HomeMy WebLinkAboutCDC/2004-22
(Note: See Companion Resolution CDC/2004-21)
RESOLUTION NO. CDC/2004-22
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY
TO EXECUTE THE (1) HOME ASSUMPTION AGREEMENT BY AND
BETWEEN NHS, FRAZEE COMMUNITY CENTER, INC. (FRAZEE)
AND THE AGENCY; AND (2) THE 2004 HOME PROGRAM CHDO
LOAN AGREEMENT BY AND BETWEEN FRAZEE AND THE AGENCY.
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WHEREAS, NHS and the Agency entered into that certain 2001 HOME Program
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Community Housing Development Organization (CHDO) Loan Agreement dated September
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27,2001 ("Loan Agreement"), and NHS and Agency agreed to terminate the Loan Agreement
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in accordance with the 20004 HOME Loan Termination Agreement ('Termination Agreement")
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in order to transfer said Properties (parcels 0146-163-163-43, 146-163-02; 146-162-22, and
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146-132-18) as referenced under the Termination Agreement and the Loan Agreement to Frazee
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Community Center, Inc., (Frazee) pursuant to the terms of the 2004 Assumption Agreement
between NHS, Agency and Frazee, and the 2004 HOME - CHDO Loan Agreement ("2004
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HOME Loan Agreement") by and between the Agency and Frazee; and
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WHEREAS, Frazee desires to utilize said Properties for the operation and maintenance
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of affordable housing, in particular, to provide affordable housing for participants of Frazee's
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Transitional Housing Program; and
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WHEREAS, Frazee has agreed to assume the outstanding NHS debt owed to the Agency
of approximately $121,683 of HOME debt together with an additional new Agency HOME loan
in the amount of $406,202 for a total debt owed to the Agency of $527,885 which will be
forgiven by the Agency over a 25 year period subject to provisions under the promissory note
and the 2004 HOME Loan Agreement in order that Frazee may purchase the properties from
NHS as provided for under the Termination Agreement, Assumption Agreement and the 2004
HOME Loan Agreement; and
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WHEREAS, Frazee covenants that it will utilize the Properties for the provision of
2 affordable housing for a period of not less than 25 years in accordance with the Regulatory
3 Agreement ofthe 2004 HOME Loan Agreement.
4 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
5 THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND
6 ORDER, AS FOLLOWS:
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Section 1.
A detailed description of the HOME Project is set forth in the 2004
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HOME Loan Agreement.
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Section 2.
Subject to the terms and conditions of the 2004 HOME Loan Agreement,
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the Community Development Commission ("Commission") hereby approves the assumption by
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Frazee of the NHS HOME Loan in the amount of $121,583, subject to the terms and conditions
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of the NHS And Agency promissory note, and the Commission further authorizes the Agency
Executive Director to allocate the additional sum of four hundred six thousand two hundred two
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dollars ($406,202) from fiscal year 2002 and 2003 HOME CHDO Funds as budgeted in the
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Agency budget by the Commission for such purposes for a combined debt owed to the Agency
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of$527,885.
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Section 3.
The Commission hereby finds and determines that the approval of the
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2004 HOME Agreement and the Assumption Agreement, and the disbursement of said funds
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under said agreements, requires no further environmental assessment under the provisions of the
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National Environmental Protection Act in view of the categorical exemption applicable to the
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HOME Project as set forth at 24 CFR Part 58.35(c)(2) and under the provisions of the
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California Environmental Quality Act in the view of the exemption found at Public Resources
Code Section 21080.14 (affordable housing for lower income persons in urbanized areas). The
Executive Director of the Agency is hereby authorized and directed to prepare the appropriate
form of written notice of the determinations of categorical exemption for the HOME Project as
provided for in this Section 3.
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Section 4.
The Commission hereby approves the Assumption Agreement and the
2 2004 HOME Loan Agreement ("Agreements") as presented at the meeting at which this
3 Resolution is adopted. The Executive Director of the Agency is hereby authorized and directed
4 to execute the Agreements on behalf of the Agency, together with such technical and
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conforming changes as may be recommended by the Executive Director and Agency Counsel.
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The Executive Director of the Agency is further authorized and directed to execute all ancillary
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and related documents and agreements subject to the terms and conditions as set forth therein.
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The Resolution shall become effective immediately upon its adoption.
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY
TO EXECUTE THE (1) HOME ASSUMPTION AGREEMENT BY AND
BETWEEN NHS, FRAZEE COMMUNITY CENTER, INC. (FRAZEE)
AND THE AGENCY; AND (2) THE 2004 HOME PROGRAM CHDO
LOAN AGREEMENT BY AND BETWEEN FRAZEE AND THE AGENCY.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Community Development Commission of the City of San Bernardino at a j t. reg. meeting
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thereof, held on the 19th day of July
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Commission Members: Aves Navs
9 ESTRADA
X
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10 LONGVILLE X
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11 MCGINNIS X
12 DERRY -L
13 KELLEY X
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JOHNSON X
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MC CAMMACK
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, 2004, by the following vote to wit:
Abstain
Absent
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The foregoing resolution is hereby approved this
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By:
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ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (the "Assumption Agreement") in entered into as of July
19, 2004, by and between the Redevelopment Agency of the City of San Bernardino (the
"Agency"), Neighborhood Housing Services of the Inland Empire, Inc., a California nonprofit
corporation ("NHS"), and Frazee Community Center, a California nonprofit corporation
("Frazee") pursuant to the terms of that certain Redevelopment Agency of the City of San
Bernardino Home Loan Agreement for Community Housing Development Organization Multi-
Family Housing Acquisition and Rehabilitation 2001 HOME/CHDO Agreement dated as of
October 1, 2001 by and between NHS and the Redevelopment Agency of the City of San
Bernardino (the "Agency") (the "NHS Home Loan Agreement").
RECITALS
WHEREAS, in accordance with the terms of the NHS Home Loan Agreement the Agency
loaned to NHS the principal amount of$147,000.00 of HOME funds for the purpose of acquiring
and rehabilitating that certain real property more particularly described in Exhibit "A" attached
hereto and commonly known as
Parcell consists of two (2) rental dwelling units: 1441-1443 Mountain View;
Parcel 2 consists of three (3) rental dwelling units: 1495 Mountain View and 195-
197 West Magnolia;
Parcel 3 consists of two (2) rental dwelling units: 1501-1503 Pershing; and
Parcel 4 consists of four (4) rental dwelling units: 1379 Arrowhead
(collectively, the HOME Parcels and individually a HOME PARCEL); and
WHEREAS, the loan to NHS is evidenced by those certain secured promissory notes dated as of
November 8, 2001 and on file with the Agency (Exhibit "B" hereto) in favor of the Agency (the
Note") and secured by that certain deed of trust dated as of November 17, 2001 and recorded
against the HOME Parcels in the Official Records of the County of San Bernardino as
Instrument Number 1. 20010551915,2.20010551917,3.20010551913 on December 5, 2001
attached as Exhibit "c" hereto (the "Deed of Trust"); and
WHEREAS, the Agency and Frazee have entered into that certain 2004 Home Loan Agreement
dated as of July 19, 2004 (the "Frazee Home Loan Agreement") whereby Frazee has agreed to
purchase the HOME Parcels from NHS for the purpose of creating a transitional affordable
housing program and assume the obligations under the Note and Deed of Trust as provided
herein; and
WHEREAS, the Agency and NHS have entered into that certain Home Loan Termination
Agreement dated as of July 19, 2004 (the "Termination Agreement") whereby the parties have
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mutually agreed to terminate the NHS Home Loan Agreement effective upon the recordation of a
grant deed transferring ownership of the HOME Parcels from NHS to Frazee; and
WHEREAS, Frazee desires to assume the Note and Deed of Trust with the Agency's consent and
NHS desires to be relieved of its obligations under the Note and Deed of Trust with the Agency's
consent;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, NHS, Frazee and the Agency agree as follows:
AGREEMENT
Section 1. Frazee hereby fully accepts and assumes all ofthe duties and obligations ofNHS
under the Note and the Deed of Trust (collectively, the "Assumed Obligations") and agrees to
perform all Assumed Obligations in accordance with the terms of the Note and the Deed of
Trust. Notwithstanding anything herein or in the Note or the Deed of Trust, Frazee shall not be
held responsible for or be subject to duties or obligations arising under the Note or the Deed of
Trust before the date of this Assumption Agreement. The Assume Obligations shall be
evidenced by a new promissory note to be executed by Frazee in accordance with the terms of
the Frazee Home Loan Agreement.
From and after the recordation of a grant deed transferring ownership of the HOME Parcels from
NHS to Frazee, NHS shall have no further liability under the Note and the Deed of Trust, and
shall be relieved of all of its obligations thereunder.
Section 2. NHS represents and warrants to Frazee and the Agency that, to the best of its
knowledge, as of the date hereof, there exists no event of default under the Note, the Deed of
Trust or the NHS Home Loan Agreement and there is no event that, the giving of notice, the
passage of time, or both, would constitute an event of default under any of such documents.
Section 3.
[RESERVED - NO TEXT]
Section 4. Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other party under this Agreement shall be in writing and
shall be delivered to the appropriate party by personal service or U.S. Mail at its address as
follows:
Frazee:
Frazee Community Center
1140 West Mill Street
San Bernardino, California 92410
Attn: Executive Director
NHS:
Neighborhood Housing
1390 North "D" Street
San Bernardino, CA 92405
Attn: Executive Director
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Agency:
Redevelopment Agency
of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
Attn: Executive Director
Section 5. All questions with respect to the construction of this Agreement and the rights and
liabilities of the parties to this Assumption Agreement shall be governed by the laws of the State
of California.
Section 6. This Assumption Agreement shall inure to the benefit of, and shall be binding
upon, the successors and assigns of each of the parties to this Assumption Agreement.
Section 7. This Assumption Agreement may be executed in any number of original
counterparts, each of which shall be deemed an original, but all of which when taken together
shall constitute one instrument. The original signature page of any counterpart may be detached
from such counterpart and attached to any other counterpart identical to such counterpart (except
having additional signature pages executed by other parties to this Assumption Agreement)
without impairing the legal effect of any such signature(s).
Section 8. This Assumption Agreement the Note and the Deed of Trust constitute the entire
agreement and understanding between and among the parties with respect to the subject matter of
this Assumption Agreement and supersede all prior agreements and understandings with respect
to such subject matter, whether oral or written unless and with the exception that if any of the
provisions of this Assumption Agreement are in conflict with the provisions of the Frazee Home
Loan Agreement then the provisions of the Frazee Home Loan Agreement shall control.
Section 9. Waiver by the Agency of any term, covenant or condition under this Assumption
Agreement or the Note or the Deed of Trust (in the case ofNHS - prior to assumption; and in the
case of Frazee - after assumption), or of any default by Frazee or NHS under this Assumption
Agreement or the Note or the Deed of Trust, or any failure by Agency to insist upon strict
performance by either NHS or Frazee of any term, covenant or condition contained in this
Assumption Agreement, the Note, or the Deed of Trust shall be effective or binding on the
Agency only if made in writing by the Agency; no such waiver shall be implied from any
omission by the Agency to take action with respect to any such term, covenant, condition or
default. No express written waiver by the Agency of any term, covenant, condition or default
shall affect any other term, covenant, condition or default or cover any other time period than the
application of any such term, covenant or condition to the matter as to which a waiver has been
given or the default or time period specified in such express waiver. This Assumption
Agreement may be amended only by an instrument in writing signed by the parties to this
Assumption Agreement.
Section 10. If any part of this Assumption Agreement is declared invalid for any reason, such
invalidity shall not affect the validity of the rest of this Assumption Agreement. The other parts
of this Assumption Agreement shall remain in effect as if this Assumption Agreement had been
executed without the invalid part. The parties declare that they intend and desire that the
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remaining parts of this Assumption Agreement continue to be effective without any part or parts
that have been declared invalid.
Section II.
(a) Frazee and NHS shall equally reimburse the Agency for all reasonable attorneys'
fees, costs and expenses incurred by the Agency in connection with the enforcement of Agency's
rights under this Assumption Agreement, the Note and the Deed of Trust, including, without
limitation, reasonable attorneys' fees, costs and expenses for trial, appellate proceedings, out-of-
court negotiations, workouts and settlements or for enforcement of rights under any state or
federal statute, including, without limitation, reasonable attorneys' fees, costs and expenses
incurred to protect the Agency's security and reasonable attorneys' fees, costs and expenses
incurred in bankruptcy and insolvency proceedings such as (but not limited to) seeking relief
from stay in a bankruptcy proceeding. The term "expenses" means any expenses incurred by the
Agency in connection with any of the out-of-court, or state, federal or bankruptcy proceedings
referred to above, including, without limitation, the fees and expenses of any appraisers,
consultants and expert witnesses retained or consulted by the Agency in connection with any
such proceeding.
(b) The Agency shall also be entitled to its reasonable attorneys' fees, costs and
expenses incurred in any post-judgment proceedings to collect and enforce the judgment. This
provision is separate and several and shall survive the merger of this Assumption Agreement into
any judgment on this Assumption Agreement.
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FRAZEE
Frazee Community Center, a California
nonprofit corporation
By: 47;;L-c ~~~
/ '
Title: ~J./JI~ A1~~
By:
Title:
NHS
Neighborhood Housing Services of the
Inland Empire, Inc.,
::7~~
Title: 'EXPLv-h "(~~ 'VI'/ f dt.r
By:
Title:
By:
"
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EXHIBIT "A"
Lel.!al Description of HOME Parcels
PARCEL 1
1441-1443 MOUNTAIN VIEW AVENUE
APN 0146-163-43000
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.5 FEET OF LOT
3, BLOCK 33, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 7, PAGE(S) 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 2
1495 MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
APN 0146-163-02000
LOT 3 OF TRACT NO. 1957, KIMMEL'S MAGNOLIA TRACT, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 28, P AGE(S) 55, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
PARCEL 3
1379 ARROWHEAD AVENUE
APN 0146-162-22000
LOT 10, BLOCK "B" OF EDELEN TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 5, P AGE(S) 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 4
1501-1503 PERSHING
APN 0146-132-18000
LOT 11, TRACT NO. 1785, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26 OF
MAPS, PAGE 19, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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EXHIBIT "B"
NHS Promissory Note
[ON FILE WITH AGENCY]
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Neighborhood Housing Services of the Inland Empire, Inc. (NHS)
1390 North "D" Street
San Bernardino, California 92405
2002 HOME LOAN
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
Borrower:
Lender:
Neighborhood Housing Services of the
Inland Empire, Inc. (NHS)
Redevelopment Agency of
the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Principal Amount: $375,000
for Note secured by Parcel Nos. 1 & 2
under Deed of Trust dated January 6,2003
Date of Promissory Note:
January 6, 2003
[TO BE CONFIRMED BY AGENCY AT
TIME OF INITIAL ADV ANCEl
Interest Rate: 3%, Deferred Monthly
Payments
Maturity Date of Promissory Note:
January 6,2006
[TO BE CONFIRMED BY AGENCY AT
TIME OF INITIAL ADV ANCEl
PROMISE TO PAY. Neighborhood Housing Services of the Inland Empire, Inc., a California
non-profit corporation, (hereafter the "Borrower") promises to pay to the Redevelopment
Agency of the City of San Bernardino (the "Agency"), or order, in lawful money of the United
States of America, the principal amount of Three Hundred and Seventy-Five Thousand Dollars
($375,000), or so much as may be outstanding under this Promissory Note.
INDEBTEDNESS. This Promissory Note evidences the indebtedness of the Borrower to the
Agency under the terms 2002 HOME Loan Agreement dated as of January 6, 2003, (the "HOME
Loan Agreement") by and among the Borrower and the Agency. A copy of the HOME Loan
Agreement is on file with the Agency Secretary as a public record of the Agency.
PAYMENT. The outstanding principal balance and accrued deferred monthly interest of this
Promissory Note shall be payable on the third (3rd) anniversary following the date of this
Promissory Note (the "Maturity Date"), subject to the provisions of the next paragraph.
INTEREST. Provided that no default has occurred, 3% interest shall be payable to the Agency
on this Promissory Note. In the (:ven(tha,ta default has occurred and has not been cured and in
addition to any other remedy whichthe"Ag~ncYl!1ay seek., then a default rate of interest shall
occur on..th. e. then outstanding prepaid balan~:...of.t!1i.~.'sProniissory Note at a rate per annum often .
.. ...- .". ',.', - ",. '. . .... . .
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percent (10%) payable to the Agency, commencing on the date of such default until such default
is cured and the default interest amount is paid to the Agency.
PREP A YMENT. Borrower may pay without penalty all or prorated portion of the amount owed
under this Promissory Note earlier than it is due.
SPECIAL EVENT OF ACCELERATION. The outstanding principal balance of this Promissory
Note, is subject to acceleration prior to the Maturity Date upon the occurrence of any of the
following each of which is referred to as a "special event of acceleration:"
(a) the Borrower sells or transfers its interest to any person other than a permitted Successor-
In-Interest as set forth in the HOME Loan Agreement;
(b) the Borrower ceases to utilize and maintain the property for its original intent (rental
purpose).
DEFAULT. Borrower will be in default if any of the following happens:
(a) Borrower breaks any promise Borrower made to the Agency in the HOME Loan
Agreement, or Borrower fails to comply with or to perform when due any other term,
obligation, covenant, or condition contained in this Promissory Note or any agreement
related to this Promissory Note;
(b) Borrower defaults under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's ability to repay _this
Promissory Note or the ability of Borrower to perform its other obligations under this
Promissory Note or the Deed of Trust;
(c) Any representation or statement made or furnished to the Agency by Borrower or on
Borrower's behalf under the HOME Loan Agreement is false or misleading in any
material respect either now or at the time made or furnished;
(d) Any creditor tries to take any of Borrower's property on or in which the Agency has a
lien or security interest;
If any default (other than a default described in (a) or (d), above) is cUrable, and if Borrower has
not been given a notice of a default of the same provision of this Promissory Note within. the
preceding twelve (12) months, such a default may be curec1 (and in such event no default be
deemed to .... ~a'le occurr~d): if after receivp' ... .... .tiell..nqtice from the.
demanding.cmeofs4chdefa 1
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(e) A material adverse charge occurs in Borrower's fmaritial condition, grthe.t-.gency
believes the prospect of performance of the Borrower's',obfigations underthe-ij"OME
Loan Agreement is impaired. ... . -. . . .
(i) cures the default within ten (l0) days; or
(ii) if the cure requires more than ten (10) days, immediately initiates steps which the Agency
deems in its sole discretion to be sufficient to cure the default, and thereafter Borrower
continues to be in default, the Agency may accelerate the balance due under this
Promissory Note. Upon default, the Agency may pursue all remedies available at law
and under the Regulatory Agreement to enforce its rights hereunder.
ASSIGNMENT AND ASSUMPTION OF THIS PROMISSORY NOTE BY A PERMITTED
SUCCESSOR-IN-INTEREST APPROVED BY THE HOLDER. The Borrower may assign its
obligation to pay the Agency the principal of this Promissory Note to a permitted Successor-In-
Interest approved in writing by the Agency, and such approval shall not be unreasonably
withheld. The words "Successor-In-Interest" mean a successor at any time prior to the Maturity
Date by purchase, assignment, transfer or otherwise. The Successor-In-Interest shall be a
successor that satisfies the requirements of the HOME Loan Agreement and the Agency Deed of
Trust.
RIGHTS OF THE HOLDER. Upon default the Agency may exercise any of its rights provided
under the HOME Loan Agreement, as this term is defined herein including without limitation,
the declaration by the Holder that the entire unpaid principal balance on this Promissory Note is
immediately due, without notice, and then Borrower will pay that amount. The Agency may hire
or pay someone else to help collect this Promissory Note if the Borrower does not pay. The
Borrower also will pay the Holder that amount. This includes, subject to any limits under
applicable law, the Agency's reasonable attorneys' fees and the legal expenses of the Holder
whether or not there is a lawsuit, including reasonable attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. The Borrower also will pay any
court costs, in addition to all other sums provided by law. This Promissory Note has been
delivered to the Holder and accepted by the Holder in the State of California. If there isa lawsuit
arising under this Promissory Note, the Superior Court of San Bernardino County, the State of
California, shall have jurisdiction of such lawsuit. This Promissory Note shall be governed by
and construed in accordance with the laws of the State of California.
COLLATERAL. The Maker acknowledg~s this Pr(jm!ssQry Note is secured by a First Deed of
- --.---
Trust and assignment of rents of even date herewith. . Such Agency Deed of Trust affects the
,. . . ili ....
property as generally described as 688, 69();{,92, 694, 696 and 698 West 6 Street APN 0134-
021-27000, Parcell, and APN 0134-021-260000,Parcef2, San Bernardino, California.". The
Agency Deed of Trust contains the followingodue <5I1sal"~~u.e_oIlspecial event of acceleration
provision: "
"THE AGENCY MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND
ALL SUMS SECURED BY THE DEED. OF TR.USTUPON THE
SPECIAL EVENT OF ACCELERATION, AS:rHJS..'J:'ERM IS DEFINED BELOW.
A "special event of acceleration" shall occur when there is a sale, transfer, refinancing except as
provided in General Provisions, below, or conveyance of any right, title or interest in the
Property to any person other than a permitted Successor-In-Interest, who has been approved in
writing by the Lender as set forth above in the section entitled "Permitted Successor-In-Interest,"
whether such sale, refinancing or transfer is legal, beneficial, or equitable, whether voluntary or
involuntary, whether by sale, deed, installment sale contract, land contract, lease option contract,
or by sale, assignment, or transfer of any beneficial interest in the Property to any land trust."
GENERAL PROVISIONS. The Holder may delay or forego enforcing any of its rights or
remedies under this Promissory Note without losing them. The Maker and any other person who
signs, guarantees or endorses the Promissory Note, to the extent allowed by law, waive any
applicable statute of limitations, presentment, demand for payment, protest and notice of dishonor.
Upon any change in the terms of this Promissory Note, and unless otherwise expressly stated in
writing, no party who signs this Promissory Note, whether as maker, guarantor, accommodation
maker or endorser, shall be released from liability. All such parties agree that the Holder may
renew or extend (repeatedly and for any length of time) this Promissory Note, or release any party,
or guarantor or collateral; or impair, fail to realize upon or perfect its security interest in the
collateral; and take any other action deemed necessary by the Holder in its sole discretion without
the consent of or notice to anyone. All such parties also agree that the Holder may modify this
Promissory Note and/or the HOME Loan Agreement in writing without the consent of or notice to
anyone other than the party with whom the modification is made. The Holder may assign its
interest in this Promissory Note and the Deed of Trust to a third party at any time.
The Borrower acknowledges this Promissory Note is secured by a First Deed of Trust of even
date herewith. The Deed of Trust affects certain real property described in the HOME Loan
Agreement.
PRIOR TO SIGNING THIS PROMISSORY NOTE, BORROWER HAS READ AND
UNDERSTANDS ALL OF ITS PROVISIONS. BORROWER AGREES TO THE TERMS OF
TIllS PROMISSORY NOTE AND ACKNOWLEDGES RECEIPT OF A COPY HEREOF.
BORROWER
Neighborhood Housing Services of the Inland Empire, Inc.,
a California Non-Profit Corporation
B}" ~ k.,",~
Title: ~lA)'hvl. )/ll'eJ-o........
By:
4
CDC/2004-22
EXHIBIT "C"
NHS Deed of Trust
8
P;\Agendas\Agrcements.Amendments\Agnnts-Amend 2004\04-07-06 Frazee-NHS Loan Assumption Agreemenl.doc
RECORDATION REQUESTED BY:
R.CO'd~~C~~S' county of
San Bernardino, Larry Walker, Recorder
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Doc
No. 20010551913
3:00pm 12/05/01
WHEN RECORDED MAIL TO:
COnMO~WEAL1H l11LE A
~~M
Redevelopment Agency of the
City of San Bernardino
201 North "Eft Street
Third Floor
San Bernardino, California 92401-150
Attn: Executive Director
7-0
5_
NON ST IN SVY C1T-CO TRANS TAX OA
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
Neighborhood Housing Service
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF-
LEASES AND RENTS AND FIXTURE FILING (the "Deed of Trust") is dated
October 1, 2001, among Neighborhood Housing Service (the "Trustor"),
whose address is 1390 North "D" Street, San Bernardino, California
92405; the Redevelopment Agency of the City of San Bernardino, a
body corporate and politic, whose address is 201 North "E" Street,
Third Flbor, San Bernardino, California 92401-1507 (the "Lender" or
the "Beneficiary"); and First American Title Insurance Company (the
"Trustee") .
1.0 CONVEYANCE AND GRANT. For valuable consideration, T~~tor
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 that
certain real property describe_q , (APN0146~162--:-22000and APN
0146-132-1aOOO,Parcel 3) in Exhibit "A" atta,.ch~cilh~rt=to":>Clnd
incorporated herein by this reference (the-"Property");-
together with all existing or subsequently erected:braffixed
buildings, improvements and fixtures; ,aHi:~af3elIl~I!t.s", rights- of
way, and appurtenances and all other rights(royidties, and
profits relating to the real prope'rty,ipcludJng'and. wi:thout
limitation all minerals,' oil, gas,gepthe~al,:aQd :-:similar
matters located il1 San Bernardino CO\lg~:H . t 'k,. .
(the ./~.Mo' .' ag~ .pr "e:rty"),. .... . .
;i;;~;:,!",: ..,~:.I;,>1' ,-'-; '_' ': ,':
Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of
the Mortgaged Property and all Rents from the Mortgaged
Property. In addition, Trustor grants Lender a Uniform
Commercial Code security interest in the Rents and the Personal
Property as set forth herein.
2.0 DEFINITIONS. The following words shall ha~ 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. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino, a body corporate and
politic, its successors and assigns.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust and Assignment of Leases and Rents and Fixture Filing
among Trustor, Lender, and Trustee, and includes without
limitation all assignment and security interest provisions
relating to the Personal Property and Rents.
Improvements. The word "Improvements" means and includes all
existing improvements on the Property and all improvements to
be constructed on the Property.
Indebtedness. The word "Indebtedness" means all principal arid,
if applicable, interest payable under the Promissory Note and
any amounts expended or advanced by Lender to discharge
obligations of Trustor or expens~s inc\lrred - by Trusi:ee or
Lender to enforce obligations of Trustor under the Promissory
Note and this Deed of Trust, together with interest ons\lch
amounts. This Deed of Trust secures, in addition to the
amounts specified in the Promissory Note, any future advances,.-
together with all interest thereon; that may-be -made-ny -t:he~H
Lender pursuant to the Loan Agreem.e~t. - and/ or the Rela_ted
Documents so long as Trustor complies with all the terms and.
conditions of the Promissory Note! LoanA~ire~mentandJorthe-
Related Documents. ~
Lender.; The word "Lender" means the Redevelopment Agency hf-
the City of San Bernardino , its sllcc.esBorsand assigns.
Loan Agreement. The words "Loan Agreement" mean that
certain 2000 HOME Loan Agreement, dated as of October 1, 2001,
by and between the Trustor and the Lender which provides for
the loan to the Trustor which is secured by this Deed of Trust.
Mortgaged Property. The
refer to the Property,
Rents, together with:
words "Mortgaged Property mean and
Improvements, Personal Property and
all right, title, and interest (including any claim or
demand or demand in law or equity) that Trustor now has or
may later acquire in or to such Mortgaged Property; all
easements, rights, privileges, tenements, hereditaments,
and appurtenances belonging or in any way appertaining to
the Mortgaged Property; all of the estate, right, title,
interest, claim, demand, reversion, or remainder of
Trustor in or to the Mortgaged Property, either at law or
in equity, in possession or expectancy, now or later
acquired; all exterior landscaping on the Mortgaged
Property; all development rights or credits and air
rights; all water and water rights (whether or not
appurtenant to the Mortgaged Property) and shares of stock
pertaining to such water or water rights, ownership of
which affects the Mortgaged Property; all minerals, oil,
gas, and other hydrocarbon substances and rights thereto
in, on, under, or upon the Mortgaged Property and all
royalties and profits from any such rights or shares of
stock; all right, title, and interest of Trustor in and to
any streets, ways, alleys, strips, or gores of land
adjoining the Property or any part of it that Trustor now
owns or at any time later acquires and all adjacent lands
within enclosures or occupied by buildings partly situated
on the Mortgaged Property;
all intangible Mortgage Property and rights
the Mortgaged Property or its operation
connection with it, including,without
permits,' licenses, plans, . specifications,
contracts, subcontracts, bids, deposits
services, installations, refunds due Trustor,
trademarks, and . service marks';
relating to
or used in
limitation,
-construction
for. utility.-
trade names,
all of the right, title, and interest of Trustor in and to
the iand lying :in the bed ofany:~t.reetroad, highway, or
avenue in front of or adjoining_t:.l1~.;Pr()pertYi
made with respect to the Mortgaged Property as a result of
the exercise of the right of eminent domain, the
alteration of the grade of any street, or any other injury
to or decrease of value of the Mortgaged Property, which
award or awards are assigned to the Lender, and which the
Lender, at its option, is authorized, directed, and
empowered to collect and receive the proceeds of any such
award or awards from the authorities making them and to
give proper receipts and acquittances for them, and to
apply them as provided in this Deed of Trust;
all leases of the Mortgaged Property or any part of it now
or later entered into and all right, title, and interest
of the Trustor under such leases, including cash or
securities deposited by the tenants to secure performance
of their obligations under such leases (whether such cash
or securities are to be held until the expiration of the
terms of such leases or applied to one or more of the
installments of rent coming due immediately before the
expiration of such terms), all rights to al insurance
proceeds and unearned insurance premiums arising from'or
relating to the Mortgaged Property, all other rights and
easements of the Trustor now or later existing pertaining
to the use and enjoyment of the Mortgaged Property, and
all right, title, and interest of the Trustor in and to
all declarations of covenants, conditions, and
restrictions as may affect or otherwise relate to the
Mortgaged PropertYi
any and all proceeds of any insurance policies covering
the Mortgaged Property, whether or not such insurance
policies were required by the Lender as a condition of
making the loan secured by this Deed of Trust or-are
required to be maintained by the Trustor as provided below
in this Deed of Trusti which proceeds are assigned to the
Lender, and which the Lender, at its option, is
authorized, directed, and empowered to_collect and receive
the proceeds of such insurance policies from the insure~s
issuing the same and to .give proper receipts and
acquittances for such policies, and toapplythesawe as
provided belowi
all plans and specifications for the Improvementsi all
contracts and subcontracts relating to the Improvementsi
all deposits (including tenants' security depositEii
provided, . however, that if the Lender acquires possession -
or control of tenants' secl.lritYB~I>osits theL,en?'7rf3l1~ll:
use the' tenants' security dep0i3it~,oi1lyf<?17f3lich-p'~mQ'~es->
as' .governn\erlt::al'"l::~CIt!iI:"em~n.""'~'1'W<"'"",II~;';/:~ -1'1hJ~" .''''A,.;-,d~~4''''''"'''' "".
......8~.~i~~C~q;~~il~f"Ht;{j~~?"'j',;.:!;rIli~.t
intangibles, and notes or chattel paper arising from or in
connection with the Property or other Mortgaged Property;
all permits, licenses, certificates, and other rights and
privileges obtained in connection with the Property or
other Mortgaged Property; all soils reports, engineering
reports, land planning maps, drawings, construction
contracts, notes, drafts, documents, engineering and
architectural drawings, letters of credit, bonds, surety
bonds, any other intangible rights relating to the
Property and Improvements, surveys, and other reports,
exhibits, or plans used or to be used in connection with
the construction, planning, operation, or maintenance of
the Property and Improvements and all amendments and
modifications; all proceeds arising from or by virtue of
the sale, lease, grant of option, or other disposition of
all or any part of the Property, Personal Property, or
other Mortgaged Property (consent to same is not granted
or implied); and all proceeds (including premium refunds)
payable or to be payable under each insurance policy
relating to the Property, the Personal Property, or other
Mortgaged Property;
all tax refunds, bills, notes, inventories, accounts and
charges receivable, credits, claims, securities, and
documents of all kinds, and all instrliments, contract
rights, general intangibles, bonds and deposits, and all
proceeds and products of the Trustor in the Mortgaged
Property;
all accounts, contract rights, chattel paper, documents,
instruments, books, records, claims against third parties,
money, securities, drafts, notes, proceeds, and other
items relating to the Mortgaged Property;
all proceeds of any of the foregoing.
As used in this Deed of Trust, "Mortgaged Property" is
expressly defined as meaning allor, . when thecontext,pertriits
or requires, any portion of it- and all- or, when the context
permits or requires, any interest in it.
Personal Property. The words "l?ersonal pr:6Pert:yi'c mean all of -
the right, title and interest of TrustorhOwor.hereCifter
existing in and to the following. now' orhereaft;er 16'cated iri,=~ -
upon, within or about, or used in cOhnection-withorgenerated
by the construction, use,. operation or occupancy of- the
Property and any business or activity conduc.::t:~d,t;l1~:r:~oI},<:>r
therein, togetheJ:'.with all acsessori~SI-,CfcJ.d.fBi.9n.$>,"'!_C""-" '_"C"';
reneyials,. replacet11~l1tsand,subst"" ....'.-'~.,,"' ,'",?',". ;.:, ,,';,t,"C;,'
+ ,,,,,...,.. .,..... e' "J:::oceea"i"'V.;...."'."""....',>'........... ".d",'
,.
supplies, furni ture, floor coverings window coverings,
furnishings, appliances, office supplies, equipment,
construction materials, vehicles, machinery, computer hardware
and software, maintenance equipment, window washing equipment,
repair equipment and other equipment, tools, telephone and
other communications equipment, food service preparation
equipment and utensils, chinaware, glassware, silverware and
hollowware, food and beverage service equipment, food items and
food stuffs; (b) all books, ledgers, records accounting
records, files, tax records and returns, policy manuals,
papers, correspondence, and electronically recorded data; (c)
all "General Intangibles" (as defined in the California Uniform
Commercial Code), instruments, money, "Accounts" (as defined in
the California Uniform Commercial Code), accounts receivable,
notes, certificates of deposit, chatt~l paper, letters of
credit, chooses in action, good will, rights to pay of money,
rents, rental fees, equipment fees and other amounts relating
to the development or use of the Property or payable by persons
who utilize the Property or any of the Improvements or paid by
persons in order to obtain the right to use the Property and
any of the Improvements, whether or not so used; trademarks,
service marks, trade dress, trade names, licenses, sales
contracts, deposits, plans and specifications, drawings,
working drawings, studies, maps, surveys; soils,environmental
engineering or other reports, architectural and engineering
cqntracts, construction contracts, construction management
contracts, surety bonds, feasibility and market studies,
management and operating agreements, service agreements and
contracts, landscape maintenance agreements, security service
and other services agreements and vendors agreements; (d) all
compensation, awards and other payments of relief (and claims
therefore) made for a taking by eminent domain, or by any event
in lieu thereof (including, without limitation, property and
rights and interests in property received in lieu-of any such~~,.,
taking), of all or any part of such Personal Property, 'together
with interest thereon, and any and all proceeds' (or claims for'
proceeds) of casualty, liability or other insurance pertaining
to such Personal Property, together with., interest thereon;.t~) _
any and all claims or dem.inds,against'any person with respect
to damage or diminution in value to sucn Pe:r:sQI1al-PropertY:9J7
" damage or diminution in value to any business or othera<::t:,iY3:t-Y, :
conducted on Property; (f) any and all securitydeR9sits.,y..
deposits of security or advance payments madetoot~ers,.to,
Trustor with respect to: (i) ins\.lrance~ polideEi~~'l:"elJiiingt.q"the
Property; (ii) prepayments and! or periodiG"..;dgposi ts,-or
improvements for property ~a~es. or assessments.pf-:~tkiI1d_nr'
nature affecting the prop~rty;( iii) utilityseI:7'v: ~"~7 s'J(j):::"~bhe
:~~lfE~Xs:~f%f3t~~/'Im' "'r6V"""~''''''i'''0'''l7h ""':;{i~'fGit~,#,~;kit. >'""Ji.r;~~;" .
,.9 ..~,.~,,,,,~~~..,,,,.
the Property; (g) any and all authorizations, consents,
licenses, permits and approvals of and from all persons
required from time to time in connection with the construction,
use, occupancy or operation of the Property, the improvements,
or any business or activity conducted thereon or therein or in
connection with the operation, occupancy or use thereof; (h)
all warranties, guaranties, utility or street improvement
bonds, construction completion and payment surety bonds,
utility contracts, telephone exchange numbers, yellow page or
other directory advertising and the like; (i) all goods,
contract rights, and inventory; (j) all leases and use
agreements of machinery, equipment and other personal property;
(k) all insurance policies covering all or any portion of the
Property; (1) all reserves and funds held in escrow by the
Lender or other persons for the Lender's benefit under the Loan
Agreement and all funds deposited with the Lender pursuant to
the Loan Agreement, all accounts into which such funds are
deposited and all accounts, contract rights and general
intangibles or other rights relating thereto; (m) all names by
which the Property is now or hereafter knOwll; (n) all interests
in the security deposits of tenants; (0) all management
agreements, blueprints, plans, maps, documents, books and
records relating to the Property; (p) the proceeds from sale,
assignment, conveyance or transfer of all or , any portion of
the Property or any interest therein, or from the sale of any
goods, inventory or services from upon or within the Property
and/or the Improvements; ) (q) all documents of membership in an
owner or members association or similar group having
responsibility for managing or operating any part of the
Property; (r) all other property (other than "Fixtures," as
defined in the Uniform Commercial Code) of any kind or
character as defined in or subject to the provisions of the
California Uniform Commercial Code, Secured Transactions, as
amended and; (s) all proceeds of the conversions, voluntarily
or involuntarily, of any of the foregoing into cash or
liquidated claims.
Promissory Note. The words "promissory Note'" l11ean- thee
Promissory Note of even date herewith, in the principal amount
of Thirty Seven Thousand, Five Hundred dollars ($37,500).
delivered by the Trustor to the Redevelopment 'Agency of the"
City of San Bernardino, as Lender, together withall-~reiiewals,
extensions, modifications, refinancing, and substitutions for
the Promissory Note.
Related Documents., The words "Related Documents" -mean -and __
include without limita.tion all promissorynqtes, credit
a. gr. e..e... me..nts, lo.a. n..... agrf~lit_.e..~.,n..__. t....s...' guaranti.e....r:;.' sec].lr."""'Iia t~ellieijt:s-':: ~:. -
1l\OrJga,ges, d~eds. ; ,qt.~;t~gt I . flnd,i:J.ll";'BFJ<~i' "J'" .... ......
a';r&emeIitsand'''d()cu:itl'"'''''''~''''~-'' .'. an<l.B~tW'
~-;~'!!;:7.(~.\; :~;r:
Lender whether now or hereafter existing, evidencing or
securing the Indebtedness.
Rents. The word "Rents" means all present and future
revenues, incom~, issues, royalties, profits, and
benefits derived from the Property.
rents,
other
Trustee. The word "Trustee" means First American Title
Insurance Company, and any substitute or successor trustees.
Trustor. The word "Trustor" means the Trustor named above and
its successors and assigns.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF LEASES AND
RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL
PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS
AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER
THE PROMISSORY NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF
TRUST. THE PROMISSORY NOTE AND THIS DEED OF TRUST ARE GIVEN
AND ACCEPTED ON THE FOLLOWING TERMS:
3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Promissory Note, this Deed of Trust, the Loan
Agreement and the Related Documents.
3.2
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor
that Trustor 1 s possession
Mortgaged Property shall
provisions:
and use of the Property
be governed by the
agrees
and the
following
Possession and Use. Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Mortgaged Property and collect Rents as they-become due and
(b) use, develop, operate or manage the property for the
purposes authorized in the Loan Agreement.
Duty to Maintain and Preserve. -Trustor shall : (a) maintain:'
the Property and the Mortgaged Property in gooaconditiQn and
repair; (b) shall construct and improve 'thePj:"opert.yin
accordance with the Loan Agreement; (c) restoreand.rep1lirthe
Improvements or any part of the Mor~gaged Property,!.::tla,.t::(i\ay."oe
damaged or destroyed, including but not limited tocorx~~'pic::t~cm
defects, soil subsidiances and environmental damages\.jll;~tB~E::or
not insurance P:rc>c::'~~cls<3.re available to cover any P;;l:r:'fAt:~;.i;igch:
c~~~ee~~ ~~s~<;>Ei~2~i\t;~;r'l:".~ai:v~iti~t~<0t,~~~j.gf:,~""~'" ";-~~~~~:"" .
p ". "." -y......;'....'"".....,..,... '..,."..."......~..~.~..-~....". .
. t.hi~,Deed' of ":,;.~,:.-'wherf:~,
<::i~~,~;{:~ij;:~:~~~!0~~'~~,.:: ' :,~~,-,;,
sB200iassso:f' ~,," '
performed and materials furnished in connection with the
Improvements and not permit any mechanics' liens or materials
suppliers' liens to arise against the Property; (e) not permit
any waste on the Property, or commit, suffer or permit any
nuisance to occur on the Property; (f) not abandon the
Mortgaged Property; (g) notify the Beneficiary in writing of
any condition at or on the Property that may have a material
affect on the market value of the Mortgaged Property; and (h)
maintain the Property and the Improvements and generally
operate it in a manner to realize it maximum rental potential.
Hazardous Substances.
(a) The terms "hazardous wastes", "hazardous substance",
"disposal," "release", and "threatened release", as used in
this Deed of Trust, shall have the same meanings as set forth
in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S. C. Section 9601, et
seg. ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous
Materials Transportation Act. 49 U.S.C. Section' 1801, et seg.,
the Resource Conservation and Recovery Act, 49 U.S.C. Section
6901, et seg., Chapters 6.5 through 7.7 of Division 20 of the
California Health and Safety Code, Section 25100, et seg., or
other applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing.
.
(b)
[OMITTED - - NO TEXT]
(c) Trustor represents and warrants that neither the Trustor
nor any tenant of Trustor occupying and improving any portion
of the Mortgaged Property or any contractor, agent or other
authorized user of any such tenant shall - use, generate,
manufacture, store, treat, dispose of,or release any hazardous
waste' or substance on, under, about or from any of the
Mortgaged Property, except in compliance with all applicable
law relating to the transportation, storage, disposal, or lawful
use of any hazardous waste or substance. Trustor shallcoinply
and cause each of its tenants and all contractors; agents or:
other authorized users of the- Mortgaged Property:.toC:;0l"!lply~wit;h-J .
all applicable laws relating to any hazardous wastes or
substances, including without :limitatCiorl,. .obtaining '~ahd. filihg
all applicable noti~es/. licenses, ..perm:its::"'and'.~il!lnar
authorizations. 'trustor shall establish and"maintf.ain;/a
hazardous wastes and substances management arid c. Operat-it>J:J.s
policy for the Mortgaged Property in 9rdertoassUrej~Ilg'L
monitor continued compliance by the Trustor and .each'_.oL.,its" :::_.
,(JI6- t""'''' ~ -_.:.....~ ''J-'"'~~<=-''''' - "~: - -
tenants and all co~tractors'i:lg~I1tf3~~<?f.O ., . ,- hodz' . - ".' .: ........'
of the with all laws~ ela'Fii^,V''-;,;
(d) Trustor authorizes Lender and its agents to enter upon the
Mortgaged Property upon reasonable notice to make such
inspections and tests as Lender may deem appropriate to
determine compliance by the Trustor with this paragraph of
Section 3.2 if Lender reasonably believes a violation of law
has occurred. Any inspections or tests made by Lender shall be
at Trustor's expense and for Lender's purposes only and shall
not be construed to create any responsibility or liability on
the part of Lender to Trustor or to any other person. Trustor
hereby agrees to indemnify and hold harmless Lender against any
and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or
suffer resulting from breach of this paragraph of Section 3.2.
The provisions of this paragraph of Section 3.2 of the Deed of
Trust, including the obligation to indemnify the Lender, shall
survive the payment of the Indebtedness and the satisfaction
and reconveyance of the lien of this Deed of Trust and shall
not be affected by Lender's acquisition of any interest in the
Property, whether by foreclosure or otherwise.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations, now
or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Mortgaged Property.
Trustor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in Lender's
reasonable opinion, Lender's interests in the Mortgaged
Property are not jeopardized. Lender may require Trustor to
post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Mortgaged Property. Trustor shall do all other
acts, in addition to those acts set forth above in this
se~tion, which from the character and-use of the Mortgaged
Property are reasonably necessary to protect and prese~e the
Mortgaged Property.
3.3 J?UE ON SALE. Lender may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upOn the
sale or transfer, without tl1e Lender's prior written approval,
of all or any part of the Mortgaged Property, or any interest
in the Mortgaged Property .....,[l.i:.!~~a1e or transfer" means the
c(jnvey?-nce9tt;11~ J-19:r-tg.Cl.gec1:E):::QP~;r:ty or .<:lny ;right, title or
.inEere;~!m"En~e'inr'~wn;gefier'fea:F"oP-'e'''itable 'whether v61Uiita
T.u'*Jli~~~\M'$!"f"'''~~~~';~~~~~.i\':!-'-'i;'''N;~'i';''i~~ii,;,;wii~I_;_i~_'.. ......... '.. ..' . .".N. .<c".'i'c"''llifY
" ,---' . .~.,' 'i",g'ii~S',:r-~sht:;~~-Cl.:l.E:!L<:l~~BfliJHl,?,~el~~J:: .
. - "f{"\""""!'tr~B.B:f(:)]:-'fli~;~,I.,'~+eaS'elib~a'"
interest with a term greater than one (1) year, lease-option
contract, or by sale, assignment or transfer of any beneficial
interest in or to any land trust holding title to the Mortgaged
Property or by any other method of conveyance of the property
interest. This option shall be exercised by the Lender in
accordance with the provisions of Section 5.1 hereof; provided
however, this option shall not be exercised if such remedy is
prohibited by applicable law.
3.4 TAXES AND LIENS. The following provisions relating to the
taxes and liens on the Mortgaged Property are part of this Deed
of Trust:
Payment. Trustor shall pay when due (and in all events prior
to delinquency) all taxes, special taxes, assessments, charges
(including water and sewer), fines and impositions levied
against or on account of the Mortgaged Property, and shall pay
when due all claims for work done on or for services rendered
or material furnished to the Mortgaged Property. Trustor shall
maintain the Mortgaged Property free of all liens having
priority over or equal to the interest of Lender under this
Deed of Trust, except for the lien of property taxes and
assessments not due.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in the
Mortgaged Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Trustor shall within sixty
(60) days after the lien arises or, if a lien is ~iled, within
sixty (6~) days after Trustor has notices of the filing, secure
the discharge of the lien, or if requested by Lender, deposit
with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys' fees or other
charges that could accrue as a result of a foreclosure or sale
under the lien; provided, however, that Trustor shall not ,be
required to payor make provisions for the payment ~ofanytax,
assessment, lien or charge so long as the TrustQringood~:eaith
shall contes t the val idi ty or amount ~ thereof ~.arid, s~o ~.~ol1.~ras
such delay in payment does not subj ect. the. Property'" to
forfeiture or sale. In any, contest, Trustor. _~~a]}_~defend
itself and Lender and shall satisfy any adverse 'jlidgmen!;bef6:te
enforcement against the Property. Trustor shall name Lerider as
an additional obligee under any surety bond furnished in the
contest proceedings.
ri-.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
3.5 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Proceedings. If any proceeding in condemnation is filed
affecting any portion of the Mortgaged Property, Trustor shall
promptly notify the Beneficiary in writing, and Trustor shall
promptly take such steps as may be necessary to defend the
action and obtain the award. Trustor may be the nominal party
in such proceeding, but the Beneficiary shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to the Beneficiary such
instruments as may be requested by it from time to time to
permit such participation.
3_6 CASUALTY INSURANCE. The Trustor shall at all times keep the
Mortgaged Property insured for the benefit of the Trustee and
the Beneficiary as additional insured as follows:
Against damage or loss by fire and such other hazards
(including lightning, windstorm, hail, explosion, riot, acts of
striking employees, civil commotion, vandalism, malicious
mischief, aircraft, vehicle, and smoke) as are covered by the
broadest form of extended coverage endorsement available from
time to time, including course of construction and builders
risk endorsements in an amount not less than the full~insurable
value of the Mortgaged Property, with a deductible .amount not -
to exceed Ten Thousand Dollars ($10, obor;~ provided however ,
that- prior to the recordation of the "Construction Loan" as
this term is defined in the Loan Agreement, such insured amount
shall be not less than $1,000,000, and uponthexeco:r;dationgf
such Construction Loan the full insurable value shall oenot
less than the principalamountcof such ConRtruction Loan, plus
~ the principal amount of the In<iebtedness;
. . ..t..
Against damage or loss from (a) sprihkler system leakage and
(b) boilers, boiler tanks, heating- and air~~ondi~ipning
equipment, pressure vessels, auxil iary piping, and similar
apparatus, on such basis and in such amounts as the Beneficiary
may require;
, f-
general liability insurance covering Trustor, Trustee, and the
Beneficiary against claims for bodily injury or death or for
damage occurring in, on, about, or resulting from the Mortgaged
Property, or any street, drive, sidewalk, curb, or passageway
adj acent to it, in standard form and wi th such insurance
company or companies and in an amount of at least One Million
Dollars ($1,000,000) combined single limit, or such greater
amount as the buyer may require, which insurance shall include
completed operations, product liability, and blanket
contractual liability coverage that insures contractual
liability under the indemnifications set forth in this Deed of
Trust (but such insurance coverage or its amount shall in no
way limit such indemnification).
Other Insurance. The Trustor shall procure and maintain such
other insurance or such additional amounts of insurance,
covering the Trustor or the Mortgaged Property, as (a) may be
required by the terms of any construction contract for the
improvements or by any governmental authority, or (b) may be
reasonably required by the Beneficiary from time to time.
Form of Policies. All insurance required under this paragraph
shall be paid for and nonassessable. The policies shall
contain such provisions, endorsements, and expiration dates as
the Beneficiary from time to time reasonably requests and shall
be in such form and amounts, and be issued by such insurance
companies admitted as surety companies and doing business in
the State of California, as the Beneficiary shall approve in
the Beneficiary's sole anct, absolute discretion. Unless
otherwise expressly approved in writing by the Beneficiary,
each insurer shall have a Best Rating of not less than
"A(vii)", or better. All policies shall (a) contain a waiver
of subrogation endorsement; (b) provide that the policy will
not lapse or be canceled, amended" or materially alter'ed
(including by reduction in the scope or limits of coverage)
without at least thirty (30) days prior written notice to,cthe
Beneficiary; (c) with the exception of the compreheris}Ve
general liability policy, contain a mortgagee's endorsement
(438 BFU Endorsement or equivalent), and name the..B.enefic:l;ary
and trustee as insureds; and' (d) . include-such deductibles caE;.
the Beneficiary may approve. If a policy required uriderthis~
paragraph contains a co-insurance or'overage clause, ~the:policy;
shall include a stipulated value or agreed amount endorsement
acceptable to the Beneficiary: .
original
evidencing payment of all prell"IlUmS on the policies and (b)
duplicate original renewal policies or a binder with evidence
satisfactory to the Beneficiary of payment of all premiums at
least thirty (30) days before the policy expires. In lieu of
the duplicate original policies to be delivered to the
Beneficiary under this paragraph, Trustor may also deliver
original certificates from the issuing insurance company,
evidencing that such policies are in full force and effect and
containing information that, in the reasonable judgment of the
Beneficiary, is sufficient to allow Lender to ascertain whether
such policies comply with the requirements of this Paragraph.
No Separate Insurance. The Trustor shall not carry separate
or additional insurance concurrent in form or contributing in
the ~vent of loss with that required under this paragraph
unless endorsed in favor of Trustee and the Beneficiary as
required by this paragraph and otherwise approved by the
Beneficiary in all respects.
Transfer of Title. In the event of foreclosure of this Deed of
Trust or other transfer of title or assignment of the Mortgaged
Property in extinguishment, in whole or in part, of the
Indebtedness, all right, title, and interest of the Trustor in
and to all insurance policies required under this paragraph or
otherwise then in force with respect to the Mortgaged Property
and all proceeds payable under, and unearned premiums on, such
policies shall immediately vest in the purchaser or other
transferee of the Mortgaged Property.
Beneficiary's Right to Obtain. Trustor shall deliver to the
Beneficiary original policies or certificates evidencing such
insurance at least thirty (30) days before the existing
policies expire. If any such policy is not so delivered to the
Beneficiary or if any such policy is canceled, whether or not
Lender has the policy in its possession, and no reinstatement
Dr replacement policy is received before termination of
.insurance, the Beneficiary, without notice to or demand ~on
Trustor, may (but .is. not obligated to) obtain such insurance
insuring only the Beneficiary and Trustee with such company as
the Beneficiary may deem satisfactory, and pay the premium for
such policies, and the amount of any premium so paid shall be
charged to and promptly paid by Trustor or, at the
Beneficiary's option, maybe added to the Indebtedness. 7he
Beneficiary acknowledges that, if the Beneficiary ohtains
insurance, it is for the sole benefit of the Beneficiary and
Trustee, and Trustor shall not rely on any insurance obtained
by the Beneficiary to protect Trustor in any way.
1 A
Duty to Restore After Casualty. If any act or occurrence of
any kind or nature (including any casualty for which insurance
was not obtained or obtainable) results in damage to or loss or
destruction of the Mortgaged Property, Trustor shall
immediately give notice of such loss or damage to the
Beneficiary and, if the Beneficiary so instructs, shall
promptly, at the Trustor's sole cost and expense, regardless of
whether any insurance proceeds will be sufficient for the
purpose, commence and continue diligently to completion to
restore, repair, replace, and rebuild the Mortgaged Property as
nearly as possible to its value, condition, and character
immediately before the damage, loss, or destruction.
3.7 ASSIGNMENT TO THE BENEFICIARY. The proceeds of any award or
claim for damages, direct or consequential, in connection with
any condemnation or other taking of or damage or injury to the
Mortgaged Property, or any part of it, or for conveyance in
lieu of condemnation, are assigned to and shall be paid to the
Beneficiary, regardless of whether the Beneficiary's security
is impaired. All causes of action, whether accrued before or
after the date of this Deed of Trust, of all types for damages
or injury to the Mortgaged Property or any part of it, or in
connection with any transaction financed by funds lent to the
Trustor by the Beneficiary and secured by this Deed of Trust,
or in connection with or affecting the Mortgaged Property or
.any part of it, including, without limitation, causes of action
arising in tort or contract or in equity, are assigned to the
Beneficiary as additional security, and the proceeds shall be
paid to the Beneficiary. The Beneficiary, at its option, may
appear in and prosecute in its own name any action or
proceeding to enforce any such cause of action and may make
compromise or settlement of such action. The Trustor shall
notify the Beneficiary in writing immediateiyon obtaining
knowledge of any casualty damage to the Mo~tg~ged Property or
damage in any other manner in excess of Ten. Thousand Dollars
($10,000) or knowledge of the institutiort()t~{;.?ny proceeding
relating to the condemnation or othertakiI1g'of.or damage or
injury to all or any portion of the Mortg~ged~Prbpe.rty~ The
Beneficiary in its sole and absolute~~df$jjfetion,'iUay
participate in any such proceedingsan<:(m~Y>cj91~clJ:>f>rro~er in
adj usting any loss covered by insurance. -TiUsto:r'~~.oy-erlants~and
agrees with the Beneficiary, at Beneficiary's rElCru~st;t:o mcike,
execute, and deliver, at Trustor' q exp;gnsg-ra.!'lY and all
assignments and other instruments sufficient fqr t1i~,'LPurpose of
assigning the aforesaid award or awards,ca\l.fiesof",;.ast:i..on,qr
claims of damages or proceeds to the Be!'lef:i..siarytJ;l~g~E:Sl:J%A-F"-
4:i..sch~:r;g:ed of any en.9ymlii~$1crd.,:?~.,,'007"":'''~-:''~"'''L"F~
-
, :~~:':::f;:'?':">,"
Compensation and Insurance Payments. All compensation', awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments that Trustor may receive or to which the
Beneficiary may become entitled with respect to the Mortgaged
Property if any damage or injury occurs to the Mortgaged
Property, other than by the Beneficiary condemnation or partial
taking of the Mortgaged Property, shall be paid over to the
Beneficiary and shall be applied first toward reimbursement of
all costs and expenses of the Beneficiary in connection with
their recovery and disbursement, and shall then be applied as
follows:
The Beneficiary shall consent to the application of such
payments to the restoration of the Mortgaged Property so
damages only the Beneficiary has met all the following
conditions (a breach of one of which shall constitute a
default under this Deed of Trust, the Promissory Note, and
any Related Document): (a) Trustor is not in default under
any of the terms, covenants, and conditions of the Related
Documents; (b) all then-existing leases affected in any
way by such damage will continue in full force and effect;
(c) the Beneficiary is satisfied that the insurance or
award proceeds, plus any sums added by Trustor, shall be
sufficient to fully restore and rebuild the Mortgaged
Property under then current governmental requirements; (d)
within sixty (60) days after the damage tot he Mortgaged
Property, Trustor presents to the Beneficiary a
restoration plan satisfactory to the Beneficiary and each
local agency with jurisdiction, which includes cost
estimates and schedules; (e) construction and completion
of restoration and rebuilding of the Mortgaged Property
shall be completed in accordance with plans and
specifications and drawings submitted to the Beneficiary
within thirty (30) days after receipt by the Beneficiary
of the restoration plan and thereafter approved the
Beneficiary; which plans, specifications, and drawings
shall not be substantially modified, changed, or revised
without the Beneficiary's prior written - consent; (f)
within ninety (90) days after such damage, Trustor and a
licensed contractor 'satisfactory to the. Beneficiary enter
into a fixed price or guaranteed maximum price contract
satisfactory to the Beneficiary, providihg~ for complete
restoration in accordance with such restoration plahfor
an amount not to exceed the amount of funds:beldorto be
held by the Beneficiary; (g) all restoration of the
Improvements so damaged or destroyed shalr'he::'rni3.de.. with
reasonable PF?'~J?tnT13s and shall iJe ofa"V:it~,~~;;"~*:I.ea.~t
equal t? .... t.:h~,~"x~,1.u.,...;7,"c,;;,BJ.. ~h,<<=. I.m. p....E?~.:.... e.:!n:~J~'1.s;,.S2.';~'~..a.......91f!,St\'iS.'.'...... (). p
destI'o' T"""" <,P_"', ',. , . damae".oi"';;a.est'iii ;:.'.(hlcc..the
Be""""~t:::'.;:i2::1~~\~J:~~~(4':tli~B' F\1~~'~~;~~'~
_.." . ,. .~;}{~~_}<;;i:: .;
identified source (whether from income from the Mortgaged
Property or another source) sufficient to pay all debt
service and operating expenses of the Mortgaged Property
during its restoration as required abovej and (i) any and
all funds that are made available for restoration and
rebuilding under this subparagraph shall be disbursed at
the sole election of the Beneficiary through the Trustee,
or a title insurance or trust company satisfactory to the
Beneficiary, in accordance with standard construction
lending practices and mechanics' lien waivers and title
insurance date-downs, and the provision of payment and
performance bonds by the Trustor, or in any other manner
approved by the Beneficiary in the Beneficiaryls sole and
absolute discretionj or
If fewer than all conditions (a) through (i) in the
preceding subparagraph are satisfiedl then such payments
shall be applied in the sole and absolute discretion of
the Beneficiary: to the payment of the Indebtedness
secured by this Deed of Trustj or to the reimbursement of
Trustor's expenses incurred in the rebuilding and
restoration of the Mortgaged Property. If the Beneficiary
elects to make any funds available to restore the
Mortgaged PropertYI then all of the conditions (a) through
(i) in the preceding subparagraph shall applYI except for
such conditions that the Beneficiary in its sole and
absolute discretionl may waive.
Material Loss Not Covered. If any material part of the
Mortgaged Property is damaged or destroyed and the lossl is not
adequately covered by insurance proceeds collected or in the
process of collectionl the Trustor shall deposit with the
BeneficiarYI within thirty (30) days after the Beneficiaryls
request I the amount of the loss not so covered.
Total Condemnation Payment. All compensationl awards I
proceeds I damages, claims, rights of actionl and payments that
Borrower may receive or _ to which the Trustor may become
entitled with respect to the Mortgaged Property in t~e event of
a total condemnation or other tota~ taking of the Mortgaged
Property by a public agency sha}l- be paid over to the
Beneficiary and shall be applied fir$t to the reimbursement of
all Beneficiary's costs and expense~-in connection with their
recovery I and shall then be appii~dto the payment of the
Indebtedness. Any surplus remaipipg after payment and
satisfaction of the-Jndebtedness shcilL'be paid- to the-Trustor
as its interest maYt:b.~n app~ar.
3.8
"
Partial Condenmation Payments. All compensation, awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments ("funds") that the Trustor may receive or
to which the Trustor may become entitled with respect to the
Mortgaged Property in the event of a partial condemnation or
other partial taking of the Mortgaged Property by a public
agency, unless the Trustee and Beneficiary otherwise agree in
writing, shall be divided into two portions, one equal to the
principal balance of the Promissory Note at the time of receipt
of such funds and the other equal to the amount by which such
funds exceed the principal balance of the Promissory Note at
the time of receipt of such funds.
The first such portion shall be applied to the sums secured by
this Deed of Trust, whether or not then due, including but not
limited to principal, accrued inte.rest, and advances with the
balance of the funds paid to the Trustor.
No Cure of Waiver of Default. Any application of such amounts
or any portion of it to any Indebtedness secured by this Deed
of -Trust shall not be construed to cure or waive any default or
notice of default under this Deed of Trust or invalidate any
act done under any such default or notice.
1.
EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or proceeding
is commenced against the Mortgaged Property 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 reasonably deems appropriate. Any amount
that Lender expends in do 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 due 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 Note's maturity . This 'Deed ,o,f T:ru!'>t
also will secure payment of these amounts. The rights provided
for in this paragraph shall be in addition to anyotherrigAt~
or any remedies to which Lender may be entitled on account of
the default. Any such action by Lender shall not be construed ':
as curing the default so as to bar Lender from any remedy that
it otherwise would have had.
SB200 \ :25550.\
1B
3.9
WARRANTY. Trustor warrants that the Mortgaged Property
Trustor I s use of the Mortgaged Property complies with
existing applicable laws, ordinances, and regulations
governmental authorities.
and
all
of
3.10 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed of
Trust:
Current Taxes, Fees and Charges. Upon request by Lender,
Trustor shall execute such documents in addition to this Deed
of Trust and take whatever other action is requested by Lender
to perfect and continue Lender's lien and security interest on
the Property. Trustor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in
recording, perfecting or continuing this Deed of Trust,
including without limitation all taxes, fees, documentary
.stamps, and other charges for recording or registering 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 which 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
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or uall of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax.a!3 provided .a.bove in the
Taxes and "Lf~ns section and deposits with Lender cash or a
sufficient corporate surety bond or other'security-satisfactory.
to Lender. .
,,~,
3 _ 11 SECURITY AGREEMENT; FINANCING STATEMENTS. The
provisions relating to this Deed of Trust as
agreement area part of this Deed of Trust:
following
a security
Security Agreement. This instrument shall constitute a security
agreement to the extent of any of the Mortgaged Property
constitutes fixtures or other personal property, and Lender
shall have all of the rights of a secured party under the
Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Trustor shall
execute financing statements and take whatever other action is
requested by Lender to perfect and continue Lender's security
interest in the Rents and Personal Property in a manner and at
a place reasonably convenient to Trustor and Lender and make it
available to Lender within ten (10) days after receipt of
written demand from Lender.
Addresses. The mailing addresses of Trustor (debtor) and
Lender (secured party), from which information concerning the
security interest granted by this Deed of Trust may be obtained
(each as required by the Uniform Commercial Code), are as
stated on the first page of this Deed of Trust.
3.12 FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions
relating to further assurances and attorney-in-fact are a part
of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled,or rerecorded, as the case may be, at
such times and in such offices and places as Lender may deem
appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations of
Trustor under the Promissory Note,'this Deed of Trust, and the
Related Documents,' and (b) the liens and security interests_
created by this Deed of Trust as second priority liens on the
Mortgaged Property, w~ether now owned or hereafter acquired by
Trustor. Unless prohibited by law or agreed to the contrary by
Lender in writing. Trustor shall reimburse Lender for all
costs and expenses incurred in connection 'with the matters
referred to in this paragraph.
Attorney-In-Fact. If Ti"llstor fails to do any of the things
referred to in the precedipg~pa~agraph, Lender may do so for
and in the name of Trust6:r:-aiigr:;a~ TIjsJo:s~ sexpens~~_" ,Fo~ S1,1C11
purposes, Trustor hereby, irieV9.Q~R+y ",ppoi,.nts. ,:.Lencl~r as
'::i-' Trustor' S atF~~~y,-Jn-:t"a~.~t.;~~~~~f{ij~:;"i })~~I~~~i~c .~~iI1$~
S82ool:2555O.120
executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender's sole
opinion, to accomplish the matters referred to in the preceding
paragraph.
4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays all the
Indebtedness, including without limitation, all future
advances, when due, and otherwise performs all the obligations
imposed upon Trustor under the Loan Agreement, the Promissory
Note and this Deed of Trust, Lender shall execute and deliver
to Trustee a request for full reconveyance and shall execute
and deliver to Trustor suitable statements of termination of
any financing statement on file evidencing Lender's security
interest in the Rents and Personal Property. Lender may charge
Trustor a reasonable reconveyance fee at the time of
reconveyance.
5.0 DEFAULT. Each of the following, at the option of Lender, shall
constitute an event of default ("Event of Default") under this
Deed of Trust:
Default on Indebtedness. Failure of Trustor to make any payment
when due under the Promissory Note if not cured within thirty
(30) days after written notice from the Lender.
Default on Other Payments. Failure of Trustor within the
time required by this Deed of Trust to make any payment for
taxes or insurance, or any other payment necessary to prevent
filing of or to effect discharge of any lien.
Compliance Default. Failure of Trustor to comply with any other
term, obligation, covenant or condition contained in this Deed
of Trust, the Promissory Note, the Loan Agreemen~, the Related
Documents, including without limitation the OPA, after notice
and any applicable cure period has expired.
Breaches. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed
of Trust, the Promissory Note, the Loan Agreement, or any. of
the Related Documents is, or at the time made or furnished' was,
false in any material respect.
Insol veney. The insolvency of Trustor, appointment of. a
receiver for any part of Trustor's property, any assignment for
the benefit of creditors, the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Trustor,
which is not discharged or dismissed within ninety (90) ..
or the dissolution or termination of Trustor's
going business (if Trustor is a business).
SB200I:25SS0.1
Foreclosure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the Mortgaged
Property. However, this subsection shall not apply in the
event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the
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 ON 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 the following
rights and remedies, in addition to any other rights or
remedies provided by law:
Foreclosure by Sale. Upon an Event of Default under this
Deed of Trust, Beneficiary may declare the entire Indebtedness
secured by this Deed of Trust immediately due and payable by
delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and of
election to cause the Mortgaged Property to be sold, which
notice Trustee shall cause to be fileg for record. Beneficiary
also shall deposit with Trustee this Deed of Trust, the
Promissory Note, other documents requested by Trustee, and all
documents evidencing expenditures secured hereby. After the
lapse of such time may then be required by law following the
recordation of the notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on
Trustor, shall sell the Mortgaged Property at the time and
place fixed by it in the notice of sale, either as a whole or
in separate parcels, and in such order as it may determine; 'at
public auction to the highest bidder for cash in lawful money
of the United States, payable at time of sale. Trustee m,ay
postpone sale of all or any portion of the Mortgaged Property
by public announcement at such time and place of sale, Cil1dfrom.::
time to time thereafter may postpone such sale -by t>.1.lbl-i'G-~-
announcement at the time filed by the preceding postponement in
accordance with applicable law. Trustee shall deliver to such.
purchaser its deed conveying the Mortgaged Property so- S01.di
but without any covenant or warranty, express or implied; The'
recitals in such deed of any matters or factsshall,bif
conclusive proof of the truthfulness- thereof. Any. perf3on,-
including Trustor, Trustee or Beneficiary may purcnaseat"such
sale. After deducting all costs, fees and expenses of Trust€e
and of this Trust, including cost of evidence of tit=le 'in
connection with sale, Trustee shall apply the proceeds of sale
to payment of: all sums exp~nded- und~rthe-t~r:TIl~~l1y,f~()t'-}}8t;
then repaid , with accrued,Jp.ter:~stCl.~"th~amoui):t::;,ellQ~~d,'qy 'laW'
in effect' at t.he dat.Er 'fi(1r"'''gof'~''(ta'''':'oth~r s\lms~;"t~hF's~ctired',
.' ,::~(" ';~'~;';.;C,~~~.~":1S~.~;' j""
j:~',.<-:~';'.i-j;
'SB200 1:15550.1
hereby; and the remainder, if any, to the person or persons
legally entitled thereto.
Judicial Foreclosure. With respect to all or any part of the
Mortgaged Property, Lender shall have the right in lieu of
foreclosure by power of sale to foreclose by judicial
foreclosure in accordance with and to the full extent provided
by California law. It is understood and agreed by the parties
hereto that no action taken by the Lender shall result in the
imposition of personal liability on any of the members,
partners, directors, shareholders and officers, as applicable,
of Trustor or on Trustor itself or its constituent members.
uee Remedies. With respect to all or any part of the Mortgaged
Property, Lender shall have the rights and remedies of a
secured party under the Uniform Commercial Code, including
without limitation the right to recover any deficiency in the
manner and to the full extent provided by California law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Mortgaged
Property and collect the Rents, including amounts past due and
unpaid, and apply the net proceeds, over and above Lender's
costs, against the Indebtedness. In furtherance of this right,
Lender may require any tenant or other user of the Mortgaged
Property to make payments of rent or use fees directly to
Lender. If the Rents are collected by Lender, then Trustor
irrevocably designates Lender as Trustor's attorney-in-fact to
endorse instruments received in payment thereof in the name of
Trustor and to negotiate the same and collect the proceeds.
Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the
payments are made, whether or not any property grounds for the
demand existed. Lender may exercise -its rights under this
subparagraph either in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or~any part qf the
Mortgaged Property, with the power to protect and preserve the
-^ Mortgaged Property, to operate -the Property preceding
foreclosure or sale, and to ~ollect the Rents from the
Mortgaged Property and apply the pro.ceeds i over and-above: the
cost of the receivership against the Indebtedness. The
receiver may serve without bond if perm~tted bylaw. Lender's
right to the appointment of a receiver@h~ll exist whether or
not the apparent value of the MortgageclPropertyexceeds the
indebtedness by a substantial amouItt. , EmpJ,pYlllentc by .r.enqer
. shall not disqualify a person fromserving<,1s J::'~c::e;iv~r.-
SB2001:2555O.\
23
Tenancy at Sufferance. If Trustor remains in possession of
the Mortgaged Property after the Property is sold as provided
above or Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a tenant
at sufferance of Lender or the purchaser of the Mortgaged
Property and shall, at Lender's option, either (a) pay a
reasonable rental for the use of the Property, or (b) vacate
the Mortgaged Property immediately upon the demand of Lender.
Other Remedies. Trustee or
right or remedy provided in
Promissory Note or by law.
Lender shall have any other
this Deed of Trust or the
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 thirty (30)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Mortgaged Property.
'i..
Sale of the Mortgaged Property. To the extent permitted by
applicable law, Trustor hereby waives any and all rights to
have the Mortgaged Property marshaled. In exercising its
rights and remedies, the Trustee or Lender shall be free to
sell all or any part of the Property together or separately, in
.one sale or by separate sales. Lender shall be entitled to bid
at any public sale on all or any portion of the Mortgaged
Property.
Waiver; Election of Remedies. A waiver by any party of a breach
of a provision of this Deed of Trust shall nbt constitute a
waiver of or prejudice the party's rights otherwise to demand
strict compliance with that provision or any other provision.
Election by Lender to pursue any remedy proviqed in this Deed
of Trust, the Promissory Note, in any Related"-Document, or
provided by law shall not exclude pursuit of any other remedy, .
and an election to make expenditures. or. -to take. ac-tion . to
perform an obligation of Trustor under th~s Deed of Trust after
failure of Trustor to perfbrm shall not affect Lender's right
to declare a default and to exercise any of its remedies. .
~>
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this iDeeel of Ti'ust,
Lender shall be entitled to recover such sum as the court may
adjudge reasonable as' attorneys' fees at trial and on any
appeal. Whether or not any court action isinyol ve<i, . all
reasonable expenses incurred by L~nder which ih- Len.oer',s
opinion are necessary.at p.ny time for the prbtect:l()nof dfts
>i{~~:I.~~~:j~::;:_-~:'-'- ',,' -,",', ," -. ---...''-- -", - - -- " --. ..'~~L;;:;'~f:\;::fR';..;~.:i;<
SB200r:2SS~.J 24
interest or the enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest
at the Promissory Note rate from the date of expenditure-until
repaid. Expenses covered by this paragraph includer without
limitationr however subject to any limits under applicable lawr
Lender's attorneys' fees whether or not there is a lawsuitr
including attorneys' fees for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction) r
appeals and any anticipated post-judgment collection servicesr
the cost of searching recordsr obtaining title reports
(including foreclosure reports) ~ surveyors' reportsr appraisal
fees, title insurancer and fees for the Trusteer to the extent
permitted by applicable law. For the purposes hereof r the
words "Lender's attorneys' feesH include the salariesr benefits
and expenses of attorneys employed in the office of the City
Attorney computed on an hourly basis for any such legal
services provided in connection with the enforcement of the
rights of the Lender hereunder. Trustor also will pay any
court costs, in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
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 lawr Trustee shall have the power to
take the following actions with respect to the Property upon
the written request of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Mortgaged PropertYr
including the dedication of streets or other rights to the
public; and (b) join in granting any easement or creating~any
restriction on the Mortgaged Property.
Obligations to Notify. Trustee shall not be obligated t6~
notify any other party of a pending sale under any other trust
deed or lienr or of any action Qr proceeding in which Trustorr
Lender r or Trustee shall be a party runless' the action or
proceeding is brought by Trustee.
'-
Trustee. Trustee shall me.et all qualifications _required for
Trustee under applicable law ~ In addi tiOIl " to the rights and
remedies set forth abover with respect to all or gny part of.
the Mortgaged PropertYr the Trustee shall have the right to
foreclose by notice and sale, and Lender shanha'\';.~th;e:dght
to foreclose by judicial foreclosure ,>'~r:lJq~it4~:r::,;;;",qage'cin
accordance with and to the full extent,p:r:-p;V:."""'''' ':~'C'.' '~".. ;Le
law. ' "
SR2001'2SSS0.1
?t:;
Successor Trustee. Lender, at Lender's option, may from time
to time appoint a successor Trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of 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 Mortgaged
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
three business days after it is 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 sa~ 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 mount
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]
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'theconveyance
and grant section hereof, Trustor shall assign to I3eDJ=ficiary,
as. sesurity for the ..iIl.c1..e,btedness securedhe:re})y,~Wiust():r' s
~.l1.~e,:r-e,f3t. in". all<,?g:r-e,e~~nt.:~i",c<?nt:r-~cts, lease,S" lise,l}ses,?nd
pei:m'it's . affectirig"tl1e"'i:lfo''''~'f:t'-iriany manner whi;ttso~~el?r,fjuch
:'fi~~;;~.:).:'t;E;:,t;,,:'::-':~">;::::.};4~t;i\3{;j~t3~:is ~-' _=~~~;C'.
c__ _ ,'t"':';'l';\~_;}':'
assignments to be made, if so requested by Benef iciary, by
instruments in form satisfactory to Beneficiary; but no such
assignment shall be construed as a consent by Beneficiary to
any agreement, contract license or permit so assigned, or to
impose upon Beneficiary 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 Mortgaged Property or in connection with
any services, equipment or furnishings provided in connection
with the operation of the Mortgaged 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 Mortgaged Property for the purposes of occupying the
dame. Upon the request of Beneficiary, Trustor shall prepare
and deliver to Beneficiary such financial statements regarding
operation of the Mortgaged Property as Beneficiary may
reasonably request. Beneficiary, or its designee, shall have
the right from time to time during normal business hours to
examine such books, records and accounts and to make copies or
extracts therefrom. Trustor shall keep all records and
documents for a period of five years after the expiration of
the Loan and Regulatory Agreements.
12.0 MISCELLANEOUS PROVISIONS. The following
provisions are a part of this Deed of Trust:
miscellaneous
Environmental Default and Remedies. In the event that any
portion of the Mortgaged Property is determined to be
"environmentally impaired", or an "affected parcel" as these
terms are defined at Code of Civil Procedure Section 725.5(e),
then in such event and without limiting or in any way affecting
the another rights and remedies of the Trustee and the
Beneficiary under this Deed of Trust, the Beneficiary may elect
to exercise its rights under Code of Civil Procedure Section
725.5(a) to waive its lien orsuchportiQU of the Mortgaged
Property and to exerclse its rights and remedies.to recover the.
Indebtedness under ~judgment as an unsecured creditor of the
Trustor and/or to exercise any other remedy authorized by law.
The Trustor shallbeueerned to have willfully permitted'. or
acquired in a or relt=as~<or threatened release:'of a hazardous
substance, if such r~l~~~~ or tnreatenedrele~qe was knowingly
or negligently caused or, contributed by to by any lessee,'
occupant, \ user of the "ffortgaged PropertY,which caused. or
contributed to the release;,,"9r threatened relt=a$~,'of a hazardous
substance. All. costs,~I.1<i, exper1l3es of'tbe-
including reasonableattor,neY+Dees7
. ',' ,', : -:;;C-,'- ~-~ __,;:::'>;:;;c;"l'.:;,8..i{"),,,~':iiii, ~ ',iP::Xf:"":":k.~~..\'
per annum of eigntp~rf, '~.!ih
~n"lV\1.?<:<:<n I
"")-.-,
connection with an action as may be brought by the Benef.iciary
as provided in Code of Civil Procedure Section 72S.S(b).
Amendments. This Deed of Trust, together with any Related
Documents, 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
altercation or amendment.
Acceptance by Trustee. Trustee accepts this Trust 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, 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 unepforceable as to any other persons
or circumstances. If feasibie, any such offending provision
shall be deemed to be modified to be within the limits of
enforceability orvaliditYi 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.
Successors and Assigns. Subject to the limitations stated in
this Deed of Trust on transfer of Trustor's interest, this Deed
of Trust shall be binding upon and inure to the benefit of the
parties, their successors and assigns. If ownership of the
Property becomes vested in a person other Trustor, Lender,
without notice to Trustor, may deal with Trustor's successors
with reference to this Deed of Trust and the indebtedness by
way of forbearance or extension without releasi~g Trustor
5B200 \ :2Ssso.\
28
IIII
IIII
IIII
IIII
IIII
IIII
IIII
illl
IIII
the obligations of this Deed of Trust or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust (or under the
Related Documents) 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 and any party 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 Lenderr nor any course of dealing between
Lender and Trustorr 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 Trustr the granting of such consent by Lender in
any instance shall not constitute continuing consent to
subsequent instances where such consent is required.
Fixture Filing. This Deed of Trust also constitutes a
fixture filing as defined in the California Uniform Commercial
Coder as amended" or recodified from time to time. This Deed
of Trust is to be recorded in the real estate records of San
Bernardino CountYr California, and covers goods which are to
become fixtures.
5B2001:25550.1
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
Neighborhood Housing Services
Date:
? ) 12-)1) I
By:
;g6iMJ~ -Hv {;/~~
ecutive Dir~ctor
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
;30
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On November 2, 2001 before me, Lisa A. Gomez, Notary Public,
personally appeared Dawkins Hodqes , personally known to me {ef
proved to me on the. b3sis of s3tisbctory ovideflGej to be the personfs1 whose namefs1
iSfare subscribed to the within instrument and acknowledged to me that he/ffie/tRey
executed the same in his/her/thoir authorized capacity{iesj, and that by his/hor/theif
signaturefs1 on the instrument the personfs1, or the entity upon behalf of which the
personfs1 acted, executed the instrument.
WITNESS my hand and official seal.
Signature
i.....-----------
. .... IJSAA.GOMEZ.:~ f
- Commission If 1198921 ;'
~. Notary PubITc - CaITfcmfa ~
1 . So n Bemcrdr. . oo.c. 0.. unty. E
MtCanm. BqJiresOct la2:Xl2
-'O;D{'ti.W'"'Ioa""_ .
~.!"'!" ,~--.~~.!II[._~--~ ~
(Seal)
File No.: 6033044
EXHIBIT "Au
lot 11 of Tract No. 1785, in the City of SAN BERNARDINO, County of SAN
BERNARDINO, State of California, as per map recorded in Book 26, page(s) 19,
of Maps, in the office of the County Recorder of said County.
L~-
o
FRAZEE COMMUNITY CENTER
2004 HOME - COMMUNITY HOUSING DEVELOPMENT ORGANIZATION (CHDO)
LOAN AGREEMENT
THIS FRAZEE COMMUNITY CENTER 2004 HOME - COMMUNITY HOUSING
DEVELOPMENT ORGANIZA nON (CHDO) LOAN AGREEMENT (the "Agreement") is
dated as of July 19, 2004, by and between the Redevelopment Agency of the City of San
Bernardino, a body corporate and politic (the "Agency"), and Frazee Community Center, a
California nonprofit corporation (the "Participant") and is entered into in light of the facts set
forth in the following Recitals:
RECITALS
WHEREAS, the City of San Bernardino (the "City") is an entitlement City of San
Bernardino who receives annual federal funds under the Home Investment Partnership Act
("HOME Program"), from the United States Department of Housing and Urban Development
("HUD") in order to carry out eligible activities of the City and the Agency in accordance with
federal program regulations set forth in Title 24 Code of Federal Regulations Part 92; and
WHEREAS, the City has designated and authorized the Agency to carry out the day to
day administrative and implementation duties of the HOME Program; and
WHEREAS, in accordance with the HOME Program requirements, not less than fifteen
percent (15%) of HOME funds must be set aside for locally based non-profit entities known as
community housing development organizations ("CHDOs") to carry affordable rental housing
opportunities for low income households;
WHEREAS, the Agency has designated the Participant as a CHDO, as this term is
defined at 24 CFR Part 92.300, and the Participant desires to participate with the Agency in
activities that are eligible under the HOME Program, and the Participant further agrees that the
beneficiaries of its activities under the HOME Program and this Agreement, are or will be for the
benefit of low and very low income families and persons who meet the income eligibility
guidelines of24 CFR Part 92.216 and Part 92.217; and
WHEREAS, in or around October 2001 the Agency entered into that certain
Redevelopment Agency of the City of San Bernardino Home Loan Agreement for Community
Housing Development Organization with Neighborhood Housing Services of the Inland Empire,
Inc., a California non-profit corporation ("NHS") (the "NHS Agreement") to provide for the
acquisition and rehabilitation of a minimum of eleven (11) residential units pursuant to the
general Scope of the Work, attached as an exhibit to such agreement and consisting of the
following parcels of real property:
Parcell consists of two (2) rental dwelling units: 1441-1443 Mountain View;
Parcel 2 consists of three (3) rental dwelling units: 1495 Mountain View and 195-
197 West Magnolia;
1
P:\Agendas\Agreements.Amendments\Agrmts-Amend 2004\04.07-06 Frazee Loan Agreement.doc
Parcel 3 consists of two (2) rental dwelling units: 1501-1503 Pershing; and
Parcel 4 consists of four (4) rental dwelling units: 1379 Arrowhead.
Parcell, Parcel 2, Parcel 3 and Parcel 4, are collectively referred to herein as the "HOME
Parcels" and each Parcel is more particularly described in the legal description attached hereto as
Exhibit "A" and incorporated herein by this reference; and
WHEREAS, under the NHS Agreement the Agency donated HOME Parcel 4 to NHS in
consideration ofNHS providing seven (7) "Affordable Units" (as that term is defined in the NHS
Agreement); and
WHEREAS, pursuant to the NHS Agreement the four (4) Units located on Parcel 4 were
designated "Market Rate Rental Units" (as defined in the NHS Agreement), and reserved for
occupancy by households earning 115% of the area median income or below; and
WHEREAS, in consideration of the Agency providing Participant with the Loan (as
defined herein) Participant shall convert such Market Rate Rental Units into transitional
affordable housing units as further set forth in Section 6, below; and
WHEREAS, NHS is the current fee owner of the HOME Parcels and desires to sell,
transfer and convey all of its right, title and interest to such HOME Parcels to Participant and
Participant desires to purchase such HOME Parcels in accordance with the terms and conditions
set forth herein; and
WHEREAS, the Agency and NHS executed that certain Termination Agreement dated as
of July 19, 2004, which terminates the NHS Agreement, provides for the sale of the HOME
Parcels to Participant and provides for the assumption ofNHS's obligations by Participant; and
WHEREAS, Participant and the Agency, concurrently with the execution of this
Agreement, shall execute that certain "Loan Assumption Agreement", whereby Participant, by
its execution, shall assume the obligations of NHS under those certain Promissory Notes dated
November 8, 2001 evidencing the HOME loan to NHS from the Agency in the aggregate
original principal amount of $147,000 as provided for in the NHS Agreement (collectively, the
"NHS Promissory Notes" and individually the "NHS Promissory Note") and the Agency, by its
execution of the Loan Assumption Agreement, shall agree to such assumption; and
WHEREAS, upon execution of this Agreement and the Loan Assumption Agreement by
Participant, Participant acknowledges and accepts the covenants, conditions and restrictions set
forth in that certain HOME Parcel Regulatory Agreement, Property Use and Covenant (the
"HOME Regulatory Agreement"), attached as Exhibit "B" to this Agreement and incorporated
herein by this reference.
2
P:\Agendas\Agreements-Amendments\Agrmls-Amend 2004\04-07-06 Frazee Loan Agreement.doc
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE
AGENCY AND THE PARTICIPANT HEREBY AGREE AS FOLLOWS:
Section 1. General Covenants and Qualifications
The terms and provisions of the Recitals of this Agreement are material to its
consideration and formation and are hereby incorporated into this Agreement. Participant has
fully reviewed all of the requirements of a CHDO under the HOME Program and hereby certifies
and warrants to the Agency that it is a CHDO and that the Participant has satisfied the
qualifications and rights of a CHDO as set forth in 24 CFR Part 92.2. Participant hereby further
warrants and covenants to the Agency that it has met the following requirements:
1.1 Legal Status. Participant is organized under State law, as evidenced by its articles
of incorporation. No part of its net earnings inure to the benefit of any member, founder,
contributor, or individual. Participant has a tax exemption ruling from the Internal Revenue
Service (hereinafter referred to as the "IRS") under Section 501 (c) of the Internal Revenue Code
of 1986, as evidenced by a certificate from the IRS. Also, Participant has among its purposes the
provision of safe, decent and affordable housing that is affordable to low and moderate-income
persons.
1.2 Capacity. The accounting books and records of the Participant conforms to the
financial accountability standards of Attachment F of Office of Management and Budget
Circular A-llO, as evidenced by a notarized statement by the organization's Certified Public
Accountant. Participant is qualified to carry out activities assisted with HOME Program funds
and specifically the HOME Project through the experience of key staff members each of whom
Participant hereby certifies to the Agency to be experienced and knowledgeable regarding the
HOME Program and the HOME Project.
1.3 Organizational Structure. The governing board of directors of Participant
contains at least 33 percent low-income representation. Participant provides a formal process for
low-income program beneficiaries to advise the organization in all of its decisions regarding the
design, siting, development, and management of all affordable housing projects through its by-
laws and operating procedures approved by the governing board of directors.
1.4 Relationship with For-Profit Entities. Participant is not controlled nor receives
directions from individuals or entities seeking profit from the organization. Participant is free to
contract for goods and services from vendor(s) of its own choosing.
1.5 Maintenance of Warranties During Term of Loan. During the term of the Loan as
described in Section 3 of this Agreement, the Participant shall maintain each of the foregoing
covenants set forth in this Section 1.
3
P:\Agcndas\Agrecmcnts-Amcndmcnls\Agrmts-Amend 2004\04-07.06 Frazee Loan Agreement.doc
Section 2.
Definitions
A. "Affordable Rent" shall mean the maximum rent allowed as established by the
Department of Housing and Urban Development HOME Program.
B. "Affordable Units" shall mean the units on the Property required to be available
to, occupied by, or held vacant for occupancy only to HOME Eligible Households and rented at
an Affordable Rent, as set forth in this Agreement.
C. "Agreement" shall mean this Regulatory Agreement.
D. "Agency" shall mean the Redevelopment Agency, City of San Bernardino, a
public body, corporate and politic.
E. "Agency Loan" shall mean the loan from HOME funds allocated to the
Participant, which loan is the subject of the Loan Agreement.
F. "HOME Assisted Units" shall mean the units designated as acquired and
rehabilitated with HOME loan proceeds rented to households with income at or below 80% of
area median income.
G. "HOME Program" shall mean the HOME Investment Partnership Act, 42 U.S.c.
S 12701, et seq. as it now exists and as may hereafter be amended.
H. "HOME Regulations" shall mean the implementing regulations of the HOME
Program set forth at 24 CFR 92 as it now exists and, subject to the provisions of Section 2.2
herein, as may hereafter be amended.
1. "Loan Agreement" shall mean this 2004 HOME - Community Housing
Development Organization (CHDO) Loan Agreement, entered into by and between the
Participant and the Agency.
J. "Participant" shall mean Frazee Community Center, a California non-profit
corporation.
K. "Parties" shall mean the Agency and the Participant.
L. "HOME Project" shall mean the acquisition of 11 multi-family units to provide
transitional housing and services for the benefit of HOME Eligible Households.
M. "Property" shall mean the real property located in San Bernardino, California, as
more particularly described in the Project site description attached hereto as Exhibit A and
incorporated herein by reference, together with the buildings, fixtures and other improvements
located thereon.
4
P:\Agcndas\Agreemenls-Amendments\Agnnls-Amend 2004\04-07-06 Frazee Loan Agrccmcnt.doc
N. "HOME Eligible Households" shall mean those households identified by the
United States Department of Housing and Urban Development with income at or below 80% of
the area median income.
O. "Term" shall mean the period commencing on the date of recordation of this
Agreement and ending on the date which is twenty-five (25) years following the date of
recordation of this Agreement.
Section 3. Loan Amount and Use of Loan
Subject to the terms and conditions of this Agreement, the Agency shall Loan to
Participant for the purchase of the HOME Parcels, a total amount of Four Hundred Six Thousand
Two Hundred Two Dollars ($406,202) in HOME Program 2002 funds (the "Loan") subject to
the provisions of a promissory note and deed of trust. The promissory note shall contain
provisions for the waiver and forgiveness of the repayment of principal to the Agency, subject to
certain conditions and provided no default has occurred. No other source of Agency or City
funds are pledged or otherwise made available to the Participant for the purchase of the HOME
Parcels. The proceeds of the Loan shall be used and applied by the Participant solely for the
purchase of the HOME Parcels.
The Participant shall also assume the debt evidenced by the NHS Promissory Note, which
currently has an outstanding principle balance of $121,683 pursuant to the Loan Assumption
Agreement (the "Assumed Debt"). The Loan together with the Assumed Debt shall be
evidenced by a promissory note in a form attached as Exhibit "c" which shall be in the initial
principal amount of: $527,885.00. The promissory note shall be secured by a deed of trust
recorded against the HOME Parcels in a form attached as Exhibit "D".
During the term of the Loan, Participant shall own and shall have effective management
control of the HOME Parcels, the Participant shall comply with the provisions of 24 CFR 92.504
and the Participant shall provide a transitional housing program (the "Transitional Housing
Program") (collectively, such obligations being deemed the "HOME Project").
The Agency will submit the "Designation of Community Housing Development
Organization", Form HUD-40098, to reserve funds for use by Participant promptly following the
approval of this Agreement by the governing board of the Agency. The HOME Program funds
for FY 2002, which are set aside for use by Participant and which are not committed by or for
Participant within 12 months following the approval of this Agreement, will be automatically
returned to the HOME Line of Credit and shall not be available for disbursement to Participant
thereafter, unless the parties mutually agree to an extension of time.
The Loan shall be used by the Participant to cover the purchase price of the HOME
Parcels and any costs in excess of the purchase price of the HOME Parcels shall be borne by the
Participant except for escrow closing costs. The Agency shall have the right, upon reasonable
notice, to inspect and audit all books and records of Participant pertaining to the use ofthe Loan.
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Section 4. Disbursement of Loan to Participant and Conditions Precedent to
Disbursement.
4.1 Subject to the terms and conditions of this Agreement, the Participant hereby
agrees to undertake the HOME Project pursuant to the terms of this Agreement.
4.2 The Participant shall acquire each of the HOME Parcels from NHS as provided
below. Immediately after the approval of this Agreement by the governing board of the Agency,
the Participant and NHS shall execute one or more real property transfer and escrow agreements
substantially in the form attached hereto as Exhibit "E" to transfer fee title interest of each of the
HOME Parcels to the Participant.
Upon request by the escrow holder, the Agency shall deposit the purchase price
and any other fees necessary to close the escrow, subject to the terms set forth in Section 4.3,
below.
4.3 The Agency shall disburse the Loan when the Participant has satisfied the
following conditions:
(i) the Participant has provided the Agency with evidence of insurance
coverage as required under this Agreement and each deed of trust related to the HOME
Parcels;
(ii) the applicable escrow referenced in Section 6 is otherwise in a condition to
close;
(iii) the Participant has executed the applicable form of the Home Regulatory
Agreement, the Promissory Note and Deed of Trust and in favor of the Agency and has
executed appropriate escrow instructions, in a satisfactory form to the Agency;
(iv) the Participant has provided the Agency with a Transitional Housing
Program description and operations budget describing the Transitional Housing Program that
will be implemented on the HOME Parcels during the Affordability Period (as defined below)
and the costs related thereto, which the Agency shall approve in its sole discretion;
(v) the Participant has complied with each of the other provisions of this
Agreement and the Assumption Agreement and is not otherwise in default under either
instrument.
Loan Documents and Grant Deed Covenants
Section 5.
5.1 The Loan shall be evidenced by a promissory note (the "Promissory Note") which
shall each be secured by a deed of trust on each of the HOME Parcels.
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5.2 The general form of the Promissory Note is attached hereto as Exhibit "e". The
date of the Promissory Note shall be the date on which the close of escrow for the HOME
Parcels referenced in Section 5 occurs.
The term of the Promissory Note shall be twenty-five (25) years from its date and shall
bear no interest prior to maturity provided no default exists under the Promissory Note, the Deed
of Trust, the HOME Regulatory Agreement or this Agreement. Provided that Participant is in
full compliance with all of the terms and conditions of this Agreement, the principal amount of
the Promissory Note shall be forgiven as follows: annually from the date of the Promissory
Note, one twenty-fifth (l/25th) of the original principal balance shall be forgiven. The conditions
imposed by the HOME Regulatory Agreement on such Parcel shall remain in effect until the
term ofthe affordability expires.
5.3 The Promissory Note shall be secured by a deed of trust on the HOME Parcels
substantially in the form as attached as Exhibit "D" (the "Deed of Trust").
Section 6.
Close of Escrow and Completion of the HOME Proiect.
6.1 The Participant shall acquire fee title interest in the HOME Parcels by a date not
later than sixty (60) days from the date this Agreement is executed by both parties, or this
Agreement shall have no further force or effect, unless an extension of time is agreed upon in
writing by the parties to this Agreement.
Section 7.
Occupancy of Units on the HOME Parcels
7.1 Participant shall ensure that each rental dwelling unit on the HOME Parcels
(hereinafter referred to as the "Units") are designated and reserved for occupancy by eligible
households as follows:
(i) 4 Units: "HOME Transitional Housing Units" shall be rented or reserved
for occupancy by very low-income households. For the purposes of this Agreement, very low-
income shall be defined as those households earning fifty percent (50%) of median income, or
below;
(ii) 6 Units: "HOME Low Income Units" shall be rented or reserved for
occupancy by households earning (80%) eighty percent of the area median income or below
subject to an initial occupancy income qualification set forth in (iv), below;
(iii) I Units: "Management Unit" shall be rented or reserved for occupancy by
the onsite manager of the HOME Project, including the Transitional Housing Program;
(iv) The eligible household occupancy test of this subparagraph shall be
applied at the time of initial occupancy of the HOME Low Income Units and annually thereafter,
after the first anniversary of this Agreement for the remaining term of the Loan.
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7.2 Participant shall ensure that each of the Units shall be available and remain
available for occupancy by individuals or families who are income-eligible in accordance with
the provisions of Section 7.1. Participant shall be responsible for interviewing and selecting
occupants for each Unit, and shall file with the Agency the tenant eligibility certification in the
form of Exhibit "F" ("Tenant Eligibility Certification Form") commencing on July 1 first
following the initial occupancy of any of the Units and on each July 1 annually thereafter during
the term of the Loan.
7.3 The Participant may charge rent for the occupancy of each Unit which is defined
to be an affordable rent in accordance with the initial rent schedule for the Units attached hereto
as Exhibit "G", (the "HOME Rent Schedule") and incorporated herein by this reference. The
parties recognize that the HOME Rent Schedule is amended and provided by HUD annually.
For any household, which at the time of an annual Tenant Eligibility Certification form, may no
longer be an "eligible" household under Section 7.1 (ii), Participant may increase the rent payable
by such a household to the then applicable fair market rent for the Unit occupied by such
household; provided, however, that upon the termination of occupancy of such Unit by the non-
eligible household, such Unit shall be reserved for use and occupancy by an eligible household
under Section 7.1 (i) or (ii), as applicable.
Section 8.
Manal!ement of Rental Housinl! Units
8.1 Participant hereby agrees to be responsible for collecting all rents due and payable
in connection with the occupancy of the Units and upon the collection of such rents, pay for all
costs and expenses incurred in connection with the operation, occupancy and maintenance of the
Units, including the Transitional Housing Program.
8.2 Promptly following the close of escrow, Participant shall establish, and thereafter
maintain, a capital replacement and reserve fund for the HOME Project with an initial fund
balance of not less than $5,000. The funds deposited by Participant each year to such capital
replacement and reserve fund shall be used and applied by the Participant to pay for the costs of
capital replacement of improvement to the HOME Project, and for such extraordinary costs and
expenses of the operation and maintenance of the HOME Project as may be approved in writing
by the Agency, including, without limitation, the costs of operating the Transitional Housing
Program. Such capital replacement, reserve and operations fund shall be specifically identified
in the books and financial accounting records of Participant as funds held in trust by Participant
for the HOME Project. The cash balance of such capital replacement and reserve fund may be
invested with other funds of the Participant until applied by the Participant to pay for capital
replacement costs of the HOME Project. Each year during the term of this Agreement,
Participant shall contribute additional funds to such capital replacement and reserve fund in an
amount of at least one (1 %) of gross rents annually payable from the Units, or a mutually agreed
upon percentage by both the Participant and the Agency. Participant shall provide the Agency
with suitably detailed accounting records relating to the balance and use of the monies deposited
into the capital replacement, reserve and operations fund annually.
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Section 9. Affordabilitv Period - HOME Reeulatorv Aereement
The Participant shall insure that the Units remain affordable for a period of not less than
(25) years from the date of recordation of the HOME Regulatory Agreement and in accordance
with 24 CFR Part 92.252 (the "Affordability Period"). A breach of the Affordability Period
requirements shall be deemed an event of default under the Promissory Note and Deed of Trust.
Section 10. Uniform Administrative Requirements
As a non-profit organization and a recipient of HOME Program funds, Participant
certifies and warrants that it meets the requirements of OMB Circular No. A-122 and the
following requirements of OMB circular No. A-II 0: Attachment B; Attachment F; Attachment
H, Paragraph 2; and Attachment O. The Agency shall monitor the activities of Participant in
order to ensure the continued compliance with these provisions and any other provisions
applicable under the HOME Program.
Section 11. General Project Requirements
The parties hereby agree as follows:
11.1 rRESERVED-NO TEXTl
11.2 PropertY Standards. The HOME Project upon completion shall, at a minimum,
meet the property maintenance standards of the federal (Housing Authority) Section 8 Housing
Quality Standards ("HQS") for the Term of the Affordability Period within the HOME
Regulatory Agreement. Participant hereby agrees that the Agency or its designee shall be
permitted regular access to the HOME Parcels in order to physically inspect the Units and ensure
compliance with the terms of this Agreement. Such inspections shall occur at least annually, but
not more frequently than once every calendar quarter.
11.3 rRESERVED-NO TEXTl
11.4 Recertification of Occupancy and Rent Requirements
Participant shall re-examine the income of each tenant household occupying the Units at
least annually and shall provide documentation to the Agency to ensure continued compliance
with the provisions of the HOME Regulatory Agreement. The monthly rent for a particular Unit
may be recalculated by Participant based upon increases (or decreases) in the household income
of the household since the time of the previous recertification report to the Agency. Any
increase in rent for a Unit shall be subject to the provisions of outstanding leases. Participant
may increase rent for each Unit not more frequently than once per year and the Participant shall
provide tenants of those Units where an increase of rent is proposed not less than thirty (30) days
prior written notice before implementing an increase in rent.
10.5 Increases in Tenant Income. The Units shall qualify as affordable housing despite
a temporary household income noncompliance by tenant occupants if the noncompliance is
caused by increases in the incomes of existing tenants of Units following initial occupancy of a
Unit by such tenant and if actions satisfactory to HUD and the Agency are being taken by
Participant to ensure that all vacancies of Units occupancy after the time that non-compliance
may occur under this Section 11 are rented to new households in accordance with Section 7 until
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the noncompliance is corrected. Tenants who no longer qualify as low-income households under
Section 6 shall pay fair market rent for the Units which such tenant occupies as provided herein.
11.6 Tenant Protection.
(i) Lease. Except for the HOME Transitional Housing Units, the lease between each
tenant and Participant for a Unit must be for not less than one year, unless by mutual
agreement between the tenant and Participant, with the prior written approval of the
Agency.
The lease shall provide that the maximum occupancy of the Units shall be two persons
for each bedroom plus one additional person for each unit.
(ii) Prohibited Lease Terms. The lease may not contain any of the following
provIsIOns:
(a) an agreement by the tenant to be sued, to admit guilt, or to a judgment in
favor of Participant in a lawsuit brought in connection with the lease.
(b) an agreement by the tenant that Participant may take, hold, or sell personal
property of household members without notice to the tenant and a court decision
on the rights of the parties. This prohibition, however, does not apply to an
agreement by the tenant concerning disposition of personal property remaining in
the Unit after the tenant has moved out of the Unit. Participant may dispose of
this personal property in accordance with State of California law.
(c) an agreement by the tenant not to hold Participant or Participant's agency
legally responsible for any action or failure to act, whether intentional or
negligent.
(d) an agreement of the tenant that Participant may institute a lawsuit without
notice to the tenant.
(e) an agreement of the tenant that Participant may evict the tenant or
household members without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense, or before a court decision on the
rights of the parties.
(f) an agreement by the tenant to waive any right to a trial by jury.
(g) an agreement by the tenant to waive the tenant's right to appeal, or to
otherwise challenge in court, a court decision in connection with the lease.
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(h) an agreement by the tenant to pay attorneys' fees or other legal costs, even
if the tenant wins in a court proceeding by the owner against the tenant. The
tenant, however, may be obligated to pay costs if the tenant loses.
11.7 Termination of Tenancy. Participant may not terminate the tenancy or refuse to
renew the lease of a tenant for any Unit except for serious or repeated violation of the terms and
conditions of the lease, for violation of applicable federal, state, or local law, or for other good
cause. Any termination or refusal to renew must be preceded by not less than 30 days by
Participant's service upon the tenant of a written notice specifying the grounds of the action.
Section 12. Maintenance and Reolacement
Participant must maintain the HOME Project in compliance with all applicable housing
quality standards and local code requirements, including, but not limited, to the San Bernardino
Municipal Code.
12.1 Tenant Selection. Participant must adopt written tenant selection policies and
criteria for the Units that:
(i) are consistent with the purpose of providing housing for very low-income and
low-income families;
(ii) are reasonably related to HOME Program eligibility and the applicants' ability to
perform the obligations of the lease;
(iii) give reasonable consideration to the housing needs of families that would have a
federal preference under section 960.211 of Title II of the Cranston-Gonzalez National
Affordable Housing Act of 1992; and
(iv) provide for the selection of tenants from a written waiting list in the chronological
order of their application, insofar as is practicable, and the prompt written notification, to
any rejected applicant setting forth the grounds for any rejection.
(v) provide that a preference be given to residents or occupants of the City of San
Bernardino with respect to the occupancy ofthe Units.
12.2 Compliance. Participant must carry out each activity in compliance with all
Federal laws and regulations described in 24 CFR Part 92 and outlined hereinafter, except that
Participant does not assume the Agency's responsibilities for environmental review in 24 CFR
Part 92.352 or the intergovernmental review process in 24 CFR Part 92.359. These Federal laws
and regulations must be complied with as follows:
(i) Equal Opportunity. No person shall be excluded from participation in, be denied
the benefits of or be subjected to discrimination under any program or activity funded in
whole or in part with HOME funds. In addition, HOME funds must be made available in
accordance with all laws and regulations listed in 24 CFR Part 92.350(a).
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(ii) Fair Housing. In accordance with the certification made with its housing strategy,
each participating jurisdiction receiving HOME Program funds, must affirmatively
further fair housing. Actions described in Section 570.904(c) of TitIe II of the Cranston-
Gonzalez National Affordable Housing Act wiIl satisfy this requirement.
(iii) Affirmative Marketing. Participant must adopt affirmative marketing procedures
and requirements for the Units. These must include:
(a) Methods for informing the public;
(b) Requirements and practices that Participant must adhere to in order to
carry out the City of San Bernardino's affirmative marketing procedures and
requirements;
(c) Procedures used by Participant to inform and solicit applications from
persons in the housing market area who are not likely to apply without special
outreach;
(d) Records that wiIl be kept describing actions taken by Participant to
affirmatively market units and records to assess the results of these actions; and
(e) A description of how Participant wiIl assess the success of affirmative
marketing actions and what corrective actions will be taken where affirmative
marketing requirements are not met.
(iv) Displacement, Relocation and Acquisition. Consistent with the other goals and
objectives of 24 CFR Part 92, and if applicable, Participant must ensure that it has taken all
reasonable steps to minimize the displacement of persons as a result of the HOME Project, if
applicable. To the extent feasible, residential tenants must be provided a reasonable opportunity
to lease and occupy a suitable, decent, safe, sanitary and affordable dweIling unit upon HOME
Project completion.
As of the date of this Agreement, one Unit on the HOME Parcels is vacant.
(v) Labor. If applicable, any contract executed by participant for the rehabilitation of
affordable housing with 12 or more Units using HOME Program funds must contain a
provision requiring that not less than the wages prevailing in the locality, as
predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C.
2761-5), wiIl be paid to all laborers and mechanics employed in the development of
affordable housing involved, and such contacts must also be subject to overtime
provisions, as applicable, of the Contract Work Hours and Safety Standards Act (40
U.S.c. 327-332). The Agency may require certification as to compliance with the
provisions of 24 CFR Part 92.354 before making any payment under such contract.
(vi) Lead-based Paint. It is understood that the rehabilitation, improvement and
maintenance of the Units is subject to 24 CFR Part 35.
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(vii) Conflict of Interest. Participant shall comply with all requirements set forth
regarding conflict of interest provisions as they apply in 24 CFR Part 92.356.
(viii) Debarment and Suspension. As required in 24 CFR Part 92.357, Participant will
comply with all debarment and suspension certifications.
(ix) Flood Insurance. Under the Flood Disaster Protection Act of 1973, HOME
Program funds may not be used with respect to the acquisition or rehabilitation of a
project located in an area identified by the Federal Emergency Management Agency
(FEMA) as having special flood hazards, unless:
(a) The community in which the area is situated is participating in the
National Flood Insurance Program, or less than a year has passed since FEMA
notification regarding such hazards; and
(b) Flood insurance is obtained as a condition of approval of the commitment.
(c) The Agency is responsible for assuring that flood insurance under the
National Flood Insurance Program is obtained and maintained.
Section 13. Records and Reports
13.1 The Agency will require that Participant maintain and supply the Agency upon
written request the following records and reports for the affordability period in order to assist the
Agency in meeting its record keeping and reporting requirements:
(i) development and all funding documentation for the Project;
(ii) property management and building maintenance reserves and related records;
(iii) files on the annual review and certification of all applicable tenant income;
(iv) terms and conditions of all signed leasehold agreements between tenants and
Participant; and
(v) any legal reports and records required by City Attorney's Office or the Agency, as
requested.
13.2 Program Agent, on behalf of the Agency, will review the Project annually during
the Affordability Period for:
(i) recertification of tenant income;
(ii) review of rent and utility allowances;
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(iii) on-site inspections for compliance with Section 8 Housing Quality Standards; and
(vi) review of Participant compliance with this written Agreement.
Section 14. Indemnification
The Participant shall indemnify and hold harmless the Agency and the City and the
officials, officers, employees and agents of the City and the Agency from and against any and all
claims or liability arising from Participant's actions under this Agreement or from the conduct of
Participant's business or from any activity, work or things done, permitted or suffered by
Participant and shall further indemnify and hold harmless the Agency and City and their officers,
employees and agents from and against any and all claims arising from any breach or default in
the performance of any obligation of Participant under the terms of this Agreement arising from
any negligent or wrongful act or omission of the Participant or Participant's agents, contractors,
employees or invitees and from and against all costs, attomeys' fees, expenses and liability
incurred in the defense of any such claim or any action or proceeding brought thereon.
Participant's agreement to indemnify and hold the Agency and City harmless shall extend to any
claims or liabilities, including but not limited to claims pertaining to environmental conditions,
alleged construction defects, or other matters, that may arise as a result of the Participant's
acquisition and ownership of the HOME Parcels and the rehabilitation, improvement and
occupancy of each Unit thereon.
Section 15. Breach and Termination.
15.1 Termination Without Default or Breach Prior to Transfer of Title in the HOME
Parcels to the Participant. This Agreement may be terminated for the convenience of either party
who is not then in default upon sixty (60) days notice provided that said parties have performed
their respective obligations contained in this Agreement.
15.2 Defaults and Breach - General. Failure or delay by either party to perform any
material term or provision of this Agreement shall constitute a default under this Agreement;
provided however, that if the party who is otherwise claimed to be in default by the other party
commences to cure, correct or remedy the alleged default within thirty (30) calendar days after
receipt of written notice specifying such default and shall diligently complete such cure,
correction or remedy, such party shall not be deemed to be in default hereunder.
The party which may claim that a default has occurred shall give written notice of default
to the party in default, specifying the alleged default. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default; provided, however, the
injured party shall have no right to exercise any remedy for a default hereunder without
delivering the written default notice as specified herein.
Any failure to delay by a party in asserting any of its rights and remedies as to any default
shall not operate as a waiver of any default or of any rights or remedies associated with a default.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,
the rights and remedies of the parties are cumulative and the exercise by either party of one or
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more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the other party.
In the event that a default of either party may remain uncured for more than thirty (30)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred. In the event of a breach, the party who is not in default shall be entitled to terminate
this Agreement and seek any appropriate remedy or damages by initiating legal proceedings, if
necessary.
15.3 In the event that either party brings an action to enforce any condition or
covenant, representation or warranty arising out of this Agreement, the prevailing party in such
action shall be entitled to recover from the other party reasonable attorneys' fees to be fixed by
the court in which a judgment is entered, as well as the costs of such suit. For the purposes of
this Section 15.3, the words "reasonable attorneys' fees" in the case of the Agency include the
salaries, costs and overhead of lawyer's employed in the Office of the City Attorney of the City
of San Bernardino, allocated on a hourly basis for the performance of any services rendered to
the Agency under this Agreement.
Section 16. Enforcement of This Al!reement
16.1 The Agency shall have the right, by prior written notice to Participant, to enforce
affordability and occupancy requirements. Should any such violation be brought to the attention
of the Agency regarding the Project, the Agency shall have the right, by prior written notice to
Participant, to suspend or terminate this Agreement and may avail itself of all remedies under
this Agreement, the Promissory Note, the Deed of Trust and the Agency HOME Program
Regulatory Agreement.
16.2 The Agency at its discretion may terminate this Agreement, in whole or in part,
by giving Participant written notice in accordance with 24 CFR Part 85.44.
16.3 The Agency also reserves the right to reallocate HOME funds pnor to
commitment of said funds to Participant.
Section 17. Commercial General Liability Insurance and Workman's
Comoensation Insurance
17.1 The Participant shall obtain and keep in force during the term of this HOME
Agreement a commercial general liability policy of insurance with coverage at least as broad as
"Insurance Services Office Commercial General Liability Form (G0001)," including but not
limited to insurance against assumed contractual liability under this HOME Agreement
protecting the city and the Agency and the officers, employees and agents of each of them, as
additional insured against claims for bodily injury, personal injury and property loss or damage
based upon, involving or arising out of the HOME Project. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not less than One Million Dollars
($1,000,000) in the event of bodily injury, personal injury and property loss or damage to any
number of persons per occurrence. The policy shall not contain any intra-insured exclusions as
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between insured persons and organization, but shall include coverage for liability assumed under
this HOME Agreement as an "insured contract" for the performance of the indemnity obligations
of the Participant to the City and the Agency. The limits or exclusions from coverage of such
insurance shall not however limit the liability of the Participant nor relieve the Participant of any
other obligation under this Agreement. All insurance to be carried by the Participant shall be
primary to and not contributing to any single insurance carried by the City or the Agency whose
insurance shall be considered excess insurance only.
17.2 To the extent required by the law, the Participant shall carry and maintain
workers' compensation or similar insurance in form and amounts required by law. Such a
program of worker's compensation insurance shall include coverage of all "volunteers" and
"students" and "apprentices" of the Participant who perform any work on the Project.
17.3 All insurance which the Participant shall carry or maintain pursuant to this
Section shall be in such form, for such amounts, for such periods of time as the Agency may
require or approve and shall be issued by an insurance company or companies authorized to do
business in California and which maintains during the term of the policy a "General Policy
Holder's Rating" of at least A(v), as set forth in the most current edition of "Best's Insurance
Guide". In no circumstance will the Participant be entitled to assign to any third party rights of
action which the Participant may have against the Agency or the City. All policies or
endorsements issued by the respective insurers for commercial general liability insurance will
name the City and the Agency and the officers, employees and agents of each of them, as
additional insureds and provide that: (i) any loss shall be notwithstanding any act or failure to
act or negligence of the Participant or the Agency or any other person; (ii) no cancellation,
reduction in amount, or material change in coverage thereof shall be effective until at least thirty
(30) days after receipt by the Agency of written notice thereof; and (iii) the insurer shall have no
right of subrogation against the City or the Agency or the officers, agents, or employees of either
of them.
17.4 The Participant shall deliver or cause to be delivered to the Agency an
endorsement of its commercial general liability insurance policy evidencing the existence of the
insurance coverage required by the Agency and shall also deliver, no later than thirty (30) days
prior to the expiration of any such policy, a certificate of insurance evidencing each renewal
policy covering the same risks.
Section 18. Maintenance of Each Parcel or the HOME Proiect.
The Participant for itself, its successors and assigns hereby covenants and agrees that:
18.1 The areas of each HOME Parcel which are subject to public view (including all
paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good
repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that
at any time following the date of recordation of the HOME Program Regulatory Agreement,
there is an occurrence of an adverse condition on any area of a HOME Parcel which is subject to
public view in contravention of the general maintenance standard described above, (a
"Maintenance Deficiency"), then the Agency shall notify the Participant in writing of the
Maintenance Deficiency and give the Participant thirty (30) days from receipt of such notice to
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cure the Maintenance Deficiency as identified in the notice. In the event the Participant fails to
cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may
conduct a public hearing following transmittal of written notice thereof to the Participant ten (10)
days prior to the scheduled date of such public hearing in order to verify whether a Maintenance
Deficiency exists and whether the Participant has failed to comply with the provisions of this
Section. If upon the conclusion of a public hearing, the Agency makes a finding that a
Maintenance Deficiency exists and that there appears to be non-compliance with the general
maintenance standard described above, thereafter the Agency shall have the right to enter the
applicable Parcel and perform all acts necessary to cure the Maintenance Deficiency, or to take
other action at law or equity which the Agency may then have to accomplish the abatement of
the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a
Maintenance Deficiency on a HOME Parcel authorized by this Section shall become a lien on
that Parcel. If the amount of the lien is not paid within thirty (30) days after written demand for
payment by the Agency to the Participant, the Agency shall have the right to enforce the lien in
the manner as provided in subsection (c), below.
18.2 Graffiti, as this term is described in Government Code Section 38722, which has
been applied to any exterior surface of a structure or improvement on a HOME Parcel which is
visible from any public right-of-way adjacent or contiguous to such HOME Parcel, shall be
removed by the Participant by either painting over the evidence of such vandalism with a paint
which has been color-matched to the surface on which the paint is applied, or graffiti may be
removed with solvents, detergents or water as appropriate. In the event that such graffiti may
become visible from an adjacent or contiguous public right-of-way but is not removed within 72
hours following the time of such application, the Agency shall have the right to enter the
applicable HOME Parcel and remove the graffiti without notice to the Participant. Any sum
expended by the Agency for the removal of such graffiti from the applicable HOME Parcel
authorized by this Subsection (b) in an amount not to exceed $250.00 per entry by the Agency,
shall become a lien on the applicable HOME Parcel. If the amount of the lien is not paid within
thirty (30) days after written demand for payment by the Agency to the Participant, the Agency
shall have the right to enforce its lien in the manner as provided in Subsection (c), below.
18.3 The parties hereto further mutually understand and agree that the rights conferred
upon the Agency under this Section expressly include the power to establish and enforce a lien or
other encumbrance against the affected HOME Parcel, in the manner provided under Civil Code
Section 2924, for sums expended in upholding the maintenance standard required under
subsection (a) or subsection (b), including salaries and wages of the legal staff of the Office of
City Attorney and/or Agency Counsel as may be associated with the abatement of the
Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in
connection with such action. The provisions of this Section 18, shall be a covenant running with
the land and each HOME Parcel, and shall be enforceable by the Agency. Nothing in the
foregoing provisions of this Section 18 shall be deemed to preclude the Participant from
rehabilitating and operating the HOME Project on each HOME Parcel, provided that such
construction and improvement of the HOME Project complies with the applicable zoning and
building regulations of the City.
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Section 19. Notice.
Any notice, demand, request, consent, approval or communication that either party
desires or is required to give to the other party under this Agreement shall be in writing and shall
be delivered to the appropriate party by personal service or U.S. Mail at its address as follows:
Participant:
Frazee Community Center
Attn: Executive Director
1140 West Mill Street
San Bernardino, California 92410
Agency:
Redevelopment Agency
of the City of San Bernardino
Attn: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
Section 20. Submission of Documents to Al!encv for Approval.
Whenever this Agreement requires Participant to submit any document to the Agency for
approval, which shall be deemed approved if not acted on by the Agency within the specified
time, said document shall be accompanied by a letter stating that it is being submitted and will be
deemed approved unless rejected by the Agency within the stated time. If there is not a time
specified herein for such Agency action, Participant may submit a letter requiring the Agency
approval or rejection of documents within thirty (30) days after submission to the Agency or
such documents shall be deemed approved.
The terms, covenants, conditions and restriction of this Agreement shall extend to and
shall be binding upon and inure to the benefit of the successors and assigns of Participant.
Section 21. Miscellaneous.
This Agreement is executed in three (3) duplicate originals, each of which is deemed to
be an original. This Agreement includes referenced Exhibits "A" through "I", which together
with this Agreement constitute the entire understanding and agreement of the parties. No private
entity shall be deemed to be a third party beneficiary with respect to any provision of this
Agreement. This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements among the parties or
their predecessors in interest with respect to all or any part of the subject matter hereof.
If any part or provision of this Agreement is in conflict or inconsistent with applicable
provisions of federal, state, or city laws, or is otherwise held to be invalid or unenforceable by
any court of competent jurisdiction, such part or provision shall be suspended and superseded by
such applicable law or regulations, and the remainder of this Agreement shall not be affected
thereby.
All waivers of the provisions of this Agreement must be in writing by the Executive
Director of the Agency, or his or her designee, and the Participant, and all amendments thereto
must be in writing by the Executive Director of the Agency and the Participant, except that the
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Executive Director, or hislher designee, of the Agency may only agree to non-substantive, and
technical changes hereto provided said changes do not increase the Agency's financial obligation
under said Agreement, and with concurrence by Agency Counsel. Substantial changes to this
Agreement shall require the prior approval of the governing board of the Agency.
This Agreement, when executed by Participant and delivered to the Agency, must be
authorized by the governing body of the Agency and executed and delivered on behalf of the
Agency by its undersigned officers on or before thirty (30) days after signing and delivery of this
Agreement by Participant, or this Agreement shall have no force or effect, except to the extent
that Participant shall consent in writing to a further extension of time for the authorization,
execution and delivery of this Agreement. The date of this Agreement shall be the date when it
shall have been signed by the Executive Director of the Agency evidence by the date shown next
to the authorized signatures of the Agency, below.
Section 22. Monitorine:
The Agency is responsible for managing the day-to-day operations of its HOME Program
for monitoring the performance of all entities receiving HOME funds from the Agency to ensure
compliance with the requirements of 24 CFR Part 92, and for taking appropriate action when
performance problems arise.
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IN WITNESS HEREOF, the Agency and Participant have executed this Agreement as of the
date first hereinabove set forth.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date
By:
PARTICIPANT
Frazee Community Center, a California
nonprofit corporation
Date
By:
Title:
By:
Title:
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Exhibit "A"
Legal Description of HOME Parcels
PARCEL 1
1441-1443 MOUNTAIN VIEW AVENUE
APN 0146-163-43000
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.5 FEET OF LOT
3, BLOCK 33, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, ST ATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 7, PAGE(S) 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 2
1495 MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA A VENUE
APN 0146-163-02000
LOT 3 OF TRACT NO. 1957, KIMMEL'S MAGNOLIA TRACT, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 28, PAGE(S) 55, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
PARCEL 3
1379 ARROWHEAD AVENUE
APN 0146-162-22000
LOT 10, BLOCK "B" OF EDELEN TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, ST ATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 5, P AGE(S) 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 4
1501-1503 PERSHING
APN 0146-132-18000
LOT 11, TRACT NO. 1785, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26 OF
MAPS, PAGE 19, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
P:\Agcndas\Agrecmcnts-Amcndmcnts\Agrmts-Amend 2004\04-07-06 Frazee Loan Agrecment.doc
Exhibit "B"
HOME Regulatory Agreement
P:\Agendas\Agreements.Amendments\Agrmts-Amend 2004\04.07-06 Frazee Loan Agreement.doc
EXHIBIT "B"
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
Recordation of this Instrument is
Exempt from all Fees and Taxes
FRAZEE COMMUNITY CENTER
HOME REGULATORY AGREEMENT, PROPERTY USE AND COVENANT
THIS REGULATORY AGREEMENT ("AGREEMENT") is entered into this 19th day
of July, 2004, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body (hereinafter known as "Agency"), and Frazee Community
Center, a California non-profit corporation (hereinafter known as "Participant").
RECITALS
WHEREAS, Participant has acquired from the Agency, pursuant to the terms of that
certain 2004 HOME-Community Housing Development Organization (CHDO) Loan
Agreement, dated as of July 19,2004, (the "Loan Agreement"), by and between the Participant
and the Agency, that certain real property located within the City and described as: 1441-1443
Mountain View Avenue; 1495 Mountain View Avenue and 195-197 Magnolia Avenue; 1379
Arrowhead Avenue; and 1501-1053 Pershing, a legal description of which is attached as Exhibit
"A" hereto (the "Property"); and
WHEREAS, Participant desires to manage eleven (11) units (herein "Affordable Units")
on the Property for occupancy at HOME Affordable Rents to HOME Qualified Low-Income
Households. The Agency loan Participant the amount of Five Hundred Twenty-Seven Thousand
Eight Hundred Eighty-Five Dollars ($527,885) of HOME Funds to acquire the Property (the
"Loan").
WHEREAS, the Agency has agreed to extend the Agency Loan to the Participant
pursuant to the terms and conditions of the Loan Agreement.
WHEREAS, the Agency has agreed to make the Agency Loan to the Participant on the
condition that the HOME Project (as defined in the Loan Agreement) be maintained and
operated in accordance with the HOME regulations and restrictions concerning affordability,
operation, and maintenance of the Project, as specified in this Agreement.
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WHEREAS, . a purpose of this Agreement is to ensure that Affordable Units which are
developed pursuant to the requirements hereunder shall be available to HOME eligible
Households with income at or below 80% of area median and for the term of twenty-five (25)
years and that rental units are to be maintained as Affordable Units in accordance with the
provisions of this Regulatory Agreement.
1. DEFINITIONS.
A. "Affordable Rent" shall mean the maximum rent allowed as established by the
Department of Housing and Urban Development HOME Program.
B. "Affordable Units" shall mean the units on the Property required to be available
to, occupied by, or held vacant for occupancy only to HOME Eligible Households and rented at
an Affordable Rent, as set forth in this Agreement.
C. "Agreement" shall mean this Regulatory Agreement.
D. "Agency" shall mean the Redevelopment Agency, City of San Bernardino, a
public body, corporate and politic.
E. "Agency Loan" shall mean the loan from HOME funds allocated to the
Participant, which loan is the subject of the Loan Agreement.
F. "HOME Assisted Units" shall mean the units designated as acquired and
rehabilitated with HOME loan proceeds rented to households with income at or below 80% of
area median income.
G. "HOME Program" shall mean the HOME Investment Partnership Act, 42 U.S.C.
~ 12701, et seq. as it now exists and as may hereafter be amended.
H. "HOME Regulations" shall mean the implementing regulations of the HOME
Program set forth at 24 CFR 92 as it now exists and, subject to the provisions of Section 2.2
herein, as may hereafter be amended.
I. "Loan Agreement" shall mean the 2004 HOME-Community Housing
Development Organization (CHDO) Loan Agreement, dated as of July 19, 2004, entered into by
and between the Participant and the Agency.
J. "Participant" shall mean Frazee Community Center, a California non-profit
corporation.
K. "Parties" shall mean the Agency and the Participant.
L. "HOME Project" shall have the meaning set forth in Section 2 (L) of the Loan
Agreement.
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M. "Property" shall mean the real property located in San Bernardino, California, as
more particularly described in the Project site description attached hereto as Exhibit A and
incorporated herein by reference, together with the buildings, fixtures and other improvements
located thereon.
N. "HOME Eligible Households" shall mean those households identified by the
United States Department of Housing and Urban Development with income at or below 80% of
the area median income.
O. "Term" shall mean the period commencing on the date of recordation of this
Agreement and ending on the date which is twenty-five (25) years following the date of
recordation of this Agreement.
II. LAND USE REGULA nONS
A. Permitted Uses. The Property shall be used only for private multi-family
rental dwelling purposes and related amenity uses, but for no other purposes. Throughout the
Term, the Participant covenants and agrees to make available, restrict occupancy to, and rent
each of the dwelling units on the Property as Affordable Units at an Affordable Rent as set forth
in Section B herein below. None of the dwelling units on the Property shall at any time be
utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel,
motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium
or rest home. The Participant shall not convert the Property to condominium ownership which
approval the Agency may grant, withhold or deny in its sole and absolute discretion.
B. Affordable Units. The Participant covenants and agrees for itself, its
successors, its assigns and every successor in interest to the Property or any part thereof, that
throughout the Term, the Participant, such successors and assigns, shall use, maintain and
operate the Property as specified in this Agreement. During the twenty-five (25) year term, all
uses undertaken by the Participant pursuant to this Agreement shall conform to the HOME
Regulations and HOME Program and to all applicable provisions of San Bernardino Municipal
Code. In the event the Participant desires to change the affordable housing, maintenance or
operation requirements for the Property from the specific requirements set forth in this
Agreement in order to comply with a subsequently enacted amendment to the HOME Program or
the HOME Regulations, Participant shall notify Agency in writing of such proposed change to
implementing such change. In the event the Agency disapproves of such change and the
Participant's interpretation of the amendment related thereto, Agency shall notify the Participant
of its disapproval in writing and the parties shall seek clarification from the appropriate HUD
Field Office. Only if HUD concurs with Participant's interpretation of the HOME Program and
HOME Regulations shall Participant be permitted to implement the proposed change.
1. Throughout the twenty-five (25) year Term, the Participant shall devote
each of the dwelling units located on the Property as Affordable Units which shall be rented and
occupied by or, if vacant available for rental and occupancy by, HOME Eligible Households.
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2. Prior to leasing an Affordable Unit, Participant shall verify the income
eligibility of the tenant applicant by obtaining verification of all household sources of income in
order to assure compliance with the rent and occupancy restrictions and monitoring requirements
of this Agreement. The Participant shall, upon request by the Agency, complete such income
verification on Agency-approved forms provided by the Agency.
C. Determination of Affordable Rent. All Affordable Units shall be rented at
Affordable Rent in accordance with this Section C and as required by the applicable sections of
the HOME Regulations.
1. Increases in Tenant Income. The units shall qualify as affordable housing
as required despite a temporary non-compliance with Section III A, of this part, if the non-
compliance is caused by increases in the incomes of existing tenants and if actions satisfactory to
HUD are being taken to ensure that all vacancies are filled in accordance with this section until
the non-compliance is corrected. Tenants who no longer qualify as low-income families must
pay fair market rent.
2. Adiustment of Affordable Rent. HUD may adjust the Affordable Rent
established for the Project under paragraph (1) of this section, only if HUD finds that an
adjustment is necessary to support the continued financial viability of the Project and only by an
amount that HUD determines is necessary to maintain financial viability of the Project.
3. Market Rent. Where the income of a tenant household may increase after
its initial occupancy to a level at which such tenant no longer qualifies as "low-income",
Participant may thereafter increase the rent payable by such tenant to a fair market rent for the
size of the Affordable Unit which such tenant occupies; provided however, that at such time as
such tenant may no longer lawfully occupy the Affordable Unit the rent payable for such
Affordable Unit shall be reset to an Affordable Rent for the HOME Eligible Household who next
occupies that Affordable Unit.
D. Tenant Protections.
1. Rental Agreement/Lease. The Participant shall execute or cause to be
executed a written rental agreement/lease in a form with each tenant household identifying by
name all permitted occupants, both adults and minors, occupying each Affordable Unit. The
rental agreement/lease between tenants occupying the Affordable Units and Participant must be
for not less than one year, unless by mutual agreement between the tenant and the Participant.
2. Prohibited Rental Agreement/Lease Terms. The rental agreement/lease
may not contain any ofthe following provisions:
a. Agreement to be sued. Agreement by the tenant to be sued, to
admit guilty, or to a judgment in favor of the Participant in a lawsuit brought in
connection with the lease;
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b. Treatment of property. Agreement by tenant that the Participant
may take, hold, or sell personal property of household members without notice to
the tenant and a court decision on the rights of the parties. This prohibition,
however, does not apply to an agreement by the tenant concerning disposition of
personal property remaining in the unit after the tenant has moved out of the unit.
The Participant may dispose of this personal property in accordance with state
law;
c. Excusing Participant from responsibility. Agreement by the tenant
not to hold Participant or Participant's agents legally responsible for any action or
failure to act, whether intentional or negligent;
d. Waiver of notice. Agreement of the tenant that the Participant may
institute a lawsuit without notice to the tenant;
e. Waiver of legal proceedings. Agreement by the tenant or
household members without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense, or before a court decision on the
rights of the parties;
f. Waiver of a iury trial. Agreement by the tenant to waive any right
to a trial by jury;
g. Waiver of right to appeal court decision. Agreement by the tenant
to waive the tenant's right to appeal, or to otherwise challenge in court, a court
decision in connection with the lease; and
h. Tenant chargeable with cost of legal actions regardless of outcome.
Agreement by the tenant to pay attorneys' fees or other legal costs even if the
tenant wins in a court proceeding by the owner against the tenant. The tenant,
however, may be obligated to pay costs if the tenant loses.
3. Termination of Tenancy. The Participant may not terminate the tenancy
or refuse to renew the lease of a tenant of the Project except for serious or repeated violation of
the terms and conditions of the lease; for violation of applicable federal, state, or local law; or for
other good cause. Any termination, except for termination for non-payment of rent, or refusal to
renew must be preceded by not less than 30 days by the Participant's service upon the tenant of a
written notice specifying the grounds for the action.
4. Tenant Selection. Participant shall not refuse to rent a unit in the Project
to a holder of a Rental Voucher or a Rental Certificate or comparable document evidencing
participation in the Section 8 Program or other tenant-based assistance program. Participant
must adopt written tenant selection policies that:
a. Are consistent with the purpose of providing housing for HOME
Eligible Households;
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b. Are reasonably related to HOME Program eligibility and the
applicants' ability to perform the obligations of the lease;
c. Give reasonable consideration to the housing needs of families that
would have a federal preference under Section 960.211 of Title II of the Cranston-
Gonzalez National Affordable Housing Act of 1992; and
d. Provide for:
(1) The selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable; and
(2) The prompt written notification to any rejected applicant of
the grounds for any rejection.
5. Tenant Certification. Participant shall require every tenant of the Property
to certify that he or she will not participate in illegal or gang related activities.
E. Compliance with Use and Occupancy Laws. Participant agrees that for each
lease, the Participant shall comply with all applicable state and local laws, statutes, ordinances,
rules and regulations, which in any way restrict the use and occupancy and resale of the Property.
F. Nondiscrimination. All dwelling units shall be available for occupancy on a
continual basis to members of the general public who are income eligible in accordance with
Article II hereof. There shall be no discrimination against or segregation of any person or group
of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry, or disability in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of any unit nor shall the Participant establish or permit any such practice or
practices of discrimination or segregation with reference to the election, location, subtenants, or
vendees of any unit or in connection with the employment of persons for the operation and
management of the Property. All deeds, rental agreements, leases or contracts made or entered
into by the Participant shall contain covenants concerning discrimination as prescribed by the
Loan Agreement.
Nothing in this Section II. F., is intended to require the Participant change the character,
design, use or operation of the Project form, or to require the Participant to obtain licenses or
permits other than those required for, a rental housing development for persons capable of
independent living.
III. OPERATION AND MANAGEMENT OF THE PROJECT
A. Compliance with Loan Agreement. The Participant shall comply with all the
terms and provisions of the Loan Agreement between the parties.
B. Taxes and Assessments. The Participant shall pay all real and personal property
taxes, assessments and charges and all franchise, income, employment, withholding, sales, and
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other taxes assessed against it, or payable by it, at such times and in such manner as to prevent
any penalty from accruing, or any lien or charge from attaching to the Property; provided,
however, that the Participant shall have the right to contest in good faith, any such taxes,
assessments, or charges. In the event the Participant exercises its right to contest any tax,
assessment, or charge against it, Participant, on final determination of the proceeding or contest,
shall immediately payor discharge any decision or judgment rendered against it, together with
all costs, charges and interest.
C. Operation and Management. Participant shall manage the maintenance and
operation of the Property, including the operation of the Transitional Housing Program (as that
term is defined in the Loan Agreement) or shall contract with a property management company
of well established character and reputation reasonably acceptable to the Agency for the
maintenance and operation of the Property, and such approval by the Agency shall not be
unreasonably withheld, conditional or delayed. In the event the Participant desires to designate a
replacement property manager, Participant shall also give written notice thereof to the Agency
and such approval by the Agency shall not be unreasonably withheld, conditioned or denied.
The Participant shall remain liable for the management, maintenance and operation of the
Property in accordance with the requirements herein.
D. Management Plan and Security. Participant shall prepare and submit a
Management Plan for the Property which will address issues of tenant responsibilities, owner
responsibilities, property maintenance and security concerns therein. Such Management Plan
shall be submitted and filed with the Agency. If more information is required, then Participant
agrees to provide such information.
Participant shall also prepare a Transitional Housing Program Management Plan which
will set forth the implementation of the Transitional Housing Program, including the day to day
costs for operating such a program as well as the obligations, responsibilities and duties of the
property manager, owner and tenants.
Participant agrees to submit a Status Report to the Agency on the first day of each quarter
of each year for the term of this Regulatory Agreement. Such Status Report shall be completed
in the form which is attached hereto as Exhibit B.
E. Record Keeping. Throughout the twenty-five (25) years of the Term, Participant
shall comply with all applicable record keeping and monitoring requirements set forth in Section
92.508 of the HOME Regulations and as they may be amended and shall annually complete and
submit to Agency a Certification of Continuing Program compliance in the form attached as
Exhibit C and provided to Participant by Agency. Participant shall keep all records and
documents pertaining to the Project for five (5) years after the expiration of the Regulatory
Agreement.
Representatives of the Agency shall be entitled to enter the Property, upon at least
twenty-four (24) hours notice, to monitor compliance with this Agreement, to inspect the records
of the Project with respect to the Affordable Units, and to conduct an independent audit of such
records. The Participant agrees to cooperate with the Agency in making the Property available
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for such inspection. If for any reason the Agency is unable to obtain the Participant's consent to
such an inspection, the Participant understands and agrees that the Agency may obtain at
Participant's expense an administrative inspection warrant or other appropriate legal order to
obtain access to and search the Property. Participant agrees to maintain records in a business-
like manner and make such records available to the Agency upon twenty-four (24) hours notice.
Unless the Agency otherwise approves, such records shall be maintained throughout the Term.
IV. OBLIGATION TO MAINTAIN, REPAIR AND REBUILD
A. Maintenance bv Participant. The Participant shall, at its sole cost and expense,
and as funds are available, maintain and repair the Property keeping the same in good condition
and making all repairs as they may be required by this Agreement and by all applicable
Municipal Code and Uniform Code provisions.
B. Maintenance and Replacement. The Participant shall, maintain the Property in
good repair and working order, and in a safe, decent and sanitary condition, including the
walkways, driveways and landscaping, and from time to time make all necessary and proper
repairs, renewals and replacements in order to keep the Property in a safe, decent and sanitary
condition. Participant shall manage and maintain the Project in accordance with all applicable
housing quality standards and local code requirements, concerning marketing, operation,
maintenance, repair, security, rental policy and method of selection of tenants.
C. Rental Housing Program. Participant shall participate and be certified in the City
of San Bernardino Crime Free Rental Housing Program, and Participant shall provide the
Agency upon its request, suitable evidence that the Participant, and its management and
operations employees or agents responsible for the Property, have participated and are certified
in such program.
D. Interior Maintenance. Participant shall maintain the interior of buildings,
including carpet, drapes and paint, in clean and habitable condition.
E. Exterior Building Maintenance. All exterior, painted surfaces shall be maintained
at all times in a clean and presentable manner, free from chipping, cracking and defacing marks.
All graffiti and defacement of any type, including marks, words and pictures must be removed
and any necessary painting or repair completed within seventy-two (72) hours of their creation or
within seventy-two (72) hours after notice to Participant.
F. Landscaping. All front set back areas that are not buildings, driveways or
walkways shall be adequately and appropriately landscaped in accordance with minimum
standards established by the Agency and shall be maintained in good condition in accordance
with the minimum standards established from time to time by the Agency.
G. Damage and Destruction Affecting Lots- Participant's Duty to Rebuild. If all or
any portion of the Property and the improvements thereon is damaged or destroyed by fire or
other casualty, it shall be the duty of the Participant to rebuild, repair or construct said portion of
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the Property and/or the improvements in a timely manner which will restore it to San Bernardino
Municipal or Building Code compliance condition as approved by the Agency.
In furtherance of the requirements of this Section IV B, Participant shall keep the
improvements on the Property insured by carriers at all times satisfactory to Agency against loss
by fire, rent loss and such other hazards, casualties, liabilities and contingencies as included
within an all risk extended coverage of the improvements. In the event of loss, Participant shall
give prompt notice to the insurance carrier and the Agency.
H. Time Limitation. Upon damage to the Property or the improvements thereon, the
Participant shall be obligated to proceed with all due diligence hereunder and commence
reconstruction within two (2) months after the damage occurs and complete reconstruction
within six (6) months after the damage occurs, or if appropriate to demolish and vacate the
Property within two (2) months, unless prevented by causes beyond its reasonable control.
I. Commercial Liability Insurance and Damage and Destruction Affecting Propertv-
Participant's Duty to Rebuild. Participant shall obtain and keep in full force and effect during
the Term a policy of commercial liability insurance which names the Agency, its officers and
employees, as additional insured, covering personal injury and damage to property by fire, rent
loss and such other hazards, casualties, liabilities and contingencies as included within an all risk
extended coverage of the improvements arising out of the Participants operation of the Project
under this Agreement with minimum limits of liability for personal injury of $1 ,000,000 for each
occurrence and $2,000,000 aggregate and such insurance policy shall be issued by a California
admitted insurance company who bears an insurance rating of not less than "A(iv)" in Best's
Insurance Guide, current edition. If all or any portion of the Property and the improvements
thereon is damaged or destroyed by fire or other casualty, it shall be the duty of the Participant to
rebuild, repair or construct said portion of the Property and/or the improvements in a timely
manner which will restore it to San Bernardino Municipal or Uniform Building Code compliance
condition as approved by the Agency. Participant shall provide the Agency with evidence of
such coverage of insurance annually in form reasonably satisfactory to the Agency.
V. MISCELLANEOUS PROJECT REQUIREMENTS
A. Equal Opportunity. As set forth in section 92.350 of the HOME Regulations, no
person shall be excluded from participation in, be denied the benefits of or be subjected to
discrimination under any program or activity funded in whole or in part with HOME funds.
B. Affirmative Marketing. As required by Section 92.351 of the HOME
Regulations, Participant must adopt affirmative marketing procedures and requirements. These
must include:
1. Methods for informing the public;
2. Requirements and practices that Participant must adhere to in order to
carry out the City of San Bernardino's affirmative marketing procedures and
requirements;
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3. Procedures used by Participant to inform and solicit applications from
persons in the housing market area who are not likely to apply without special outreach;
4. Records that will be kept for a period of five (5) years after the expiration
of the affordability period describing actions taken by Participant to affirmatively market
units and records to assess the results of these actions; and
5. A description of how the Participant will assess the success of affirmative
marketing actions and what corrective actions will be taken where affirmative marketing
requirements are not met.
C. Displacement. Relocation and Acquisition. The Participant must ensure that it
has taken all reasonable steps to minimize the displacement of persons as a result of this Project
assisted with HOME funds.
D. Lead-Based Paint. It is understood that the Project is subject to 24 CFR, Part 35.
This requirement shall be met as required by that section and any cost of rehabilitation on the
Property shall be disclosed to the Agency as such should testing and abatement be undertaken.
E. Conflict of Interest. Participant will hereby comply with all requirements set
forth regarding conflict of interest provisions as they apply in Section 92.356 of the HOME
Regulations.
F. Debarment and Suspension. As required in Section 92.357 of the HOME
Regulations, Participant will comply with all debarment and suspension certifications.
G. Flood Insurance. Under the Flood Disaster Protection Act of 1973, HOME funds
may not be used with respect to the acquisition or rehabilitation of a project located in an area
identified by the Federal Emergency Management Agency (FEMA) as having special flood
hazards, unless:
1. The community in which the area is situated is participating in the
National Flood Insurance Program, or less than a year has passed since FEMA
notification regarding such hazards; and
2. Flood insurance is obtained as a condition of approval of the commitment.
VII. ENFORCEMENT AND REMEDIES
A. Remedies. In the event of default or breach of any of the terms or conditions of
this Agreement by Participant, its heirs, executors, administrators or assigns, Agency may pursue
the remedy thereof by any and all means of enforcement, both in equity and at law, as provided
by the laws of the State of California, including, but not limited to, injunctive relief and/or
specific performance.
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B. Rights of the Agency. The Agency has the right to enforce all of the provisions of
this Agreement. This Agreement does not in any way infringe on the right or duties of the
Agency to enforce any of the provisions of the Municipal Code including, but not limited to, the
abatement of dangerous buildings. In addition to the general rights of enforcement, the Agency
shall have the right, through its agents and employees, to enter upon any part of the Property for
the purpose of enforcing the California Vehicle Code, and the ordinances and other regulations
of the City, and for maintenance and/or repair of any or all publicly owned utilities.
C. Nuisance. The result of every act or omission whereby any of the covenants
contained in this Agreement are violated in whole or in part is hereby declared to be and
constitutes a nuisance, and every remedy allowable at law or equity, against a nuisance, either
public or private, shall be applicable against every result and may be exercised by any owner or
its successors in interest, without derogation of the Agency's rights under law.
D. Right of Entry. The Agency has the right of entry at reasonable hours and upon
and after reasonable attempts to contact Participant or Operator, to effect emergency repairs or
maintenance which the Participant or Owner has failed to perform. Subsequent to sixty (60)
days written notice to the Participant or owner specifically outlining the non-compliance the
Agency shall have the right of entry at reasonable hours to enforce compliance with this
Agreement which the Participant or Operator has failed to perform.
E. Costs of Repair. The costs borne by the Agency of any such repairs or
maintenance emergency and/or non-emergency, shall become a charge for which Participant
shall be responsible; and may, if unpaid, be assessed as a lien against the Property.
F. Cumulative Remedies. The remedies herein provided for breach of the covenants
contained in this Agreement shall be deemed cumulative, and none of such remedies shall be
deemed exclusive.
G. Failure to Enforce. The failure to enforce any of the covenants contained in this
Agreement shall not constitute a waiver of the right to enforce the same thereafter.
VIII. HOLD HARMLESS
Participant agrees to defend and to hold Agency, and its officer, agents, employees,
representatives, elected and appointed boards and officials harmless from liability for damage or
claims for any type of damage including, but not limited to, personal injury and claims for
property damage, which may arise from the activities of Participant or those of Participant's
contractors, subcontractors, agents, employees or other persons acting on Participant's behalf and
which relate to the Project. Participant agrees to and shall defend Agency, and its officers,
agents, employees, representatives, elected and appointed boards and officials from any action
for damages caused or alleged to have been caused by reason of Participant's activities in
connection with the Project.
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IX. ASSIGNMENT OF AGREEMENT
This Agreement shall be binding upon Participant, its executors, administrators and
assigns and all persons claiming under or through Participant. Wherever this Agreement
employs the term "Participant", it shall be deemed to include Participant, its executors,
administrators and assigns and all persons claiming under or through Participant. Participant
shall not voluntarily assign any of its rights or obligations under this Agreement without the prior
written consent of the Agency and any purported assignment made without said consent shall be
null and void for all purposes.
X. RECORDATION
Participant agrees that this Agreement and any amendment or cancellation hereof shall be
recorded in the official records of San Bernardino County by Participant within ten (10) days
after the effective date of this Agreement and within ten (10) days after any amendment or
cancellation hereof. Participant agrees to provide Agency with two copies of the recorded
Agreement within five (5) days of the recording date.
XI. NOTICE
Written notice, demands and communications between Agency and Participant shall be
deemed sufficient if dispatched by first class mail, postage prepaid, to the principal offices of the
Agency and Participant, the addresses of which are hereinafter set forth. Such written notices,
demands and communications may be sent in the manner prescribed to each other's addresses as
either party may, from time to time, designate by mail, or the same may be deliver in person to
representatives of either party upon such premises. Said addresses are as follows:
If to Agency:
Redevelopment Agency
Attention: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
If to Participant:
Frazee Community Center
Attention: Executive Director
1140 West Mill Street
San Bernardino, California 92410
Notices herein shall be deemed given as of the date of personal service or three (3)
consecutive calendar days after deposit of the same in the custody of the United States Postal
Service.
XII. WAIVER
Failure by a party to insist upon the strict performance of any of the provisions of this
Agreement by other party or the failure by the party to exercise its rights under or upon a default
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by the other party herein shall not constitute a waiver or such party's right to demand strict
compliance from such other party in the future.
XIII. SEVERABILITY
If anyone or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provisions shall be deemed
severable from the remaining provisions contained in this Agreement, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision(s) had never been contained
herein.
XN. CAPTION AND PRONOUNS
The captions and headings of the various sections of this Agreement are for convenience
only, and are not to be construed as confining or limiting in any way the scope or intent of the
provisions hereof. Whenever the context requires or permits, the singular shall include the
plural, the plural shall include the singular, and masculine, feminine and neuter shall be freely
interchangeable.
XV. ATTORNEYS' FEES
In any action to interpret or enforce any provisions of this Agreement, the prevailing
party shall be entitled to its costs and reasonable attorneys' fees. For the purposes hereof,
"reasonable attorneys' fees" means and includes the salaries and benefits of lawyers employed
by the Office of City Attorney of the City of San Bernardino who provide legal services to the
Agency in connection with any such enforcement proceedings.
XVI. MODIFICATION OF AGREEMENT
This Agreement may be modified or amended by mutual consent of all of the parties,
provided that all amendments are in writing.
XVII. SOLE AND ONLY AGREEMENT
This Agreement, including the documents referenced herein, contains the sole and entire
agreement and understanding of the parties with respect to the subject matter hereof.
No representations, oral or otherwise, express or implied, other than those contained
herein, have been made by the parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
PARTICIPANT
AGENCY
Frazee Community Center
a California non-profit Corporation
Redevelopment Agency of the
City of San Bernardino
By:
Title:
By:
By:
Title:
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Exhibit "A"
Legal Description
PARCEL 1
1441-1443 MOUNTAIN VIEW AVENUE
APN 0146-163-43000
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.5 FEET OF LOT
3, BLOCK 33, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 7, PAGE(S) 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 2
1495 MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
APN 0146-163-02000
LOT 3 OF TRACT NO. 1957, KIMMEL'S MAGNOLIA TRACT, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 28, PAGE(S) 55, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
PARCEL 3
1379 ARROWHEAD AVENUE
APN 0146-162-22000
LOT 10, BLOCK "B" OF EDELEN TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, ST ATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 5, PAGE(S) 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 4
1501-1503 PERSHING
APN 0146-132-18000
LOT 11, TRACT NO. 1785, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26 OF
MAPS, PAGE 19, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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Exhibit "B"
Quarterly Status Report
Property HOUSEHOLD Occupied
Address/U ni t Bedroom/Bathroom Unit
Number Size Size Ethnicitv Income Rent Yes No
Total Number of Units occupied:
Vacant:
Total Number oflow income unit(s) designated:
Number of low income units occupied:
Vacant:
Replacement units designated for the Quarter:
The above information is full, true and complete to the best of my knowledge.
Date:
Signature:
Frazee Representative
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Exhibit "c"
Certificate Of Continuing Program Compliance
Date:
, 2004
The following information with respect to the eleven (11) units acquisition and
rehabilitation (the "Project"), is being provided by Neighborhood Housing Services of the Inland
Empire, Inc. (the "Borrower") to the Redevelopment Agency of the City of San Bernardino (the
"Agency") pursuant to that certain Regulatory Agreement and Declaration of Restrictive
Covenants dated as of , 2004 (the "Regulatory Agreement"), with respect
to the Project:
(A) The total number of residential units which are completed and available for
occupancy is _' The total number of such units occupied is
(B) The following residential units (identified by unit number) have been designated
for occupancy by "Qualified Tenants", as such term is defined in the Regulatory Agreement (for
a total of ):
(C) The following residential units which are included in (B) above, have been
redesignated as units for Qualified Tenants since , 2004, the date on which the
last "Certificate of Continuing Program Compliance" was filed with the Issuer by the Borrower:
Unit
Number/Address
Previous Designation
of Float Units (if any)
Replacing Float
Units Number
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(D) The following residential units are considered to be occupied by Qualified
Tenants based on the information set forth below:
Number
of Total
Date Unit Persons Adjusted Ini tial
Number of Unit Became Name of Residing Gross Occupancy
Units/Address Size Available Tenant in Unit Ethnicitv Income Date
(E) The Borrower has obtained a "Certification of Tenant Eligibility," in the form
provided as Exhibit "c" to the Regulatory Agreement, from each Tenant named in (D) above,
and each such Certification is being maintained by the Borrower in its records with respect to the
Project. Attached hereto is the most recent "Certification of Tenant Eligibility" for each Tenant
named in (D) above who signed such a Certification since , 2004, the date on
which the last "Certificate of Continuing Program Compliance" was filed with the Agency by the
Borrower.
(F) In renting the residential units III the Project, the Borrower has not gIven
preference to any particular group or class of persons (except for persons who qualify as
Qualified Tenants); and none of the units listed in (D) above have been rented for occupancy
entirely by students, no one of which is entitled to file a joint return for federal income tax
purposes. All of the residential units in the Project have been rented pursuant to a written lease,
and the term of each lease is at least months.
(G) The information provided in this "Certificate of Continuing Program
Compliance" is accurate and complete, and no matters have come to the attention of the
Borrower which would indicate that any of the information provided herein, or in any
"Certification of Tenant Eligibility" obtained from the Tenants named herein, is inaccurate or
incomplete in any respect.
18
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19
P:\Agendas\Agreements4Amendments\Agrmts.Amend 2004\04-06-21 2004 Frazee Regulatory Agreemenl.doc
Exhibit "e"
General Form of Promissory Note
P:\Agendas\Agreements-Amendments\Agnnts-Amend 2004\04-07-06 Frazee Loan Agreement.doc
Exhibit "c"
GENERAL FORM OF PROMISSORY NOTE
Frazee Community Center
1140 West Mill Street
San Bernardino, California 92410
2004 HOME-CHDO
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
Borrower:
Lender:
Frazee Community Center,
a California nonprofit corporation
Redevelopment Agency of
the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Principal Amount: $527,885
Date of Promissory Note:
,2004
Maturity Date of Promissory Note:
,2029
PROMISE TO PAY. Frazee Community Center, a California non-profit corporation, (hereafter
the "Borrower") promises to pay to the Redevelopment Agency of the City of San Bernardino
(the "Agency"), or order, in lawful money of the United States of America, the principal amount
of Five Hundred Twenty-Seven Thousand Eight Hundred Eighty-Five Dollars ($527,885), or so
much as may be outstanding under this Promissory Note.
INDEBTEDNESS. This Promissory Note evidences the indebtedness of the Borrower to the
Agency under the terms 2004 HOME Community Housing Development Organization (CHDO)
Multi-family Loan Agreement dated as of July 19,2004, (the "HOME Loan Agreement") by and
among the Borrower and the Agency. A copy of the Loan Agreement is on file with the Agency
Secretary as a public record of the Agency.
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PAYMENT. The outstanding principal balance of this Promissory Note shall be payable on the
twenty-fifth (25th) anniversary following the date of this Promissory Note (the "Maturity Date"),
subject to the provisions of the next paragraph:
Provided that if the Borrower has timely submitted to the Agency the "tenant eligibility
certificates" as required under the HOME Loan Agreement for each annual reporting
period and that Borrower is not otherwise in default under the HOME Loan Agreement,
the Agency shall credit to the account of the Borrower as a prepayment of this
Promissory Note the sum of Twenty-One Thousand One Hundred Fifteen and 40/100
Dollars ($21,115.40) [e.g. 1/25th of the original principal balance] as of each anniversary
date following the date of this Promissory Note next following the Agency's receipt of
such tenant eligibility certificates.
INTEREST. Provided that no default has occurred, no interest shall occur or be payable to the
Agency on this Promissory Note. In the event that a default has occurred and has not been cured
and in addition to any other remedy which the Agency may seek, then a default rate of interest
shall occur on the then outstanding prepaid balance of this Promissory Note at a rate per annum
of ten percent (10%) payable to the Agency, commencing on the date of such default until such
default is cured and the default interest amount is paid to the Agency. Interest shall be payable
to the Agency within thirty (30) days of written demand thereof.
PREP A YMENT. Borrower may pay without penalty all or prorated portion of the amount
owed under this Promissory Note earlier than it is due.
SPECIAL EVENT OF ACCELERATION. The outstanding principal balance of this
Promissory Note, is subject to acceleration prior to the Maturity Date upon the occurrence of any
of the following each of which is referred to as a "special event of acceleration":
(a) the Borrower sells or transfers its interest to any person other than a permitted Successor-
In-Interest as set forth in the HOME Loan Agreement;
(b) the Borrower ceases to utilize the property for its original affordable rental housing
purposes.
DEFAULT. Borrower will be in default if any of the following happens:
(a) Borrower breaks any promise Borrower made to the Agency in the HOME Loan
Agreement, or Borrower fails to comply with or to perform when due any other term,
obligation, covenant, or condition contained in this Promissory Note or any agreement
related to this Promissory Note.
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(b) Borrower defaults under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's ability to repay this
Promissory Note or the ability of Borrower to perform its other obligations under this
Promissory Note or the Deed of Trust.
(c) Any representation or statement made or furnished to the Agency by Borrower or on
Borrower's behalf under the HOME Loan Agreement is false or misleading in any
material respect either now or at the time made or furnished.
(d) Any creditor tries to take any of Borrower's property on or in which the Agency has a
lien or security interest.
(e) A material adverse charge occurs in Borrower's financial condition, or the Agency
believes the prospect of performance of the Borrower's obligations under the HOME
Loan Agreement is impaired.
If any default (other than a default described in (a)or (d), above) is curable, and if Borrower has
not been given a notice of a default of the same provision of this Promissory Note within the
preceding twelve (12) months, such a default may be cured (and in such event no default will be
deemed to have occurred) if Borrower, after receiving written notice from the Agency
demanding cure of such default:
(i) cures the default within ten (10) days; or
(ii) if the cure requires more than ten (10) days, immediately initiates steps which the Agency
deems in its sole discretion to be sufficient to cure the default, and thereafter Borrower
continues and
ASSIGNMENT AND ASSUMPTION OF THIS PROMISSORY NOTE BY A PERMITTED
SUCCESSOR-IN-INTEREST APPROVED BY THE HOLDER. The Borrower may assign its
obligation to pay the Agency the principal of this Promissory Note to a permitted Successor-In-
Interest approved in writing by the Agency, and such approval shall not be umeasonably
withheld. The words "Successor-In-Interest" mean a successor at any time prior to the Maturity
Date by purchase, assignment, transfer or otherwise. The Successor-In-Interest shall be a
successor that satisfies the requirements of the HOME Loan Agreement and the Agency Deed of
Trust.
RIGHTS OF THE HOLDER. Upon default the Agency may exercise any of its rights provided
under the HOME Loan Agreement, as this term is defined herein including without limitation,
the declaration by the Agency that the entire unpaid principal balance on this Promissory Note is
immediately due, without notice, and then Borrower will pay that amount. The Agency may hire
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or pay someone else to help collect this Promissory Note if the Borrower does not pay. The
Borrower also will pay the Agency that amount. This includes, subject to any limits under
applicable law, the Agency's reasonable attorneys' fees and the legal expenses of the Agency
whether or not there is a lawsuit, including reasonable attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. The Borrower also will pay any
court costs, in addition to all other sums provided by law. This Promissory Note has been
delivered to the Agency and accepted by the Holder in the State of California. If there is a
lawsuit arising under this Promissory Note, the Superior Court of San Bernardino County, the
State of California, shall have jurisdiction of such lawsuit. This Promissory Note shall be
governed by and construed in accordance with the laws of the State of California.
COLLATERAL. The Borrower acknowledges this Promissory Note is secured by a deed of
trust and assignment of rents of even date herewith (the "Agency Deed of Trust"). Such Agency
Deed of Trust affects the property as generally described as
Parcel 1 consists of two (2) rental dwelling units: 1441-1443 Mountain
View;
Parcel 2 consists of three (3) rental dwelling units: 1495 Mountain View
and 195-197 West Magnolia;
Parcel 3 consists oftwo (2) rental dwelling units: 1501-1503 Pershing; and
Parcel 4 consists offour (4) rental dwelling units: 1379 Arrowhead
San Bernardino, California (collectively, the "Property"). The Agency Deed of Trust contains
the following due on sale/due on special event of acceleration provision:
"THE AGENCY MAY, AT ITS OPTION, DECLARE IMMEDIATELY DUE AND PAYABLE
ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE OCCURRENCE OF A
SPECIAL EVENT OF ACCELERATION, AS THIS TERM IS DEFINED BELOW.
A "special event of acceleration" shall occur when there is a sale, transfer, or conveyance of any
right, title or interest in the Property to any person other than a permitted Successor-In-Interest,
who has been approved in writing by the Lender as set forth above in the section entitled
"Permitted Successor-In-Interest," whether such sale, refinancing or transfer is legal, beneficial,
or equitable, whether voluntary or involuntary, whether by sale, deed, installment sale contract,
land contract, lease option contract, or by sale, assignment, or transfer of any beneficial interest
in the Property to any land trust."
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GENERAL PROVISIONS. The Agency may delay or forego enforcing any of its rights or
remedies under this Promissory Note without losing them. The Borrower and any other person
who signs, guarantees or endorses the Promissory Note, to the extent allowed by law, waive any
applicable statute of limitations, presentment, demand for payment, protest and notice of
dishonor. Upon any change in the terms of this Promissory Note, and unless otherwise expressly
stated in writing, no party who signs this Promissory Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such parties agree that
the Agency may renew or extend (repeatedly and for any length of time) this Promissory Note,
or release any party, or guarantor or collateral; or impair, fail to realize upon or perfect its
security interest in the collateral; and take any other action deemed necessary by the Agency in
its sole discretion without the consent of or notice to anyone. All such parties also agree that the
Agency may modify this Promissory Note and/or the Loan Agreement in writing without the
consent of or notice to anyone other than the party with whom the modification is made. The
Agency may assign its interest in this Promissory Note and the Deed of Trust to a third party at
any time.
PRIOR TO SIGNING THIS PROMISSORY NOTE, BORROWER HAS READ AND
UNDERSTANDS ALL OF ITS PROVISIONS. BORROWER AGREES TO THE TERMS OF
THIS PROMISSORY NOTE AND ACKNOWLEDGES RECEIPT OF A COpy HEREOF.
IN WITNESS WHEREOF this Promissory Note is executed as ofthe date first set forth above.
BORROWER:
Frazee Community Center,
a California non-profit corporation
By:
Title:
By:
Title:
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IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of the
Borrower, on ,2004.
FRAZEE COMMUNITY CENTER, INC.
By:
Executive Director
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Exhibit "D"
General Form of Deed of Trust
P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-06 Frazee Loan Agreement.doc
RECORDATION REQUESTED BY:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Third Floor
San Bernardino, California 92401-1507
Attn: Executive Director
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
Frazee Community Center
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FIXTURE FILING (the "Deed of Trust") is dated
July 19, 2004, among Frazee Community Center (the "Trustor"), whose
address is 1140 West Mill Street, San Bernardino, California 92405;
the Redevelopment Agency of the City of San Bernardino, a body
corporate and politic, whose address is 201 North "E" Street, Third
Floor, San Bernardino, California 92401-1507 (the "Lender" or the
"Beneficiary"); and First American Title Insurance Company (the
"Trustee") .
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 I s right , title, and interest in and to that
certain real property described (APN 0146-163-43000, APN 0146-
163-02000, APN 0146-162-22000 and APN 0146-132-18000) in
Exhibit "A" attached hereto and incorporated herein by this
reference (the "Property"), together with all existing or
subsequently erected or affixed buildings, improvements and
fixtures; all easements, rights of way, and appurtenances and
all other rights, royalties, and profits relating to the real
property, including and without limitation all minerals, oil,
gas, geothermal and similar matters located in San Bernardino
County, State of California (the "Mortgaged Property").
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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 Mortgaged Property and all Rents from the Mortgaged
Property. In addition, Trustor grants Lender a Uniform
Commercial Code security interest in the Rents and the Personal
Property as set forth herein.
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. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino, a body corporate and
politic, its successors and assigns.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust and Assignment of Leases and Rents and Fixture Filing
among Trustor, Lender, and Trustee, and includes without
limi tat ion all assignment and security interest provisions
relating to the Personal Property and Rents.
Improvements. The word "Improvements" means and includes all
existing improvements on the Property and all improvements to
be constructed on the Property.
Indebtedness. The word "Indebtedness" means all principal and,
if applicable, interest payable under the Promissory Note and
any amounts expended or advanced by Lender to discharge
obligations of Trustor or expenses incurred by Trustee or
Lender to enforce obligations of Trustor under the Promissory
Note and this Deed of Trust, together with interest on such
amounts. This Deed of Trust secures, in addition to the
amounts specified in the Promissory Note, any future advances,
together with all interest thereon, that may be made by the
Lender pursuant to the Loan Agreement and/or the Related
Documents so long as Trustor complies with all the terms and
conditions of the Promissory Note, Loan Agreement and/or the
Related Documents.
Lender. The word "Lender" means the Redevelopment Agency of
the City of San Bernardino, its successors and assigns.
Loan Agreement. The words "Loan Agreement" mean that
certain 2000 HOME Loan Agreement, dated as of July 19, 2004, by
and between the Trustor and the Lender which provides for the
loan to the Trustor which is secured by this Deed of Trust.
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Mortgaged Property. The
refer to the Property,
Rents, together with:
words "Mortgaged Property mean and
Improvements, Personal Property and
all right, title, and interest (including any claim or
demand or demand in law or equity) that Trustor now has or
may later acquire in or to such Mortgaged Property; all
easements, rights, privileges, tenements, hereditaments,
and appurtenances belonging or in any way appertaining to
the Mortgaged Property; all of the estate, right, title,
interest, claim, demand, reversion, or remainder of
Trustor in or to the Mortgaged Property, either at law or
in equity, in possession or expectancy, now or later
acquired; all exterior landscaping on the Mortgaged
Property; all development rights or credits and air
rights; all water and water rights (whether or not
appurtenant to the Mortgaged Property) and shares of stock
pertaining to such water or water rights, ownership of
which affects the Mortgaged Property; all minerals, oil,
gas, and other hydrocarbon substances and rights thereto
in, on, under, or upon the Mortgaged Property and all
royalties and profits from any such rights or shares of
stock; all right, title, and interest of Trustor in and to
any streets, ways, alleys, strips, or gores of land
adjoining the Property or any part of it that Trustor now
owns or at any time later acquires and all adjacent lands
within enclosures or occupied by buildings partly situated
on the Mortgaged Property;
all intangible Mortgage Property and rights
the Mortgaged Property or its operation
connection with it, including, without
permits, licenses, plans, specifications,
contracts, subcontracts, bids, deposits
services, installations, refunds due Trustor,
trademarks, and service marks;
relating to
or used in
limitation,
construction
for utility
trade names,
all of the right, title, and interest of Trustor in and to
the land lying in the bed of any street, road, highway, or
avenue in front of or adjoining the Property;
any and all awards previously made or later to be made by
any governmental authority to the present and all
subsequent owners of the Mortgaged Property that may be
made with respect to the Mortgaged Property as a result of
the exercise of the right of eminent domain, the
alteration of the grade of any street, or any other injury
to or decrease of value of the Mortgaged Property, which
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award or awards are assigned to the Lender, and which the
Lender, at its option, is authorized, directed, and
empowered to collect and receive the proceeds of any such
award or awards from the authorities making them and to
give proper receipts and acquittances for them, and to
apply them as provided in this Deed of Trust;
all leases of the Mortgaged Property or any part of it now
or later entered into and all right, title, and interest
of the Trustor under such leases, including cash or
securities deposited by the tenants to secure performance
of their obligations under such leases (whether such cash
or securities are to be held until the expiration of the
terms of such leases or applied to one or more of the
installments of rent coming due immediately before the
expiration of such terms), all rights to al insurance
proceeds and unearned insurance premiums arising from or
relating to the Mortgaged Property, all other rights and
easements of the Trustor now or later existing pertaining
to the use and enjoyment of the Mortgaged Property, and
all right, title, and interest of the Trustor in and to
all declarations of covenants, conditions, and
restrictions as may affect or otherwise relate to the
Mortgaged Property;
any and all proceeds of any insurance policies covering
the Mortgaged Property, whether or not such insurance
policies were required by the Lender as a condition of
making the loan secured by this Deed of Trust or are
required to be maintained by the Trustor as provided below
in this Deed of Trust; which proceeds are assigned to the
Lender, and which the Lender, at its option, is
authorized, directed, and empowered to collect and receive
the proceeds of such insurance policies from the insurers
issuing the same and to give proper receipts and
acquittances for such policies, and to apply the same as
provided below;
all plans and specifications for the Improvements; all
contracts and subcontracts relating to the Improvements;
all deposits (including tenants' security deposits;
provided, however, that if the Lender acquires possession
or control of tenants' security deposits the Lender shall
use the tenants' security deposits only for such purposes
as governmental requirements permit), funds, accounts,
contract rights, instruments, documents, general
intangibles, and notes or chattel paper arising from or in
connection with the Property or other Mortgaged Property;
all permits, licenses, certificates, and other rights and
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privileges obtained in connection with the Property or
other Mortgaged Property; all soils reports, engineering
reports, land planning maps, drawings, construction
contracts, notes, drafts, documents, engineering and
architectural drawings, letters of credit, bonds, surety
bonds, any other intangible rights relating to the
Property and Improvements, surveys, and other reports,
exhibits, or plans used or to be used in connection with
the construction, planning, operation, or maintenance of
the Property and Improvements and all amendments and
modifications; all proceeds arising from or by virtue of
the sale, lease, grant of option, or other disposition of
all or any part of the Property, Personal Property, or
other Mortgaged Property (consent to same is not granted
or implied); and all proceeds (including premium refunds)
payable or to be payable under each insurance policy
relating to the Property, the Personal Property, or other
Mortgaged Property;
all tax refunds, bills, notes, inventories, accounts and
charges receivable, credits, claims, securities, and
documents of all kinds, and all instruments, contract
rights, general intangibles, bonds and deposits, and all
proceeds and products of the Trustor in the Mortgaged
Property;
all accounts, contract rights, chattel paper, documents,
instruments, books, records, claims against third parties,
money, securities, drafts, notes, proceeds, and other
items relating to the Mortgaged Property;
all proceeds of any of the foregoing.
As used in this Deed of Trust, "Mortgaged PropertyH is
expressly defined as meaning allor, when the context permits
or requires, any portion of it and allor, when the context
permits or requires, any interest in it.
Personal Property. The words "Personal Property" mean all of
the right, title and interest of Trustor now or hereafter
existing in and to the following now or hereafter located in,
upon, within or about, or used in connection with or generated
by the construction, use, operation or occupancy of the
Property and any business or acti vi ty conducted thereon or
therein, together with all accessories, additions, accessions,
renewals, replacements and substitutions thereto or therefore
and the proceeds and products thereof: (a) all materials,
supplies, furni ture, floor coverings window coverings,
furnishings, appliances, office supplies, equipment,
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construction materials, vehicles, machinery, computer hardware
and software, maintenance equipment, window washing equipment,
repair equipment and other equipment, tools, telephone and
other communications equipment, food service preparation
equipment and utensils, chinaware, glassware, silverware and
hollowware, food and beverage service equipment, food items and
food stuffs; (b) all books, ledgers, records accounting
records, files, tax records and returns, policy manuals,
papers, correspondence, and electronically recorded data; (c)
all "General IntangiblesH (as defined in the California Uniform
Commercial Code), instruments, money, "AccountsH (as defined in
the California Uniform Commercial Code), accounts receivable,
notes, certificates of deposit, chattel paper, letters of
credit, chooses in action, good will, rights to pay of money,
rents, rental fees, equipment fees and other amounts relating
to the development or use of the Property or payable by persons
who utilize the Property or any of the Improvements or paid by
persons in order to obtain the right to use the Property and
any of the Improvements, whether or not so used; trademarks,
service marks, trade dress, trade names, licenses, sales
contracts, deposits, plans and specifications, drawings,
working drawings, studies, maps, surveys; soils, environmental
engineering or other reports, architectural and engineering
contracts, construction contracts, construction management
contracts, surety bonds, feasibility and market studies,
management and operating agreements, service agreements and
contracts, landscape maintenance agreements, security service
and other services agreements and vendors agreements; (d) all
compensation, awards and other payments of relief (and claims
therefore) made for a taking by eminent domain, or by any event
in lieu thereof (including, without limitation, property and
rights and interests in property received in lieu of any such
taking), of all or any part of such Personal Property, together
with interest thereon, and any and all proceeds (or claims for
proceeds) of casualty, liability or other insurance pertaining
to such Personal Property, together with interest thereon; (e)
any and all claims or demands against any person with respect
to damage or diminution in value to such Personal Property or
damage or diminution in value to any business or other activity
conducted on Property; (f) any and all security deposits,
deposi ts of security or advance payments made to others to
Trustor with respect to: (i) insurance policies relating to the
Property; (ii) prepayments and/or periodic deposits or
improvements for property taxes or assessments of any kind or
nature affecting the Property; (iii) utility services for the
Property and/or the Improvements; (iv) maintenance, repair or
similar services for the Property or any other services or
goods to be used by any business or other activity conducted on
the Property; (g) any and all authorizations, consents,
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licenses, permits and approvals of and from all persons
required from time to time in connection with the construction,
use, occupancy or operation of the Property, the improvements,
or any business or activity conducted thereon or therein or in
connection with the operation, occupancy or use thereof; (h)
all warranties, guaranties, utility or street improvement
bonds, construction completion and payment surety bonds,
utility contracts, telephone exchange numbers, yellow page or
other directory advertising and the like; (i) all goods,
contract rights, and inventory; (j) all leases and use
agreements of machinery, equipment and other personal property;
(k) all insurance policies covering all or any portion of the
Property; (I) all reserves and funds held in escrow by the
Lender or other persons for the Lender's benefit under the Loan
Agreement and all funds deposited with the Lender pursuant to
the Loan Agreement, all accounts into which such funds are
deposited and all accounts, contract rights and general
intangibles or other rights relating thereto; (m) all names by
which the Property is now or hereafter known; (n) all interests
in the security deposits of tenants; (0) all management
agreements, blueprints, plans, maps, documents, books and
records relating to the Property; (p) the proceeds from sale,
assignment, conveyance or transfer of all or , any portion of
the Property or any interest therein, or from the sale of any
goods, inventory or services from upon or within the Property
and/or the Improvements; ) (q) all documents of membership in an
owner or members association or similar group having
responsibility for managing or operating any part of the
Property; (r) all other property (other than "Fixtures," as
defined in the Uniform Commercial Code) of any kind or
character as defined in or subject to the provisions of the
California Uniform Commercial Code, Secured Transactions, as
amended and; (s) all proceeds of the conversions, voluntarily
or involuntarily, of any of the foregoing into cash or
liquidated claims.
Promissory Note. The words "Promissory Note" mean the
Promissory Note of even date herewith, in the principal amount
of five hundred twenty-seven thousand eight hundred eighty-five
dollars ($527,885) delivered by the Trustor to the
Redevelopment Agency of the City of San Bernardino, as Lender,
together with all renewals, extensions, modifications,
refinancing, and substitutions for the Promissory Note.
Related Documents. The words "Related Documents" mean and
include without limitation all promissory notes, credit
agreements, loan agreements, guaranties, security agreements,
mortgages, deeds of trust, and all other instruments,
agreements and documents, by and between the Trustor and the
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Lender whether now or hereafter existing, evidencing or
securing the Indebtedness.
Rents. The word "Rents" means all present and future
revenues, income, issues, royalties, profits, and
benefits derived from the Property.
rents,
other
Trustee. The word "Trustee" means First American Title
Insurance Company, and any substitute or successor trustees.
Trustor. The word "Trustor" means the Trustor named above and
its successors and assigns.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF LEASES AND
RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL
PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS
AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER
THE PROMISSORY NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF
TRUST. THE PROMISSORY NOTE AND THIS DEED OF TRUST ARE GIVEN
AND ACCEPTED ON THE FOLLOWING TERMS:
3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Promissory Note, this Deed of Trust, the Loan
Agreement and the Related Documents.
3.2
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor
that Trustor 1 s possession
Mortgaged Property shall
provisions:
and use of the Property
be governed by the
agrees
and the
following
Possession and Use. Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Mortgaged Property and collect Rents as they become due and
(b) use, develop, operate or manage the Property for the
purposes authorized in the Loan Agreement.
Duty to Maintain and Preserve. Trustor shall: (a) maintain
the Property and the Mortgaged Property in good condition and
repair; (b) shall construct and improve the Property in
accordance with the Loan Agreement; (c) restore and repair the
Improvements or any part of the Mortgaged Property that may be
damaged or destroyed, including but not limited to construction
defects, soil subsidiances and environmental damages whether
or not insurance proceeds are available to cover any part of
such cost of restoration or repair (regardless of whether the
proceeds of insurance may be available to the Trustor under
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this Deed of Trust); (d) pay when due all claims for labor
performed and materials furnished in connection with the
Improvements and not permit any mechanics' liens or materials
suppliers' liens to arise against the Property; (e) not permit
any waste on the Property, or commit, suffer or permit any
nuisance to occur on the Property; (f) not abandon the
Mortgaged Property; (g) notify the Beneficiary in writing of
any condition at or on the Property that may have a material
affect on the market value of the Mortgaged Property; and (h)
maintain the Property and the Improvements and generally
operate it in a manner to realize it maximum rental potential.
Hazardous Substances.
(a) The terms "hazardous wastes", "hazardous substance",
"disposal," "release", and "threatened release", as used in
this Deed of Trust, shall have the same meanings as set forth
in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S. C. Section 9601, et
~. ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous
Materials Transportation Act. 49 U.S.C. Section 1801, et ~.,
the Resource Conservation and Recovery Act, 49 U.S.C. Section
6901, et ~., Chapters 6.5 through 7.7 of Division 20 of the
California Health and Safety Code, Section 25100, et ~., or
other applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing.
(b) [OMITTED - - NO TEXT]
(c) Trustor represents and warrants that neither the Trustor
nor any tenant of Trustor occupying and improving any portion
of the Mortgaged Property or any contractor, agent or other
authorized user of any such tenant shall use, generate,
manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from any of the
Mortgaged Property, except in compliance with all applicable
law relating to the transportation, storage, disposal or lawful
use of any hazardous waste or substance. Trustor shall comply
and cause each of its tenants and all contractors, agents or
other authorized users of the Mortgaged Property to comply with
all applicable laws relating to any hazardous wastes or
substances, including without limitation, obtaining and filing
all applicable notices, licenses, permits and similar
authorizations. Trustor shall establish and maintain a
hazardous wastes and substances management and operations
policy for the Mortgaged Property in order to assure and
monitor continued compliance by the Trustor and each of its
tenants and all contractors, agents, or other authorized users
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of the Property with all laws relating to hazardous wastes or
substances.
(d) Trustor authorizes Lender and its agents to enter upon the
Mortgaged Property upon reasonable notice to make such
inspections and tests as Lender may deem appropriate to
determine compliance by the Trustor with this paragraph of
Section 3.2 if Lender reasonably believes a violation of law
has occurred. Any inspections or tests made by Lender shall be
at Trustor's expense and for Lender's purposes only and shall
not be construed to create any responsibility or liability on
the part of Lender to Trustor or to any other person. Trustor
hereby agrees to indemnify and hold harmless Lender against any
and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or
suffer resulting from breach of this paragraph of Section 3.2.
The provisions of this paragraph of Section 3.2 of the Deed of
Trust, including the obligation to indemnify the Lender, shall
survive the payment of the Indebtedness and the satisfaction
and reconveyance of the lien of this Deed of Trust and shall
not be affected by Lender's acquisition of any interest in the
Property, whether by foreclosure or otherwise.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations, now
or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Mortgaged Property.
Trustor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in Lender's
reasonable opinion, Lender's interests in the Mortgaged
Property are not jeopardized. Lender may require Trustor to
post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Mortgaged Property. Trustor shall do all other
acts, in addition to those acts set forth above in this
section, which from the character and use of the Mortgaged
Property are reasonably necessary to protect and preserve the
Mortgaged Property.
3.3 DUE ON SALE. Lender may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upon the
sale or transfer, without the Lender's prior written approval,
of all or any part of the Mortgaged Property, or any interest
in the Mortgaged Property. A" sale or transfer" means the
conveyance of the Mortgaged Property or any right, title or
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interest therein; whether legal or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment
sale contract, land contract, contract for deed, leasehold
interest with a term greater than one (1) year, lease-option
contract, or by sale, assignment or transfer of any beneficial
interest in or to any land trust holding title to the Mortgaged
Property or by any other method of conveyance of the property
interest. This option shall be exercised by the Lender in
accordance with the provisions of Section 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 on
of Trust:
The following provisions relating to the
the Mortgaged Property are part of this Deed
Payment. Trustor shall pay when due (and in all events prior
to delinquency) all taxes, special taxes, assessments, charges
(including water and sewer), fines and impositions levied
against or on account of the Mortgaged Property, and shall pay
when due all claims for work done on or for services rendered
or material furnished to the Mortgaged Property. Trustor shall
maintain the Mortgaged Property free of all liens having
priority over or equal to the interest of Lender under this
Deed of Trust, except for the lien of property taxes and
assessments not due.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in the
Mortgaged Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Trustor shall within sixty
(60) days after the lien arises or, if a lien is filed, within
sixty (60) days after Trustor has notices of the filing, secure
the discharge of the lien, or if requested by Lender, deposit
with Lender cash or a sufficient corporate surety bond or other
securi ty satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys' fees or other
charges that could accrue as a result of a foreclosure or sale
under the lien; provided, however, that Trustor shall not be
required to payor make provisions for the payment of any tax,
assessment, lien or charge so long as the Trustor in good faith
shall contest the validity or amount thereof and so long as
such delay in payment does not subject the Property to
forfei ture or sale. In any contest, Trustor shall defend
itself and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Lender as
an additional obligee under any surety bond furnished in the
contest proceedings.
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Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
3.5 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Proceedings. If any proceeding in condemnation is filed
affecting any portion of the Mortgaged Property, Trustor shall
promptly notify the Beneficiary in writing, and Trustor shall
promptly take such steps as may be necessary to defend the
action and obtain the award. Trustor may be the nominal party
in such proceeding, but the Beneficiary shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to the Beneficiary such
instruments as may be requested by it from time to time to
permit such participation.
3.6 CASUALTY INSURANCE. The Trustor shall at all times keep the
Mortgaged Property insured for the benefit of the Trustee and
the Beneficiary as additional insured as follows:
Against damage or loss by fire and such other hazards
(including lightning, windstorm, hail, explosion, riot, acts of
striking employees, civil commotion, vandalism, malicious
mischief, aircraft, vehicle, and smoke) as are covered by the
broadest form of extended coverage endorsement available from
time to time, including course of construction and builders
risk endorsements in an amount not less than the full insurable
value of the Mortgaged Property, with a deductible amount not
to exceed Ten Thousand Dollars ($10,000); provided however,
that prior to the recordation of the "Construction Loan" as
this term is defined in the Loan Agreement, such insured amount
shall be not less than $1,000,000, and upon the recordation of
such Construction Loan the full insurable value shall be not
less than the principal amount of such Construction Loan, plus
the principal amount of the Indebtedness;
Against damage or loss from (a) sprinkler system leakage and
(b) boilers, boiler tanks, heating and air conditioning
equipment, pressure vessels, auxiliary piping, and similar
apparatus, on such basis and in such amounts as the Beneficiary
may require;
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Liability Insurance. Trustor shall procure and maintain
workers' compensation insurance for employees and comprehensive
general liability insurance covering Trustor, Trustee, and the
Beneficiary against claims for bodily injury or death or for
damage occurring in, on, about, or resulting from the Mortgaged
Property, or any street, drive, sidewalk, curb, or passageway
adjacent to it, in standard form and with such insurance
company or companies and in an amount of at least One Million
Dollars ($1,000,000) combined single limit, or such greater
amount as the buyer may require, which insurance shall include
completed operations, product liability, and blanket
contractual liability coverage that insures contractual
liability under the indemnifications set forth in this Deed of
Trust (but such insurance coverage or its amount shall in no
way limit such indemnification) .
Other Insurance. The Trustor shall procure and maintain such
other insurance or such additional amounts of insurance,
covering the Trustor or the Mortgaged Property, as (a) may be
required by the terms of any construction contract for the
improvements or by any governmental authority, or (b) may be
reasonably required by the Beneficiary from time to time.
Form of Policies. All insurance required under this paragraph
shall be paid for and nonassessable. The policies shall
contain such provisions, endorsements, and expiration dates as
the Beneficiary from time to time reasonably requests and shall
be in such form and amounts, and be issued by such insurance
companies admitted as surety companies and doing business in
the State of California, as the Beneficiary shall approve in
the Beneficiary's sole and absolute discretion. Unless
otherwise expressly approved in writing by the Beneficiary,
each insurer shall have a Best Rating of not less than
"A(vii)", or better. All policies shall (a) contain a waiver
of subrogation endorsement; (b) provide that the policy will
not lapse or be canceled, amended, or materially altered
(including by reduction in the scope or limits of coverage)
without at least thirty (30) days prior written notice to the
Beneficiary; (c) with the exception of the comprehensive
general liability policy, contain a mortgagee's endorsement
(438 BFU Endorsement or equivalent), and name the Beneficiary
and trustee as insureds; and (d) include such deductibles as
the Beneficiary may approve. If a policy required under this
paragraph contains a co-insurance or overage clause, the policy
shall include a stipulated value or agreed amount endorsement
acceptable to the Beneficiary.
Duplicate Originals or Certificates. Duplicate original
policies evidencing the insurance required under this paragraph
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and any additional insurance that may be purchased on the
Mortgaged Property by or on behalf of Trustor shall be
deposited with and held by the Beneficiary (a) receipts
evidencing payment of all premiums on the policies and (b)
duplicate original renewal policies or a binder with evidence
satisfactory to the Beneficiary of payment of all premiums at
least thirty (30) days before the policy expires. In lieu of
the duplicate original policies to be delivered to the
Beneficiary under this paragraph, Trustor may also deliver
original certificates from the issuing insurance company,
evidencing that such policies are in full force and effect and
containing information that, in the reasonable judgment of the
Beneficiary, is sufficient to allow Lender to ascertain whether
such policies comply with the requirements of this Paragraph.
No Separate Insurance. The Trustor shall not carry separate
or additional insurance concurrent in form or contributing in
the event of loss with that required under this paragraph
unless endorsed in favor of Trustee and the Beneficiary as
required by this paragraph and otherwise approved by the
Beneficiary in all respects.
Transfer of Title. In the event of foreclosure of this Deed of
Trust or other transfer of title or assignment of the Mortgaged
Property in extinguishment, in whole or in part, of the
Indebtedness, all right, title, and interest of the Trustor in
and to all insurance policies required under this paragraph or
otherwise then in force with respect to the Mortgaged Property
and all proceeds payable under, and unearned premiums on, such
policies shall immediately vest in the purchaser or other
transferee of the Mortgaged Property.
Beneficiary's Right to Obtain. Trustor shall deliver to the
Beneficiary original policies or certificates evidencing such
insurance at least thirty (30) days before the existing
policies expire. If any such policy is not so delivered to the
Beneficiary or if any such policy is canceled, whether or not
Lender has the policy in its possession, and no reinstatement
or replacement policy is received before termination of
insurance, the Beneficiary, without notice to or demand on
Trustor, may (but is not obligated to) obtain such insurance
insuring only the Beneficiary and Trustee with such company as
the Beneficiary may deem satisfactory, and pay the premium for
such policies, and the amount of any premium so paid shall be
charged to and promptly paid by Trustor or, at the
Beneficiary's option, may be added to the Indebtedness. The
Beneficiary acknowledges that, if the Beneficiary obtains
insurance, it is for the sole benefit of the Beneficiary and
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Trustee, and Trustor shall not rely on any insurance obtained
by the Beneficiary to protect Trustor in any way.
Duty to Restore After Casualty. If any act or occurrence of
any kind or nature (including any casualty for which insurance
was not obtained or obtainable) results in damage to or loss or
destruction of the Mortgaged Property, Trustor shall
immediately give notice of such loss or damage to the
Beneficiary and, if the Beneficiary so instructs, shall
promptly, at the Trustor's sole cost and expense, regardless of
whether any insurance proceeds will be sufficient for the
purpose, commence and continue diligently to completion to
restore, repair, replace, and rebuild the Mortgaged Property as
nearly as possible to its value, condition, and character
immediately before the damage, loss, or destruction.
3.7 ASSIGNMENT TO THE BENEFICIARY. The proceeds of any award or
claim for damages, direct or consequential, in connection with
any condemnation or other taking of or damage or injury to the
Mortgaged Property, or any part of it, or for conveyance in
lieu of condemnation, are assigned to and shall be paid to the
Beneficiary, regardless of whether the Beneficiary's security
is impaired. All causes of action, whether accrued before or
after the date of this Deed of Trust, of all types for damages
or injury to the Mortgaged Property or any part of it, or in
connection with any transaction financed by funds lent to the
Trustor by the Beneficiary and secured by this Deed of Trust,
or in connection with or affecting the Mortgaged Property or
any part of it, including, without limitation, causes of action
arising in tort or contract or in equity, are assigned to the
Beneficiary as additional security, and the proceeds shall be
paid to the Beneficiary. The Beneficiary, at its option, may
appear in and prosecute in its own name any action or
proceeding to enforce any such cause of action and may make
compromise or settlement of such action. The Trustor shall
notify the Beneficiary in writing immediately on obtaining
knowledge of any casualty damage to the Mortgaged Property or
damage in any other manner in excess of Ten Thousand Dollars
($10,000) or knowledge of the institution of any proceeding
relating to the condemnation or other taking of or damage or
injury to all or any portion of the Mortgaged Property. The
Beneficiary in its sole and absolute discretion, may
participate in any such proceedings and may join borrower in
adjusting any loss covered by insurance. Trustor covenants and
agrees with the Beneficiary, at Beneficiary's request, to make,
execute, and deliver, at Trustor's expense, any and all
assignments and other instruments sufficient for the purpose of
assigning the aforesaid award or awards, causes of action, or
claims of damages or proceeds to the Beneficiary free, clear,
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and discharged of any and all encumbrances of any kind or
nature.
Compensation and Insurance Payments. All compensation, awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments that Trustor may receive or to which the
Beneficiary may become entitled with respect to the Mortgaged
Property if any damage or injury occurs to the Mortgaged
Property, other than by the Beneficiary condemnation or partial
taking of the Mortgaged Property, shall be paid over to the
Beneficiary and shall be applied first toward reimbursement of
all costs and expenses of the Beneficiary in connection with
their recovery and disbursement, and shall then be applied as
follows:
The Beneficiary shall consent to the application of such
payments to the restoration of the Mortgaged Property so
damages only the Beneficiary has met all the following
conditions (a breach of one of which shall constitute a
default under this Deed of Trust, the Promissory Note, and
any Related Document): (a) Trustor is not in default under
any of the terms, covenants, and conditions of the Related
Documents; (b) all then-existing leases affected in any
way by such damage will continue in full force and effect;
(c) the Beneficiary is satisfied that the insurance or
award proceeds, plus any sums added by Trustor, shall be
sufficient to fully restore and rebuild the Mortgaged
Property under then current governmental requirements; (d)
within sixty (60) days after the damage tot he Mortgaged
Property, Trustor presents to the Beneficiary a
restoration plan satisfactory to the Beneficiary and each
local agency with jurisdiction, which includes cost
estimates and schedules; (e) construction and completion
of restoration and rebuilding of the Mortgaged Property
shall be completed in accordance with plans and
specifications and drawings submitted to the Beneficiary
within thirty (30) days after receipt by the Beneficiary
of the restoration plan and thereafter approved the
Beneficiary; which plans, specifications, and drawings
shall not be substantially modified, changed, or revised
without the Beneficiary's prior written consent; (f)
within ninety (90) days after such damage, Trustor and a
licensed contractor satisfactory to the Beneficiary enter
into a fixed price or guaranteed maximum price contract
satisfactory to the Beneficiary, providing for complete
restoration in accordance with such restoration plan for
an amount not to exceed the amount of funds held or to be
held by the Beneficiary; (g) all restoration of the
Improvements so damaged or destroyed shall be made with
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reasonable promptness and shall be of a value at least
equal to the value of the Improvements so damages or
destroyed before such damage or destruction; (h) the
Beneficiary reasonably determines that there is an
identified source (whether from income from the Mortgaged
Property or another source) sufficient to pay all debt
service and operating expenses of the Mortgaged Property
during its restoration as required above; and (i) any and
all funds that are made available for restoration and
rebuilding under this subparagraph shall be disbursed at
the sole election of the Beneficiary through the Trustee,
or a title insurance or trust company satisfactory to the
Beneficiary, in accordance with standard construction
lending practices and mechanics' lien waivers and title
insurance date-downs, and the provision of payment and
performance bonds by the Trustor, or in any other manner
approved by the Beneficiary in the Beneficiary's sole and
absolute discretion; or
If fewer than all conditions (a) through (i) in the
preceding subparagraph are satisfied, then such payments
shall be applied in the sole and absolute discretion of
the Beneficiary: to the payment of the Indebtedness
secured by this Deed of Trust; or to the reimbursement of
Trustor's expenses incurred in the rebuilding and
restoration of the Mortgaged Property. If the Beneficiary
elects to make any funds available to restore the
Mortgaged Property, then all of the conditions (a) through
(i) in the preceding subparagraph shall apply, except for
such conditions that the Beneficiary in its sole and
absolute discretion, may waive.
Material Loss Not Covered. If any material part of the
Mortgaged Property is damaged or destroyed and the loss, is not
adequately covered by insurance proceeds collected or in the
process of collection, the Trustor shall deposit with the
Beneficiary, within thirty (30) days after the Beneficiary's
request, the amount of the loss not so covered.
Total Condemnation Payment. All compensation, awards,
proceeds, damages, claims, rights of action, and payments that
Borrower may receive or to which the Trustor may become
entitled with respect to the Mortgaged Property in the event of
a total condemnation or other total taking of the Mortgaged
Property by a public agency shall be paid over to the
Beneficiary and shall be applied first to the reimbursement of
all Beneficiary's costs and expenses in connection with their
recovery, and shall then be applied to the payment of the
Indebtedness. Any surplus remaining after payment and
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satisfaction of the Indebtedness shall be paid to the Trustor
as its interest may then appear.
Partial Condemnation Payments. All compensation, awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments ("funds") that the Trustor may receive or
to which the Trustor may become entitled with respect to the
Mortgaged Property in the event of a partial condemnation or
other partial taking of the Mortgaged Property by a public
agency, unless the Trustee and Beneficiary otherwise agree in
writing, shall be divided into two portions, one equal to the
principal balance of the Promissory Note at the time of receipt
of such funds and the other equal to the amount by which such
funds exceed the principal balance of the Promissory Note at
the time of receipt of such funds.
The first such portion shall be applied to the sums secured by
this Deed of Trust, whether or not then due, including but not
limited to principal, accrued interest, and advances with the
balance of the funds paid to the Trustor.
No Cure of Waiver of Default. Any application of such amounts
or any portion of it to any Indebtedness secured by this Deed
of Trust shall not be construed to cure or waive any default or
notice of default under this Deed of Trust or invalidate any
act done under any such default or notice.
3.8 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or proceeding
is commenced against the Mortgaged Property 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 reasonably deems appropriate. Any amount
that Lender expends in do 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 due 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 Note's maturity. This Deed of Trust
also will secure payment of these amounts. The rights provided
for in this paragraph shall be in addition to any other rights
or any remedies to which Lender may be entitled on account of
the default. Any such action by Lender shall not be construed
as curing the default so as to bar Lender from any remedy that
it otherwise would have had.
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3.9
WARRANTY. Trustor warrants that the Mortgaged Property
Trustor's use of the Mortgaged Property complies with
existing applicable laws, ordinances, and regulations
governmental authorities.
and
all
of
3.10 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed of
Trust:
Current Taxes, Fees and Charges. Upon request by Lender,
Trustor shall execute such documents in addition to this Deed
of Trust and take whatever other action is requested by Lender
to perfect and continue Lender's lien and security interest on
the 'Property. Trustor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in
recording, perfecting or continuing this Deed of Trust,
including without limitation all taxes, fees, documentary
stamps, and other charges for recording or registering 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 which 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
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or a
sufficient corporate surety bond or other security satisfactory
to Lender.
3.11 SECURITY AGREEMENT; FINANCING STATEMENTS. The
provisions relating to this Deed of Trust as
agreement are a part of this Deed of Trust:
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Security Agreement. This instrument shall constitute a security
agreement to the extent of any of the Mortgaged Property
constitutes fixtures or other personal property, and Lender
shall have all of the rights of a secured party under the
Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Trustor shall
execute financing statements and take whatever other action is
requested by Lender to perfect and continue Lender's security
interest in the Rents and Personal Property in a manner and at
a place reasonably convenient to Trustor and Lender and make it
available to Lender within ten (10) days after receipt of
written demand from Lender.
Addresses. The mailing addresses of Trustor (debtor) and
Lender (secured party), from which information concerning the
security interest granted by this Deed of Trust may be obtained
(each as required by the Uniform Commercial Code), are as
stated on the first page of this Deed of Trust.
3.12 FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions
relating to further assurances and attorney-in-fact are a part
of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled, or rerecorded, as the case may be, at
such times and in such offices and places as Lender may deem
appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations of
Trustor under the Promissory Note, this Deed of Trust, and the
Related Documents, and (b) the liens and security interests
created by this Deed of Trust as second priority liens on the
Mortgaged Property, whether now owned or hereafter acquired by
Trustor. Unless prohibited by law or agreed to the contrary by
Lender in writing. Trustor shall reimburse Lender for all
costs and expenses incurred in connection with 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
and in the name of Trustor and at Trustor's expense. For such
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purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender I s sole
opinion, to accomplish the matters referred to in the preceding
paragraph.
4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays all the
Indebtedness, including without limitation, all future
advances, when due, and otherwise performs all the obligations
imposed upon Trustor under the Loan Agreement, the Promissory
Note and this Deed of Trust, Lender shall execute and deliver
to Trustee a request for full reconveyance and shall execute
and deliver to Trustor suitable statements of termination of
any financing statement on file evidencing Lender's security
interest in the Rents and Personal Property. Lender may charge
Trustor a reasonable reconveyance fee at the time of
reconveyance.
5.0 DEFAULT. Each of the following, at the option of Lender, shall
constitute an event of default ("Event of Default") under this
Deed of Trust:
Default on Indebtedness. Failure of Trustor to make any payment
when due under the Promissory Note if not cured within thirty
(30) days after written notice from the Lender.
Default on Other Payments. Failure of Trustor within the
time required by this Deed of Trust to make any payment for
taxes or insurance, or any other payment necessary to prevent
filing of or to effect discharge of any lien.
Compliance Default. Failure of Trustor to comply with any other
term, obligation, covenant or condition contained in this Deed
of Trust, the Promissory Note, the Loan Agreement, the Related
Documents, including without limitation the OPA, after notice
and any applicable cure period has expired.
Breaches. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed
of Trust, the Promissory Note, the Loan Agreement, or any of
the Related Documents is, or at the time made or furnished was,
false in any material respect.
Insolvency. The insolvency of Trustor, appointment of a
receiver for any part of Trustor's property, any assignment for
the benefit of creditors, the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Trustor,
which is not discharged or dismissed within ninety (90) days,
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or the dissolution or termination of Trustor's existence as a
going business (if Trustor is a business) .
Foreclosure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the Mortgaged
Property. However, this subsection shall not apply in the
event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the
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 ON 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 the following
rights and remedies, in addition to any other rights or
remedies provided by law:
Foreclosure by Sale. Upon an Event of Default under this
Deed of Trust, Beneficiary may declare the entire Indebtedness
secured by this Deed of Trust immediately due and payable by
delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and of
election to cause the Mortgaged Property to be sold, which
notice Trustee shall cause to be filed for record. Beneficiary
also shall deposit with Trustee this Deed of Trust, the
Promissory Note, other documents requested by Trustee, and all
documents evidencing expenditures secured hereby. After the
lapse of such time may then be required by law following the
recordation of the notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on
Trustor, shall sell the Mortgaged Property at the time and
place fixed by it in the notice of sale, either as a whole or
in separate parcels, and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money
of the United States, payable at time of sale. Trustee may
postpone sale of all or any portion of the Mortgaged Property
by public announcement at such time and place of sale, and from
time to time thereafter may postpone such sale by public
announcement at the time filed by the preceding postponement in
accordance with applicable law. Trustee shall deliver to such
purchaser its deed conveying the Mortgaged Property so sold,
but without any covenant or warranty, express or implied. The
recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee or Beneficiary may purchase at such
sale. After deducting all costs, fees and expenses of Trustee
and of this Trust, including cost of evidence of title in
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connection with sale, Trustee shall apply the proceeds of sale
to payment of: all sums expended under the terms hereof, not
then repaid, with accrued interest at the amount allowed by law
in effect at the date hereof; all other sums then secured
hereby; and the remainder, if any, to the person or persons
legally entitled thereto.
Judicial Foreclosure. With respect to all or any part of the
Mortgaged Property, Lender shall have the right in lieu of
foreclosure by power of sale to foreclose by judicial
foreclosure in accordance with and to the full extent provided
by California law. It is understood and agreed by the parties
hereto that no action taken by the Lender shall result in the
imposition of personal liability on any of the members,
partners, directors, shareholders and officers, as applicable,
of Trustor or on Trustor itself or its constituent members.
UCC Remedies. With respect to all or any part of the Mortgaged
Property, Lender shall have the rights and remedies of a
secured party under the Uniform Commercial Code, including
without limitation the right to recover any deficiency in the
manner and to the full extent provided by California law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Mortgaged
Property and collect the Rents, including amounts past due and
unpaid, and apply the net proceeds, over and above Lender's
costs, against the Indebtedness. In furtherance of this right,
Lender may require any tenant or other user of the Mortgaged
Property to make payments of rent or use fees directly to
Lender. If the Rents are collected by Lender, then Trustor
irrevocably designates Lender as Trustor's attorney-in-fact to
endorse instruments received in payment thereof in the name of
Trustor and to negotiate the same and collect the proceeds.
Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the
payments are made, whether or not any property grounds for the
demand existed. Lender may exercise its rights under this
subparagraph either in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or any part of the
Mortgaged Property, with the power to protect and preserve the
Mortgaged Property, to operate the Property preceding
foreclosure or sale, and to collect the Rents from the
Mortgaged Property and apply the proceeds, over and above the
cost of the receivership against the Indebtedness. The
receiver may serve without bond if permitted by law. Lender's
right to the appointment of a receiver shall exist whether or
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not the apparent value of the Mortgaged Property exceeds the
indebtedness by a substantial amount. Employment by Lender
shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of
the Mortgaged Property after the Property is sold as provided
above or Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a tenant
at sufferance of Lender or the purchaser of the Mortgaged
Property and shall, at Lender's option, either (a) pay a
reasonable rental for the use of the Property, or (b) vacate
the Mortgaged Property immediately upon the demand of Lender.
Other Remedies. Trustee
right or remedy provided
Promissory Note or by law.
or
in
Lender shall have any
this Deed of Trust or
other
the
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 thirty (30)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Mortgaged Property.
Sale of the Mortgaged Property. To the extent permitted by
applicable law, Trustor hereby waives any and all rights to
have the Mortgaged Property marshaled. In exercising its
rights and remedies, the Trustee or Lender shall be free to
sell all or any part of the Property together or separately, in
one sale or by separate sales. Lender shall be entitled to bid
at any public sale on all or any portion of the Mortgaged
Property.
Waiver; Election of Remedies. A waiver by any party of a breach
of a provision of this Deed of Trust shall not constitute a
waiver of or prejudice the party's rights otherwise to demand
strict compliance with that provision or any other provision.
Election by Lender to pursue any remedy provided in this Deed
of Trust, the Promissory Note, in any Related Document, or
provided by law shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to
perform an obligation of Trustor under this Deed of Trust
after failure of Trustor to perform shall not affect Lender's
right to declare a default and to exercise any of its remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
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Lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all
reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest
at the Promissory Note rate from the date of expenditure until
repaid. Expenses covered by this paragraph include, without
limitation, however subject to any limits under applicable law,
Lender's attorneys' fees whether or not there is a 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 title reports
(including foreclosure reports), surveyors' reports, appraisal
fees, title insurance, and fees for the Trustee, to the extent
permitted by applicable law. For the purposes hereof, the
words "Lender's attorneys' feesu include the salaries, benefits
and expenses of attorneys employed in the office of the City
Attorney computed on an hourly basis for any such legal
services provided in connection with the enforcement of the
rights of the Lender hereunder. Trustor also will pay any
court costs, in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
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 request of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Mortgaged Property,
including the dedication of streets or other rights to the
public; and (b) join in granting any easement or creating any
restriction on the Mortgaged Property.
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
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remedies set forth above, with respect to all or any part of
the Mortgaged 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. Lender, at Lender's option, may from time
to time appoint a successor Trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of 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 Mortgaged
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.
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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
three business days after it is 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 mount
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]
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 Beneficiary, by
instruments in form satisfactory to Beneficiary; but no such
assignment shall be construed as a consent by Beneficiary to
any agreement, contract license or permit so assigned, or to
impose upon Beneficiary 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 Mortgaged Property or in connection with
any services, equipment or furnishings provided in connection
wi th the operation of the Mortgaged 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 Mortgaged Property for the purposes of occupying the
dame. Upon the request of Beneficiary, Trustor shall prepare
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and deliver to Beneficiary such financial statements regarding
operation of the Mortgaged Property as Beneficiary may
reasonably request. Beneficiary, or its designee, shall have
the right from time to time during normal business hours to
examine such books, records and accounts and to make copies or
extracts therefrom.
12.0 MISCELLANEOUS PROVISIONS. The following
provisions are a part of this Deed of Trust:
miscellaneous
Environmental Default and Remedies. In the event that any
portion of the Mortgaged Property is determined to be
"environmentally impaired", or an "affected parcel" as these
terms are defined at Code of Civil Procedure Section 725.5(e),
then in such event and without limiting or in any way affecting
the another rights and remedies of the Trustee and the
Beneficiary under this Deed of Trust, the Beneficiary may elect
to exercise its rights under Code of Civil Procedure Section
725.5(a) to waive its lien or such portion of the Mortgaged
Property and to exercise its rights and remedies to recover the
Indebtedness under a judgment as an unsecured creditor of the
Trustor and/or to exercise any other remedy authorized by law.
The Trustor shall be deemed to have willfully permitted or
acquired in a or release or threatened release of a hazardous
substance, if such release or threatened release was knowingly
or negligently caused or contributed by to by any lessee,
occupant, user of the Mortgaged Property which caused or
contributed to the release or threatened release of a hazardous
substance. All costs and expenses of the Beneficiary,
including reasonable attorney's fees, plus interest at a rate
per annum of eight percent (8%) until paid, as incurred in
connection with an action as may be brought by the Beneficiary
as provided in Code of Civil Procedure Section 725.5(b).
Amendments. This Deed of Trust, together with any Related
Documents, 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
altercation or amendment.
Acceptance by Trustee. Trustee accepts this Trust 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
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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 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 wi thin 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.
Successors and Assigns. Subject to the limitations stated in
this Deed of Trust on transfer of Trustor's interest, this Deed
of Trust shall be binding upon and inure to the benefit of the
parties, their successors and assigns. If ownership of the
Property becomes vested in a person other Trustor, Lender,
without notice to Trustor, may deal with Trustor's successors
with reference to this Deed of Trust and the indebtedness by
way of forbearance or extension without releasing Trustor from
the obligations of this Deed of Trust or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust (or under the
Related Documents) 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 and any party 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 Lender, 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
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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.
Fixture Filing. This Deed of Trust also constitutes a
fixture filing as defined in the California Uniform Commercial
Code, as amended or recodified from time to time. This Deed
of Trust is to be recorded in the real estate records of San
Bernardino County, California, and covers goods which are to
become fixtures.
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
Frazee Community Centers
Date:
By:
Executive Director
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY ACKNOWLEDGEMENT]
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Exhibit "A'l
Legal Description
PARCEL 1
1441-1443 MOUNTAIN VIEW AVENUE
APN 0146-163-43000
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.5 FEET
OF LOT 3, BLOCK 33, RANCHO SAN BERNARDINO, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 7, PAGE(S) 2, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
PARCEL 2
1495 MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
APN 0146-163-02000
LOT 3 OF TRACT NO. 1957, KIMMEL'S MAGNOLIA TRACT, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 28, PAGE(S} 55, OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
PARCEL 3
1379 ARROWHEAD AVENUE
APN 0146-162-22000
LOT 10, BLOCK "B" OF EDELEN TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 5, PAGE(S} 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
PARCEL 4
1501-1503 PERSHING
APN 0146-132-18000
LOT 11, TRACT NO. 1785, IN THE CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26
OF MAPS, PAGE 19, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
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Exhibit "E"
General Fonn HOME Parcel Purchase and Sale Agreement
P:\Agendas\Agreements-Amendmcnts\Agnnts-Amend 2004\04-07-06 Frazee Loan AgreemenLdoc
Exhibit "E"
FRAZEE COMMUNITY CENTER
2004 HOME -COMMUNITY HOUSING DEVELOPMENT ORGANIZA nON (CHDO)
LOAN AGREEMENT
PURCHASE AND SALE AGREEMENT
Property Addresses:
1. 1441-1443 Mountain View
2 1495 Mountain View and 195-197 West Magnolia
3. 1501-1503 Pershing
4. 1379 Arrowhead.
THIS HOME PARCELS PURCHASE AND SALE AGREEMENT (the
"Agreement") is dated for identification purposes only, as of , 2004, and is made
and entered into by and between NEIGHBORHOOD HOUSING SERVICES OF THE
INLAND EMPIRE, a California nonprofit corporation (NHS) and FRAZEE COMMUNITY
CENTER, a California nonprofit corporation (the "Participant"), with reference to the
following:
RECITALS
WHEREAS, NHS is the Owner of the Property described in that certain 2004 HOME -
CHDO Loan Agreement by and between the Redevelopment Agency of the City of San
Bernardino ("Agency") and the participant ("2004 HOME Agreement").
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS SET
FORTH HEREIN, THE PARTICIPANT AND THE AGENCY AGREE AS FOLLOWS:
1. Warranty of Authority bv Participant. The Participant warrants that it is a nonprofit
corporation under the laws of the State of California, and is authorized to execute this Agreement
and all of the documents and instruments contemplated hereby, including, without limitation,
supplemental escrow instructions and the Acceptance of the Agency Deed; and that this
transaction has been approved by [resolution of its board of directors]. A certified copy of that
[resolution] which remains in effect, will be delivered to Agency before the close of the Agency
Escrow as set forth herein.
2. A2reement to Sell and to Purchase. Subject to the terms and conditions of this
Agreement, NHS agrees to sell and the Participant agrees to purchase the HOME Parcels.
3. Purchase Price. The "Purchase Price" for the HOME Parcels payable by the Participant
is Four Hundred Six Thousand Two Hundred Two Dollars ($406,202). The Purchaser Price shall
be payable by the Participant's delivery of the full amount to the escrow holder in cash or by
wire transfer of immediately available funds at least one( 1) business day before the close of
Escrow or by cashier's check during business hours at least three (3) business days before the
close of Escrow.
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4. Escrow Costs. In addition to the Purchase Price, the Participant hereby agrees to pay all
of the costs of the escrow holder in the Escrow. The escrow holder is hereby instructed to collect
such costs and charges from the Participant.
5. Conditions for the Benefit of the Al!encv. The obligation of the Participant to perform
this Agreement is subject to the satisfaction of the following conditions, which are for the
Agency's benefit only:
(a) Participant shall acquire the HOME Parcels from NHS for the purpose of
providing transitional housing and for the benefit of HOME Eligible Households.
(b) Participant shall execute and submit to Escrow the Loan Agreement, Assumption
Agreement, Deed of Trust, HOME, and Regulatory Agreement and other related documents
necessary to close Escrow.
The conditions set forth above are for the NHS's benefit only and NHS may waive all or any part
of such rights by written notice to the Participant and escrow holder. If any of said conditions
are not satisfied within the time provided, NHS may thereafter terminate this Agreement without
any liability on the part of NHS by giving written notice of termination to the escrow holder,
with a copy to the Participant. Escrow holder shall thereupon, without further consent from the
Participant, return to each party the documents, if any, deposited by them.
6. Conditions for Participant's Benefit. The obligation of the Participant to perform this
Agreement is subject to the satisfaction of the following conditions, which are for the
Participant's benefit only:
(a) NHS shall sell the HOME Parcels to the Participant pursuant to the executed
Assumption Agreement.
The conditions set forth above are for the Participant's benefit only and the Participant may
waive all or any part of such rights by written notice to the Agency and the escrow holder. If any
said conditions are not satisfied within the time provided, or within such longer time as may be
allowed by the Participant, subject to the approval of the Agency, the Participant may thereafter
terminate this Agreement without any liability on the part of the Participant by giving written
notice of termination to the escrow holder, with a copy to the Agency. Escrow holder shall
thereupon, without further consent from the Agency, return to each party the documents, if any,
deposited by them.
7. [RESERVED - NO TEXT]
8. Term of Escrow. The Escrow shall close not later than August 15, 2004. "Opening
Escrow" shall mean the date upon which a fully executed copy of this Agreement is delivered to
the escrow holder under the Escrow. "Close of Escrow" shall mean the date upon which the
Grant Deed transferring the HOME Parcels to the Participant and the related documents as set
forth in the 2004 Loan Agreement are recorded in the Office of the County Recorder of the
County of San Bernardino, California.
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17. Assie:nment. The Participant and NHS each agree that this Agreement shall be binding
upon their respective, heirs, executors, administrators, successors or assigns and is not assignable
by the Participant unless the written consent of the Executive Director of the Redevelopment
Agency of the City of San Bernardino is first obtained, which consent the Executive Director
may withhold in his or her sole and absolute discretion.
18. Notices. All notices, demands and requests which may be given by either party to the
other or to the escrow holder shall be in writing and shall be deemed to be given upon personal
delivery or forty-eight (48) hours after deposit in the United States mail, certified, return receipt
requested, postage prepaid, addressed to the party to be notified at the address following the
party's signature or if addressed to the escrow holder, at the address set forth in the supplemental
escrow instruments signed by the parties. Either party may designate by written notice to the
other party in the manner set forth in this Agreement another address for notice.
19. Miscellaneous Provisions.
19.1 Waiver. The waiver of any provisions of this Agreement shall be invalid unless
evidenced by a writing signed by the party to be charged therewith. The waiver of, or failure to
enforce, any provision of this Agreement shall not be a waiver of any further breach of such
provision hereof. The waiver by either or both parties of the time for performing an act shall not
be a waiver of the time for performing any other act or acts required hereunder.
19.2 Modifications. No change or addition to this Agreement or any part hereof
shall be valid unless in writing and signed by each of the parties.
19.3 Governine: Law. This Agreement shall be governed by California law.
19.4 Headine:s. The headings in this Agreement are for convenience only and shall
not be used to interpret this Agreement.
19.5 Further Acts. Each party agrees to take such further action and to execute and
deliver such further documents as may be necessary to carry out the purposes of this Agreement
with respect to the HOME Parcels and this Agreement.
19.6 Attornevs' Fees. If either party incurs attorneys' fees to enforce this Agreement
or because of a breach of this Agreement by the other party, the prevailing party shall be entitled
to recover reasonable attorneys' fees as set by the court from the other party.
19.7 No Real Estate Brokers Commission Payable Bv the Ae:encv. The Agency
shall not be responsible for the payment of any real estate brokers commission or finders fee in
connection with the escrow or the transfer of the HOME Parcels to the Participant.
19.8 Time. Time is of the essence with respect to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Dated:
NEIGHBORHOOD HOUSING
SERVICES OF THE INLAND EMPIRE,
INC., a California nonprofit corporation
By:
Its:
By:
Its:
Dated:
PARTICIPANT
Frazee Community Center, a California
nonprofit corporation
By:
Its:
By:
Its:
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EXHIBIT "A"
Legal Description of the HOME Parcels
PARCEL 1
1441-1443 MOUNTAIN VIEW AVENUE
APN 0146-163-43000
THE NORTH 49.6 FEET OF THE SOUTH 297.60 FEET OF THE WEST 181.5 FEET OF LOT
3, BLOCK 33, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, ST ATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 7, PAGE(S) 2, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 2
1495 MOUNTAIN VIEW AVENUE AND 195-197 MAGNOLIA AVENUE
APN 0146-163-02000
LOT 3 OF TRACT NO. 1957, KIMMEL'S MAGNOLIA TRACT, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 28, P AGE(S) 55, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE EAST 5.00 FEET THEREOF.
PARCEL 3
1379 ARROWHEAD AVENUE
APN 0146-162-22000
LOT 10, BLOCK "B" OF EDELEN TRACT, IN THE CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 5, PAGE(S) 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 4
1501-1503 PERSHING
APN 0146-132-18000
LOT 11, TRACT NO. 1785, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26 OF
MAPS, PAGE 19, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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(iii) interest and dividends (including income from assets as set forth in item
(b) below);
(iv) full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits
and other similar types of periodic reports;
(v) payments in lieu of earnings, such as unemployment and disability
compensation, worker's compensation and severance pay;
(vi) the maximum amount of public assistance available to the above persons;
(vii) periodic and determinable allowances, such as alimony and child support
payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the Armed
Forces (whether or not living in the dwelling) who is the head of the
household or spouse; and
(ix) any earned income tax credit to the extent it exceeds income tax liability.
(b) The following income is excluded from the amount set forth above:
(i) casual, sporadic or irregular gifts;
(ii) amounts that are specifically for or in reimbursement of medical expenses;
(iii) lump sum additions to family assets, such as inheritances, insurance
payments (including payments under health and accident insurance and
worker's compensation), capital gains and settlement for personal or
property losses;
(iv) amounts of educational scholarships paid directly to student or
educational institution, and amounts paid by the government to a veteran
for use in meeting the costs of tuition, fees, books and equipment, but in
either case only to the extent used for such purposes;
(v) hazardous duty pay to a member of the household in the armed forces
who is away from home and exposed to hostile fire;
(vi) relocation payments under Title II of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970;
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(vii) income from employment of children (including foster children) under the
age of 18 years;
(viii) foster child care payments;
(ix) the value of coupon allotments under the Food Stamp Act of 1977;
(x) payments to volunteers under the Domestic Volunteer Service Act of
1973;
(xi) payments received under the Alaska Native Claims Settlement Act;
(xii) income derived from certain submarginal land of the United States that is
held in trust for certain Indian tribes;
(xiii) payments on allowances made under the Department of Health and
Human Services' Low-Income Home Energy Assistance Program; and
(xiv) payments received from the Job Partnership Training Act
Net Family Assets
If any of the persons described in Members of the Household (or any person whose
income or contributions were included in Anticipated Annual Income has any savings,
stocks, bonds, equity in real property or other form of capital investment (excluding
interest in Indian trust lands), provide:
(a) the total value of all such assets owned by all such persons: $
, and
(b) the amount of income expected to be derived from such assets in the 12-month
period commencing this date: $
Students
(a) Will all of the persons listed in Members of Household above be or have they
been fulltime students during five calendar months of this calendar year at an
educational institution (other than a correspondence school) with regular faculty
and students? 0 Yes 0 No
(b) If yes, is any such person (other than non-resident aliens) married and eligible to
file a joint federal income tax return? 0 Yes 0 No
The above information is full, true and complete to the best of my knowledge. I have no
objections to inquiries being made for the purpose of verifying the statements made
herein.
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FOR COMPLETION BY FRAZEE COMMUNITY CENTER, ONLY:
A. Calculation of Eligible Income
(1) Enter amount entered for entire household in Anticipated Annual Income:
$
(2) If the amount entered in (a) of Net Family Assets above is greater than
$5,000, enter:
(i) the product of the amount entered in (a) of Net Family Assets
above multiplied by the current passbook savings rate as
determined by HUD: $
(ii) the amount entered in (b) of Net Family Assets above:
$
(iii) enter the greater of line (i) or line (ii): $
(3) TOTAL ELIGIBLE INCOME (Line A (1) plus line A (2) (iii): $
B. Enter Number of family members listed in item 1 above:
C. The amount entered in A (3) (Total Eligible Income) is: $
o Less than $ of median income for the area in which the Project is located,
which is the maximum income at which a household may be determined to
be a Qualifying Tenant as that term is defined in the Grant Agreement and
Declaration of Restrictive Covenants (the "Regulatory Agreement")
("Qualifying Tenant").
o More than the above mentioned amount.
D. Number of apartment units assigned:
E. Monthly Rent: $
F. This apartment unit (was/was not) last occupied for a period of 31 consecutive
days by a person or persons whose adjusted income, as certified in the above
manner, was equal to or less than the amount at which a person would have
qualified as a Qualifying Tenant under the terms of the Regulatory Agreement.
G. Applicant:
o Qualifies as a Qualifying Tenant
o Does Not Qualify as a Qualifying Tenant
5
P:\Agendas\Agreements-Amendments\Agmlls.Amend 2004\04-07.06 Fruec Exhibit F.doc
Exhibit "G"
HOME Rent Schedule
P;\Agendas\Agreements-Amendments\Agnnts-Amend 2004\04-07.06 Frazee Loan Agreement.doc
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