach under this Agreement by Developer to such Lender and if the default can be cured by the payment of money, City shall give Lender the opportunity after service of the notice to cure the breach or default within sixty (60) days after delivery of said notice.

17. Notices. Any notice required to be given by the terms of this Agreement by either party to the other shall be provided by certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto in a notice given pursuant to this Section.

Developer: Shaoul Levy
201 Wilshire Boulevard, 2°d Floor
Santa Monica, CA 90401
Cam: City of Yucaipa
34272 Yucaipa Blvd.

Yucaipa, CA 92399
Attn: Benjamin Matlock
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18. Attorneys' Fees. In any proceedings arising from the enforcement of this Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and its reasonable attorneys' fees incurred during the proceeding as may be fixed within the discretion of the court.

19. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California.

20. Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

21. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder of the County of San Bernardino prior to the issuance of any building permit(s) for the Project.

22. Time of Essence. Time is of the essence of every provision hereof in which time is a factor.

IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth herein.

DFVF,T.nPFR:
4th Street Yucaipa QOZB LLC, a California
limited liability company
Name: Shaoul Levy
Title: Manager
CITY:

CITY OF YUCAIPA,
a municipal corporation
Chris Mann, City Manager
ATTEST:
, Ana V. Sauseda, MMC
Director of General Services/City Clerk
APPROVED AS TO FORM:

By:

Steven Pacifico, City Attorney
Ell

STATE OF CALIFORNIA )

COUNTY OF
On , before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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EXHIBIT "A"

LEGAL DESCRIPTION OF THE SITES)

THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN BERNARDINO CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 9 ACCORDING TO MAP OF SUBDIVISION NO. 2, OF A PART OF YUCAIPA VALLEY, AS PER PLAT RECORDED IN BOOK 17, PAGES 99 AND 100 OF MAPS, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF SAID BLOCK 9 AT THE INTERSECTION OF

THE CENTER LINES OF SECOND STREET (FORMERLY THIRD AVENUE) AND AVENUE E (FORMERLY ARIZONA STREET) THENCE SOUTH 335.14 FEET ALONG THE CENTER LINE OF SECOND STREET; THENCE SOUTH 89 DEG 1 T WEST 280 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89 DEG IT WEST 282.46 FEET, MORE OR LESS, TO AN ANGLE POINT IN THE WESTERLY LINE OF SAID BLOCK 9; THENCE ALONG THE WESTERLY LINE OF SAID BLOCK NORTH 14 DEG 3' WEST 92.5 FEET; THENCE NORTH 34 DEG 30' EAST 306.1 FEET TO THE NORTHWESTERLY CORNER OF SAID BLOCK 9; THENCE EAST 131.4 FEET; MORE OR LESS, TO A POINT 280 FEET WEST OF THE EAST LINE OF SAID BLOCK 9; THENCE SOUTH PARALLEL WITH THE CENTER LINE OF SECOND STREET 335.14 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.

ASSESSOR'S PARCEL NUMBERS(S): 0319-121-24.

THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN BERNARDINO CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 14, SUBDIVISION NO. 3, OF A PART OF YUCAIPA VALLEY, IN

THE CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 19 OF MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEAST CORNER OF SAID BLOCK 14, IN THE CENTERLINE OF FOURTH STREET (FORMERLY FIRST AVENUE); THENCE ALONG THE SOUTH LINE OF SAID BLOCK 14, NORTH 87° 49' WEST 658.9 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE ALONG THE WEST LINE OF SAID BLOCK 14, NORTH 233.1 FEET; THENCE EAST 658.68 FEET TO THE CENTERLINE OF FOURTH STREET; THENCE SOUTH 0° 03' 30" WEST 258.2 FEET ALONG THE SAID CENTERLINE OF FOURTH STREET TO THE POINT OF BEGINNING.

NOTE: THE MAP OF THE ABOVE DESCRIBED SUBDIVISION, RECITES THAT AREAS AND DISTANCES OF SAID LOT ARE COMPUTED TO STREET CENTERS.

EXCEPTING THEREFROM PARCELS 1 AND 2 OF PARCEL MAP NO. 15443, AS PER MAP RECORDED IN BOOK 195 OF PARCEL MAPS, PAGES 72 TO 73
INCLUSIVE, RECORDS OF SAID COUNTY.

ASSESSOR'S PARCEL NUMBERS(S): 0319-012-40.
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Yucaipa City CouncilMay 13, 2024

Yucaipa City Council
May 13, 2024