HomeMy WebLinkAbout2000-015
RESOLUTION NO. 2000-15
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL
APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) LOAN
AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO
AND INLAND V ALLEY DEVELOPMENT AGENCY (IVDA) IN THE
AMOUNT OF $120,000
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SECTION I. The City of San Bernardino (the "City") is responsible for carrying out
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economic development and redevelopment activities through the implementation of its
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Community Development Block Grant (CDBG) Program and is authorized to provide under its
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Consolidated Plan and federal regulations economic development loans for the purpose of
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creating or retaining low and moderate income jobs for the community; and
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SECTION 2. The Inland Valley Development Agency (IVDA) is a public entity
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engaged in the implementation of a plan approved by the Secretary of the Air Force for the
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civilian reuse and redevelopment of portions of the lands known as the former Norton Air Force
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Base; and
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SECTION 3. IVDA has applied to the City for a loan of Community Development
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Block Grant (CDBG) funds for which IVDA shall use together with other IVDA funds to
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prepare, construct, rehabilitate and install certain improvements presently estimated to cost
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$155,000 of Building No. 932 in order that such commercial building shall be ready for
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occupancy and reuse by a commercial-industrial tenant under a leaselsublease agreement with
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IVDA; and
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SECTION 4. The Mayor and Common Council hereby authorize and approve the
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Community Development Block Grant (CDBG) Loan Agreement attached hereto as Exhibit "A",
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and incorporated herein by reference in the amount of$120,000 by and between the City and the
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IVDA; and the Mayor is hereby authorized to execute the Loan Agreement on behalf of the City;
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3 SECTION 5. The Mayor and City Attorney are authorized to make changes to the Loan
4 Agreement provided the changes are non-substantive in nature, and do not increase the amounts
5 provided in the Loan Agreement and this Resolution.
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2000-15
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL APPROVING AND
AUTHORIZING THE MAYOR TO EXECUTE THE COMMUNITY DEVELOPMENT
BLOCK GRANT (CDBG) LOAN AGREEMENT BY AND BETWEEN THE CITY OF SAN
BERNARDINO AND INLAND VALLEY DEVELOPMENT AGENCY (IVDA) IN THE
AMOUNT OF $120,000
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a joint regular
meeting
7 thereof, held on the 24th day of January , 2000, by the following vote to wit:
8 Council Members: Ayes Nays Abstain Absent
9 ESTRADA x
10 LIEN ---1L-
II MCGINNIS --x-
SCHNETZ x
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SUAREZ -.X-
13 ANDERSON X
14 MILLER X
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2000.
day of January
18 The foregoing resolution is hereby approved this
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Approved as to form and Legal Content:
Gordon McGinnis
Mayor Pro Tem
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James F. Penman
23 City Attorney
By:
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2000-15
'2000
" (11'( CU:.H~ CITY OF SAN BERNARDINO
., . . COMMUNITY DEVELOPMENT BLOCK GRANT
LOAN AGREEMENT
. ~PR '8 1\8 :49
OO( INLAND VALLEY
DEVELOPMENT AGENCY: BUILDING NO 932)
AND
BORROWER:
Inland Valley Development Agency
ADDRESS:
294 South Leland Norton Way, Suite 1, San
Bernardino, CA 92408
This 2000 City of San Bernardino Community Development
Block Grant Loan Agreement (the "LOAN Agreement") dated
January 24, 2000 , is entered into by and between Inland
Valley Development Agency (the "BORROWER") and the CITY OF SAN
BERNARDINO, (the "CITY") with respect to the facts set forth
in the fqllowing recitals:
--RECITALS--
WHEREAS, the BORROWER is a "local redevelopment
authority," as this term is defined in the Defense
Authorization Amendments and Base Closure and Realignment Act
(Public Law No. 100-526, as amended); and
WHEREAS, the BORROWER is a public entity engaged in the
implementation of a plan approved by the Secretary of the Air
Force for the civilian reuse and redevelopment of portions of
the lands known as the former Norton Air Force Base pursuant
to the terms and conditions of an agreement entitled
"Agreement Between the Department of the Air Force and the
Inland Valley Development Agency" dated March 7, 1995, as
amended (the "EDC Agreement"); and
WHEREAS, the BORROWER has applied to the CITY for a loan
of Community Development Block Grant funds of the CITY (the
"LOAN")which the BORROWER shall use and apply for the purpose
of redeveloping and reusing former Norton Air Force Base
Building No 932 ("Building No. 932"); and
WHEREAS, on December 6, 1999 the CITY took certain action
to amend its Community Development Block Grant Program
Consolidated Plan to provide for the LOAN as part of its
Community Development Block Grant Program; and
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WHEREAS, the BORROWER shall use and apply the proceeds of
the LOAN, together with other funds to be contributed by the
BORROWER, to prepare, construct, rehabilitate and install
certain improvements of Building No. 932 presently estimated
to cost $155,000.00 (the "projectH) in order that such
commercial building shall be ready for occupancy and reuse by
a commercial-industrial tenant under a lease/sublease
agreement with the BORROWER; and
WHEREAS, the CITY agrees to make a LOAN to BORROWER
subject to the terms and conditions of this LOAN Agreement;
and
WHEREAS, the following exhibits are annexed to this LOAN
Agreement and each such exhibit is incorporated herein by this
reference:
Exhibit "AH-- Promissory Note Payable to a Public
Agency;
Exhibit "BH--
Sources and Uses of
the Project and
Project;
Funds to Improve
Description of
Exhibit "CH_- Loan Disbursement
Procedure;
Approval
Exhibit "DH-- Form of Deed of Trust;
Exhibit "EH-- Beneficial Economic Assignment of
the Sublease for Building No. 932;
Exhibit "FH-- 2000 Environmental
Agreement.
Indemnity
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND AGREEMENTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
THE LOAN
1. TERMS OF LOAN
Subject to the terms and
Agreement, the CITY hereby
and BORROWER hereby agrees
conditions of this LOAN
agrees to lend to BORROWER,
to borrow from the CITY an
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amount not to exceed One Hundred Twenty Thousand Dollars
($120,000.00). The CITY shall obtain the funds to
provide the LOAN solely from its Community Development
Block Grant Program, and no other funds of the CITY are
pledged or made available therefor.
The obligation of BORROWER to repay the LOAN, together
with interest thereon, shall be evidenced by the
Promissory Note (the "NOTEH). The form of the NOTE is
attached hereto as Exhibit "AH. The NOTE shall be made
payable to the order of the City of San Bernardino, with
interest accruing from the date of each disbursement of
the proceeds of the LOAN to the BORROWER on the
outstanding principal, until repaid by BORROWER to the
CITY. The first monthly installment of principal and
interest under the NOTE shall be due and payable on the
first day of the seventh (7th) month from the date of the
NOTE. The final payment on the NOTE shall be the amount
necessary to fully retire LOAN balance. All payments
sha~l be made promptly to the CITY at its address, or at
such other address as it may designate in writing.
a. Repayment Terms, Interest Rate and Maturity:
LOAN shall have a maturity of five (5) years from
its date with a fifty-four (54) month level debt
amortization schedule. Interest shall accrue on
the outstanding prepaid balance of the NOTE from
its date at a fixed rate of interest of three
percent (3.0%) per anum for the term of the LOAN.
Assuming that the BORROWER draws the full amount of
the LOAN as of the date of the NOTE, the monthly
installment payments of principal and interest
shall be Two Thousand Two Hundred Ninety Nine
Dollars and Three Cents ($2,299.03).
The final payment under the NOTE shall be the
amount necessary to fully pay the outstanding
principal balance and all accrued and unpaid
interest and other charges on the LOAN, if any.
b. BORROWER Equity:
BORROWER agrees to provide additional funds to pay
for the Project costs in excess of the amount of
the LOAN as necessary to place the Project in
service by a date not later than six (6) months
following the date of the NOTE.
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c. Use Of LOAN Funds:
LOAN shall be used and applied by the BORROWER
solely for the Project (e.g. to pay for the
activities as identified as uses of LOAN funds set
forth in Sources and Uses of Funds for the Project
in Exhibit "B"). All activities identified in
Exhibit "B" shall occur at the location known as
Building No. 932 (216 South Second Street, San
Bernardino, California)
d. LOAN disbursement:
All LOAN proceeds shall be disbursed from time-to-
time on the approval of the CITY as set forth in
Exhibit "C".
e. Collateral:
The Note shall be secured by a first Trust Deed on
the property located at 195 North Del Rosa Drive,
San Bernardino, California (APN 136-341-016) also
referred to as former Norton Air Force Base Parcel
"F-2", (the "PROPERTY"). The form of the deed of
trust (the "Deed of Trust") is attached hereto as
Exhibi t "D." A CLTA Lender's policy of title
insurance in favor of the CITY in the Property is
required. An appraisal of the Property was
prepared by Himes and Himes, Inc., dated May 24,
1999, and a copy thereof has been delivered by the
BORROWER to the CITY. Additionally, the BORROWER
shall deliver to the CITY a beneficial economic
assignment of the sublease of Building No. 932, by
and between the BORROWER and Astrofab, Inc.,
substantially in the form attached hereto as
Exhibit "E."
f. Payments to the CITY:
Monthly payments of
made by BORROWER
Development Agency)
principal and
to the CITY
as set forth
interest shall be
(attn: Economic
in Section 1.a.
g. Conditions:
This LOAN Agreement and each disbursement of the
proceeds of the LOAN to BORROWER is subject to and
contingent upon:
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(1) The representations made in the application by
the BORROWER including the supporting
documents thereto, the conditions set forth
herein and any other conditions which may be
imposed by the CITY not inconsistent with the
governing laws and regulations of the United
States Department of Housing and Urban
Development (HUD).
(2) The determination by the CITY, in its sole
discretion, that there has been no unremedied
adverse change in the financial or any other
condition of BORROWER since the date of
application, which would warrant withholding
or not making the LOAN.
(3) Agreement by BORROWER to promptly complete the
Project and contribute all other funds to
cover additional Project costs incurred, if
any, as a result of overruns or unanticipated
expenses in completing the Project.
(4) BORROWER and the CITY agree that the
outstanding principal and accrued and unpaid
interest under the NOTE may be accelerated in
whole or in part and payments called by the
CITY:
(a) If during the term of this LOAN there is
a change of ownership or control of the
proj ect or the PROPERTY without prior
written consent of the CITY provided
however, that for the purposes of the
covenant of the BORROWER in this Section
1. g. (4) (a), the sublease of Building No.
932 by BORROWER to Astrofab Inc., a
California Corporation and later, a
transfer of the fee title interest of the
United States Air Force in former Norton
Air Force Base Parcel "1-3" and/or
Building No. 932 shall not be deemed to
be a change in the ownership or control
of the Project;
(b) If the total number of New Employees for
each new permanent full time employment
or full time equivalent position required
in Section 30 is less than four (4) New
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Employees as of the twenty-forth (24th)
month following the date of the NOTE.
(5)
Execution
required.
of
all
collateral
documents
(6) HUD providing the release of Community
Development Block Grant funds to the CITY for
the LOAN by the CITY to the BORROWER for the
Project.
(7) Completion of all environmental reviews by the
CITY if required for the LOAN and the delivery
by BORROWER to CITY of a lender's
environmental indemnity agreement
substantially in the form attached hereto as
Exhibit "F."
(8) LOAN closing and disbursement of the proceeds
of the LOAN will be subject to the CITY
confirmation as to the adequacy and
sufficiency of the security offered for the
LOAN.
(9) LOAN closing be subject to terms, provisions
and conditions set forth in the LOAN documents
as deemed necessary by the CITY and CITY's
legal counsel in their sole discretion.
(10) LOAN is not assignable or transferable by the
BORROWER, except with the prior written
consent of the CITY.
(11) Each request of the BORROWER for disbursement
of LOAN proceeds shall be accompanied by a
written submittal by BORROWER and approval by
the CITY of invoices, certified payroll
records and mechanics and materials lien
releases for the work performed on the Project
through the date of such disbursement request.
Each LOAN disbursement or draw request shall
be substantially in the form as attached as
Exhibit "C."
(12) This LOAN is contingent upon approval by the
governing board of the BORROWER.
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(13) Written conditional commitment on sublease
terms from Astrofab, Inc. , a California
corporation for a term of at least five (5)
years of Building No. 932 including the other
terms as set forth in the LOAN application of
the BORROWER. No proceeds of the LOAN shall
be disbursed for the Project until the
BORROWER and such tenant have executed such
sublease.
(14) CITY must be provided financial statements
from the tenant for confidential review.
(15) CITY must be provided with a credit report for
the tenant for confidential review.
2. EXPENSES AND LOAN CLOSING COSTS AND ADMINISTRATION
BORROWER agrees to pay all escrow, recording and policy
of title issuance fees and charges and taxes, if any,
with respect to LOAN, or its making, amendment, or
transfer. BORROWER shall reimburse CITY for such other
further costs and expenses as CITY may incur in
administering the LOAN including reasonable collection
costs and attorney's fees in the event that litigation
should become necessary to enforce this LOAN Agreement.
For the purposes of this subsection, the words
"attorney's fees of the CITY" include without limitation
the salary, wages, benefits and overhead expenses of the
lawyers employed by the office of the City Attorney of
the CITY.
3. [RESERVED--NO TEXT]
ARTICLE II
REPRESENTATION AND WARRANTS
BORROWER represent(s) and covenant(s) the following:
4. DULY ORGANIZED
BORROWER is a public entity and is authorized to do
business in California, validly existing and in good
standing, under the laws of the State of California and
has the power to enter into this LOAN Agreement.
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5. DULY AUTHORIZED
The making and performance by BORROWER of the LOAN and
the execution and deli very of NOTE, Deed of Trust,
Beneficial Economic Assignment of the Sublease,
Environmental Indemnity and any security agreement(s) and
other instrument (s) have been duly authorized by all
necessary action and will not violate any law, rule,
regulation, order, writ, judgment, decree, determination
or award presently in effect having applicability to
BORROWER or result in a breach of any credit agreement
or instrument to which BORROWER is a party or by which
its assets may be bound or affected.
6. LEGALLY BINDING INSTRUMENTS
When this LOAN Agreement is executed by BORROWER and
CITY, and when the NOTE, Deed of Trust, Beneficial
Economic Assignment of the Sublease, Environmental
Indemnity and other documents are executed and delivered
by BORROWER for value, each such instrument shall
constitute the legal, valid, and binding obligation of
BORROWER in accordance with its terms. Any other
security agreement, instruments, financing statements,
mortgages or other liens or chattel recorded on or
against the title of the Property by CITY shall
constitute legal, valid and binding liens.
7. NO LEGAL SUITS
There are no legal actions, suits, or proceedings pending
or, to the knowledge of BORROWER, threatened against
BORROWER before any court or administrative agency,
which, if determined adversely to BORROWER, would have a
material adverse effect on the financial condition or
business of BORROWER and interfere with BORROWER's
performance of LOAN or with completion of the Project for
which the LOAN was made.
8. NOT IN DEFAULT
BORROWER is not in default of any obligation, covenant or
condi tion contained in any bond, debenture, note, or
other evidence of indebtedness or any mortgage or
collateral instrument securing the same which would have
a material adverse affect on or interfere with BORROWER's
performance of LOAN.
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9. TAXES ARE PAID
BORROWER have filed all tax returns which are required
and have paid or made provision for the payment of all
taxes which have or may become due pursuant to said
returns or pursuant to any assessments received by them.
No tax liability has been asserted by the Internal
Revenue Service or any other taxing agency, Federal,
State, or local, for taxes materially in excess of those
already provided for. BORROWER know(s) of no basis for
any such deficiency assessment.
10. NO ADVERSE CHANGE
BORROWER certifies that there have been no adverse
changes since the date of LOAN Application in the
financial condition, organization, operation, business
prospects, fixed properties, or personnel of BORROWER.
ARTICLE III
CONDITIONS OF LENDING
The obligation of CITY to make the LOAN shall be subject to
the fulfillment at the time of the satisfaction of all conditions
for the initial disbursement of the proceeds of the LOAN ("LOAN
Closing") of each of the following:
11. SPECIAL TERMS AND CONDITIONS
Special terms and conditions relating to the disbursement
of the proceeds of the LOAN at LOAN Closing contained in
the attached Exhibit "C."
12. [RESERVED--NO TEXT]
13. EXECUTION AND DELIVERY OF LOAN AGREEMENT, NOTE AND DEED
OF TRUST
BORROWER shall have executed and delivered to CITY this
LOAN Agreement, the NOTE and Deed of Trust, the
Beneficial Economic Assignment of the Sublease and the
Environmental Indemnity Agreement and any other documents
CITY may deem reasonably necessary with respect to LOAN,
provided that such other documents do not materially
increase the liability or obligations of BORROWER, in a
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form and on terms and conditions reasonably satisfactory
to CITY and its legal Counsel.
14. EXECUTION AND CERTIFICATION OF AUTHORIZATION
BORROWER shall have executed and delivered to CITY, a
duly certified copy of the minutes of the public meeting
of the governing board of the BORROWER at which this LOAN
Agreement was approved by the authorized officers of the
BORROWER and directed to execute this LOAN Agreement and
all supporting documents.
15. PROVISIONS AGREED TO BY BORROWER:
a. All construction and other agreements pertaining to
use of LOAN funds for the proj ect shall be duly
performed by BORROWER including without limitation
the obligation of the BORROWER to pay "prevailing
wages" for all construction work performed by the
BORROWER on Building No. 932.
b. BORROWER shall provide to CITY at LOAN Closing, an
opinion of BORROWER's counsel that:
(1) BORROWER is authorized to enter into this LOAN
Agreement, incur the indebtedness and execute
the security instruments,
(2) NOTE is a valid and binding obligation and is
enforceable in accordance with its terms,
(3) The Deed of Trust is duly authorized, executed
and delivered, and is a valid and binding
commitment of BORROWER enforceable in
accordance with its terms, and are duly filed
and recorded; and
(4) The security instruments constitute first
liens on the Property except for:
(a)
Nondelinquent taxes and assessments,
(b)
Such other exceptions to title as have
been previously approved by CITY,
provided however that the CITY expressly
disapproves the following exceptions to
title in the Property as disclosed in
Orange Coast Title Company preliminary
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title report number S-128368-9, dated
December 17, 1999, identified as
Exception Nos. 12 through 19, inclusive,
and Exception Nos. 23, 24 and 25.
(5) The Beneficial Economic Assignment of the
Sublease is duly authorized, executed and
delivered and is valid and binding commitment
of the BORROWER, subject only to the rights of
the Secretary of the Air Force under the EDC
Agreement.
(6) The Environmental Indemni ty is duly
authorized, executed and delivered and is a
valid and binding commitment of the BORROWER.
16. [RESERVED--NO TEXT]
17. TITLE INSURANCE
BORROWER shall have secured a CLTA lender's policy of
title insurance insuring CITY in the form issued by a
company satisfactory to CITY, in the amount of the LOAN
secured by the Deed of Trust subject only to exceptions
approved by the CITY in Section 15. (b) (41 (b I. The title
policy shall show no delinquent taxes, liens or
assessments of any kind affecting the Property or any
part thereof on the date of LOAN closing except as
approved by CITY.
18. GOVERNMENTAL APPROVAL
BORROWER shall have secured all necessary approvals or
consents, as required, of governmental bodies having
jurisdiction with respect to any construction of the
BORROWER contemplated as part of the Project.
19. APPROVAL OF OTHERS
BORROWER shall have secured all necessary approvals and
consents required with respect to this transaction by any
mortgagor, creditor or other party having any financial
interest in BORROWER.
20. OPINION OF COUNSEL TO BORROWER
CITY shall have
BORROWER stating
recei ved the opinion of counsel
that (i) the representations
for
and
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warranties as set forth in this LOAN Agreement are true
and accurate on and as of the date of LOAN Closing and
(ii) the Conditions of LOAN have been duly satisfied as
of the date of LOAN Closing.
ARTICLE IV
AFFIRMATIVE COVENANTS OF THE BORROWER
BORROWER agree(s) to comply with the following covenants from
the date hereof until CITY has been fully repaid with interest,
unless CITY or its assigns shall otherwise consent in writing:
21. PAYMENT OF LOAN
BORROWER agree (s) to pay punctually the principal and
interest on the NOTE according to its terms and
conditions and to pay punctually any other amounts that
may 'become due and payable to CITY under or pursuant to
the terms of this LOAN Agreement, the NOTE and the Deed
of Trust.
22. PAYMENT OF OTHER INDEBTEDNESS
BORROWER agree (s) to pay punctually the principal and
interest due on any other indebtedness now or hereafter
at any time owing by BORROWER to CITY or any other
lender.
23. MAINTAIN AND INSURE PROPERTY AND BUILDING NO 932
BORROWER agree(s) at all times to maintain the Property
provided as security for LOAN and former Norton Air Force
Base Building No. 932 in such condition and repair that
CITY's security will be adequately protected. BORROWER
also agrees to maintain during the term of LOAN, adequate
hazard insurance policies covering fire and extended
coverage and such other hazards as may be deemed
appropriate in amounts and form satisfactory to CITY with
CITY as an additional named insured with an acceptable
loss payee clause. BORROWER further agrees, if at any
time during the life of LOAN, BORROWER'S property is
declared to be within a flood hazard area, to purchase
Federal Flood Insurance, if available. Such insurance
shall be in an amount equal to the greater of: (i) the
amount of LOAN, (ii) the insurable value of the Property
and Building No. 932; or (iii) the maximum limit of
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coverage available. If the Property and/or former Norton
Air Force Base Building NO. 932 is not located in a flood
hazard area at the time of the LOAN Closing Date,
BORROWER will provide satisfactory evidence thereof.
BORROWER further agree(s) to maintain adequate liability
and workman's compensation insurance in amounts and form
satisfactory to CITY.
24. PAY ALL TAXES
BORROWER agree(s) to duly pay and discharge all taxes,
assessments and governmental charges upon it or against
its properties prior to the date on which penalties are
attached thereto, except that BORROWER shall not be
required to pay any such tax, assessment or governmental
charge which is being contested by it in good faith and
by appropriate proceedings.
25. MAINTAIN EXISTENCE
BORROWER agree (s) to maintain its existence, rights,
privileges, and franchises within the State of California
and to qualify and remain qualified as a public entity.
26. PROVIDE FINANCIAL INFORMATION
BORROWER agree(s) to maintain adequate records and books
of account, in which complete entries will be made
reflecting all business and financial transactions.
Entries are to be made in accordance with generally
accepted principles of good accounting practice
consistently applied in the case of financial
transactions. BORROWER agrees to deliver to CITY upon
its request annual financial statements certified by an
authorized officer of BORROWER to be true and accurate
copies and are to be submitted to CITY, if requested, not
later than 90 days after and as of the end of each fiscal
year, including an income statement, balance sheet and
statement of cash flow in customary form.
BORROWER agree(s) to provide information, and execute and
deliver any and all additional documents, including
copies of income tax returns and instruments as may be
reasonably requested by CITY, its assigns or legal
counsel. BORROWER agree to provide written notice to
CITY of any public hearing or meeting before any
administrative or other public agency which may, in any
manner, affect the personal or real property securing
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LOAN. BORROWER shall provide such other information as
CITY may reasonably request.
CITY shall advise BORROWER in writing ten (10) days after
CITY receives any notice of violation by BORROWER of the
term of LOAN, breach of any provisions of LOAN documents,
or obtains other information relating to adverse
conditions that may in the reasonable opinion of the CITY
jeopardize repayment of LOAN.
27. RIGHT TO INSPECTION
BORROWER agree (s) to grant CITY, until NOTE has been
fully repaid with interest, the right at all reasonable
hours, to inspect the Property and all other personal
properties used to secure LOAN, and BORROWER further
agree to provide CITY free access to all subject premises
for the purpose of such inspection to determine the
condition of the personal and real properties.
28. NULL AND VOID COVENANTS
BORROWER agree(s), that in the event that any provision
of LOAN or any other agreement executed at LOAN Closing,
shall be declared null and void, invalid, or held for any
reason to be unenforceable by a Court of competent
jurisdiction, the remainder of such agreement shall
nevertheless remain in full force and effect, and to this
end, the provisions of all covenants, conditions, and
agreements described herein are deemed separate.
29. EXPENSES OF COLLECTION OR ENFORCEMENT
BORROWER agree(s) that, if at any time BORROWER defaults
on any provision of LOAN, BORROWER shall pay CITY or its
assigns, in addition to any other amounts that may be due
from BORROWER, an amount equal to the costs and expenses,
including attorneys fees, costs of collection,
enforcement, correction or waiver of the default incurred
by CITY or its assigns in such collection, enforcement,
correction or waiver of default.
30. NEW EMPLOYEE REQUIREMENTS
a. In consideration for the LOAN made by the CITY,
BORROWER agrees that it shall implement programs to
ensure that tenants who initially take possession
of buildings anywhere on the lands referred to as
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former Norton Air Force Base Parcel "I-3" on or
after March 1, 2000 shall expand their employment
base by a minimum of four (4) permanent, full-time
and/or full-time equivalent (FTE) employment
positions over and above the number of such FTE
jobs attributed to the present FTE employment base
of such tenants as of March 1, 2000. The CITY and
BORROWER agree that such FTE employment base as of
March 1, 2000 shall be determined or established by
the number of existing FTE employees of Astrofab,
Inc., who are based at former Norton Air Force Base
Building No. 932 as of the date of commencement of
possession by Astrofab, Inc. of such facility (e.g.
March 1, 2000). Promptly following the occurrence
of the commencement of such date of possession by
Astrofab, Inc., the BORROWER shall provide the CITY
with a suitably detailed written certification of
the number of such FTE employees of Astrofab, Inc.
A FTE employee works 35 hours a week or more, two
persons who each work at least twenty hours (20)
per week and who each work in the aggregate at
least 850 hours per year shall be deemed equal to
one full-time position.
b. BORROWER agrees that at least 51%, or three (3) of
the four (4) new full-time or FTE jobs, created on
Parcel I-3 by its tenants who initially take
possession of buildings on Parcel I-3 on or after
March 1, 2000 in excess of the base year number of
jobs described in the preceding subsection shall be
held by or made available to persons whose current
household income level is at or less than the
household income limits for persons of low-and
moderate-income, as determined by reference to the
provisions of 24 CFR Part 570.208(a) (4).
To comply with this section, BORROWER agrees to
implement programs to collect demographic and new
employment data from its tenants who initially take
possession of buildings on Parcel I-3 on or after
March 1, 2000 such that the BORROWER can provide
the CITY with satisfactory evidence that the FTE.
Covenant of this Section 30 has been satisfied by
BORROWER. To the extent that the BORROWER can
provide the CITY with satisfactory written
confirmation of such information, applicants for
new FTE positions among any such tenants who
initially take possession of buildings on Parcel 1-
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3 on or after March 1, 2000 and who are referred to
such tenants through the Job Training and
Partnership Act program or other recognized
agencies shall be deemed to categorically satisfy
the income level criteria of low-and moderate-
income persons. Commencing on the second (2nd)
anniversary of the date of the NOTE BORROWER shall
submi t to CITY, on an annual basis, employment
certification forms certifying that such persons
were hired by tenants in buildings on Parcel I-3.
c. The four (4) new employee positions described above
shall be filled as follows: four (4) new FTE
employees shall have been hired to new positions by
tenants of the BORROWER within twenty-four (24)
months after the initial disbursement of LOAN
proceeds to the BORROWER.
31. LOW-AND MODERATE-INCOME PERSONS DEFINED
Low-and moderate-income persons shall be defined as
persons who:
a. Belong to a family whose household income is below
the limit for a low-or moderate-income person as
defined by 24 CFR Part 570.208 (a) (4), or
b. Are referred by government employment development
agencies , or
c. Are currently unemployed or not in the labor force.
32. EMPLOYMENT POLICIES
In order to insure that the majority (51%) of all
retained and new employment positions benefit low-and
moderate-income persons on the Project, BORROWER shall
certify on an annual basis that either:
a.
Skill level requirements of
employment positions are available
low-and moderate-income persons, or
new/retained,
to the pool of
b. Employee wages and pay scales to be earned are
available to low-and moderate-income persons, or
c.
Employment/retention efforts
recruitment and advertising
shall
in lower
include
income
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neighborhoods, neighborhood pockets of low-and
moderate-income individuals and families, and to
the unemployed and underemployed in these and other
neighborhoods.
d.
Employment efforts shall
employees from government
training programs aimed
moderate-income persons for
be made to
and government
at preparing
jobs.
obtain
funded
low-and
33. CERTIFICATION/DOCUMENTATION
BORROWER shall submit suitable detailed certification to
the CITY regarding the household income and other
demographic information for each new hire by its tenants
in a form satisfactory to CITY to evidence compliance by
the BORROWER with the new jobs covenant of the LOAN
Agreement. Submission deadline shall coincide with
deadlines imposed by respective government offices
requiring said reports.
a. Upon review of such information as provided by the
BORROWER, CITY will determine if satisfactory
measures have been taken to make new jobs available
to income eligible persons as required in Section
31.
b. If CITY determines that satisfactory measures have
not been taken by BORROWER to cause its tenants to
make the new jobs available to income eligible
persons, BORROWER agrees at the election of CITY:
(i) to prepay a portion of the LOAN at the rate of
$35,000.00 for each new job less than four (4) new
employee positions created by its tenants who
initially take possession of a building in Parcel
1-3 on or after March 1, 2000; or (ii) implement
such additional new employment generation programs
for its tenants as may be reasonably accomplished
in the mutual opinion of the CITY and the BORROWER.
This deadline coincides with the total job creation
goal referenced in Section 31 (c) .
34. INDEMNIFICATION
Notwithstanding anything to the contrary herein contained
and irrespective of any insurances carried by BORROWER,
BORROWER shall indemnify, defend and hold harmless CITY,
authorized officers, agents, employees, and volunteers
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from any and all claims, damages, losses, actions and/ or
liability arising out of this contract from any cause
whatsoever, including the acts, errors or omissions of
any person and for any costs or expenses incurred by the
CITY on account of any claim, therefore, except where
such indemnification is prohibited by law.
35. INSURANCE REQUIREMENTS.
Without in anyway affecting the indemnity herein provide
and in addition thereto, the BORROWER shall secure and
maintain throughout the terms of this LOAN Agreement the
following types of insurance with limits as shown:
. Workers' Compensation A program of Workers'
Comprehensive insurance or State-approved Self-
Insurance Program in an amount and form to meet all
applicable requirements of the Labor code of the
State of California, including Employer's Liability
'with $250,000 limits, covering all persons
providing services on behalf of the BORROWER and
all risks to such persons under this Agreement.
. Comprehensive General and Automobile Liability
Insurance This coverage to include contractual
coverage and automobile liability coverage for
owned, hired and non-owned vehicles. The policy
shall have combined single limits for bodily injury
and property damage of not less than one million
dollars ($1,000,000).
. Addi tional Named Insured All policies, except
workers' compensation policies, shall contain
addi tional endorsements naming the CITY and its
officers, employees, agents and volunteers as
additional named insured with respect to
liabilities arising out of the performance of
services hereunder.
. Waiver of Subrogation Rights BORROWER shall
require the carriers of the above required
coverages to waive all rights of subrogation
against the CITY, its officers, employees, agents,
volunteers, contractors and subcontractors.
.
Policies
policies
Primary and
required above
Non-Contributory All
are to be primary and non-
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contributory with any insurance or self-insurance
programs carried or administered by CITY.
. Proof of Coverage BORROWER shall immediately
furnish certificates of insurance to the CITY
(Attn: Redevelopment Agency of the City of San
Bernardino) evidencing the insurance coverage,
including endorsements as required, above, prior to
the initial disbursement of LOAN proceeds to the
BORROWER or the commencement of performance of
services hereunder, which certificates shall
provide that such insurance shall not be terminated
or expire without thirty (30) days written notice
to the CITY, and BORROWER shall maintain such
insurance from the time BORROWER commences
performance of services hereunder until the
completion of such services. Wi thin sixty (60)
days of the commencement of this Agreement, the
BORROWER shall furnish certified copies of the
policies and all endorsements.
36. INSURANCE REVIEW.
The above insurance requirements are subject to periodic
review by CITY. BORROWER agrees to execute any amendment
to the scope of insurance coverage as may reasonably be
indicated by such periodic review by CITY within thirty
(30) days of written request by the CITY.
ARTICLE V
NEGATIVE COVENANTS OF THE BORROWER
BORROWER covenant and agree that, from the date hereof until
payment in-full of NOTE, unless CITY or its assigns shall otherwise
consent in writing, shall not enter into any agreement or other
commitment the performance of which would constitute a breach of
any of the covenants contained in this LOAN including, but not
limited to the following covenants:
37. ENCUMBRANCE OF THE PROPERTY
BORROWER shall not create or suffer to exist any
mortgage, pledge, lien, charge, or encumbrance, including
liens arising from judgments on the Property except for
leases affecting the Property as provided for by the Deed
of Trust without first obtaining written approval from
CITY.
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38. SALE OF PROPERTY
BORROWER shall not sell, convey, or suffer to be
conveyed, lease assign, transfer or otherwise dispose of
the Property unless approved in writing by CITY.
39. CHANGE OWNERSHIP
BORROWER shall not permit, without the written permission
of CITY, any material change in the ownership structure,
control, or operation of BORROWER, including but not
limited to, (i) merger into or consolidated with any
other public agency, (ii) changing the nature of its
business on the date hereof, (iii) substantial
distribution, liquidation or other disposal of assets.
40. CHANGE THE PROJECT
BORROWER shall not permit nor suffer to exist without
prior written consent from CITY any material change in
the plans and/or specifications for the Project submitted
to CITY. Material change will include any significant
variance in the accepted plans and specifications
increase in contract prices, and/or additional financial
obligations of BORROWER with respect to the construction
of the Project.
ARTICLE VI
EVENTS OF DEFAULT
The entire unpaid principal of NOTE, and the interest accrued
thereon, shall become immediately due and payable upon the written
demand of CITY or its assigns, without any other notice or demand
of any kind or any presentiment or protest, if anyone of the
following events (hereafter termed and "Event of Default") shall
occur and be continuing at the time of such demand, whether
voluntarily or involuntarily, or without limitation, occurring or
brought about by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rules
or regulations of any administrative or governmental body.
However, such sum shall not be then payable if BORROWER's payments
have been waived, or the time for making BORROWER's payments have
been extended by CITY in writing.
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41. NOTICE OF DEFAULT
BORROWER agree(s) to give written notice to CITY of any
event, within 15 days of the occurrence thereof, which
constitutes an Event of Default under the LOAN or that
would with notice or lapse of time or both, constitute an
Event of Default under the LOAN.
42. RIGHT TO CALL LOAN
Failure to meet the job creation and employee hiring
requirements set forth in Section 31 shall be grounds for
the LOAN to be payable in whole or in part prior to
maturi ty as set forth in Section 33b. In such event
CITY shall have the right to demand that BORROWER payoff
the applicable portion of the outstanding principal
balance of the LOAN together with accrued interest
thereon by paying CITY, within thirty (30) days of CITY's
demand, the applicable amount of such principal and
int~rest outstanding.
43. LATE-PAYMENT OF LOAN
If BORROWER shall fail to make payment when due of any
installment of principal or accrued interest on the Note
and if the default shall remain unremedied for fifteen
(15) days thereafter, BORROWER acknowledges that such
late payment by BORROWER will cause CITY to incur costs
not contemplated by the LOAN. Therefore, if any
installment due from BORROWER is not received wi thin
fifteen (15) days of the monthly due date, BORROWER shall
pay to CITY without further or separate notice a late
payment penalty of five percent (5%) on the amount due
for the month. Acceptance of any late charge shall not
constitute a waiver of BORROWER's default with respect to
the overdue amount, or prevent the CITY from exercising
any of the other rights and remedies available to the
CITY.
44. INCORRECT REPRESENTATION OR WARRANTY
If any representation or warranty contained in, or made
in connection with the execution of, or delivery of this
LOAN Agreement, or in any certificate furnished pursuant
hereto, shall prove to have been incorrect when made in
any material respect.
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45. DEFAULT IN COVENANTS
If BORROWER shall default in the performance of any other
term, covenant or agreement contained in this LOAN
Agreement, and if any such default shall continue
unremedied for thirty (30) days after either: (i) it
becomes known to an executive officer of BORROWER, or
(ii) written notice thereof shall have been given to
BORROWER by the CITY.
46. VOLUNTARY INSOLVENCY
If BORROWER shall become insolvent or cease to pay its
debts as they mature or shall voluntarily file a petition
in bankruptcy or a petition seeking reorganization of, or
the appointment of a receiver, trustee, or liquidator for
it or for a substantial portion of its assets or to
effect a plan or other arrangement with creditors, or
shall be adjudicated bankrupt, or shall make a voluntary
asstgnment for the benefit of creditors.
47. INVOLUNTARY INSOLVENCY
If any involuntary petition shall be filed against
BORROWER under any bankruptcy, insolvency or similar law
seeking the reorganization of BORROWER, or the
appointment of any receiver, trustee or liquidator for
BORROWER, or seeking a substantial part of the property
of BORROWER, or a writ or warrant of attachment or
similar process shall be issued against a substantial
part of the property of BORROWER and such petition shall
not be dismissed or such writ or warrant of attachment or
similar process shall not be released or bonded, within
thirty (30) days after filing of levy.
48. JUDGMENTS
If any final judgment for the payment of money that is
not fully covered by liability insurance and is in excess
of $10,000.00 shall be rendered against BORROWER, and
within thirty (30) days, shall not be discharged, or an
appeal therefrom taken and execution thereon effectively
stayed pending such appeal and, if such judgment be
affirmed on such appeal, the same shall not be discharged
within thirty (30) days.
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49. ADVERSE IMPACT ON MARKETABLE TITLE OF SECURITY
If BORROWER permits the recording of any lien or
encumbrance upon the Property used security for the LOAN
which adversely impacts the marketable title to the
Property, BORROWER shall be in default if the lien or
encumbrance is not removed within thirty (30) days of
initial recordation.
50. WAIVER OF NOTICE
No failure or delay on the part of the CITY in exercising
any right, power, or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise
of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any other
right, power, or remedy hereunder. No modification or
wai ver of any provision of LOAN or of NOTE, nor any
consent to any departure by BORROWER therefrom, shall in
any' event be effective unless the same shall be in
writing and then such waiver or consent shall be
effective only in the specific instance and for the
specific purpose for which given. No notice to or demand
on BORROWER in any case shall entitle BORROWER to any
other or further notice or demand in similar or other
circumstances.
51. AUTHORITY
The Mayor of the CITY is hereby authorized and directed,
for and in the name and on behalf of the CITY, to execute
and deliver, at any time, such other and further
documents, or amendments, which, in the opinion of the
City Attorney, are necessary for the consummation,
performance and completion of this transaction and do not
create any material change in the rights and duties of
the CITY. The Redevelopment Agency of the City of San
Bernardino, and its officers, are authorized to negotiate
any such documents or amendments and to administer this
LOAN Agreement.
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ARTICLE VII
MISCELLANEOUS
52. AMENDMENTS
All parties or their assigns hereby expressly reserve all
rights to amend any provisions of the LOAN, to consent to
waive any departure from the provisions of the LOAN, to
amend or consent to waive departure from the provisions
of the NOTE, and to release or otherwise deal with any
collateral security for payment of the NOTE provided,
however, that all such amendments be in writing and
executed by all parties or their assigns.
53. NOTICES
All notices, consents, requests, demands, and other
communications hereunder shall be in writing and shall be
deemed to have been duly given to a party if mailed by
certified mail, prepaid, to the parties at their address
as set forth in the LOAN, or at such other address as any
party may have designated in writing to any other party
hereto.
54. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All agreements, representations, and warranties made by
BORROWER herein or in any other document or certificate
delivered to the CITY in connection with the transaction
contemplated by the LOAN, shall continue in full force
and effect so long as NOTE is outstanding.
55. SUCCESSORS AND ASSIGNS
The LOAN shall be binding upon BORROWER, its successors
and assigns, except that BORROWER may not assign or
transfer its rights without prior written consent of the
CITY, which consent shall be solely within CITY's
discretion. The LOAN shall inure to the benefit of the
CITY, its successors and assigns, and, except as
otherwise expressly provided in particular provisions
hereof, all subsequent holders of NOTE.
56. AUDIT
The CITY shall have the right to require BORROWER to
provide within a reasonable time, a financial audit of
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BORROWER, by an independent certified public accountant
chosen by CITY and paid for by BORROWER, if BORROWER is
in default of any of their covenants or obligations to
the CITY.
57. GOVERNING LAW
The LOAN, NOTE, Deed of Trust, Beneficial Economic
Assignment of the Sublease and Environmental Indemnity
Agreement and all other instruments shall be deemed
contracts made under the laws of the State of California
and for all purposes shall be construed in accordance
wi th the laws of California. In the event any legal
action should be filed by either party against the other,
the venue and forum for such action shall be the Superior
Court of the State of California for the County of San
Bernardino.
58. ARTICLE AND SECTION HEADINGS
Article and Section Headings used in the LOAN are for
convenience only and shall not affect the construction of
the LOAN.
59. ATTORNEY'S FEES
In the event either party shall bring an action to
enforce the terms and conditions of the LOAN, the
prevailing party shall be entitled to recover all of its
costs and expenses, including, but not limited to,
reasonable attorney's fees as determined by the court.
For the purposes of this Section 59, the words,
"reasonable attorney's fees" when applied in the case of
the CITY shall include the salary, wages, benefits, and
overhead of the lawyers employed by the office of the
City Attorney of the City of San Bernardino.
60. CONFLICT OF INTEREST
No member, official or employee of CITY or BORROWER shall
have any personal interest, direct or indirect, in the
subj ect matter of LOAN, nor shall any such member,
official or employee participate in any decision relating
to LOAN which affects his personal interest or the
interests of any corporation, partnership or association
in which he has an interest, whether directly or
indirectly.
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2000-15
61. DISCRIMINATION
No person shall, on the grounds of race, sex, creed,
color, religion, or national origin, be excluded from
participating in, be refused the benefits of, or
otherwise be subjected to discrimination in any
acti vi ties, programs, or employment supported by this
Contract.
62. HUD CONTRACT COMPLIANCE BY BORROWER
In addition to the covenant of the BORROWER relating to
the creation of new jobs as set forth in Section 31,
above, BORROWER shall make every effort to ensure that
all projects funded wholly or in part by CDBG funds shall
provide equal employment and career advancement
opportuni ties for minorities and women. In addition,
BORROWER shall make every effort to employ residents of
the area and cause its tenants to so employ and shall
keep a record of the BORROWER positions that have been
created either by it or by its tenants directly or as a
result of this program.
BORROWER shall comply with the Executive Order Nos.
ll246, 11375, 11625, 12138, 12432, 12250, Title VII of
the Civil Rights Act of 1964, the California Fair Housing
and Employment Act and other applicable federal, state
and CITY laws, regulations and policies relating to equal
employment and contracting opportunities, including laws
and regulations hereafter enacted.
63. COUNTERPARTS
This LOAN Agreement may be executed in any number of
counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the
same instrument.
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l
IN WITNESS WHEREOF, the authorized officer of the parties
have executed this LOAN AGREEMENT.
BORROWER
Inland Valley Development Agency
Dated:
'y' &-w,~
~roved As To Form:
,1J-l
General Counsel
By:
CITY
City
Dated:
IN /zt'fro
, ,
By:
Gordon McGinnis
Mayor Pro Tem
BY:/!f;.~ h.(~/
Rae 1 G. Clark, C1ty Clerk
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EXHIBIT "Au
[FORM OF $120,000.00 NOTE]
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EXHIBIT "An
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
(2000 City of San Bernardino Community
Development Block Grant Loan)
PR:NCI?AL AMOUNT
NOT TO EXCEED:
San Bernardino, California
$120,000.00
Da te: January 24, 2000
Fo:::- vclc.e recei\~'2d, l:nland Valley Dc-,,-elopmen:: Age:--.cy, a joirJ.~
powers authority (herei~after called r'30RROWER") promises to pay to
the order of the City of San Ber~ardinc (hereina~ter called I'CITY'I)
a~ its office i~ the Ci::y of San Bernar8ino, State of California or
at CI~Y'S option, a:: s~c~ other place as say be designated by CITY,
the su:n drawn ,by the BC:;30WC:R ur,der the 2000 City of San Ber"ard~,.()'"
Coc~un~ty Develof~eGt B~ock Grant Loan Agreement, dated 01/24/2000,
20:0, not to exceed One Hundred Twenty Thousand Dellars
($~20fJOO.OO), t~gether with interest O~ the outstandi~g and cnpaid
principal balance tersof, compu~ed fro~ the da~e of this ~OTS at
the ra~e of three perce~~ (3.0%) per a~~~m. Payments shall be made
by che BORROWER in leve~-debt monthly installments of Frinc~fal and
i~~erest on the outst2~ding pri~cipal balance hereo: based O~ a
f.:.:~y :our (54) ~.8r.th amortization schedule w'i-c.h the fi:::s~ such
paj~e~~ coming o~ the first day of the seve~th (7th) ca~er.da~ month
:o:lo':;:..og the de-:e or this NOTE and cn the fi~st day of each
su=ceeding month untll paid in full. This NOT~ shall be fully
a~~~tized and paid in f~ll on the fif~~ (5th) a~r.iveFsa=y fc:lowi~g
i~s da~e. BORROW~~ shall have the right to pay the NOTE i~ full at
a...... ti2e witho1J.t penal:.y.
The te~m "INDEBT~JNESS" as used herein shall mean the INDEBTEDNESS
e'.;:" de:-.ced by th:.. s NOT:t:, including principal, i!1terest, servicing
charges and expe~ses, whether contingent, now due or hereaf~er
in=urred. The term "COLLATERAL'! as used in this NOTE shall mea~
ar.y f~~ds, guara~:.ees, or other property or rights the~ein of any
na~ure whatsoever or the proceeds thereof which may have been, are,
or hereafter may be, hypothecated, directly or indicectly by the
BOt'.ROvER or othe~s in connection with, or as security for, the
IN=EBT~DNESS or any pa~t thereof. The COLLATERA~, and each fart
the~e=f, shall secure the INDEBTEDNC:SS and each part thereof. The
covenants and co~ditio~s set forth or referred to in any and all
instruments of hypothecation constituting the COLLATERAL are he~eby
incorporated in this NOTE as covenancs and conditions of the
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BORROWER with the same force and effect as though such covenants
and conditions were fully set forth he!:ein. The te::m "CITY" as
used he::ein shall mean the City of San Bernardino and its assigns.
The INDEBTEDNESS shall irrmediately become due and payable upon the
appointment, whether voluntary or involuntary, of a receiver or
liquidator for the BORROWER, under the provisions of any State or
Federal insolvency law o!: under the provisions of the Bankruptcy
Code of 1978 or upon the making by the BORROWER of a~ assignment
for the benefit of its creditors. The CITY is a',",thorized to
declare all or any pa::t of the INDEBTEDNESS immediately due and
payable upon the happening of any of the following events, (1)
failure of the BORROWER to pay any part of the INDEBTEDNESS whe~
due, (2) Nonperformance by the BORROWER of any agreement with, cr
any condition i~possi by CITY with respect to the =NQE=~ECNES2;
(3) CITY's discovery of the BORROWER's failure in a~y applicatic~
of the 30RROW~R to CITY to disclose 2~Y fact ceemed ~y CITY to ce
material or of the m2k~~g ~hereof or in 2~Y of t~e S2~j agree~e~~s,
or in a~y affidavit or oL~er doc~ments sub~itted ir. cc~~ec~ion wi~~
said app~ication or the INDEBTEDNESS, of any misrepresentation bji~.
on behalf of, or fer the be~,efit of 1:[-.2 E<JRROfti~R: (~ t:-~e merge:-
or consolidation 0= the 30RROWSR, or the maki~g of a~y agreeme~:
therefor without the prior consent of C=TY; (5) t~e BO~~OWER's
failure d;..:ly to account, to CITY's satisfaction, at such time or
times as CITY may req~ire, for any of the COLLATSRA~, O~ proceeds
thereof, ccmlng i!'.::o t:--12 con';:~ol 0: tr.e BOE?O~TE?; or ,;6) tt.2
instit~~~on of a~y Suit affecting the 50~ROW~? dee~ed by CITY to
adversely affect its i:-~::erest hereu::.der in the CJ1L.2-_~SRl'>.L C~
otherwise 0:: (7) a~y other ffiate::ial breach by the BC??OW~~ of t~e
terms a~d condi::io~s oI Lhe 2000 City of San 3erna~d~~o Co~unity
Develo~me~t Block G::a~c Lean Ag::eement daced 01/24 , 2000. CITY's
fa.::..lure to exercise i-cs rights under this ;:a~a9r;a;:n shall nc::.
constitute a waiver thereof.
Upon the nonpayment of tte INDE3TEDN2SS, or any part Lherecf, whe~
due, w'hether by acceleration or otherwise, CITY is empc\,,-ered to
sell, a~d deliver the who~e or any part or the COLLAT~~AL at public
or private sale. P-4fter deducting all expenses incidental to or
arising from such sale 0:: sales, CITY may apply the ::esid~e of the
proceeds thereof to the payme~t of the INDEBTEDNESS, as it shall
deem proper, returning the excess, if any, to the BORROWER. The
BORROWER he::eby waives all right of redemption or appraisement
whether before or after sale. CITY is fu::the!: e:npm.;ered, to
collect or cause to be collected or othe~wise to be converted into
money all or any pa::t of the COLLATERAL, by suit or otherwise, and
to sur render, compromi 52, release 1 reneH 1 extend, exchange, or
substitute any item of the COLLATERAL in transactions with the
BORROWER or any third pa::cy, irrespective of any assig~ment thereof
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by the BORROWER. Whenever a sum payable by the BORROWER to the
CITY is secured by the COLLATERAL and is not paid when due, or is
otherwise in default, whether or not the INDEB7EDNESS, or any part
thereof, has become due, CITY shall have the same rights and powe~s
with respect to such item of the COLL.lI.TERAL as are granted in
respect thereof in this paragraph in case of nonpayment of the
INDEBTEDNESS, or any part thereof, when due. None of the righcs,
remedies, privileges, or powers of CITY expressly provided for
herein shall be exclusive, but each of them shall be cumulative
with and in addition to every other right, remedy, privilege, and
power now or hereafter existing in favor of CITY, whether at law or
in equity, by statute or otherwise.
The BORROWER agrees to take all necessa~y seeps to administe~,
supervise, preserve, and protect the COLLA~cRA~; and regardless of
any action taken by CITY, there shall be no duty upon CITY in this
respect. The BORROWER sr-.all pay all exper.5es of any nat'-'~e,
whether incurred in or out or court, and whether incurred be=~re
or afLer this NOTE shall become due a": i':5 maturity date or
otherwise, in~luding but not limited to reasonable attorney's fee$~-
and costs, which CITY may deem necessary or proper in connection
with the satisfaction or the INDEBTEDNESS or "the admi~~strati~~,
supervision, preservation, protection or (including, but ~ot
limited to, the mainter:ance of adeqt:a~e insurance) or the
realization upon the COLLA7ERAL. CITY i5 aUcho~i=ed to pay at any
time and from time to time any or all suc~ expe~ses, add the amc~~t
of such payment to the amount of the INDSB7EDNESS, and cha~ge
interest thereon at the rate specified he~ein wi~h respect to ~he
principal amount of this NOcE.
The secu~ity rights of CITY and its assigns he~eunder shall not be
impaired by CITY's sale, hypothecation or ~ehypG~hecation of t~is
NOT~ or any item of the COLLATERAL, or by any indulgence, including
but not limited to (1) ar.y renehlal, ex~en.sion, o~ modificat:..on
which CITY may grant with respect to the INDE37SDNESS or any part
the~eof, or (b) any surrender, compromise, release, renewal,
extension, exchange, or substitution which CITY may grant in
respect of the COLLATERAL, or (c) any indulgence granted in respect
to any endorser, guarantor, or su~ety.
The purchaser, assignee, transferee, or pledgee of this NOTE, the
COLLATERAL, any guaranty, and any other document (or any of the~),
sold, assigned, transferred, pledged, or repledged, shall forthwith
become vested with and entitled to exe~cise all the powers and
rights given by this NOT;:: to CITY as if said purchaser, assignee,
transferee, or pledgee were originally named as Payee in this NOTE.
It is understood and agreed by and between the BORROWER that should
the BORROWER sell or convey the real property covered by the Deed
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of Trust securing this NOTE, then at the option of the CITY, the
unpaid balance of principal and interest then due on this NOTE
shall immediately become due and payable.
BORROWER:
Inland Valley Development Agency,
a joint powers authority
By:
Gourley
tive Director
.-.--
-r
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EXHIBIT "B"
[SOURCES AND USES OF FUNDS TO CONSTRUCT PROJECT--PROJECT
DESCRIPTION]
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EXHIBIT "B"
SOURCES AND USES OF FUNDS TO CONSTRUCT PROJECT--PROJECT
DESCRIPTION
The Project consists of the construction and installation by
the BORROWER of certain life safety and electrica~ utility system
rehabili tation work and improvements of Building No. 932. Upon
completion of the Project, Building No. 932 shall be delivered for
possession by the BORROWER to Astrofab, Inc., pursuant to the terms
of a written lease agreement by and between the BORRO'tJER and
Astrofab, Inc. Fo~lowing the completion of the work of improvement
of the Property by BORROWER and the commencement of possession of
Building No. 932 by .l:,strofab, Inc., the tenant is solely
responsible for paying for the cost and completion of other tenant
improvements to Building No. 932. Building No. 932 includes
approximately 98,000 sqc:are feet of interior building area and
appc:rtenant parking.
The principal amoun': of the LOAN shall not exceed $120,000.00,-
All of the proceeds of the LOAN shall be disbursed by CITY to the
BORROWER. The BORROWER presently estimates that the total cost of
the Project shall be $135,000.00.
The BORROWER is solely responsible for contributing its own
funds (presently estimated to be not more tha" $35,000.00) in an
amount sufficient (together with the proceeds of the LOi'.N not to
exceed $120,000.001 to complete the Project within ninety (90) days
following the ini':ial disbursement of the proceeds of the LOA~. In
the event that the total cost of the Project may exceed $155,000.00
the BORROWER is solely responsible for contributing additional
funcs as necessary in order to assure the complecion of the
Project.
The proceeds of the LOAN shall be used and applied solely to
pay for the cost of the Project, including the payment of citle
issuance costs and recording fees, if any, evidencing the security
interest of the CITY under the terms of the LOAN.
All work performed by the BORROWER on Building No. 932 shall
be accomplished as a "public works project" of the BORROWER under
applicable provisions of the Public Contracts Code and 24 CFR Part
85 all as more fully set forth in the LOAN Agreement.
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EXHIBIT "C"
[LOAN DISBURSEMENT APPROVALS AND PROCEDURES]
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EXHIBIT "C"
LOAN DISBURSEMENT APPROVAL PROCEDURE
This exhibit contains as outline of the LOAN disbursement
approval procedure for the not to exceed $120,000.00 loan of the
CITY to the BORROWER, the Inland Valley Development Agency:
1. Each
initiated by a
the Execu ti ve
which includes
A)
disbursement of the proceeds of the LOAN shall be
written request for LOAN disbursement executed by
Director of the Inland Valley Development Agency
the following information:
a statement that the BORROWER is in compliance with
the terms and conditions of the LOAN Agreement and
that no default exists thereunder and that no event
has occurred with the passage of time which would
be a default under the LOAN Agreement,
B) . indicates the amount of the LOAN for which
disbursement is sought,
C)
D)
contains a
improvements
disbursement
suitably detailed description of the
of Building No. 932 for which the LOAN
shall be applied by the BORROWER,
certify that all stop
have been obtained
Building No. 932
disbursement request,
notice and materials releases
for the work performed on
through the date of the
E) a statement that a certified payroll record has
been obtained from the general contractor which
indicates that not less than prevailing wages have
been paid to workers (including employees of
subcontractors) engaged in the work of improvement
on Building No. 932 for the work performed through
the date of the disbursement request,
2. (a) The CITY shall make the initial disbursement of the
proceeds of the LOAN to the BORROWER within ten (10) days following
receipt of a completed written request for LOAN disbursement and
confirmation by the Executive Director of the Economic Development
Agency of the City of San Bernardino, or designee, that all of the
following have been satisfied:
A)
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each of the following have been fully executed by
the BORROWER:
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i)
ii)
iii)
iv)
Note,
Deed of Trust,
Environmental Indemnity Agreement,
Beneficial Economic Assignment of the Sublease
for Building No. 932,
B) the BORROWER has delivered the opinion of its legal
counsel as set forth in Section 15.b., of the LOAN
Agreement,
C) the BORROWER has provided the CITY with a CTLA
lender's policy of title insurance in the principal
amount of the LOAN in the form required by Section
l5.b. (4) (b) of the LOAN Agreement,
D)
the BORROWER
evidence of
Section 35 of
has provided the CITY
insurance coverage as
the LOAN Agreement,
with written
required by
E) . the BORROWER has provided the CITY with a true and
correct copy of the fully executed sublease
agreement relating to Building 932 by and between
Astrofab, Inc. and the BORROWER, together with the
tenant financial information described at Section
1.g(14) and (15) of the LOAN Agreement,
F) the BORROWER has provided the CITY with a copy of
the appraisal report dated May 24, 1999, relating
to Parcel "F" and a confirming letter of the
appraiser which indicates an allocation of value
for Parcel "F" between Parcel "F-l" and Parcel "F-
2" such that Parcel "F-2" has a value of not less
than $1,200,000.00.
(b) From each disbursement of the LOAN the CITY shall
withhold a retention of ten percent (10%) of the amount of the LOAN
disbursement requested. The aggregate amount of the LOAN retention
shall be disbursed to the BORROWER within ten (10) days following
receipt of a LOAN disbursement request of the BORROWER which
indicates that the improvement of Building No. 932 to be undertaken
by the BORROWER has been completed.
(c) The proceeds of the LOAN shall be disbursed to the
BORROWER in one or more draws, provided however that the work of
improvement of Building No. 932 to be undertaken by the BORROWER
shall be completed within not more than ninety (90) days following
the date of the initial disbursement of the proceeds of the LOAN.
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3. Unless otherwise indicated in this Exhibit, the meaning
of all defined terms and phrases as used herein shall be the same
as set forth in the LOAN Agreement. In the event that there is any
inconsistency between a provision of this Exhibit and a provision
of the LOAN Agreement, the Executive Director of the Economic
Development Agency of the City of San Bernardino, or designee,
shall harmonize the applicable provisions of the LOAN Agreement and
this Exhibit in such manner as best serves the interests of the
CITY.
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EXHIBIT "D"
[FORM OF DEED OF TRUST]
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RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF SAN BERNARDINO
REDEVELOPMENT AGENCY
201 North "E" Street
Suite 301
San Bernardino, California 92415
ATTN: Housing Division
Space Above This Line is
For Reco~der's Cse Only
DEED OF TRUST
AND ASSIGNMENT OF LEASES AND RENTS
(2000 .Ci~y of San Bern2~dino COIT~~nity Oeve~opmeDt
Block Grant Loan)
THIS DE~J OF T~JST AND ASSIGK~~NT O~ LEASES AND RENTS
(the "Deed of Trust") is dated, January 24 2000, among the
Inla~d Valley Deve~opment Agency (the "T~~storU), whose address is
294 Scutj Leland No~ton Way Suice No.1, San Bernardino, California
92408 and the Cicy of San Bernardino (the "Lender" or the
nSeneficiary"), whose address is 201 Nor~h "E" Streec, Suite 301,
San 3er:-'~ardino, Californ:.a 92415 and Orange CoastTitle Insc.:::-ance
Company, a (the "Trc:stee") whose address is
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit 0: Lender as Beneficiary,
all of Trustor I s right, title, ane interest in and to the
following described real property, together with all existing
or subsequently erected or affixed b~ildings, improvemenLs and
fixtures; all easemenLS, rights of W5Y, and appurtenances and
all other rigjts, royalties, and profits relating to the real
property, including and without limi~ation all mine~21s, oil,
gas, geothermal and similar matters located in San Bernardino
County, State of California (the "Property"):
SEE EXHIBIT "A" LEGAL DESCRIPTION ATTACHED HERETO
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Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of the
Property and all Rents from the Property. In addition, Trustor
grants Lender a Uniform Commercial Code security interest in the
Rents and the Personal Property defined below.
2.0
DEFINITIONS. The following words shall have the
meanings when used in this Deed of Trust. Terms not
defined in this Deed of Trust sr.all have the
attributed to such terms in the Uniform Commercial
references to dollar amounts shall mean amounts
money of the united States of ~~erica:
following
otherHise
meanings
Code. f<.ll
in la'fiful
Beneficiary.
Bernardino, a
The word "Beneficiary"
charter city.
means
the City 0:: San
Deed of Trust. Tte words "Deed of Trust" mean this Deed of
Trest and p..SS2..gn:-:-lsnt of Rents amc:"'.9 Trustor, Lender, and
Trustee, 2.~i inclcdes without lirni~2.tion all assignme~t an~
, . . --'~
security interest provlslons relating to the Personal Property
and Rents.
Improvements. The word "Improveme::-.LLs" mea:l.S and i:l.c':"'J.des
without li~~ta~ion all existing improvements on the Property.
Indebtedness. The word "I!1debtedr.ess" r.,eaL5 all princir:al
and, if applicable, interest payable under the Promissory
Note, the per=orma~ce cove~ants of the Trustor in favor of the
1e::-~c:ier as crise c.nder tr1e Loa:: P-_I;:::-ee:ne:1t and any a::,.o.cr,t.s
expended or ajvanced by Lender to discharge obligatio~s of
TrGstor or ex;enses incu:::-red by TrGs~ee or Lender to e~force
ob:igatio~s of Tr~stor unce:::- the Pro~~ssory No~~ and this Deed
of Trust, together with interest on such a~ounts. This Deed
of Trust sec~~es, in addition to the 2mou~ts specified i~ t~e
Promissory Nete any future adva~ces, together with all
interest thereon, which future advances the Lender may in its
sole and- absolute discretion make so long as Trustor cO[;"'Lplies
with all the terms and conditions of the Promissory Note or
other loan ag~eement.
Lender. The word "Lender" means the City of San Bernardino,
a charter city.
Loan Agreement.
certain 2000
January 24, 2000
The words "Loan Ag~eement" refers
CDBG Funds Loan Agreement
by and between the Lender and the
to that
dated
Trusto!:'.
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Personal Property. The words "Personal P:::operty" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the Property.
Promissory Note. The words "promisso:::y Note" mean the
Promissory Note or even date herewith, in the pri~cipal amount
not to exceed One Hundred Twenty Thousand Dollars
($120,000.00) from Trustor to t!1e Lender, toge-:ner w:,-th all
renewals, extensions I modifications, refir~2.ncing, and
substitutions for the Promissory Note.
Property. T'1e wo:::d "Property" means collect:,-vely the P:::oFe:::ty
and the Personal P:::operty, and the rights described a80ve in
the I'Conveyance a~d Grant" section of the Deed o~ Trust.
Rents. The word "?,ents" IT,s-ans all present and ::'J.ture re::-'.ts,
revenues, income, issues, royalties, pr0fi~s, a~d c~~er
benefit~.de:::ived f:::om the P:::ope:::ty.
Trustee.
Insurance
The word "Trustee'! means 7~t:e
C8illpany, and any subs~itute or s~cceSS0r tr~5tees.
Trustor.
Develop:nent
The h'ord "Trustor" I:'.eans t!'.e
Agency, a jo~nt powers authcri~y.
I:-.la:-cd
Velley
3.0 THIS DEED 0: TRUST, INCLUDING T~E ASSIGNMEGC OF RENTS AND IHE
SECURITY INTEREST IN THE RENTS AND PERSONA~ ?RO?ERTY, IS GIVEN
TO S2CUR'::: (=-) p;.:n.'l::::NT OF T:-:f.: IN~::3T:::DNESS p_~,~D (2 FER:S'?,~~':-.L~CE
OF ANY A~D ALL OBLIGATIONS OF TRUSTOR UNJ~R T~~ PROMISSO~Y
NOTE AND T~!S DEED OF TRUST. T~E PROMISSORY GOTE A~D THIS
DEED OF TRUST ARE GIVEN AND ACCEPTED ON T~E FOL~OWI~G TER:cS:
3.1 PAYMENT AND PERFORMANCE. Except as othe:::'^,:,-se prov:,-de:i in
this Deed of Tr~st, Trustor shall pay to Lende~ all a~c~nts
seccred by this Deed of T~ust as they beco~e d~e, and shall
strictly ar:d in a timely manne~ pe~form all of T~us'::cr' s
obligations under the Promisscry Note, this Deed of Trust,
and the Releted Documents.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. T~ustor ag:::ees
that Trustc~'s possession and use of the Prope:::ty shell be
governed by the following provisions:
Possession and Use.
Default, Trustor may
Until the occurrence of an Event of
(a) remain in possession a~d control of
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the Property, (b) use, operate or manage the Property for any
purpose authorized by law.
Duty to Maintain. Trustor shall maintain the Property,
provided however, that the Trustor may demolish any building
or structure thereon at any time, without further notice to
the Lender.
Hazardous Substances. The ter:ns "hazardous w2s~es",
"hazardous substance", "disposal, " "release", and "threatened
release", as used in this Deed of Trust, shall have the same
meanings as set forth in the Com;:.rehensive E!1vironme:-~tal
Response, Co~pensa~ion, a~d Liability Act of 1980, as ame~jed,
42 U.S.C. Section 9601, et ~. ("CEPCL!I."), tr-,e S1.:per::und
~~endments and Rea~thorization Act 0: 1986, P~b. L. No. 93-499
("SAR.Z:..") 1 the Eazardous Materials Trar:spori.:atioT"l nrT 49
U.S.C. Section 18C~, e~ ~., the Resource Co~serva~~o~ and
Recovery Act, 49 U.S.C. Section 6901, et ~., Cha.pters 6.5
through 7.7 of Division 20 of the California ~ea~th and Sa:ety
C-'- ,.....1';.......: o~ 20,; c,n e~' se~ '-',oe- ~~c"1 ~ '-~ ~ --..... 0;'--
uCe, :':;c:"":;...."':"';1. ~_ 'J, -""'" ~., or O~~.l .:. c~_ ...:......:...C2.:....'.J...\::: s:_;:...e .:.
Fede~al laws, ru~es, C~ ~egula~io~s cdop~ed p~=S~2~~ ~o a~j or
the foregoing.
Tr~stc~ re;~ese~ts and warra~:s to Le~der thc~: (2)
except as previous:y disclosed by t~e Trus~or to t~e ~e~der
pursuan: to ~he L022 Agreeme~t a~d tha~ ce~t2~~ =indi~; of
Sui:abili~y ~o Tr2~sfer dated as prepa~ej by
the Uni~ed States Air force, Tru5tc~ h~~ ~o other k~ow~edge
of, or ~e2..SCrL to beli.e~/e that there has beer..: (i) a:-:y ;J.S€,
gS:1eratior.., mal.1.l:ac:"..lre, storage, trea~:r:cer.t, dispcsal,
re...!..ease, or threa:.er-.ed release of any r.2zardo:..:s v,:aste or
sJcs~a~ce by any prier OW:1ers or occ~pants c= the Property or
(i.i) any act~21 or t~reatened litiga~ion or claiws or any kind
by any person relating to such r..5.t:ters, and (b) r.eit:her
Trustor nor any te~a~t, contractor, agent or other a~thcrized
user of the Proper~y shall use, gene~ate, ffia~ufacture, s~ore,
treat, d~spose of, or release any ha:ardcus ~~ste o~ s~bs:2nce
on, under, or about the Property.
Trustor hereby authorizes Lender and i~s age~ts to e~ter
upon the Froperty to make such inspections a~d tes~s as Le~der
may deem appropriate to determine ccmpliance of the Property
with this section of the Deed of Trust. Any inspectio~s or
tests made by Lender shall be for Le~der's purposes only and
shall not be construed to create a~y respo~s::.bility or
liability on the part of Lender to Trustor or to any ot:her
person. The represer.tations and warranties contained herein
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are based on the disclosures made to the Trustor by Lender as
set forth in the Loan Agreement and on Trustor's separate
investigation of the Property for the presence of hazardous
substances.
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all reasonable
times to attend to Lender's interests and to inspect the
Property for purposes of Trustor's compl~ance with the terms
a~d conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall
p~omptly comply with all laws, ordinances, a~d regulations,
~ow or he~ea=~er in effect, of all gove~n~ental authorities
2~plicable to the use or occupancy of the Pro~er~y. Tr~stor
~ay contest in good faith any such law, o~dina~ce, or
regula tior~ an':::. wi thhold compliance dur i:--~g 2.EY proceeding,
i~cluding app~opria~e appeals, so long as Trus~or has notified
1.e:-1der in wr:..ting prior to doing so a:-.d so long as, i:--.
,~ d .,...1 t ,....,~c ;;......, L d I . -.:::.......~_.....c:;: ; t"~ pr rt ~-.,:.--
J...;~::1 e_ 5 5 "-'.L.... Cp_D_',-,n, en er S In:...__....-::::::::l.._ _n ~.'- ....ope_ Y CL...C
~ct jeopardize~. Lender may require Tr~s~or to post adeSuate
security or a s~rety bond, reasonably satis:actory to Le~der,
to protec~ Le~der's interest.
Duty to Protect. Trustor agrees neither to abandon Gor leave
u~attended the Prcperty. Trustor shall de all other acts, i~
addition to t~~se acts set forth above in this section, w~ich
f:::-om tbe cheracter and use of the ?rot::e::-ty are reasonably
~ecessary to ~rctect and preserve the Property.
3.3 DUE ON SALE.
Due on Sale. The Lender may, a c i ts opt~on, decla:ce
~,,~ediately d~e and payable all sums secu:ced by this Deed 0=
Trust upon t~e sale or transfer, without the Lender's prior
written co~se~t, 0: all or any part of the Property, or any
i:1terest in the Property. A "sale or transfer" means the
conveyance of the Property or any right, title or interest
therein; whet:'1er legal or equitable; \-;hether voluntary or
~nvolu~tary, w~ether by outright sale, deed, installment sale
contract, la~d contract, contract for deed, leasehold interest
with a term g:ceater than five (5) years subject to the
provisions of the subparagraph entitled "Permitted Leases" in
paragraph 12.0, below, or by sale, assignment or transfer of
any beneficial interest in or to any land trust holding title
to the Property or by any other method of conveyance of the
property inte:cest. This option to declare immediately due and
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payable all sums secured by this Deed of Trust shall be
exercised by the Lender in accordance with the provisions of
Paragraph 5.1 hereof, provided however, this option shall not
be exercised if such remedy is prohibited by applicable law.
3.4
TAXES AND LIENS.
taxes and liens
Trust:
The following provisions relating to the
on the Property are part of this Deed of
Payment. To the extent that the Trustor may not be exempt
from the payment of taxes or assessments as a local public
agency, Trus"or stall pay when due (and in all events at least
tEn (10) days p=io~ to delinquency) all taxes, spEcial taxes,
assessments, charges, fines and impositions levied ag=i~st or
on accou~t of t~e Property. F~=thermore, the T=us~cr shall
pay whe:1 due a~l claims for w'crk dene on or for services
rendered cr material :urnished to t~e Property. 7rustcr shall
~aintai~ the Proper~y free of all liens having ~riori~y over
or equal to the i~~erest or LS:1csr under this eeed c: Tr~5~,
except fbr t~e lis:1 0: property taxes and assess~ents ~ot due~
Right to Contest. Trustor may ~,<-ii:!'l::old paYIllErJ:: or a-::y tax,
assessmen~, lien or claim on the Property in co~nec~i~n with
a goed fait:: disF1..:te over its ob:":..gation to Fay s'...:.::h tax,
assess~ner:t., lie~ 0:::- claim, so lo::g as Lende.:: ' s sec;Jrity
i~terest in t~e Prcpe:::-ty is not jeoF~.::dized. If a lie~ arises
or is filed as a .::es~lt or nO~Fay~e~t., Tr~stor shall within
fifteen (2.5) deys after the l:.e:1 arises or, :..= a 2.ien is
filed, w:..-:hin =:..::.ee:-: (15) dajs a:~er Trustor r~as root-ice of
t~e filing, sec~re t~e discharge or the lien, or if reqUEsted
by Lender, deposit wit.h Lender cast or a sufficient cc.::porate
s~rety bc~d or ot~er security sa~:s:actory to Lender in an
2~ount su=ficie~t to discharge the lien plus a~y ccs~s and
a~torneysT fees or ot.her c~arges tha~ could accr;je as a result
of a foreclosure or sale under tr.e lien. In any cor.test,
Trusto.:: shall defe~d itself and Le~der and shall sa~isfy any
adverse judgmen.t before enforceme:-it against. the F.::operty.
Trustor s~all na~e Lender as a:1 additional obligee u~dEr any
surety bond fur~ished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender sa~i5factc::::-y evidence of payme:1t of the te.xes or
assessments and shall authorize the appropriate gove~nmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Prope~ty.
3.5
[Reserved
No Text]
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3.6 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or
proceeding is commenced that would materially affect Lender's
interests in the Property, Lender on Trustor's behalf may, but
shall not be required to, take any action that Lender deems
appropriate. Any amount that Lender expends in so doing will
bear interest at the rate charged under the Promissory Note
from the date incurred or paid by Lender to the date of
repayment by Trustor. All such expenses, at Lender's option,
will (a) be payable on demand, (b) be added to the balance of
the Promissory Note and be apportioned among and be payable
with any installment payments to become d1.:e during the
remaining term of the Promissory Note, or (c) be treated as a
balloon payment which will be due and payable at the
Promissory Nc-ce's ma.turity. This Deed or T::-ust also will
secure pay~e~t of these amounts. The rights provided for in
this paragr~~h sh2~1 be in addition to any ot~er rights or a~y
re~edie5 to ~h~ch Lender may be entitled 0~ a~~cu~t of the
default. A~y s~~h action by Lender s~all nc~ be ccr.st:::-ued 2S
curing tne de=2~~L so as to bar Lender fro~ 2~Y re~edy thatlf
otherw~se wccld have had.
3.7
WARRANTY; DEFENSE OF TITLE. The following
relating to o~nership of the Property are a part
0: Trus~:
prc~lisio"",~s
of t:"1is Deed
Title.
Tr'J.s':or r,.iarrants that
Trus~or has the fu2.1 right,
and deliver t~~s Deed of Trust
pewer, and 2~t~cri:y to execute
to Lender.
Defense of Title. Truster warrant.s and Wi! 1 fc~e~Ier defe!'.d
its title t~ the Property agai~st t~e C~2~~S'O= all pe~soDs
subject to the rr,atte!:s disclQsed in U;e policy of title
insura!'lce 0: even date herew~th, issued in favor of the
Trustor pu!:"suant to the Loan ~.greerT"tent. Irl the e~Ie:l.t 2EY
action or r:;.:-oceeding is commenced that questions Trustor's
title or the i~te!:est of Trustee or Lender u~der this Deed of
Trust, Trus~or shall defend the action at Trustor's expense.
Trustor rr.ay be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and
to be represe~ted in the proceeding by counsel 0= Lender's own
choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to
time to permit such participation.
Compliance with Laws.
Trustor's use of the
Trustor warrants that the ProperLY a~d
Property complies with all existing
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applicable laws, ordinances, and regulations of governmental
authorities.
3.8 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Tr~st:
Application of Net Proceeds. If all or any part of the
Property is conderr~ed by eminent domain proceedings or by any
proceeding or purchase in lieu of condemnation, Lende~ may at
its election require that all or any portion of the net
proceeds of the a~ard be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds or
the aW2~d shall mean the award after Fayment of all reasc~2ble
costs, expenses, a~d attorneys' fees, 0= Trustee O~ Le~ier in
connection with the condemnation.
Proceedings. If any proceeding i:1 ccnder..r:ation is fi~ed,
Trustor shall pro2ptly notify Lender in wri~ingf a~d Tr~stor
shall promptly ta~e such steps as Day be ne=essary to ce=en~
t' ~ ~~t" l"'1' , ';"'~l +-''1 -\'~r""; ..,.., .'c:::..... ._- b .....' c> .....,-~, ~ .--",
ne oc,-_on aha OO,-__D 1.... e a.....__\...<. 1 ru.... Lor T!'._y e L.;)~ __v.,.......na_
party in suc~ pr:>ceeding, but Lender shall be enti::.2.ej to
participate in the proceeding and to be represented in the
proceedina bv cou:"'"sel of it.s Olll/T. choi.ce, and Trust~::: ',\:':'11
del~ver or ca~se to be delivered to ~e~der s~ch instru~e~~s as
may be requested by it: from tlI:'.E to time to per!':"~2..~ such
partic.:..pation.
gove:cn!CLental
of Trust:
TAXES, FEES AND CHARGES BY
The following Drov.:.sic~s
taxes, fees and charges are a part
GOVERNMENTAL
relati:->; to
0: t2-'.:"s Deed
3 . 9
IMPOSITION OF
AUTHORITIES.
Current Taxes, Fees and Charges. Upen request by Le~.der,
Trus~er shall execute such docume~~s in addition to th~s Deed
of Trust and take whatever other act:ion is req~ested by Le~der
to perfect and con~inue Lender's lie~ a~d security interest in
the Prcperty. Trustor shall reimcu~se Lender fo~ all taxes,
as described below, together with all expe:"ses incur~ej in
record.:..ng, perfecting or continui:.g -chis Deed of Tr'-.2st,
including without limitation all taxes, fees, documer:tary
stamps, and other charges for recording or registeri~g this
Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed of
Trust or upon all or any part of the Indebtedness secured by
this Deed of Trust, (b) a specific tax on Trustor w;,ich
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Trustor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Deed of Trust, (c)
a tax on this type of Deed of Trust chargeable against the
Lender or the holder of the Promissory Note, and (d) a
specific tax on all or any portion of the Indebtedness or on
payments of principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is
e:-.2cted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Defa~lt (as
de::ined below), and Lender may exercise any or all of its
a'lailable remedies for an Event of Default as provided below
ur'.les s T rus t8!:" either (a) pays the tax be fore it becomes
delinquent, or (b) contests the tax as provided above in the
T~xes and Liens section and deposits with Le~der C2S~ or a
s~fficient corporate surety bo~d or other se=~ritv
s~~isfacto~y to Lender.
3.10 [Reserved -- No Text]
'"
-.~--
3.11 FURTHER ASSURANCES; ATTORNEY-IN-FACT.
provisio~s re~ating to further assurances and
are a part c= this Deed of Trust:
The fc2.1ol,..Jing
attorney-in-fact
Further Assurances. At any tise, and frcm ti~e to ti~e, upon
request or Le~der, Trustor will ma~e, execute and deliver, or
w~ll ca~se t~ be ffiade, exec~~ed or delivered, to Le~der or to
Lender's de~~;nee, and whe~ requested by Lender, cause to be
f~ledl reco~:ed, refiled, or rerecorded, as the case may be,
a~ such ti~ss and in such offices and p~aces as Le~jer may
deem ap?~o~~~ate, any a~d all such mortgages, deeds of trust,
se::urity cie'2:::5, securit.y agreeme!'i:'s, financing sta:.e:7ie:1ts,
CC:".:.tinuation state!Tlents, instruments of further assurance,
certific2~es, and other doc~me~ts as may, in the so~e opinion
of Lende~, be necessary or desirable in order to effectuate,
cc~plete, per:ect, continue, or preserve (a) the obligations
of Trus~or u~jer the Promissory Note, this Deed of Trust, and
(b) the liens and security interests created by this Deed of
Tr~st as first and prior liens on the Property, whether now
ow~ed or hereafter acq~ired by Trustor. Unless prohibited by
la~ or agreec to the contrary by Lender in writing, Trustor
stall rei~bu~se Le~der for all costs and expenses incurred in
co~nection wi~h the matters referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
a~d in the na~e of Trustor and at Trustor's expense. For such
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purposes,
Trustor's
executing,
things as
o~inion,
preceding
Trustor hereby irrevocably appoints Lender as
attorney-in-fact for the purpose of making,
delivering, filing, recording, and doing all other
may be necessary or desirable, in Lender's sole
to accomplish the matters referred to in the
paragraph.
4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays the
Promissory Note and all a~ounts as may become due under this
Deed of Trust, Lender shall execute and deliver to Trustee a
request for full reconveyance of this Deed of Trust and shall
execute and deliver to Trustor suitable stateillents of
termination of a:-:y financing statement on file evider.cing
Lender's security inte~est in the Rents and Personal Property.
Lender may cha~ge Trustor a reaso~able reconveya~ce fee at the
tlme of reconveyance.
5.0
DEFAULT. Eacr~ 0: the following, at
shall cO:-lstitGte an eve!1"C. of default
under this Deed 0: Trust:
the option of Ler-.der,
("Eve~1t of ['erauIt"l_
Default
Tr;~stor
Nc::e.
on Payments Due Under the Promissory Note.
'to c2!::e 2.ny payms:1t .w'hen due under t.:'1e
Failure of
Prom.:..ssory
Compliance Default. Fail.~re to comply witt', ar'.y ot:-,er teen,
ocligatic:-"f cC~le:-_a;:t or ccnditi8!1 contained i!"'. this Deed of
Trust, the Prc~issory Note or the Loan Agree~e~t.
Breaches. ~~y w~~~anty, r~prese~tction or s~ate~en~ made o~
f~r~ishec to Le~der by or o~ beha~f of Trustor under this Deed
of Trust, t~e P~c~issory Go~e or the Loan Ag~e~sent is, or at
tte time mace cr furnished was, false in any material respect.
Insolvency. The insolvency of Trustor, appointment of a
receiver fc::: c.::-'...y J;:art of Truster I s property, 2.ny as sign~e:1t
for the benefit of creditors, the COffiIT,e~cement of any
proceeding under a:1Y ban:.cruptcy or insolvency la~-"'s by or
against Trus~or, or the dissolution or te:::mination of
Trustor's existence as a joint powers authorlty.
ForecJ.osure, etc. COITL.:.'Tlencement of foreclos<.lre, w~ether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the
Property. Eowever, this subsection shall r,ot apply iCl the
event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the
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foreclosure, provided that Trustor gives Lender written notice
of such claim and furnishes reserves or a surety bond for the
claim satisfactory to Lender.
5.1 RIGHTS AND REMEDIES UPON EVENT OF DEFAULT. Upon the
occurrence of any Event of Default and at any time thereafter,
Trustee or Lender, at its option, may exercise anyone or more
of the following r~ghts and remed~es, in add~tion to any other
rights or remed~es provided by law:
Foreclosure by Sale. Upon an Event of Default under th~s Deed
or Trust, Bene:::ici.ary may declare the entire indec':edr.ess
secured by th~s Deed of Trust i"~ed~ately due and payable by
delivery to Trus~ee or a written declaration of defa~lt and
demand for c:::.=:lc. a:-:d of a written n.:Jtice of default 2:l.d or
election to cause the Property to be sold, ',..-hieh no~ice
Tr~stee shall caese to be filed for recerd. 3e~e:iciary a~so
stall depcsi~ witt Tr~stee this Deed of Trust, tte ?rorisscry
NotE, other doc~Le~~s requested by Tr~stee, and all dcc~~e~t~_
evidencihg eX~E~di~ures secured here~y. A:~er tte la;se of
such time __~ i:'~ay then be req'J.ire::: by laId follow':'::"; the
recordation of tr:.e rl8r.ice of defa'..:lt, and r:o::ice of sale
having bee::. given as ~~en required cy law, Tr~s~ee, wittc~t
dema~d on T~:..:.st:)r, s[-_a11 sell tr.e ?:-operty 2:' the t':":7le a:1d
place fixed by it i~ the notice of s~le, eithe:- 2S a whole or
in sepa:-ate pa~cels, a~d in such o:-de~ as it may deterx.:..ne, at
public auctio~ to the highest bidder for cash in lawf~l m8~ey
of the United Sta~es, payable at ti~e or sa~e. Trustee may
postpone sale 0= al~ cr a~y portic~ of the P~operty by p~blic
announcement a:. suc~ ti~e 2~d place or sale, a~d from ti~e to
time thereafter may pcstpo~e such sa~e by public a~~oc~ce~e~t
at the time filed by the p~ecedi~; psstponeffien~ in acc8rda~ce
with applicable law. lrustee shall deliver to a purchaser its
deed conveying the Property so sold, but without any covenant
or warranty, express or implied. The recitals in such deed of
any matte!.'s or facts shall be conclusive proof of the
truthfulness thereof. Any persou, i~cluding Trustor, Trustee
or Beneficiary may purchase at such sale. Af~er ded~cting all
costs, fees a~d expenses of Trustee c~d of this Ceed of Trust,
including cost of evidence of ti:.le in connection with sale.
Trustee shall apply the proceeds of sale to pcywe~t of; all
sums expe~ded under the terms he~eof, not then repaid, w~th
accrued interest at the amount allowed by law in effect at the
date hereof; all other SUIT.S then secured hereby; and the
remainder, ~f any, to the person oc persons legally e~titled
thereto.
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Judicial Foreclosure. With respect to all or any part of the
Property, Lender shall have the right in lieu of foreclosure
by power of sale to foreclose by judicial foreclosuce in
accordance with and to the full extent provided by Califcrnia
law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Property and
collect the Rents, including amounts past due and unraid, and
apply the net proceeds, over and above Lendec's costs, against
the indebtedness. In furtherance of this right, Lendec may
require ar..y tenant or othe!:' user of the 2:::-operty to make
payments of re:-'lt or use fees directly to Lends::. If the ?ents
are collected by Lender, then Trustor irrevocably desig~2tes
Lender as Trustor's attorney-in-fact to endorse instrc~ents
received in Fayment thereof in the na~e 0: Tr~sto~ a~~ to
negotiate the same aad col2.ec~ the procee::s. Pay::-.er-"-=.s by
tena:1ts 0:::- o:.her users to Ler_der in res;;s;:se to ~e:--_=er I 5
demand stall satisfy the obligations for w~ic~ the. pa~~en~~
a::e made, ',".lhe-:her or net 2:".Y Freper grour:cs ::cr t"-_2 ce:-:-'.2:1.a
exis-:ed. Lenc.er may exercise its rigl":-:s c!'.cer this
subparag~cph either i~ pe~scn, by age~~, or t~~ous~ a
receiveI.'.
Appoint Receiver. Le!'_dec shall have L,~ r2-ght to ha-,-e a
receiver appo~nted to take possession of a~l 0:: any pa:c~ of
the ProFs::ty, with tr-.e po~,,:e:: to p:cotect c.:;.d preser~12 the
P:coper':l!' to operate t~e P:C2perty preced.:..ng forecl;Jst.:::e or
sale, a~d to collect the Ren~s from the Pro~e==y and app:y the
proceeds, eve:: and abOve the cost of the rece~ve::sh.:..p asainst
'[he inde':J=edr-.2ss. The receiver may ser-,re 'w.:.t:1.out bc:-_::i if
pe~mitted by la'tJ. Le:-~der's right to the 2?--poi!1~me:1t c': a
receive:c shall exist whether or not the appare~t vales c: the
Property exceeds the indebtedness by a s~ts':a~tial a~o~~t.
Employme:--.t by Lender shall not disqualify a person from
serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possessio~ of
the Property after the Property is sold as provided abo~e or
Lender otherwise becomes entitled to possessio~ 0= the
Property upon default of Trustor, Trustor shall becc:;-,e a
tenant at sufferance of lender or the p'J.I.'chaser of the
Pcoperty and shall, at Lender's option, e2-thec (a) ;:ay a
reasonable rental for the use of the Propecty, or (b) vacate
the Property immediately upon the demand of Lender.
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Other Remedies. Trustee or Lender shall have any other right
or remedy provided in this Deed of Trust or the Promissory
Note or by law.
Notice of Sale. Lender shall give Trustor reasonable notice
of the time and place of any public sale of the Personal
Property or of the time after which any private sale or other
intended disposition of the Personal Property is to be made.
Reasonable notice shall mean notice given at least five (5)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Property.
Sale of the Property. To the extent permieted by applicable
law, Trustor he:-eby waives any ar::i all rights to hc.72 the
Property ~c:-sh2l1ed. In exercisi~g its rig~ts a~d re~e~ies,
the Trustee O~ Le~der shall be free tQ sell all or any part of
the Pror:erty togeL-her or SEpar2te::"y, i:1 one sale or by
separate sales. Lender shall be e~~i~led to bid at any cecIie
sale on .~~l or- 2:'i.Y portion of t~e ?::-::perty.
Waiver: Election of Remedies. p.~ '^-aiver by a"y parey cf a
breach cf 2. pro-,;ision of this :eed of Trust 5:-,2::"1 :-lot
co~stitu~e a waiver of or ~rej~~ice t~e party!s rig~ts
otherwise to de~2~d s~rict comp::"ia~=e with that provision or
any other provisic~. Election by Le~der to pursue a~y remedy
provided i:1 th:.s Jeed of Trus:. 0"" the ProI:'.issory No:::e or
provided by law s~all not exclude p~~s~it of any othe~ re~edy,
and an e.=..ection tQ make expendit:..:.::es o~ to take ac-:..:..on to
perform 2~ ob~iga~ion of Trustor c~dsr this Ceed of Tr~st
af~er fa.:..l~.::e of Trustor to per:o'::2 s~21l not affect Le~der's
right to c.eclare a default a.~d -::J exerci.3E any of its
remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the ter~5 of this Deed of Trust,
Lender s~all be e~titled to recover such s~m as the court ffiay
adjudge reasonable as attorneys' fees at trial and or. any
appeal. W~ether or not any court action is involved, all
reasonable exper.ses incurred by Le:l.der which in Lender' 5
opinion are necessary at any time fer the protection of its
interest or the enforcement of its rights shall become a p2r~
of the i~debtedness payable on dema~d and shall bear interest
at the Prom~ssory Note rate from the cate of expenditure until
repaid. Expenses covered by this paragraph include, without
limitation, hCl'iever subject to any limits under applicable
law, Ler~de.:- I s a'::torneys I fees whether o~ not the::e is a
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,
"
lawsuit, including attorneys' fees for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or
injunction), appeals and any anticipated post-judgment
collection services, the cost of searching records, obtaining
ti tie reports (including foreclosure reports), surveyors'
reports, appraisal fees, title insurance, and fees for the
Trustee, to the extent permitted by applicable law. Trustor
also will pay any court costs, in addition to all other sums
provided by law. For the purposes of this Section the words
"Lender's Attorney's fees" include the salary, wages, benefits
and overhead of the lawyers employed by the office of the City
Attorney for the City of San Bernardino.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this seccion.
6.0 POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions
relating to the powers and obligations of Trustee are part of
this Deed of Trust:
,
Powers of Trustee. In addition to all powers of Trustee
arising as a matter of law, Trustee shall have the power to
take the following actions with respect to the Property upon
the written requesc of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Property, including
the dedication of streets or other rights to the public, (b)
join in granting any easement or creating any restriction on
the Property, and (c) join in any subo:::dination or other
agreement affecting this Deed of Trust or the interest of
Lender under this Deed of Trust.
Obligations to Notify. Trustee shall not be obligated to
notify any other party of a pending sale under any other trust
deed or lien, or of any action or proceeding in which Trustor,
Lender, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee.
Trustee. Trustee shall meet all qualifications required for
Trustee under applicable law. In addition to the rights and
remedies set forth above, with respect to all or any part of
the Property, the Trustee shall have the right to foreclose by
notice and sale, and Lender shall have the right to foreclose
by judicial foreclosure, in either case in accordance with and
to the full extent provided by applicable law.
Successor Trustee.
to time appoint a
Lender, at Lender's
successor Trustee to
option, may
any Trustee
from time
appointed
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hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of San Bernardino
County, California. The instrument shall contain, in addition
to all other matters required by state law, the names of the
original Lender, Trustee, and Trustor the book and page where
this Deed of Trust is recorded, and the name and address of
the successor Trustee, and the instrument shall be executed
and acknowledged by Lender or its successors in interest. The
successor Trustee, without conveyance of the Property, shall
succeed to all the title, power, and duties conferred upon the
Trustee in this Deed of Trust and by applicable law. This
procedure for substitution of Trustee shall govern to the
exclusion of all other provisions for substitution.
7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective when
actually delivered or, if mailed, shall be deemed effective
when deposited in the United States mail first class,
registered mail, postage prepaid, directed to the addresses
.
shown near the beginning of this Deed of Trust. Any party may
change its address for notices under this Deed of Trust by
giving formal written notice to the other parties, specifying
that the purpose of this notice is to change the party's
address. All copies of notices of foreclosure from the holder
of any lien which has priority over this Deed of Trust shall
be sent to Lender's address, as shown near the beginning of
this Deed of Trust. For notice purposes, Trustor agrees to
keep Lender and Trustee informed at all times of Trustor's
current address. Each Trustor requests that copies of any
notices of default and sale be directed to Trustor's address
shown near the beginning of this Deed of Trust.
8.0 STATEMENT OF OBLIGATION. Lender may collect a fee, in an
amount not to exceed the statutory maximum, for furnishing the
statement of obligation as provided by Section 2943 of the
Civil Code of California.
9.0 [Reserved -- No Text]
10.0 ASSIGNMENT OF CONTRACTS. In addition to any other grant,
transfer or assignment effectuated hereby, without in any
manner limiting the generality of the grants in the conveyance
and grant section hereof, Trustor shall assign to Beneficiary,
as security for the indebtedness secured hereby, Trustor's
interest in all agreements, contracts, leases, licenses and
permits affecting the Property in any manner whatsoever, such
assignments to be made, if so requested by Lender, by
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nl
instruments in form satisfactory to Lender, but no such
assignment shall be construed as a consent by Lender to any
agreement, contract license or permit so assigned, or to
impose upon Lender any obligations with respect thereto.
11.0 BOOKS AND RECORDS. Trustor shall maintain, or cause to be
maintained, proper and accurate books, records and accounts
reflecting all items of income and expense in connection with
the operation of the Property or in connection with any
services, equipment or furnishings provided in connection with
the operation of the Property, whether such income or expense
be realized by Trustor or by any other person or entity
whatsoever excepting persons unrelated to and unaffiliated
with Trustor and who leased from Trustor portions of the
Property for the purposes of occupying the same. Upon the
request of Lender, Trustor shall prepare and deliver to Lender
such financial statements regarding operation of the Property
as Lender may reasonably request. Lender, or its designee,
shall have the right from time to time during normal business
hours to ~xamine such books, records and accounts and to make
copies or extcacts therefrom.
12.0 MISCELLANEOUS PROVISIONS.
provisions are a part of this
The following
Deed of Trust:
miscellaneous
Permitted Leases. Notwithstanding the provisions of Paragraph
3.3 entitled "Due on Sale", so long as the Trustor is not in
default under this Deed of Trust the Trustor may enter into
one or more leases affecting all or portion of the Property
which leases may have a term of five (5) years or longer on
condition that such lease of the Property by and between the
Trustor and such tenant includes the following'provisions:
(i) such lease is subordinated in all respects to
this Deed of Trust and any advances made or to be made
to the Trustor under the Loan Agreement or the
Promissory Note and all consolidations, extensions,
modifications or renewals thereof, and
(ii) if Lender succeeds to Trustor's interest under
such lease, the Lender shall not be liable for any
prior act or omission of Trustor or subject to any
offsets or defenses which the tenant might have against
the Trustor nor shall the Lender be obligated to credit
the tenant with any rent or additional rent for any
rental period beyond the then current month which
tenant might have paid the Trustor nor shall the Lender
cSBO/0006/DOc/972
12/21/99 300 jrnw
16
2000-15
be liable for any refund to such tenant of all of any
part of any security deposit to tenant held by the
Trustor for any purpose unless such security deposit
shall have been actually received by the Lender. In the
event of receipt of any such security deposit, Lender's
obligations with respect thereto shall be limited to
the amount of such security deposit actually received
by Lender, and the Lender shall be entitled to all
rights, privileges and benefits of Trustor set forth in
the lease with respect thereto.
(iii) if the Lender obtains the right to possession
of the Property or if the Trustor's interest under the
lease is transferred to the Lender by foreclosure, deed
in lieu of foreclosure, or otherwise, and, subject to
tenant's performance of its obligations under the
lease, then the lease will continue in full force and
effect, the Lender shall recognize the lease and the
tenant's rights thereunder, and the tenant shall make
ful~ and complete attornment to the Lender as
substitute landlord in place of the Trustor upon the
same terms, covenants and conditions as provided in the
lease.
Amendments. This Deed of Trust constitutes the entire
understanding and agreement of the parties as to the matters
set forth in this Deed of Trust. No alteration of or
amendment to this Deed of Trust shall be effective unless
given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Acceptance by Trustee. Trustee accepts this T~ust when this
Deed of Trust, duly executed and acknowledged, is made a
public record as provided by law.
Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California.
This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of California.
Caption Headings. Caption headings in this Deed of Trust are
for convenience purposes only and are not to be used to
interpret or define the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or
estate in the Property at any time held by or for the benefit
CSBO/0006/DOc/972
12/21/99 300 jrnw
17
2000-15
of Lender in any capacity, without the written consent of
Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable
as to any person or circumstance, such finding shall not
render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending
provision shall be deemed to be modified to be within the
limits of enforceability or validity, however, if the
offending provision cannot be so modified, it shall be
stricken and all other provisions of this Deed of Trust in all
other respects shall remain valid and enforceable.
Subdivision of the Property. The Trustor may cause the
Property to be subdivided in compliance with the Subdivision
Map Act at any time, and the Lender hereby consents to the
recordation by the Trustor of a parcel map, subdivision map or
parcel mefger map affecting all or any part of the Property.
Time is of
performance
the Essence. Time is
of this Deed of Trust.
of
the
essence
in
the
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust unless such waiver
is in writing and signed by Lender. No delay or omission on
the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by any
pa~ty of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's right
otherwise to demand strict compliance with that provision or
any other provision. No prior waiver by Le'nder, nor any
course of dealing between Lender and Trustor, shall constitute
a waiver of any of Lender's rights or any of Trustor's
obligations as to any future transactions. Whenever consent
by Lender is required in this Deed of Trust, the granting of
such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent
is required.
cSBO/0006/DOc/972
12/21/99 300 jrnw
18
2000-15
THE TROSTOR ACKNOWLEDGES HAVING :READ ALL THE PROVISIONS OF THIS
DEED OF TROST, AND THE TROSTOR AGREES TO ITS TERMS, AND THE TERMS
OF THE PROMISSORY NOTE SECURED BY THIS DEED OF TRUST.
TRUSTOR:
Inland Valley Development Agency,
a joint powers authority,
'y 6~'~
By:
>.'
[SIGNATURES MUST BE ACCOM2ANISD BY NOTARY JURAT]
cSBO/0006/DOc/972
12/21/99 300 jrnw
19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
ss.
County of San Bernardino
On '4..Jvll/ul.kJ-)
tJ
personally appeared
,;2 o-t1J , before me, \.-I~bu cut. () ,-/.2 ~1-tl.:Tt..MU
,?'hljA2./ ",J.
J-i '
..<J JAA_1....i!..L'!~
);l. personally known to me
D proved to me on the basis of satisfactory
evidence
J A ;;,J, :~~;TRI~{.&A~OI~KENS~N& A I
- "t'_ . COMM.#1227941 m
in , .: Nolllly PubIic-Catifomia (II
W ~ SAN BERNARDINO COUNTY ::;:
J ~ T T: ?'~ ~ ~~:~~.::~~t~,~: E
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.
WITNESS my hand and official seal
\'-l:lOu/!-a () ~UJ'~L~
Signature of Notary Public
Place Notary Seal Above
................................................. ()f']r/()^'~L....................................................
Though the information below is not required by law, it may prove valuabie to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: CL)lj G-
(..i.rlUyy.....y:L - ~ ,;L(J 1/c.lW-t
v
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer -- Tille(s):
o Partner -- 0 Limited 0 General
o Attorney in Fact
D Trustee
o Guardian or Conservator
D Other:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
2000-15
THE TRUSTOR ACKNOWLEDGES RAVING READ ALL THE PROVISIONS OF THIS
DEED OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND THE TERMS
OF THE PROMISSORY NOTE SECURED BY THIS DEED OF TRUST.
TRUSTOR:
Inland Valley Development Agency,
a joint powers authority,
By:
w
L__
By:
-.'
-r
[SIGN~TURES M~ST BE ACCOM?ANIED BY NOTARY JURAT]
CS30/0006/DOc/972
12/21/99 300 jrnw
19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California )
) ss
County of San Bernardino )
-:1~ J 'Ju~~
,/ i
/
, before me,
)
tA./
\_-(Ja"UJ U.A.' c? ,-/2( d:i7i<1~):----'
if _ !
..Y~-('i.Lu<'-J-'
o
'-1"
On -r__f>>-.UW2-.L'J>
(j
personally appeared
l ;2 O-(()
;a personally known to me
o proved to me on the basis of satisfactory
evidence
J ~@. ~ :..~ : . ~~T~I~IA A: ~~K~E~~~N' . .(
~ .. . COMM.#1227941 m
(ij ! ,,; Nolaty Public-CaNfornia (II
w ~ SAN BERNARDINO COUNTY ::;;
J.. T ::'T. ~:~<~~y~t~,~O~f
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.
WITNESS my hand and official seal.
"---/uz:u U^ (/ e.-/:;Z (:~.L-Yd-CJ"-)
Signature of Notary Public
Place Notary Seal Above
------------------------------------------------- ()f'Jr/()^'~L.---------------------------------------------------
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: ('.-1)/5(,-
C.{.-irLU .n..... ,c:t. ..-
(/
~;(1i.A. 1>-( '-l-uv-r
/I
Number of Pages:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer -- Title(s):
o Partner -- 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
RIGIIT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
2000-15
THE TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
DEED OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND THE TERMS
OF THE PROMISSORY NOTE SECURED BY THIS DEED OF TRUST.
TRUSTOR:
Inland Valley Development Agency,
a jo~nt powers authority,
By:
By:
. .
.~.~
~
[SIGNATURES M~ST BE ACCOM?ANIED BY NOTARY JURAT]
cSBO/0006/DOc/972
12/21/99 300 jrnw
19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
ss.
County of San Bernardino
On '-4--&JYuu"Z~1- / j
1
personally appeared
.:Jez;.v , before me,
,;p 77' .1;.,,,--- ?t.)
/
t//
/) /
\-l{l-tLt Wt {/
tf. ,J
.XoJ...6.:.UV.LcL-
(/
4 (jj~;}i.<i/rl../
.~ personally known to me
D proved to me on the basis of satisfactory
evidence
J . ;~.;. : . ~;T~I~~;' ~I~KAE~~~N~ A (
.. ~.:.. COMM.#1227941 m
iii.' NotaIy Pubfic.CaHfomia CIl
w' ~ SAN BERNARDINO COUNTY ::;:
). ? ?: :'. T ~:~.:~P~Ay~u~t~I:~:1
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.
WITNESS my hand and official seaL
L./, ltD U~t. (/. ,-/2d'7",iU'7<--)
ignature of Notary Public
Place Notary Seal Above
------------------------------------------------- ()f'Jr/()~~L.---------------------------------------------------
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: ('1)86-
Document Date:
(i;:"""LUnJ,-L -- ~-i:Jud ".J' iZLC.J.r
,:; I
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer -- Title(s):
o Partner -- 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
RIGHT THUMBPRINT
OF SIGNER
TOp of thumb here
Signer Is Representing:
PARCEL 932
2000-15
LEGAL DESCRIPTION
In the City of San Bernardino, County of San Bernardino, State of California, being a
portion of Parcel 10, as shown on Record of Survey 98-0019, as per map, recorded in
Book 110, Pages 51 through 53, records of said County, together with portions of vacated
streets and alleys lying within and adjacent to said blocks, described as follows:
The easterly one half of Parcel 10 per said Record of Survey.
EXCEPTING the north 140.00 feet of said parcel.
Bearings and Distances used in the above description are on the California Coordinate
System, Zone 5 (NAD-83). Multiply distances shown by 1.0000684 to obtain ground level
distances.
END OF DESCRIPTION
.,
Date
/- /3 - 00
under my
s Act.
Signature
PARCEL F-2
2000-15
EXHIBIT "A"
In the City of San Bernardino, County of San Bernardino, State of California, being a
portion of Block 49 of the Rancho San Bernardino, as per Map recorded Book 7 of
Maps, Page 2, Records of said County, together with portions of vacated streets and
alleys lying within and adjacent to said blocks, described as follows:
COMMENCING at the intersection of the centerlines of 3rd Street and Del Rosa
Avenue North; thence along the centerline of 3rd Street North 89045'07" East, 0.47
feet to the centerline of Del Rosa Drive; thence South 00055'35" East, along said
centerline 1015.95 feet; thence at right angles to said centerline,
North 89004'25" East, 60.00 feet to the East line of said Del Rosa Drive; thence
North 43006' 1 0" East, 41.73 feet;
thence North 89004'25" East, 251.35 feet;
thence South 45055'35" East, 39.60 feet;
thence South 00055'35" East, 255.31 feet;
thence South 41020'54" West, 42.29 feet;
thence North 89053'09" East, 328.05 feet to the TRUE POINT OF BEGINNING;
thence North 01001'53" East, 491.49 feet;
thence North 88058'07" East, 443.56 feet to a point, said point also being known as
Point "AU;
thence South 01001 '53" East, 432.74 feet;
thence South 38042'44" West, 84.51 feet;
thence South 89053'09" West, 398.58 feet to the POINT OF BEGINNING.
EXCEPT that portion as described as follows; BEGINNING at Point "Au
thence South 88058'07" West, 10.67 feet;
thence South 00058'30" East, 171.24 feet;
thence South 00059'36" East, 274.75 feet;
thence North 38042'44" East, 17.23 feet;
thence North 01001'53" West, 432.74 feet to the POINT OF BEGINNING.
A-I
PARCEL F-2
2000-15
Bearings and Distances used in the above description are on the California Coordinate
System, Zone 5 INAD-83). Multiply distances shown by 1.0000684 to obtain ground
level distances.
This real propeny description has been prepared by me, or under my
direction, in con rmance with the Profe onal Land Surveyor. Act.
Signature
q -11-Q'7
Date
A-I
f>:UHl103e\LEOALS\F2.WPO
2000-15
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POB: POINT OF BEGINNING
POC: POINT OF COMMENCING
PARCEL F-2 213008 sa. FT.
Herundez, Kroone &. Auoc:iates, In
ConaUtlng C1vDEnglneer, a Lald Slrveyon
234 Eoat Drake Drive
Sal Bemcrdlno. CA 92olO8
~ INLAND VALLEY
DEVELOPMENT AGENCY
PAACB. 110.
F-2
DISwr,.o..
MING DEVELOPMENT
DATE
09/10/97
- . "._0. ..._.__...__....._...__.....
2000-15
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SO FT
ACRES
Hernandez, Kroone &. Associates,
Consulting Civil Engineers 8c Land Surveyors
234 East Droke Drive
Son Bernardino, CA 92408
Inc.
OWNER
INLAND VALLEY
DEVELOPMENT AGENCY
PARCEL NO,
PARCEL 932
DESCRIPTION
DATE
SLOG 932
9/1 1/99
"" ~ ~,.,,.; '.'- ,.
2000-15
EXHIBIT "E"
[FORM OF BENEFICIAL ECONOMIC ASSIGNMENT OF THE SUBLEASE FOR
BUILDING NO. 932]
cSBO/0006/DOc/968
1/6/00 1000 jrnw
..,.."...
~ ;'
2000-15
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Redevelopment Agency of
the City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, California 92401
Attention: Executive Director
INLAND VALLEY DEVELOPMENT AGENCY
BENEFICIAL ECONOMIC ASSIGNMENT OF SUBLEASE AND RENT
(Former Norton Air Force Base Building No. 932)
TEIS E~~~FICIAL ECONOMIC ASSIGNM~NT OF SUBLSAS~ AKD R~NT
("F.ssignrr.ent") is dated as of January 24 ,2000, and is ITLa::e by the
Inland Velley De'.~elopment Agency, a joir.-: pC,.,rers au~r.c~2-ty (the
"Assignor") 1 i~ favor of the City of San Bernardino (che "C~~y").
W~E~~AS, the City r.as agreed to make a loan to Ass~gnor
in an original principal amount not to ex~eed ON~ E0ND~~D TWsNTY
THOUSF.ND DOLL':_?S DOLL.~.FS ($120,000) (the "CDES Lea!!.") :cr the
redevelopment of certain pro;:,erty locate::' in the Cour.:.y of San
Bernardino ge~erally know~ as former Norto~ Air Force Base Buildi~g
No. 932 ("B,-,:.~ding No. 932"), more pa.:':iC:L:~arly cescccibed in
Exhibit "A" attached hereto and incorporated herein by this
reference, in accordance with the provisic~s of that cer~ain 2000
City of San Bernardino Community Development Block Grarlt Loan
Agreement, dated as of January 24 , 2000 (the "CJBG Loan Asreement")
by and betwee:-, tne Assignor and the City. The CDBG Loan is
evidenced by a Promissory Note dated conc~rrently herew~Lh in the
original principal amount of the Loan (the "Note"), which Note is
sec:u.:ed by (i) this Assignment; and (ii) a Deed of Trus':, Security
Agreement and !'.ssignment of Rents (the "Deed of Trus'c") dated
concurrently herewith and encumbering certain lands know~ as former
Norton Air Force Base Parcel "F-2" together with all improvements
now or hereaf~er constructed thereon; and (iii) sech other
instruments which recite that they have been g:.ven as secu.:ity for
the Note and the performance of the obligations described in the
Loan Agreement (the "Additional Documents"). This Assig~ment, the
Note, the Deed of Trust, and the Addi'cional Docu~ents are
hereinafter collectively referred to as the "Security Documents".
C390/0006/00c/975-1
1/5100 430 jmw
1
2000-15
WHEREAS, execution and delivery of this Assignment to
City is a condition of City making the CDBG Loan.
NOW, THEREFORE,
receipt of which is he~eby
follows:
for good and
acknowledged,
valuable conside~ation,
Assignor hereby agrees as
1.
absolutely and
p..ss~ anm~:"lt.
ir:revocably
For value received,
conveys, transfers and
P>..ssignor hereby
assigns to City:
(a) ".11 of Assignor's right, title and interest in
ar..y and all Exis~ina or future leases, subleases, licE!"'J.ses,
cor-cessions or othe~ ag~ee~ents (herein singularly or collec~ively
referred to as the "LeaSES") which de~ise or grar.t. a pOs52ssory
interest in or t~e rig~~ to use all or a portion of t~e Bu~lding
No. 932, together with all extensic~s, rep~acements a~d re~e~als of
suc~ Leases and all guara~tees of and sec~rity fer t~e c81i;aticD
of any and all te~ants (~erein singularly or collectively re=erred
to as the \\Te;)ar~"ts") s.;_der such Leases including the..:: certain
su:Clease date~ January 4, 2000 by 2:-,0 be':~tJe2:J. AssigL::~, a-s
la~dlord, and As~rc=ab, Inc., a Ca~ifor~~a corpora~io~, as T2:J.a~~.
(b) All of Assi;no~'s rlg~~, title a~a l~~e~est to
co~lect a~d re~eive a~: of the ren~5, inc::~e, a:J.d profi~s ~::w d~e
or w~ich may beco22 due or to which Assig~or may now or he~eaf~e~
be=ome entitled or whic~ Assig~or may maKe dema~d or c:ai~ for,
arising or iss~i~g frc~ or ou: 0: the Leases or from cr c~t of
Building No. 932 or any F2rt the~eof, i~cluding bu~ not limi~ed to
mi::.ir.lum rents, acditic:-.al ren~s, perce;::.age re:-,,-.:s, perki:-:.g cr
COiTE'~on area mair:te:-:a:-'~ce cO:-'.tributions, tax a:--,Q ir.s'..lra:-:ce
cO:-'.tributions, deficie:-.::y rents arle liquida':ed da:7~ages fo:lowi:-"g
defa~lt in a~y Lease, a~j all ~roceecs payable unde~ a~y Fclicy of
ins'.1rance coveri:1g loss of rents resulti:-J.g from u:-,..tena:-'lta:::ility
ca~sed by destruction or damage to Building No. 932, together w~~h
any and all rights and claims of a~y kind which AssigGor may have
against any Te~ant unde~ the Leases or any subtenants or occ~pants
of Building No. 932 (all such mor:.ies, rights 2:1d claims described
in this parag~a.ph hereinafter referred to as "Re:1ts") .
The foregoing assignme:1t, transfer and cO:1veya:1ce is
intended to be and constitutes a present and absolute assig~ment,
trc~sfer and COGveyance by Ass~gnor to City.
The righcs and remedies of City set forth herein a~e
sutject and subo~dinate to the rights of t~e Secretary cf the A~~
Force, as set forth in that ce=tain Agreement entitled '\Ag~eement
Between the Depa~tment of the Air Force and the Inland Valley
C330/0006/DOC/975-1
1/5/00 430 jrnw
2
2000-15
Development Agency," dated March 9,
the Assignor and the Secretary
Agreement") .
1995, as amended by
of the Air Force
and between
(the "EDC
2. Ob1 iaa':i8:lS Secured.
the purpose of securing:
This Assignment is gi7en for
(a) pay:-rant of all sums, wit;-, interest thereon,
becoming due and payable to City under the p~ovisions he~eof or
under the provisions of the Note or the Security Documents, (and
re~ewalsf rnodificatio~s, changes or exte~sions thereof); 2~d
(b) Pa~Lent of additional sums and interest thereon
which may hereaf~er be loaned by the City to Assignor, w'hen
evi:i2:-'.ced by a Frorr.2-S3~ry notE cr notes rec':::l:l.g the.:: sa:-:-lE a......o
secured by the Securitv DocumeoLs; a~d
(c~ Per::ormance a:l.d cbser-',ra:,,:ce of ea::h of
Ass~gnor's obliga::io~sf covenants, condiLions a~d Warrol-::ies to the
Ci::y co~tain~d herei~, i~ the Note 2~d ;~ the Sec~rity Doc~se~~$:~
3. Cc~e~a~::s of Assianor. ~~ proLec~ the sec~rity of
this Assignment, ~ssig~=r covenants 2:l.d agrees:
(2 To ~2rform each of ~~s ot~igctions ~~~er the
Le~ses; at i~s so~e ccst and eXFe~s2, t~ ~se cc~~e~c~clly
recso~able e=rOr~5 to e~:orce or secure t~e per:o~mance by ~enants
of eac~ obligat~c~ u~cer the Leases; a~c not ~o waive or release
any Tenant from ~~e ob:~gations of a~y 5UC~ ~e~2~~ wi~hoc~ first
oD~aining the a?~roval 0: ~he City. sut~ect to t~e rigt~s or the
Air Force under ~~e EJC Agree~ent, Assignor assigns to t~e City
al: Assignor's ri~ht 2~j power to ~cc~=j in 2~Y rr~teri21 res?ect
the terms of the Leases subject to Assi;nor's rights hereinafter
sc- forth. Any c-=te~pt on the part of J:..55ig:-:o::- to exercise any
such right withc'c.1t the written COnSE:1t of t:--:e City, s~2l1 be a
breach of the ter~s hereof.
(b) To cefend at Assignor's sole cost any action in
any manner connec~ed wi~t the Leases or t~e obl~;a~ions ~~2re~nder,
and to pay all costs of the City, including a~to~ney's fess in a
reasonable sum, in any s~ch action in which the City may appear.
(c) If J:..ssignor fails ~o do any act as herein
provided, the City, but without obligation so to do and without
notice to Assignor, and without releasing Assignor from any
obligation hereof, may take action in such r.~2.nr;.er a:"1d to such
ex~ent as City may deem ~ecessary to protect the securi~y described
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herein. These actions include specifically, without limiting
City's general powers, the defense of any action purporting to
affect the security described herein or the rights or powers of the
City, and also the performance of each obligation of Assignor set
forth in the Leases. In exercising such pc'''ers, the City may
employ attorneys and other agents, and pay necessary costs and
reasonable attorneys' fees. Assignor agrees to give prompt nctice
to the City of a:1Y default of any Tenant and of any notice of
default on the part of the Assignor with respect to the Leases
received from a Tenant, together with an accurate and ccmplete copy
thereof.
(d) To pay immediately to the Cicy upon derr,and all
sums expended by the City under the authority hereo=, inslt:.ding
reaso~2ble attor~eys' fees and costs, toget~er wi~h i~tsrest
therec~ at the then applicable interest rate payable on t~e ~ote
and S~=~ sums sta:l be added to Assignor's i~de~~ed~ess a~d s~all
be sec~red hereby and by t~e Sec~rity Doc~ments.
4. " p-_ss-=-ar,o::' s ~~j2rra;!ties. !-.55.:..g:-.or represer,-::s 2r!-d
warra~~s to the Ci-::y t~a~: (a) except as set fcr~h u~der t~e ~erms
of the EDC Agree~e~tf to which the City has cOhsented, Assig~or has
not executed a~y ether or prior assig~ce~t of the Leases or the
Re~t5 accruing ~~ereunder w~ich s~all be in effect on or after the
f~-.:r:.dir:.; of the CD5.:; Loaf'c; (b) ;'_ss.:gr.or has nOT: Fe::formed any c.=~ or
executed any ~r.s~~ument w~ic~ m.:ght p~2~e~t C:~y f~cm ope~2:iDg
u~der any of the ~e::ms and co~ditions of :he 1e25es, or whic~ w=~ld
l:cnit City in s~ch oper2.t.io['~, or acce~:ed Re:--.T: for any r:e::.:od
s~bse~~e~t to the current one (1) month period ~o:: which R2~~ tas
a2.ready becoIT.s c..-.:e a:1d payable; (c) r.s defa'..:lt by any 0: the
Tenan:s or Assigner now exis:s under the Leases except as se~ forth
i~, wr:ec:ing to t':e City, (d) p_ssignoc has not e:.:ec,,~ed or granted
any mocificaticn whatever of the Leases, and the Leases are in full
fsrce a:-:d effect according to the terms a::d cond.:..ticns thereof; (d)
Assisnor has good right, title and inte::est in and to the Leases
and Rents hereby assigned and the right to assig:: the same, s~bject
to the EDC Agree:-:'.ent, and that no other persc:-. or er,tity (ct.r~er
than the Secre:ary of the Air Fo~ce undsr the sue Agreeme~t) has
a~y right, title cr interest the~ein; a~d (f) A~5ig~or tas duly a~d
timely perforIned all of the terms, CC~Jenan,=~, cor.:li tior-_s a::d
warra~ties set fc~th in the Leases which are tc be kept, observed
and pecformed by Assignor.
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5.
agreed that:
JI.areement of Assianor and Citv.
It is mutually
(a) So long as there is no (i) uncured default by
Ass~gnor in the payment of any principal or intecest due under the
Note, (ii) uncured default in the performance or observance of any
of the terms of the Note, the CDBG Loan Agreement, the Security
Documents or any other security instruments executed in connection
with the Note and Security Documents; or (iii) any uncured default
in the performance of any obligation, covenant or agreement herein
or in the Leases, Assignor shall have a license to collect upon,
but not prior to accrual, all rents, issues and profits co~ing due
pucsuant to the Leases and to hold the same as a trust fund
(without any obligation for an accounting or segregation of such
trusc fund by Assignor) to be applied prior to default as follows:
Building No.
the::eoni
F~rst, to t~e Fayment of taxes and a5seSS~2~ts ~po~
932, if any, before any penalty or iEteres': is due
Secon.d,
repairs and a~y other
Sec~::ity Documents;
to the cost of insurance,
pay~ents as reoui::ed by the
maif'J. 'Cenar.ce,
terrr~s of the
T~ird, to s2tis:actio~ of a~l obligatio~s under the
LeaS2Si
Fou~th, to the paymen~ of interes,:, principal, and
any ether su~s becomi~g due under the NotE, the Deed of T::us': and
Secu::ity Docu~ents; and
FirLh, ror Assig~or's remaining purposes.
(b) As used in this Section 5, "uncured default"
means any event of default by Assignor and failure to cure after
notice and within any applicable cuce period under the Note, the
Deed of Trust, the CDBS Loan Agreemen~, this Assignment, the Leases
or any other security document executed in connection with the Note
or t~e Security Documents.
(c) Upon the occurrence and continuance of any
defa~J.lt, as d"escribed in Pa~agraph 5 (a) he~einabo~le, the license of
Assi~nor to collect the Rents shall automatically terminate without
notice to or demand on Assignor and the City may (i) declare all
sums secured hereby immediately due and payable, (ii) at its
option, without notice either in person or by agent, with or
without bringing any action, or by a receiver to be appointed by a
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~
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court, and in addition to all other remedies available to Assignee
under this Assignment, the Deed of Trust or the Security Documents
and any applicable law (including, without limitation Section 2938
of the California Civil code) or in equity, enter, take possession
of, manage and operate Building No. 932 or any part tr.ereof, (iii)
make, cancel, enforce or modify the Leases, (iv) obtain and evict
any Tenants, and fix or modify Rents; (v) do any acts which City
deems proper to protect the security hereof, and (vi) either with
or without taking possession of Building No. 932, in its ow~ name
sue for or otherwise collect and receive all Rents or p2y~e~~s due
under the Leases, including those past due and unpaid, and apply
the same, less C8StS 2nd expenses of ope:ration and collec:t:ion,
including reasonable attorney's fees, upon any indebted~eS5 secured
hereby, and in such order as the Ci ty may dete:-mine.
Notwithstanding Seeticf'. 2938 (e) (3) of the Califor:J.:..a Ci."ril Code,
the entering c~.'-' taking possession of Building N:::. 932, the
collection of s~c~ Ren~5 and paycents, and the applic~~io~ t~ereof
as aforesaid, shall net cure or waive a~y default or waive, ~:::dify,
or affect. notice of defa:..:lt l:nder the Sec~rity D::C'c.E'Eer.-:s, or
invalidate any ac~ doce purs~ar.t to s~ch Dotice. F~=t~e=, =:-:::m ana
aft.er the autoca~~c te~mina~ion of AS5ig~cr'5 lice~se to c~llect
Rents, and nett;,l=- ~hs::'c.:-~din9 any-<:.hing to t.he con-:.rar:.i cor:-:ai!""led
herein or in Sec~~~n 2938(c) of the Cal~f~rnia Civ~l Code: (i) ell
Ren:.s then ir: ~..ssignor' s possession, toget.her w=-~:: all Re:-::s
collect.ed or cis-:.ribu-:ed in viola-:icn hereof, a~G all Rents
collected or d~s-:~ibut.ed aft.er the de:a~lt or Event. 0: Defa~~-:. (or
at::.rit~table to t~e period after t~e de:a~~t or E~ent 0: De:ault),
shall be deeme~ held solely in trust for the be~e:it of the City,
(ii) Assighor sha~l i~~eiia~ely deliver O~ caGse to be delivered to
the Ci-:.y all sJc~ Rent.s; all Re~ts t~en d~e ~nde~ the Leases and
thereaft.er accrc.ing 51".all upon t~e City' 5 vlritte!l. req~-.:es-:, be
payable by lessees directly to the City; a~d (iii) t~is Assignment
shall cons-<:.itc-:e a direction to and full authority to the Ter:ants
to pay all Ren-:s to the City, upon the City's w~it~e~ reques-:., and
without proof cf the default o~ Eve~t 0: Default reliej upo~. The
Tenents a~e he~eby irrevocebly authorized to rely upc~ and comply
with a~ynotice or dema~d by the City for the paynent to the City
of any rental or other sums which may be or thereafter beco~e due
under the Leases, or for the perfor~ance 0: a~y Te~ants'
undertakings under the Leases and shall have no right. or d~ty to
inquire as to whether any default or Eve~t 0: Default under the
Deed of Trust or the Note or the Additiona~ Docu~ents has actually
occurred or is then existing.
If, pursuant to Section 2938 (g) of the Californ~a
Civil Code, P-.ssiS!l.or or a;~y other assignee of the Rents makes
written demand upon the City to pay the reasonab:e cos;:s of
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protecting and preserving Building No. 932 (a "2938 (g) Demand"),
for payment of items such as taxes and insurance and compliance
with building codes, if any, as specified in such section
(collectively, "Preservation Costs"), then such Preservation Costs
shall be deemed to co~sist only of the followi~g and only to the
extent of Rents actually received by the City: (i) delinquent real
property taxes with respect to Building No. 932 only to the extent
that such amounts subject Building No. 932 to an imminent tax sale
pU1:suant to applicable law, (ii) property damage insurance, and
liability insu1:ance in such amounts, with such insu1:ers and
pU1:suant to such terms as the City shall have previously app1:oved
for Assignor prior to ~~e default or Event of Default; prov~ded,
howeve1:, that the City shall not be re~uired to purchase any rental
inter::-uption insur-ance or earthquake insura:1ce, and (iii) the
reaso~able cos': of co:c,pliance with building codes only to the
ex:.er::: the ap~,licable govE!:"nmental building 2'J:.hor:.ty makes a
written dema~d to the City to comply therewi::h. Not~~thsta~i~ng
anytting to the co~trary contained herein, the City may (pur5~ant
to such 2938 (g) De:-:-land or other-wise), but shall not ce cbl..:..gc..tec.
to, pay cut o'f SUC:-l Re:-.L::s actually received any other reasor.a~le---.-
cos~s which t:-:e City belieVES, in il:s sole discre:'2.on, are
necessa1:Y fer the protec,:icn and prese1:vation of B~iljing No. 932
(it being the i:-:::ent of P-.ssigr:or and the City t~'1at no::hing
cor.::ained here':":i shall be cee:ned to impair, define or limit the
City's rights C~ re~ec~es pursuant to the Deed of Tr~s~, i~cl~c~ng,
but nc~ lim~ted ~c, the ~ig~t of the City as bene:icia~y ~~de~ the
Section 108 aeed oi Tr~st a~d other Security Documents to prc~ect
and p~eserve the securi~y fo~ such Deed of Trust in t~e e7e~~ of
any default tte~e~~der) .
(e) 1'_,_y default by 1'.ssignor in t'oe pe1:fo1::c,ar:ce of
a::.y obligatior, herein contained and acceJ..erqtion or the
ir:deb~edness secu1:ed he1:eby shall cor:stitute a defaulc unde1: the
ter~s of the SecJ~ity Docurne~ts entitling the City to exercise all
of its rights and remed~es thereunder, including specifically the
rig~t to declare a default thereunder and to elect to sell fc=mer
Norton Air force Ease Parcel "F-2" as secured by the Deed of Tr~st,
as provided by law.
(e) The City shall not be obligated to perfoc"C nor
does it hereby undertake to perform any obligation ur.der the Leases
or this Assignment, ar.d Assignor does hereby inde~nify against and
hold the City ha1:~less from any liability, loss or damage unde1: the
Leases or this F.ssignment and all claims which may be asserted
against it by persons other than Assignor by reason of any alleged
obligation to pe~form a~y or the terms in the Leases; s~ou18 the
City incur any such liability, loss or damage under the Leases or
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this Assignment, or in the defense of any such claims, the amount
thereof, including costs and actual attorney's fees, shall be
secured hereby and by the Security Documents, and Assignor shall
reimburse the City therefor immediately upon demand, and upon
failure of Assignor so to do the City may declare all sums secured
hereby immediately due and payable. For the purposes of this
Section 5 (e) the words "actual attorney's fees" includes the
salary, wages, benefits and overhead of the lawyers employed by the
office of the City Attorney of the City of San Bernardino.
(f) Until all indebtedness secured hereby has been
paid in full, any subsequent Leases shall be deemed to be assigned
to the City hereby, upon the terms and conditions herein contained,
and Assignor agrees to execute all instruments necessary therefor.
(g) Upon the payment in full of all indebtedness
secured hereby, as evidenced by the full reconveyance of the Deed
of Trust, this Assignment shall automatically terminate and shall
be of no further force or effect. In such an event, the City
agrees to execute any and all documents reasonably necessary to
release its interest hereunder, all at no cost to the City. The
affidavi t of any officer of the City showing any part of said
indebtedness to remain unpaid shall be conclusive evidence of the
validity, effectiveness and continuing force of this Assignment,
and any person may and is hereby authorized to rely thereon.
(h) This Assignment inures to the benefit of, and
binds, all parties hereto, their heirs, administrators, executors,
successors and assigns. In this Assignment, whenever the context
so requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and conversely. All
obligations of each Assignor hereunder are joint and several.
(i) All notices hereunder shall be in writing and
sent by personal delivery, nationally recognized overnight delivery
service, certified or registered mail, return receipt requested, or
by facsimile transmission with a "hard" copy delivered within the
next two (2) business days addressed as follows:
City:
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92410
Attention: Executive Director
Telecopier No.: (909) 888-9413
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Assignor:
INLAND VALLEY DEVELOPMENT AGENCY
294 S. Leland Norton Way
Suite 1
San Bernardino, California 92408
At tention: James Gourley
Telecopier No.: (909) 382-4106
Notices shall be deemed given upon receipt at the address set forth
above. Notice of any change of address or of the person to whom
notices are to be sent shall be given in the manner set for:h in
this Section 5 (h) .
(j) The City may take or release other sec,",:city,
may release a~y pa:cty primarily or secondarily liable for a,-y
ir~debtedness sect::red hereby, may grant extensions, re:J.s-tials or
indulgences with respect to such indebtedness, a~d may c~ply 2~Y
other security he~d by i~ to the satisfaction of s~ch indet~edness
without prejud~ce to 2~Y of its rights hereunder. It is f~r~her
agreed that no~ni~g here~n contained and no act done or o~i~~ed by
the C~ty purs~a~t to t~e powers and rig~ts granted to t~e City
herein shall be dee~ed to be a waiver by the City of the rig~~s a~d
remed~es possessed by t~e City under the ter~s hereof. T~e ri;~t
of the City to collect said indebtedness and to enforcE a~y ct~er
security therefor owned by the City ~ay be exercised ei~~er prier
to, simultaneo~sly with, or subsequent to a~y action take~ by ~..-
City hereunde:c.
5:-"2.12.. not,
(k) F_ssig:--~or further cover,a.~ts and agrees
WiL~C~L the p~ior written consent of t~e City:
+-:.-, _.1... __
,-..Cl.
(1) P,eceive or colle::': a:--iY Rents (ex.::l'..ldi:-.9
se::c.:::ity deposits, which securi~y deposits 5:;'=.11 r~ct
exceed three (3) months rent) from any present or future
Te~a:-,t of Building No. 932 or any part thereof for a
period of more than one (1) month in advance (whether in
cash or by proffiissory note), pledge, transfer, ffiortgage,
grant and security interest in, or otherwise further
enCUDcer or assign future paymen~s of Rents.
(2) Waive, forgive, excuse, condone, discount, se-:
off, compromise, or in any manr.er release or dischar;e
any Tenant under any Lease of and from any obligatio~s,
covenants, conditions and agreements by such Tena~t to be
kept, observed and performed, including the obligation to
pay the Rents thereunder in the manner and at the place
and time specified therein.
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-.........
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(3) Cancel, terminate or consent to any surrender
of any Lease, nor commence any action or any summary
proceedings for dispossession of a Tenant under any
Lease, nor exercise any right of repossession of Building
No. 932 provided in any Lease.
(4) Materially modify, alter, amend or otherwise
change any Lease.
Assignor shall submit to the City for the City's
prior approval of the final written form of any material amendment
or modification to an existing Lease by certified mail or cvernight
delivery. The Cicy shall specify the g~ounds for any disapproval
made by the City and shall also specify such terms and conditions
u~de.!:' which the City would approve such prc~)osed ameEc:me!1t or
modification.
Ass~gnor s~2l1 net e~~er into a ~ew Le~se cr co~se~t
to an assicnme~t O~ s~c~ease of a~v existing Lease which per~i~s
any use or -' BJildir.g No. 932 which is prohibi ':ed by the CJBG LOEtfi~
Agree~ent. Within five (5) days arter executing a ~ew Lease or an
arr:2ndr:-.ent or mccii:icatio:1 to 2:1 existi!'~g Lease, P.ssigcor shall
de~iver an exe~~ted copy thereof to the City certi:ying that s~ch
copy is a true, correct and complete copy 0: such ne'..,; Lease or
affie~dment or modificatie~.
(1) T:-;is P.ssignment cO!"'lstit:~::es G.l, irre~locable
direction and a~~~oriz=~ion to all Tenants to pay all rents and
other amounts to the City upon de~a~d from t~e City wit~out the
ne~essity or a~y f~rther consent or ot~er actic~ by Assi;:l.or.
(~) Assignor hereby agrees to inde~~ify a~d hold
the City harm~ess from any and all li.ability, less, da.mage or
expense (inclucing actua~ attorneys' fees and ccsts) which the City
m2j" incur under or by re~son of: (i) any reasoE~2,le action taken by
the City to protec~ its security hereunder or (ii) defense of any
a~d all claims a~d demands whatsoeve~ which may be asserted against
the City arising o~t of the Leases, including but not li~ited to,
any claims by any Tenants of credit for rental for a~y period u~der
any Lease more than ODe (1) month in advanc2 of the due date
thereof and security deposits paid to and received by Assignor, but
not delivered to the City. Should the Ci cy incu~ any s'~ch
liability, loss, damage or expense, the amoun~ thereof, including
reasoDable atto~ney' s fees, with interest the~eon at the the::
applicable interest: rate on the Note, shall be payable by Assignor
immediately upon demand, and shall be secured he~eby and by the
Security Documents. For the purposes of this Section, the costs,
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salary and expenses of the City Attorney and members of his office
shall be considered as "Attorney's Fees."
(n) The City's failure to avail itself 0: any of
the rights and remedies set forth in this Assignment for any period
of time or at any time shall not be construed or deemed to be a
waiver of any such right or remedy, and nothing herein contained
nor anything done or omitted to be done by the City pursuant hereto
shall be deemed a waiver by the City of any of its rights a:1d
remedies under the Note and Security Documents or of the be~efit of
the laws of California. The rights of the City to collect the said
indebtedness, to e~force any other security therefor, or to enforce
any other right or re~edy hereunder may te exercised by t~e City,
eit!"'1er prior to, simul-:aneously with, 0:- subseque:-'~t tOI 2:l.Y such
other action here~nbef8re described, a~d shall not be deemed 2~
election of re~edies.
(0)
rights under this
P~r-onal lialo.~ll""'"
'-_;::' _ _ ';"'__L'j
em~loyees or agents
No action ta::er.
P:~ss::";nment shall
0:1 any of the
of "he City.
by ;:~_e
r,,~., l .;-
::::':::l,;._,-
City i~ e~:orcing i~s
in the i:npos::" :.icn of
ele.=:.ed
o:fic:..a:s, c=flce~s f
(p) ...: any provision 0: this Assig:";.:,:,,en: or t.~.e
application thereof to 2~Y entity, persc~ or circu~st2~ce s~all be
declared invalid 0:: u:-.enforceable ty 2.':J.y cou~t c:: 12""- to 2"::]'
extent, ~hen the rS~2.i~ser of this Assi;~~ent and ~~e 2.p~:ica~io~
of 5'JCn prov-=-s-=-or.s to ether entities, ::erscr,s cr circ:":~.star~ces
shall not be a==ec~ed t~ereby and shall ts enforced to the greatest
ex~ent Ferllii~~ed by la^.
(q) No ~jariations, mcdif:.catior'.s 0:::-
or [-.erecf shall be b~:-.:iing ur:.less s~'" =>.:;rth in 2'
executed by Assig~or a~d the City.
. .'
cr'langes ne::::2=-:1
docuI:',s:-,. t d:..:ly
(r) Th.cs Assignnent slcall be gove:cned by a~a
construed in accordance with California law.
6. Reconvevance.
Trust by the Ci;:y shall
obligations hereunder.
The full reconveyance
operate as a release
of
of
the Deed of
l\.ssignor's
7. EDC p..o.....eement and Cover.2.:lt of P..ssio:1or Not to
Consent to Anv Mor~aao= of Leases. Notwithstanding any provision
of Condition 28 of the "Related Lease" by and between the Assignor
and the Secretary of the Air Force as provided under the EJC
Ag:ceement, the Assignor shall not authorize any Te~ant to apply to
the Secretary of the Air Force for consent by the Secreta:cy of the
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Air Force to a mortgage by such tenant in Building No. 932 as may
otherwise by permitted under such Condition 28 of the Related
Lease.
In the event tha the Secretary of the Air Force may give
notice to the Assignor of any breach or violation of the Related
Lease, such notice of the Secretary of the Air Force shall be
deemed to be an event of default by the Assignor under the terms of
the CDBG Loan Agreement and the City may exercise any of its rights
as set forth in Section 5(c) of this Assignment.
IIII
i.
CSBO/0006/DOC/975-1
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2000-15
THIS BENEFICIAL ECONOMIC ASSIGNMENT OF SUBLEASE AND RENT
is executed by the authorized officers of the Assignor whose
signatures appear below.
INLAND VA~LEY DEVELOPMENT AGENCY,
a joint powers authority
Dated: ~-3-00
By:
LV
xec tive Oi....
,y~~
J c::etary 0
[Ncta=y Ju=at!.is A~tached]
-r
[~egal Description of E~ilding No. 932J
CSBo/0006/DOC/975-1
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13
PARCEL 932
2000-15
LEGAL DESCRIPTION
In the City of San Bernardino, County of San Bernardino, State of California, being a
portion of Parcel 10, as shown on Record of Survey 98-0019, as per map, recorded in
Book 110, Pages 51 through 53, records of said County, together with portions of vacated
streets and alleys lying within and adjacent to said blocks, described as follows:
The easterly one half of Parcel 10 per said Record of Survey.
EXCEPTING the north 140.00 feet of said parcel.
Bearings and Distances used in the above description are on the California Coordinate
System, Zone 5 (NAD-83). Multiply distances shown by 1.0000684 to obtain ground level
distances.
END OF DESCRIPTION
"
Signature
Date
/ - /'3 - 00
2000-15
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AREA:
211,200
4.85
SQ FT
ACRES
Hernandez, Kroone &. Associates,
Consulting Civil Engineers 8c Land Surveyors
234 East Drake Drive
Son Bernardino, CA 92408
Inc.
OWNER I NLAND VAL LEY
DEVELOPMENT AGENCY
P AACEL NO.
PARCEL 932
DESCRIPTiON
DATE
SLOG 932
9/ I 1/99
'ift. '.<' ".C~~:;'
2000-15
EXHIBIT "F"
[FORM OF ENVIRONMENTAL INDEMNITY IN FAVOR OF CITY AS LENDER]
cSBO/0006/DOc/968
1/6/00 1000 jrnw
2000-15
2000
ENVIRONMENTAL INDEMNITY AGREEMENT
(Affects Former Norton Air Force Base Parcel "F-2" and Former
Norton Air Force Base Building No. 932: City of San Bernardino
CDBG Loan)
THIS ENVIRONMENTI'.L INDEMNITY AGREEMENT (" Indemnity") is made
and entered into as of January 24th, 2000, by the Inland Valley
Development Agency, a j oint powers authority (" Indemni tor"), in
favor of and for the benefit of the City of San Bernardino, a
charter city("Lender") and its respective successors, assigns and
participants and their respective directors, officers, agents,
attorneys, and employees (each individually hereinafter referred to
as an "Indemnitee" and collectively hereinafter referred to as the
"Indemni tees" ) .
RECITALS:
A. Indemnitor is a "local redevelopment authority," as
this term is defined in the Defense Authorization Amendments and
Base Closure and Realignment I'"ct (Public Law No. 100-526), as
amended, and the Indemnitor holds a possessory leasehold interest
in certain lands referred to by the Secretary of the Air Force as
forme~ Norton Air Force Base Parcel "1-3'1 and fee title interest in
certain other lands re:erred to by the Secretary of the Air Force
as former Norton Air Force Base Parcel "F-211 pu~suant to the term
of an agreement dated March 7, 1995 by and between the Secretary of
the Air Force and the Indemnitor,
B. Lender has agreed to make a loan to Indemnitor in
the amount of ONE HUNDRED TWENTY THOUSAND DOLLAR~ ($120,000.00)
(the "CDBG Loan") in accordance with the terms of that certain 2000
Communi ty Development Block Grant Loan Agreement (" COBG Loan
Agreement") of even date herewith by and between Lender and
Indemni tor. The CDBG Loan is to be evidenced by that certain
promissory note in favor of Lender of even date herewith ("Note")
which is secured by, among other things, that certain Deed of
Trust, Security Agreement, Assignment of Leases and Rents of even
date herewith (the "Deed of Trust") executed by Indemnitor in favor
of Lender. The CDBG Loan Agreement, the Note, Deed of Trust and any
and all other documents and instruments now or hereafter evidencing
or relating to the CDBG Loan are sometimes referred to herein
collectively as the "CDBG Loan Documents".
C. In connection with the CDBG Loan, Indemnitor has
agreed to execute and deliver this Indemnity.
cSBO/0006/00C/969
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2000-15
D. As a result of the future exercise of Lender's
rights and remedies in connection with the CDBG Loan transaction,
the Lender andlor an Indemnitee may hereafter become the owner of
the lands known as former Norton Air Force Base Parcel nF-2" (the
"?~operty') pu~suant to a transfer of title to the Property, or any
po~tion thereof, at a foreclosure sale under the Deed of Trust,
either pursuant to judicial decree or by power of sale or by deed
in lieu of foreclosure (hereinafter referred to as a nForeclosure")
o~ the owner of a beneficial interest in that certain sublease by
a~,d between the Indemnitor and Astrofab, Inc. , a Cali fornia
corporation with respect to former Norton Air Force Base Building
No. 932 (the "Beneficial Economic Assignment of Building No. 932
S~blease"). In such event, one or more of the Indemnitees may incur
ce::-tain liabilities, costs and expenses in connection with the
P~operty or Building No. 932 relating to or arising out of any of
the ~Environmental MattersH as this term is hereinafter described.
The parties intend by this Indemnity to protect the Lender and the
I~demnitees from any such liabilities, costs and expenses as he~ein
p~ovided.
NOW, THEREfORE, IN CONSIDERATION OF THE MAKING Of T~E
C::3G LOl\N AND :OOR OTHER GOOD AND VALUl'.BLE CONSIDER.l\TION, TEE
RECEIPT AND S~::FICIENCY OF WEICH ARE HEREBY ACKNOWLEDGED,
I~JEMNITOR HEREee AGREES AS FOLLOWS:
1. -~de~n~tv. Indemnitor hereby agrees, 2~ its sole
ccst and expense, to indemnify, protect, hold ha~m~ess a~d defend
(.,...ith counsel of Lender's choice) Indemnitees, from and age-iost any
2~d all claims, cemands, damages, losses, liabilities, obligations,
I=e:-'~21ties, fiEes, actions, causes of action, judgments, s~J.its,
p~~ceedings, cos~s, disbursements and expenses (i~cluding, without
~.:'..:nit2tion, fees, disbu::,se:ne:-"ts 2rld costs of a::::or:1eys,
e:-:.~Jironrnental consultants and experts), a:-J.d all foreseeable and
un:o~eseeable consequential damages of any kind or of any nature
w':--.2~soever (col=-ectively, "Losses") which may at any time be
irr.?osed upon, i:l.curred or suffered by, or asserted or aw'arded
a.g3inst, any I:-1.demr.itee directly or indirectly relating to or
a=isi:1g from any of the following "Environmental Matters":
(a) lmy past, present or future presence of any
"Hazardous Mate::-ials" (as such term is defined in Exhibit "E"
a~tached hereto) on, in, under or affecting all or any portion of
t~e Property and/or Building No. 932 or on, in, under or affecting
all or any portion of any property andlor Building No. 932 adjacent
or proximate to the Property if such Hazardous Mate~ials o~iginated
on or from either the Property or Building No. 932 prior to
Fo~eclosure or the Beneficial Economic Assignment of Building No.
932 Sublease to the Lender,
cSBO/0006/DOC/969
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I
2000-15
(b) Any past, present or future storage, holding,
handling, release, threatened release, discharge, generation, leak,
abatement, removal or transportation of any Hazardous Materials on,
in, under or from the Property andlor Building No. 932 or any
portion thereof occuring prior to Foreclosure or Beneficial
Assignment of the Sublease,
(c) lmy violation at any time prior to Foreclosure
or Beneficial Assignment of the Sublease of laws, rules,
reg'-lla tions, j udgr:\ents, orders, permi ts, licenses, agreements,
covenants, restrictions, requirements or the like now or hereafter
relating to or governing in any way the environmental condition of
the Property or the presence of Hazardous Materials on, in, under
of affecting a:l or any portion of the Property and lor Building
No. 932 including, withcut limitation, all statutes referenced in
Exhib~t \'8" attached hereto (collectively, "Environrne~tal Laws");
(d) The fOlilure of
obta~n, submi~ a~d/or f~~e a~y and
authorizations, covena:"'Lts and
Environmental Matters described
Property and lor Building No. 932
or enjoyment thereof;
Indemnitor to properly
all notices, permits,
the like relative
herein in conr.eccion
or the ownership, use,
complete,
licenses,~"
to a-ny
wi th the
operation
(e) The extraction, removal, containment,
tra~sportation or disposal of any and all Hazardous Materials from
any portion of the Prcperty or any other proper1:Y adj acent or
prox~mate to the Property if such Hazardous Materials originated on
or from the Property a~~/or Building No. 932 prior to Foreclosure
or recourse to the Beneficial Eco~om~c Assignmen~ of the B~ilding
No. 932 Subleass;
(f) Any past, present or fU1:ure presence,
perrr,it:.ingr ope.:-ationr closurer abandonment or remo"lal from the
Proper-;:y of any storage tank which at any time contains or
contained Hazardous Ma~erials located onr in or under the Property
andlor Building No. 932 or any portion thereof occurring prior to
Foreclosure or recourse to the Beneficial Economic Assignment of
the Building No. 932 Sublease,
(g) The implementation and enfcrce:i\ent of any
monitoring, notification or other precautionary measures which may
at any time become necessary to protect against the release or
discharge of Hazardous Materials on, in under cr affecting the
Property andlor Building No. 932 or in the air, any body of water,
any other public domain or any property adjacent or proximate to
the Property andlor Building No. 932,
cSBO/Q006/DOC/969
12/21/99 450 ct
3
2000-15
(h) Any failure of any Hazardous Materials
generated or moved from the Property andlor Building No. 932 to be
removed, contained, transported and disposed of in compliance with
all applicable Environmental Laws, or
(i) Any investigation, inquiry, order, hearing,
action or other proceeding by or before any governmental agency in
connection with any Hazardous Materials or violation of any
Environmental Law occurring or allegedly occurring at any time
prior to Foreclosure or recourse to the Beneficial Economic
Assignment of the Building No. 932 Sublease.
2. Seoarat= Obl~aation. Indemnitees shall have no
rights against Indemnitor under this Indemnity prior to Foreclosure
or recourse to the Be~eficial Economic Assignment of the Bu~lding
No. 932 Sublease. This I~de~nity is given solely to protect Lender
and the other Inde~~~tees against Losses occurring after
Foreclosure or Beneficial P.ssignment of Sublease, a~~d EO': as
additional security fer, or as a means or repayment of, the CGBG
10en. The o}jligatio~..s of Indemnitor u:-'.der this Indem!"'li ty are~--
independent of, and sr-.ooll not be meoosured or affected by (i i any
amounts at a:1Y time o',.;i:1g under the CDBG Loan or CDBG Loan
Agreement, or secured by t.he Deed of Trust, (ii) the sufficiency or
insufficiency of any collateral (including, without limita~icn, the
Deed of Trust secured by the Property and/or the Beneficial
Economic Ji.ssignr:-.ent 0: tr.2 Building No. 932 Sublease gi ~ien to
Le:,,_der to secure re;:cyme:--;t of the CD3G Loan), (iii) the
consideration given c./ Le:-lder or any o~her party in orae:- to
acquire the Property, cr any portion t:,ereof, liv) the disc:,arge or
repayment in full or t~e CD3G LoaQ (iGclud~~g, without l~~itatio~,
by amounts paid or cred~t bid at a foreclosure sale or by discharge
iT'. cO:1:1ecticr: with tr-.s deed in lie'J of fcreclosuX"e) cr (.v) ar:y
exculpatory provision in any of the CDBG Loan Documents limiting
Lender's recourse to ~he Property or to any other security
incl~ding without limit2~ion the Beneficial Economic Ass~gn~ent of
the Building No. 932 Sublease, and/or otherwise limiting Lender's
rights to recover a deficiency judgmer,t. Notwithsta:1ding the
provisions of any of t~e CDBG Loan Documents or other ins~ruments,
none of the obligations of the Indemnitor hereunder shall be in any
way secured by the lie:1 of the Deed of Trust or any other document
or instrument securing the CDBG Loan or the CDBG Loan Agreement
including without limitation the Beneficial Economic Assignment of
the Building No. 932 Sublease. Prior to coreclosure or Beneficial
Assignment of the Sublease, Indemnitor's obligations with respeot
to the subject matter contained herein shall be governed by the
CDBG Loan Agreement and related CDBG Loan Documents. Since
Indemnitor's obligations under this Indemnity only arise in the
event of Foreclosure or recourse to the Beneficial Economic
CSSO/0006/DOc/969
12/21/99 450 ct
4
2000-15
Assignment of the Building No. 932 Sublease, Indemnitor
acknowledges and agrees that said obligations shall not be subject
to California Code of Civil Procedure Sections 580a, 580d, 726, any
successor statute or law, any other antideficiency laws or any
judicial decisions construing the effect or operation of the same
prior to the date of this Indeminity. Indemnitor agrees that any
payments made under this Indemnity shall not limit or in any way
impair any deficiency judgment obtained against Indemnitor and
shall not reduce any obligations and liabilities of Indemnitor
under any of the CDBG Loan Documents which survive Foreclosure or
recourse to the Beneficial Economic Assignment of the Building No.
932 Sublease.
3. Amendment of CDBG Loan Doruments/Sa1e of pcOD~rtv.
The liability and obligations of Ind~mnicor under this Indemnity
shall in no way be limited or impaired by any amendment,
modification, expiraticn oc termination of the provisions 0= the
CDBG Loan Documents. In addition, the liability of Indemnitor under
this Indemnity shall in no way be limited or impaired by (i) any
exte~sions of'time for Fe~fc=mance reqcired by a~y of the CJBG Loa6~
Documents, (ii) any sa::"e or transfer 0= all or any part 0= the
Property prior to Foreclosure, (iii) any modification or amendment
or termination of the Building No. 932 Sublease, (iv) the accuracy
or inaccuracy of the represen~atio~s a~d warranties made by
Inde:nnitor under any of ::he CJBG Loan Docu::~ents, (v) the rele.:::.se of
Indem~itor or a~y other person from the performa~ce or observance
of any of the agreements, covenants, terms or conditions cont~ined
in any of the CDBG Loan Documents by ope:::ation of law, Lender's
voluctary act or otherwise, (vi) t~.e release or substitutio:-., in
whole or in part, of any security for the Note, or (vii) Lender's
fail~re to record the Deed or Trust (or Le~der's improper reco~ding
o~ f~~ing of ar.y thereof) or Lender's fail~~e to otherwise pe~fect,
protect, secure or insu~e a~y security i~terest or lien given as
seccrity for the Note; and, in any such case, whether with or
wit~cl:t notice to Indem~ito~ and with or ~~t~o~t cor.sideration.
4. Section 330 of the Natl anal Defer:se P~utho::-ization
Act of 1993. as ~mended and Delav In Enforcement. Section 330 of
the National Defense Authorization Act of 1993, as ame~ded,
provides:
(a) IN GE:NERAL.
(1) Except as provided i::. parag:::-.:::.ph (3) and
subject to subsection (b), the Secretary of Defense shall hold
harmless, defend, and indeIT~ify in full the pe:::-sons and
enti:ies described in p.:::.ragraph (2) ==om a~d aga~~st a~y suit,
claim, dem~:1d or a::tior.l., liatility, judg:rce:-,t, c;:;s:. or oth r
fee arising out of any claim for personal i:1jury or proper y
damage (including death, illness, or loss of o~ damage 0
cSBO/0006/DOc/969
12/21/99 450 ct
5
2000-15
property or economic loss) that results from, or is in any
manner predicated upon, the release or threatened release of
any hazardous substance or pollutant or contaminant as a
result of Department of Defense activities at any military
installation (or portion thereof) that is closed pursuant to
a base closure law.
(2) The persons and entities described in this
paragraph are the following:
(A) ArlY State (including any off:.cer,
agent, or empl':lyee of the State) that
acquires ownership or control of any
facility at a military installation (or
any portion :.he::-eof) described in
paragraph (1).
(Bl F~y political subdivision of a S~ate
(includ~ng a~y officer, agent, or
employee of the State) that acqulres such
owne::-ship or cc~trol.
(el A~y other pe~son or entity that
acquires such eNnership or ccn~::-ol.
,
(D) .!l.ny successor, assig:1ee, trans::eree,
lender, or lessee of a person or e~tity
described in s......bparagraphs (.!l.) t::r:;,ugh
Ie) .
(3) To the ex;:ent -:he per5c:-'.s a:c"d er.-cities
described in pa::-agraph (2) contributed to any such release ~~
threa:.e~ed release, paragraph (1) s::a11 not apply.
(b) CCNDI!IONS.-~No indemr.ification may be affc::-ded
u~der ~~is section unless the perso~ or entity making a c:aim
for i~je~i:icaticn--
(1) notifies the :~par::ne,,-t of Defe:-:se :':1.
wrltlng wit::in two years after suc~ claim accrues or be;i~s
ac~ion '.-lithi:,. six mor,ths after :':Je date of mailing, by
certified or registered xail, of notice of final denial 0: the
claim by the Depar:.:nent of Defense;
(2) furr.ishes to t:-:e Department of Defense
copies of pertinent papers the enti~y receives;
(3) furnishes evidence or proof of any claim,
loss, or da:nage covered by this sec:.ion; and
of De:e::.se,
for purposes
(4) provides, upon request by the Depart~ent
access to the records and personnel of the en::ty
of defending or settling the claim or actien.
Ie)
AUTHORITY OF S~CRETARY OF DSFS~SE.
(I) In any case i,,, which the Secretary of
Defense dete:::mines that the Depa::::.mer'.t of Defe:;::se may be
required to make inde~~ification paj~ents to a person under
this section for any suit, claim, de~and or action, liability,
judgme:1.t, cost or other fee arisi'Jg out of any claim fo:::
personal injury or property damage referred to in subsection
(a) {ll, the Secretary may settle or defend, on behal: of that
person, the claim for pe:::sonal inj~ry O~ p~ope~ty damage.
cSBO/0006/DOc/969
12/21/99 450 et
6
2000-15
(2) In any case described in paragraph (1), if
the person to whom the Department of Defense may be required
to make indemnification payments does not allow the Secretary
to set~le or defend the claim, the person may not be afforded
indemn~:ication wi~h respect to that claim under this section.
(d) ACC~UAL OF ACTION.--For purposes of subsection
(b) (1), the date on which a claim accrues is the date on which
the pl~~ntiff knew (or reasonably should have known) that the
personal injury or property da~age referred to in subsection
(a) was caused or contributed to by the release or threatened
release of a hazarious substance or pollutant or contam~nant
as a result of Department of De:ense activities at any
military installat~on (or portion thereof) described in
subsec::..on (al (1) .
(e) R2:.,.n.7:0NSHIP TO OTHER LAW. --Nothing in this
sectio~ shall be construed as affecting or mod~fying in any
way section 120:~) of the Comprehensive Enviro~~e~tal
Respor'_se, Conps:'.sa::ion, and Liabili::y .v,ct of 1980 (42 U.S.C.
9620 (;..; ) .
l~) DEF:~:TIONS.--Ic this section:
(1) The ter:7\S "facility", "hazardous
s1J.bs~.a:-_::e", "re':"e~5e", and "pollutar.;: or cor-.':ami.,.ant" r.a-.-e t:",e
meani.:-.gs give:--. s~..:=:: te~rns under pe.:-agraphs (9), (14), (22) I
and (33) 0: sec::.i.:;:1 101 of t~e Comprehensive =::mri~Or'.:..--rceY}-::al
RespoLsc, Corr:;:,er_sa:.ion, and Liajility Aet of ':'980,
respec:':".Tely (42 \.7.S.C. 96011:9), (14:, (22), a:-.d (33)).
(2) 'The term "rni:i:arv ir:.s:.alla:.i.o'l" :-.as the
r.'.ean::.r:g g::.ven sn.~1-- ':'2:nn under seetier'. 2687 (ei (1) of ti,:le 10,
United S:.ates Cede.
(3) The term "base closure law" mear'.s the
follo\,;:::g:
(A) Tr.e Defe:,.se
Realigili~ent Act of
::.cte) .
Base Clcsure
199J (IS. [J.S.C.
a::.d
2637
(2)Title II
Pune:1dr.,ents
Realigr.ment
of 1:;le De:e:-:se
aC'ed Bas,=,
]I.e:. (lO U.S.C.
A:...l,:horization
Closure and
2687 nc::.e).
(Cl Section 2687 of title 10, U::.ited
States Code.
(D) Any provision of law autho~~zi:1g the
closure or rea:ignment or a military
installation enacted on or after the date
of the enactme:1t of this Act."
(Source: Public Law No. 102-484; 106 Stats 2315, 2371)
In the event of Foreclosure or recourse to the Beneficial
Economic Assignment of the Building No. 932 Sublease, and provided
that the Lender or its Indemnitee has given notice to the
Department of Defense as provided in Section 330(b) of the National
Defense Authorization Act of 1993, as amended with respect to a
CSBO/0006/DOc/969
12/21/99 450 ct
7
2000-15
Loss involving an Environmencal Matter resulting or alleged to have
resulted from De?artment of Defense activities on or near the
Property or Build~ng No. 932, as applicable, no failure or delay on
the part of any Indemnitae to exercise any right, power or
privilege under this Indemn~ty shall operate as a waiver of any
privilege, power or right ccntained in this Indemnity.
5. Successors and Assians. Except as herein p~ovided,
this Indemnity s~all be binding upon the Indemnitor and inu~e to
the benefit of the Lender and each Indemnitee, its successors,
endorsees and assigns, any ~ayty to whom an Indemnitee assigns a
participating in"erest in t~e CDBG Loan, and to their respective
heirs, personal representati~eSf successors and assigns, i~cluding,
as to Indemnitees, without limitation, any holder of the Note and
any party which acquires all or part of t~e Property by a~y 521e,
assignment or Fo~eclosu~e c~ in the Building No. 932 Sublease.
6. w~ ~ vers. No provision of this Inde::-ini t~/ may be
changed, waived, discharged or terminated orally, by telephone or
by a:-;y o':her rrtear-_5 exc2Fl: by an instrumen~ in writing sigLe:::' by the...
party against whc~ en=orceme~t or the cha~ge, waiver, disc~arge or
termination is s~~ght.
7. Ssverabilitv. Every provision of this Inde~nity is
intended to be se~7erable. If any provision of this Indemni-:y or t~e
application of a~j provision ~ereof to any party or circum5~a~ce is
declared to be .i.2.legal, ir:.:s.lid or unei_=02:"ceable for ar.~.' reaSD:1
whatsoever by a sourt 0: cc~petent ju~isj~ctic~, such i~~alidity
sha~l nc~ affect ~~e balance of the terms a~d previsions h2reof cr
the app~ication c: ~he prov~3ion in question to a~y other ~ar~y or
circumsta~ce, al~ c: w~ich shall continue in full force and effect.
8. Pavsent of Obliaations. All obligations of
Indemnitor hereunser shall ba payable on de~and, and any a~cunt due
and payable here~~der to any Indemnitee by Inde~r.itor whic~ is not
paid witr.in thirLY (30) days after writte~ demand therefor from an
Indemnitee with an explanation of the amounts demanded s~all bear
interest from the date of su2h demand at the ra~e of eigh~ percent
(8%) per anum.
9. A-tornev's Faas. The Indamnitcr shall pay to the
Lender and each Indemnitee all costs and expenses (including,
without limitaticm, the reasonable attorney's fees ans costs)
incurred by such Indemnitee in connection with this Inde~nity or
the enforcement he~eof. For "he purposes of the preceding sentence
the words "reasonable attorney's fees and costs" incl:...:des the
salary, wages, benefits and cverhead of the lawyers em?loyed by the
office of the Ci"y Attorney of the City of San Bernardinc.
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10.
and construed
California.
GoverninG Law.
in accordance
This Indemnity shall be governed by
with the laws of the State of
IN WITNESS WHEREOF, Indemnitor has caused this Indemnity
to be executed as of the date first written above.
INDEMNITOR:
By:
.._r.
-r
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EXHIBIT A
LEGAL DESCRIPTION
[INSERT LEASE DESCRIPTION OF (i) FORMER NORTON AIR FORCE BASE
PARCEL "F-2" AND (ii) FORMER NORTON AIR FORCE BASE
BUILDING NO. 932]
l
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EXHIBIT B
HAZARDOUS MATERIALS DEFINED
"Hazardous Materials" as used in this Indemnity shall mean a~y
haza~do~s or toxic materials, pollutants, effluents, contaminants,
radioactive materials, flammable explosives, chemicals known to
cause cancer or reproductive toxicity, emissions or wastes and any
other chemical, material or substance, the handling, storage,
release, transportation, or disposal of which is or becomes
p~ohibited, limited or regulated, is or becomes known to pose a
hazard to the health and safety of the occupants of the Property
i~cl uding, without limi ta tion, (i) asbestos, (ii) petroleum and
petrole'-om by-products, (iii) urea formaldehyde foam insulation,
(iv) polychlori~ated bipr.enyls, (v) all substances now or hereaftec:
designated as "hazardous substances", "hazcrdous ma":erials", or
":.oxic substances" pursuant to the Comprehensive EnviroD:rr.ental
F.esponse, Compe!',sation c.:1d Liability A::t of 1980 ("CERCLA"), 42
U.S.C. Section 9601, e~ seq., as a~ended by t~e Superfun~~
~""""~""'dme~ts and'~ Jc.;::.".....'nny~ Z-t-l' on 'ct- 0'::: 108' ("SD,'J7\II) t1-.c. Fea'~r"'::'l
.r__,.c.. .. J. "''-............l,....'-'....._ C,- t'". '- ......1./ I:) ..f\..'""l, l.L,- >:::::~c_
Wa":er Pollution Centrol Act, 33 O.S.C. Section 1251 e": seq., the
C="ean J:..ir Act, 42 U.S.':. Section 7401 et seq., the Hazarcous
i"acerials Transporcatio~ Act, 49 U.S.C. Section 1801 et seq., or
the Rescurce, Conservc.cion and Recovery A::t, 42 U.S.C. Section 6901
e:. seq.; (vi) a:..1 su:Sstances now or hereafter designated as
"hazardous was:.es" in Section 25117 of the California Heal~h and
S=.::ety Code; (vii) all substances no'w or hereafter dssig:-la':.ed by
t..:-.:.e Governor of the S":e.te of Cali:o:::-nia pursuant ~o the Safe
e~i~<i~; Wat.er and Toxic Enforcesent Act or 1986 as being kr-own to
C2.0Se cancer or reproduc~ive toxicity, o~ (viii) all s~bstances now
c:: hereafter desig:-.a-::.ed "haz2.~dous substaEces", "hazardous
:l~ct.eria'="s" or ":::ox~c su;:s::.ances" under C:-1Y other fed.era.l, state or
local laws or in a~y regulations cdopted and publications
Fromulgcted purs0cnt to said laws.
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EXHIBIT "B"
[SOURCES AND USES OF FUNDS TO CONSTRUCT PROJECT--PROJECT
DESCRIPTION]
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EXHIBIT "B"
SOURCES AND USES OF FUNDS TO CONSTRUCT PROJECT--PROJECT
DESCRIPTION
The Project consists of the construction and installation by
the BORROWER of certain life safety and electrica~ utility system
rehabilitation work and improvements of Building No. 932. Upon
completion of the Project, Building No. 932 shall be delivered for
possession by the BORROWER to Astrofab, Inc., pursuant to the terms
of a written lease agreement by and between the BORROWER and
Astrofab, Inc. Following the completion of the work of improvement
of the Property by BORROWER and the commencement of possession of
Building No. 932 by Astrofab, Inc., the tenant is solely
responsible for paying for the cost and completion of other tenant
improvements to Building No. 932. Building No. 932 includes
approximately 98,000 square feet of interior building area and
appurtenant parking.
The prin~ipal amount of the LOAN shall not exceed $120,000.00;-
All of the proceeds of t:-,e LOAN shall be disbursed by CITY to the
BOR?OWcR. The BORROWER presently estimates that the total cost of
the Project shall be $155,000.00.
The BORROWER is solely responsible for contributing its own
funds (presently estimated to be not more then $35,000.00) in an
amount sufficient (together with the proceeds of the LOAN not to
exceed $120,000.00) to complete the Project within ninety (90) days
following the initial disbursement of the proceeds of the LOAN. In
the event that the total cost of the Project mey exceed $155,000.00
the BORROWER is solely responsible for contributing additional
funds as necessary in order to assure the completion of the
Project.
The proceeds of the LOAN shall be used end applied solely to
pay for the cost of the Project, including the payment of title
issuance costs and recording fees, if any, evidencing the security
interest of the CITY under the terms of the LOAN.
All work performed by the BORROWER on Building No. 932 shall
be accomplished as a "public works project" of the BORROWER under
applicable provisions of the Public Contracts Code and 24 CFR Pare
85 all as more fully set forth in the LOAN Agreement.
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EXHIBIT "C"
[LOAN DISBURSEMENT APPROVALS AND PROCEDURES]
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EXHIBIT "C"
LOAN DISBURSEMENT APPROVAL PROCEDURE
This exhibit contains as outline of the LOAN disbursement
approval procedure for the not to exceed $120,000.00 loan of the
CITY to the BORROWER, the Inland Valley Development Agency:
1. Each disbursement of the proceeds of the LOAN shall be
initiated by a written request for LOAN disbursement executed by
the Executive Director of the Inland Valley Development Agency
which includes the following information:
A) a statement that the BORROWER is in compliance with
the terms and conditions of the LOAN Agreement and
that no default exists thereunder and that no event
has occurred with the passage of time which would
be a default under the LOAN Agreement,
B) 'indicates the amount of the LOAN for which
disbursement is sought,
C) contains a suitably detailed description of the
improvements of Building No. 932 for which the LOAN
disbursement shall be applied by the BORROWER,
D)
certify that all stop
have been obtained
Building No. 932
disbursement request,
notice and materials releases
for the work performed on
through the date of the
E) a statement that a certified payroll record has
been obtained from the general contractor which
indicates that not less than prevailing wages have
been paid to workers (including employees of
subcontractors) engaged in the work of improvement
on Building No. 932 for the work performed through
the date of the disbursement request,
2. (a) The CITY shall make the initial disbursement of the
proceeds of the LOAN to the BORROWER within ten (10) days following
receipt of a completed written request for LOAN disbursement and
confirmation by the Executive Director of the Economic Development
Agency of the City of San Bernardino, or designee, that all of the
following have been satisfied:
A)
each of the following have been fully executed by
the BORROWER:
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i)
ii)
iii)
iv)
Note,
Deed of Trust,
Environmental Indemnity Agreement,
Beneficial Economic Assignment of the Sublease
for Building No. 932,
B) the BORROWER has delivered the opinion of its legal
counsel as set forth in Section l5.b., of the LOAN
Agreement,
C) the BORROWER has provided the CITY with a CTLA
lender's policy of title insurance in the principal
amount of the LOAN in the form required by Section
l5.b. (4) (b) of the LOAN Agreement,
D)
the BORROWER
evidence of
Section 35 of
has provided the CITY
insurance coverage as
the LOAN Agreement,
with written
required by
E) . the BORROWER has provided the CITY with a true and
correct copy of the fully executed sublease
agreement relating to Building 932 by and between
Astrofab, Inc. and the BORROWER, together with the
tenant financial information described at Section
1.g(14) and (15) of the LOAN Agreement,
F) the BORROWER has provided the CITY with a copy of
the appraisal report dated May 24, 1999, relating
to Parcel "FH and a confirming letter of the
appraiser which indicates an allocation of value
for Parcel "FH between Parcel "F-l" and Parcel "F-
2" such that Parcel "F-2" has a value of not less
than $1,200,000.00.
(b) From each disbursement of the LOAN the CITY shall
withhold a retention of ten percent (10%) of the amount of the LOAN
disbursement requested. The aggregate amount of the LOAN retention
shall be disbursed to the BORROWER within ten (10) days following
receipt of a LOAN disbursement request of the BORROWER which
indicates that the improvement of Building No. 932 to be undertaken
by the BORROWER has been completed.
(c) The proceeds of the LOAN shall be disbursed to the
BORROWER in one or more draws, provided however that the work of
improvement of Building No. 932 to be undertaken by the BORROWER
shall be completed within not more than ninety (90) days following
the date of the initial disbursement of the proceeds of the LOAN.
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3. Unless otherwise indicated in this Exhibit, the meaning
of all defined terms and phrases as used herein shall be the same
as set forth in the LOAN Agreement. In the event that there is any
inconsistency between a provision of this Exhibit and a provision
of the LOAN Agreement, the Executive Director of the Economic
Development Agency of the City of San Bernardino, or designee,
shall harmonize the applicable provisions of the LOAN Agreement and
this Exhibit in such manner as best serves the interests of the
CITY.
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EXHIBIT "D"
[FORM OF DEED OF TRUST]
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RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF SAN BERNARDINO
REDEVELOPMENT AGENCY
201 North UE" Street
Suite 301
San Bernardino, California 92415
ATTN: Housing Division
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST
AND ASSIGNMENT OF LEASES AND RENTS
(2000 ~City of San Bernaydino Corr~~nity Development
Block Grant Loan)
THIS DE~D OF TRJST AND ASSIG~~ENT OF LEASES AND RENTS
(the "Deed of Trust") is dated, January 24 2000, among the
Inla~d Valley Deve~opment Agency (the "Tr~storU), whose address is
294 S8ut~ Lela~d Norton Way Sui~e No. If ~~n Bernardi~o, California
92408 and the Ci~y of San Bernardino (the "Lender" or the
"Be~eficiaryJ') I w~ose address is 201 Nor~h "E" Street, Suite 301,
San 3er:1ardino, California 92415 and Orange Coast" Title Insurance
Compa~y, a (the "TrLlstee") whose addres s is
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary,
all of Trustor's right, title, and interest in and to the
following described real property, together with all existing
or subsequently erected or affixed buildings, improvements and
fixtures; all easements, rights of way, and appurtena~ces and
all other rights, royalties, and profits relating to the real
property, including and without limi~ation all minerals, oil,
gas, geothe~mal and similar matters located in San Bernardino
County, State of California (the "Property"):
SEE EXHI3IT "A" LEGAL DESCRIPTION ATTACHED HERETO
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Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of the
Property and all Rents from the Property. In addition, Trustor
grants Lender a Uniform Commercial Code security interest in the
Rents and the Personal Property defined below.
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. Terms not otherwise
defined in this Deed of Trust shall have the meanings
attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful
money of the United States of America:
Beneficiary.
Bernardino, a
The word "Beneficiary"
charter city.
means
the City of San
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trt.:st and P-.ssignment of Rents amor:g Trustor, Lender, and
Trustee, a~d includes without limitation all assignment an~
security 'interest provisions relating to the Personal Properiy~
and Rents.
Improvements. The word "Improveme~ts" rnea:1S and includes
without lim~:a~ion all existing improvements on the Property.
Indebtedness. The word ":Lndebtednes 5" IT\ea:1S all principal
c:1d, if applicable, interest payable under the Promissory
Note, the performance cove~ants of the Trustor in favor of the
Le:1cer as a::::..se under tne Loan F..gree:ne::.t and any arnOL:nts
expended or advanced by Lender to discharge obligations of
Trustor or ex~enses incurred by Trus~ee o~ Lender to e~force
obligatic~s 0= Tr~stor u~de~ the Pro~~ssory Not~ 2nd this Deed
of Trust, together with interest on such amounts. This Deed
of Trust se=u=es, in addition to the 2mou~ts specified in the
Promissory Note any future adva~ces, together with all
interest thereon, which future adva~ces the Lender may in its
sole and abso~ute discre~ion make so long as Trustor co~plies
with all tb-e terms and conditions of the Promissory Note or
other loan ag~eement.
Lender. The w'ord "Lende=" means the City of San Bernardino,
a charter city.
Loan Agreement.
certain 2000
January 24, 2000
The words "Loan AgreernentU refers
CDBG Funds Loan Agree~ent
by and between the Lender and the
to that
dated
Trc.s~or.
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Personal. Property. The words "Personal Property" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the Property.
Promi.ssory Note. The words "Promissory Note" mean the
Promissory Note of even date herewith, in the principal amount
not to exceed One Hundred Twenty Thousand Dollars
($120,000.00) from Trustor to the Lender, toge':her with all
renewals, extensions I modifications I refir.ancing, and
substitutions for the Promissory Note.
Property. The word "Property" means collectively the Property
and the Personal Property, and the rights described above in
the "Conveyance and Grant" section of the Deed of Trust.
Rents. The word II~ents'l means all present and ~uture rE~ts,
revenues, income, issues, royalties, p=Qfi~s, and o~ner
benefics derived from the Property.
.,.
Trustee.
Insu~a:1ce
The word "Trustee'! means T~tle
C8mpany, and any subs~itute or s~cceSSQr tr~stees.
Trustor. The word "Trustor" means t!-_E I:-.la:1d Valley
DeveloDme:1t Agency, a joint powers authcri~y.
3.0 THIS D~~D 0= TRUST, INCLUDING TE~ ASSIGNM~Nc 0= R~NTS AND T~~
SECURITY INc~REST IN THE R~NTS AciD P~RSONAL PROPERTY, IS GIV~N
TO S~CU2~ (l) PAYMENT OF TEE INJ~3T~DNESS A~D (2) PSR~QRMANCE
OF ANY AND ALL 03LIGAT!ONS OF TRUSTOR UNJ2R T~~ PROMISSORY
NOT~ AND TEIS DEED OF TRUST. THE PROMISSORY NOTE AND THIS
DSED OF T~0S? AR~ GIV~N AND ACC~PT~D ON TE~ FOL~OW~NG TE?MS:
3.1 PAYMENT A.'lD PERFORMANCE. EXC2?t as othenJise provide:::: in
this Dee:::: of Trus~, Trustor shall pay to Lender all amounts
secured by this Deed of Trust as they become d~e, and shall
strictly aEd in a timely manne~ pe2:'fo~m all of Trustor's
obliga~ions under the Promissory Note, this Deed of Trust,
and the Re~ated Documents.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Truster's possession and use of the Property shall be
governed by the following provisions:
Possession and Use. Until the occurrence of an Event 0:;'
Default, Trustor may (a) remain in possession and control of
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of Trust securing this NOTE~then at the option of the CITY, the
unpaid balance of principal and interest then due on this NOTE
shall immediately become due and payable.
BORROWER:
Inland Valley Development Agency,
a joint powers authority
By ~GO"~"~~
l.ve D1.rector
'.
1"
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