HomeMy WebLinkAboutR09-RDA Item
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- Redevelopment Agency · City of San Bernardino
-~ NarIh "D" s...... FaRlhFJaor . SIll BemonIiDo, CaIifamia 92418
(714) 384-5081 FAX (714) 888-9413
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AUGUST 15. 1990
H.A.B. DEVELOPMENT CORPORATION LOAN REQUEST
SynopsIs of PrevIous Commlsslon/Councl1/Commlttee ActIon:
03-12-90 The Redevelopment CommIttee recommended approval of the deal
poInts as modIfIed.
07-19-90 The Redevelopment CommIttee recommended approval and that the
Item be forwarded to CommIssIon for acceptance.
Recommended MotIon:
(COMMUNITY DEVELOPMENT COMMISSION)
That the ExecutIve DIrector be authorIzed to execute the attached Owner
PartIcIpatIon Agreement and" such documents as are requIred for Its
ImplementatIon.
Respectfully Submltted.
ExecutIve DIrector
SupportIng data attached: YES
Hard-:
6th
FUNDING REQUIREMENTS:
$2,130.000
Project: NH & SC
CommIssIon
Note s :
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Agenda of: Auqust 20. 1990
Item No. ~
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S T A F F R E P 0 R T
On March 19, 1990, the CDC authorized an Owners Participation Agreement with
H.A.B. Land Development Company to construct two bridges and a roadway across
Cable Creek and Devils Canyon flood control channels. The agreement was never
signed by H.A.B. who then requested changes. The staff is proposing a
substitute agreement which will provide a $2,130,000 loan for roadway and
bridge construction. The loan would bear interest at 10-1/41 and be all due
and payable seven (7) years from the completion of the improvements. This
will provide access for the development of a 44 acre parcel of industrial land
with extensIve freeway frontage.
BACKGROUND
H.A.B. owns a 44 acre site located south of Interstate 215, between the Cable
Creek and Devils Canyon flood control channels (see attached map). The
previous agreement provided for a $1,500,000 loan with interest at 91, secured
by a second trust deed with the principal, all due and payable five (5) years
from completion of the improvements.
H.A.B. is now requesting that the loan agreement be modified to run for seven
(7) years rather than five (5) to provide them more time to find end users and
to increase the loan amount from $1,500,000 to $2,130,000. The benefit to the
Agency is that the additional money would be used to payoff the existing
first trust deed on the property putting the Agency in a first trust deed
position. H.A.B. has also agreed to pay 10-1/41 interest instead of the
previous 91.
The attached estimate of value indicates the site would have a value of
$3,000,000 after the access and utilities have been provided. This still
appears to provide an adequate ratio of value to loan amount.
The City and businesses in the local area would benefit by the construction of
a road across the property connecting Industry Parkway on the north to
Hallmark Parkway on the south. The adjoIning of these two roads would provide
better access for users in the State College and Northwest industrial parks
and also improve emergency services access to the properties on the north.
DEAL POINTS
The deal points are as follows:
1. H.A.B. to build two bridges and roadway connecting Industrial Parkway
and Hallmark Parkway, including curbs, gutters, landscaping and
underground utilities all built to City specificatIons and on alignment
approved by the City Engineer. Bidding and selection process are
subject to Agency approval.
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2. Bridges, roadway and necessary right-of-way to be granted to City
following completion.
3. Agency to make H.A.B. a loan of $2.130,000 at 10-1/4t interest, wIth
quarterly Interest only payment for seven (7) years from the issuance
of the CertifIcate of CompletIon at whIch time prIncipal and interest
shall be all due and payable.
4. Loan to be disbursed by draw in 1/3 Increments upon approval by the
Executive Director that 1/3 of the project has been completed and
approval of the disbursement by the Commission. Ten percent of each
disbursement to be withheld and paId at the end of the project when all
Indebtedness has been paId, or if with the final disbursement, It will
be paid, and when the Certificate of Completion has been issued.
Agency can pay retained proceeds directly to creditors.
5. Loan secured by Deed of Trust In fIrst position which can be partIally
released upon payment of 150t proportionate payments ($76,230 per
acre), wIth a mInImum release of five (5) acres.
6. Covenants, ConditIons and RestrictIons (CC&R's) must be recorded whIch,
among other thIngs, require grantees of all or a portIon of the subject
property to enter into a Development Agreement with the Agency.
FaIlure to do so gives the Agency the right to set the grantIng deeds
aside. The Development Agreement will be approved In escrow.
BENEFITS
Based upon standard assumptions, the Agency can expect the following to take
place on the forty-four acres:
Industrial Buildings
Completed Value
Tax Increment (.6t)
Development Fees
575,000 SF
$11,900.000
$78,540/yr
$69,OOO/yr
$476.000
500 Jobs
Utility Tax
New Jobs
These are in addItion to the health and safety benefits of creating a proper
vehicular circulation system for the State College Business Park and the
Northwest Industrial Park.
RECOMMENDATION
That the staff complete the recommended agreement and that It be forwarded to
the CDC upon executIon by H.A.B. Development.
3.
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PRELIMINARY ESTIMATE OF VALUE
February 21, 1110
HAS DEVELOPMENT PARCEL
The site Ihown on the atte~ IIaP is cc.priMd of "1.5 acru (1,107,70C0 SF)
located lOuth of Interstate 215 betlMen the Cable Creek flood control channal
and the Devl1s Canyon diveraion channal. It is a ....r.lly level parcel but
hes no vehicul.r 'Cca.. and is not ..riled by existing utiliti... The Genar.l
Plan specifies. l.nd un desil11l.tion of ....vy Industri., .nd there .re no
speci., pl.nning restrictions on the site 10 f.r .. we are ware. The
property fe~tures excellent visfbl1ity on 1-215 in both directions.
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CURRENT OWNER
The property w.. purcheMd by the H.A.B. Develoc-ent Corp:. on Juna .., 1187 for
net,ooO (fO...../SF) with a 201 down pe~t and a note with undisclOMd tenu
"cured by a 1st Truat IlMcf (... the atte~ CclIrpa s_ry). The trust deed
is in the IlIIOUnt of 8830,100.
COMPARARl~ Ul~R AND PARC~LR
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1. A 8 acre parcel (..rked as -A- on the 1IaP) 11as i-.cliately south of the
subjact property and was 101d in AUllUst, 111811, for 81.38/SF (1M the attached
Caaps sllllllary). An ....s....nt district hes baan foreed and is currently
constructing road and util1ty illprovaments at an .dditional cost of 80.1a/SF.
The indicated acqUisition cost is therefore 81.U/SF for land thet is si_flar
in nature andzonfng to the sUbjact parcel except thet it has no acce..
problems.
2. Two parcels i-.cliataly aastarly of the sUbject (..rked as -B- and -CO)
are fnside the St.te Colle.. Business Park and heve baan 11sted for two yaars
at a sales price of 82.DO/SF but ,....in unsold. Partly becausa the.. parcels
are If.1ted fn depth, and partly because they are at the and of whet is
affactfvely a very long cvl-da-..c, they are priced well under the balance of
the parcels in the park which start at 82.75/SF. The land u.. deSignation at
this end of the Businass Park is Light Industrfal.
INDICAT~D VAlU~
Based upon these indicators and a ..naral knowledge of other ..las in the area
it appears thet a range of 81.75 (gross) to 82.00 (nat) per SF would be
appropriate to the site after adeau.te .cce.. and utilities have battn
Dravided. At 81.75 for the "1.5 acres, the indicated value would be
83,183,5"5 or, say:
83,000,000
THREE MILLION DOLLARS
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CDMPS 1'7:;~00-:(:)~4::~r/6
COMN INCClUOIIATIQ 1105 L__. FIrS.. 71h Aaar '-' a.;o. CA .111 (11111) 4S?-22?4
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COMMERCIAL LAND
lllA &0_ ACUAGI
IV of .ate ivY/Pepper Linde
"n "~.ardino, CA '2407
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BUVEA: (714 )881-01"
I.A.I ana De.. Co.
c/o lenry A. lick1er
P.O. loa 2007
lrwindalei CA .1706
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SELLER:
Ian "rna~dino ".oc., G.P.
c/o "nford I. kbulbofer
70.11 ~a..ri.k La.
laacbo lIirafe, CA .2270
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Clo.nf date I Jane 4, 1'87
Doc..ent . I 1.8285
Sale prioe I ,78',000(c)
Down payalltl U58,200/20,
Acre. GRI 41.50 ftl _/A.
$/aere GRI '1,,012 _~I _/A.
Sq ft GRI 1,807,740 _~I _/A.
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OWNER PARTICIPATION AGREEMENT
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THIS AGREEMENT IS ENTERED INTO THIS
day of
,
4 1990 by and among the REDEVELOPMENT AGENCY OF THE CITY OF SAN
5 BERNARDINO (the "Agency"), and H.A.B. LAND DEVELOPMENT COMPANY, a
6
California Corporation, (the "Participant").
Agency and
7 Participant hereby agree as follows:
8
9
I.
[100] SUBJECT OF AGREEMENT
[101]
A.
Purpose of Agreement
10 The purpose of this Agreement is to effectuate the
11 Redevelopment Plan for the Northwest Redevelopment Project (the
12 "Project") by providing for the development of the Site, which is
13 situated within the Northwest Redevelopment Project Area (the
14 "Project Area") of the Project. This Agreement is entered into
15 for the purpose of developing the Site and not for speculation in
16
land hOlding.
The completion of the development of the Site
17 pursuant to this Agreement is in the vital and best interest of
18 the City of San Bernardino, California (the "City") and the
19 health, safety and welfare of its residents, and in accord with
20 the public purposes and provisions of applicable state and local
21 laws and requirements under which the Project has been
22 undertaken.
23 It is contemplated that, so long as the development
24 provided for in this Agreement is first accomplished in
25 conformity with the terms herein set forth, participant may
26 subdivide, convey and devote to other redevelopment activities
27 consistent with the Redevelopment Plan the remaining property on
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July 17, 1990
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2 the site.
3
[102]
B.
The Redevelopment Plan
4 The Redevelopment Plan was approved and adopted on
5 July 6, 1982 by Ordinance No. MC-189 of the Common Council of the
6 City of San Bernardino; said ordinance and the Redevelopment Plan
7 as so approved (the "Redevelopment Plan") are incorporated herein
8 by reference.
9
[103]
C.
The Site
10 The Site is that certain real property designated on
11 the Site Map (Attachment NO.1) and described in the "Legal
12 Description of the Site", which is attached hereto as Attachment
13 No. 2 and is incorporated herein by this reference.
14 The Site is that certain real property, title to which
16
15 is held by the participant.
17
18
D.
[104]
Parties to the Agreement
1.
[105]
The Agency
19 politic, exercising governmental functions and powers and
The Agency is a public body, corporate and
20 organized and existing under Chapter 2 of the Community
21 Redevelopment Law of the State of California (Health and Safety
22 Code Section 33020 et seg.). The principal office of the Agency
23 is located at 300 North "D" Street, San Bernardino, California
24 92418.
25 "Agency", as used in this Agreement, includes the
26 Redevelopment agency of the City of San Bernardino, and any
27 assignee of or successor to its rights, powers and
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July 17, 1990
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2 responsibilities.
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2.
[106]
The Participant
4
The Participant is H.A.B. Land Development
5
Company, a California Corporation.
The principal office and
6 mailing address of the Participant for purposes of this Agreement
7 is 10700 Jersey Blvd., Suite 450, P.o. Box 33S, Rancho Cucamonga,
S CA 91730.
9 The Participant qualifies as an owner participant
10 pursuant to the Redevelopment Plan and rules promulgated pursuant
11 thereto pertaining to owner participation.
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3.
[107]
Prohibition Against Change in
ownership, Management and Control
of the Participant
The qualifications and identity of the
15 Participant are of particular concern to the City and the Agency.
16 It is because of those qualifications and identity that the
17 Agency has entered into this Agreement with the Participant. No
lS voluntary or involuntary successor in interest of the Participant
19 shall acquire any rights or powers under this Agreement except as
20 expressly set forth herein.
21 The Participant shall not assign all or any part
22 of this Agreement or any rights hereunder without the prior
23 written approval of the Agency, which approval the Agency may
24 grant, withhold or deny at its discretion. In the event of such
25 transfer or assignment: (1) the assignee shall expressly assume
26 the obligations of the Participant pursuant to this Agreement in
27 writing satisfactory to the Agency; (2) the original Participant
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July lS, 1990
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2 shall remain fully responsible for the performance and liable for
3 the obligations of the Participant pursuant to this Agreement;
4 and (3) any guarantees provided to assure the performance of the
5 Participant's obligations under this Agreement shall remain in
6 full force and effect.
7 In the absence of specific written agreement by
8 the Agency, no such transfer, assignment or approval by the
9 Agency, shall be deemed to relieve the Participant or any other
10 party from any obligation under this Agreement.
11 All of the terms, covenants and conditions of
12 this Agreement shall be binding upon and shall inure to the
13 benefit of the Participant and the permitted successors and
14 assigns of the Participant. Whenever the term "Participant" is
15 used herein, such term shall include any other permitted
16 successors and assigns as herein provided.
17 The restrictions of this Section 107 shall
18 terminate and be of no further force and effect upon the issuance
19 by the Agency of a Certificate of Completion in the form attached
20 hereto as Attachment No. 5 as provided in Section 324 upon
21 completion of the Participant Improvements described in Section
22 302 of this Agreement and Attachment No.4.
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II.
[200] CONDITION OF THE SITE
A.
[201]
Vesting of Title to the Site
25 As of the date of this Agreement Title to the Site is
26 vested in Participant.
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July 17, 1990
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[202]
B.
Condition of the Site
3 Participant assumes all risk and responsibility for
4 any demolition and clearance of the Site as necessary for the
5
provision of Participant Improvements.
Participant assumes all
6 risk and responsibility as to the suitability of the Site for the
7
proposed development.
Agency makes no representations or
8 warranties concerning the Site, its suitability for the use
9 intended by the Participant, or the surface or subsurface
10
conditions of the Site.
If the soil or other surface or
11 subsurface conditions of the Site are not in all respects
12 entirely suitable for the use or uses to which the Site will be
13 put as of the date of this Agreement, Participant shall not be
14 excused from further performance under this Agreement and it
15 shall be the responsibility and obligation of Participant and not
16 Agency to take such action as may be necessary to place the Site
17 in a condition entirely suitable for the commencement,
18 development, and completion of the Participant Improvements.
19 III. [300] DEVELOPMENT
20
A.
[301]
Development by Participant
21 Participant and Agency agree that the central purpose
22 of this Agreement is to provide for the development of the Site
23 in a manner consistent with the Redevelopment Plan. Participant
24 shall develop on the Site two bridges and roads connecting
25 Industrial Parkway and Hallmark Parkway, including curbs, gutters
26 and landscaping built to specifications of the City of San
27 Bernardino.
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July 17, 1990
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[302]
1.
Scope of Development
3 The Site shall be developed by Participant as
4 provided in the "Scope of Development", which is attached hereto
5 as Attachment No. 4 and is incorporated herein.
6 The development shall include any plans and
7 specifications submitted to Agency for approval, and shall
8 incorporate or show compliance with all applicable mitigation
9 measures and entitlements.
2.
[303]
Design Concept Drawings
11 By the respective times set forth therefor in the
12 Schedule of Performance (Attachment NO.3), Participant shall
13 prepare and submit to the City of San Bernardino ("The City") for
14 the approval of the City Engineer, Design Concept Drawings and
15 related documents containing the overall plan for development of
16
the Site.
The Site shall be developed as established in this
17 Agreement and such documents, except as changes may be mutually
18 agreed upon between Participant and Agency. Any such changes
19 shall be within the limitations of the Scope of Development
20 (Attachment No.4).
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3.
[304]
Construction Drawings and Related
Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No.3), Participant shall prepare and
submit to the City, construction drawings, landscape plan, and
related documents for development of the Property for engineering
and architectural review and written approval.
The bridge and roadway plans shall be prepared by
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July 17, 1990
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2 a registered civil engineer who may be the same firm as
3 Participant's civil engineer.
4 The landscaping and finish grading plans shall be
5 prepared by a professional landscape architect who may be the
6 same firm as Participant's landscape architect.
7 During the preparation of all drawings and plans,
8 staff of Agency and Participant shall hold regular progress
9 meetings to coordinate the preparation of, submission to, and
10
review of drawings, plans and related documents.
The staff of
11 Agency and Participant shall communicate and consult informally
12 as frequently as is necessary to insure that the formal submittal
13 of any documents to Agency can receive prompt and complete
14 consideration.
15
4.
[305]
Cost of Construction
16 The cost of developing the Property and
17 constructing all Participant Improvements thereon shall be borne
18 by Participant subject to the Agency loan provided for in Section
19 315.
20
5.
[306]
Construction Schedule
21 Participant shall promptly begin and thereafter
22 diligently prosecute to completion the construction of the
23 Participant Improvements and the development of the Property.
24 Participant shall begin and complete all construction and
25 development of the Participant Improvements within the times
26 specified in the Schedule of Performance (Attachment NO.3).
27 Participant shall strictly conform to all time requirements and
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limitations set forth in this Agreement.
The bidding and
3 selection process of a contractor for the project shall be
4 subject to prior approval of Agency.
5
6.
Bodily Injury and Property Damage
Insurance
[307]
Participant shall defend, assume all
responsibility for and hold the Agency, the City, and their
respective officers, agents and employees, harmless from, all
claims or suits for, and damages to, property and injuries to
persons, including accidental death (including attorneys fees and
costs), which may be caused by any of Participant's activities
under this Agreement, whether such activities or performance
thereof be by the Participant or anyone directly or indirectly
employed or contracted with by Participant and whether such
damage shall accrue or be discovered before or after termination
of this Agreement.
Participant shall take out and maintain a
comprehensive liability and property damage policy in the amount
of One Million Dollars ($1,000,000) combined single limit policy,
including contractual public liability, as shall protect
Participant, City and Agency from claims for such damages until
two (2) years after the issuance of a Certificate of Completion
for all of the Participant Improvements.
Participant shall furnish a certificate of
insurance countersigned by an authorized agency of the insurance
carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage. This countersigned
certificate shall name the City and Agency and their respective
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2 officers, agents, and employees as additional insureds under the
3 policy. The certificate by the insurance carrier shall contain a
4 statement of obligation on the part of the carrier to notify City
5 and the Agency of any material change, cancellation or
6 termination of the coverage at least thirty (30) days in advance
7 of the effective date of any such material change, cancellation
8 or termination. Coverage provided hereunder by Participant shall
9 be primary insurance and not contributing with any insurance
10 maintained by Agency or City, and the policy shall contain such
11
an endorsement.
The insurance pOlicy or the certificate of
12 insurance shall contain a waiver of subrogation for the benefit
13 of the City and Agency.
14
Participant shall furnish or cause to be
15 furnished to Agency evidence satisfactory to Agency that any
16 contractor with whom it has contracted for the performance of
17 work on the Site or otherwise pursuant to this Agreement carries
18 workers' compensation insurance as required by law.
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7.
[308]
City and Other Governmental Agency
Permits
Before commencement of the Participant
Improvements or other construction or development of any
buildings, structures or other works of improvement upon the
Site, Participant shall, at its own expense, secure or cause to
be secured any and all permits which may be required by the City
or any other governmental agency affected by such construction,
development or work.
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July 17, 1990
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8.
[309]
Rights of Access
3 For the purpose of assuring compliance with this
4 Agreement, representatives of Agency and the City shall have the
5 right of access to the Site, without charges or fees, at normal
6 construction hours during the period of construction for the
7 purposes of this Agreement, including, but not limited to, the
8 inspection of the work being performed in constructing the
9 improvements, so long as they comply with all safety rules. Such
10 representatives of Agency or of the City shall be those who are
11 so identified in writing by the Executive Director of Agency.
12 Agency shall hold the Participant harmless from any bodily injury
13 or related damages arising out of the activities of Agency and
14 the City as referred to in this Section 309 and resulting from
15 the gross negligence or willful misconduct of the City or Agency.
16 This Section 309 shall not be deemed to diminish or limit any
17 rights which the City or Agency may have by operation of law
18 irrespective of this Agreement.
19
9.
[310]
Local, State and Federal Laws
20 Participant shall carry out the construction of
21 the Participant Improvements and all related activities on the
22 Site in conformity with all applicable laws, including all
23 applicable federal and state labor standards: provided, however,
24 participant and its contractors, successors, assigns,
25 transferees, and lessees are not waiving their rights to contest
26
any such laws, rules or standards.
Participant and its
27 contractors and sub-contractors shall pay prevailing wages to all
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2 employees on the project.
3
4
10. [311]
Antidiscrimination During Construction
Participant, for itself and successors and
5 assigns, agrees that in the construction of the improvements
6 provided for in this Agreement, Participant shall not
7 discriminate against any employee or applicant for employment
8 because of race, color, creed, religion, age, sex, marital
9 status, handicap, national origin or ancestry.
10
[312]
B.
Taxes, Assessments, Encumbrances and Liens
11 Prior to issuance of a Certificate of Completion with
12 respect to all of the Participant Improvements pursuant to this
13 Agreement, Participant shall not place or allow to be placed on
14 the Site or any part thereof any mortgage, trust deed,
15 encumbrance or lien other than as expressly allowed by this
16 Agreement. Participant shall remove or have removed any levy or
17 attachment made on any of the Site or any part thereof, or assure
18 the satisfaction thereof within a reasonable time but in any
19 event prior to a sale thereunder.
20
21
C.
[313]
Prohibition Against Transfer of the Site,
the Buildings or Structures thereon and
Assignment of Agreement
22 Prior to the issuance by the Agency of a Certificate
23 of Completion as to any building or structure, Participant shall
24 not, except as permitted by this Agreement, without the prior
25 written approval of Agency, make any total or partial sale,
26 transfer, conveyance, assignment or lease of whole or any part of
27 the Site or of the buildings or structures on the Site. This
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2 prohibition shall not be deemed to prevent a transfer expressly
3 permitted pursuant to Section 107 of this Agreement, or the
4 granting of temporary or permanent easements or permits to
5 facilitate the development of the Site.
6
[314]
D.
Loan Agreement: Deed of Trust
7
1.
[315]
Loan Agreement
8 Agency and Participant shall enter into a Loan
9 Agreement in the form of Attachment No. 6 by which Agency shall
10 loan Participant an amount not to exceed $2.13 Million for the
11 construction of Participant Improvements. Said loan shall be at
12 an interest rate of 10.25% with interest only payments quarterly
13 for seven years from the completion of improvements as evidenced
14 by the issuance of the Certificate of Completion as provided in
15 Section 324. Participant shall be entitled to draw on the loan
16 proceeds in 1/3 increments upon recommendation by the Executive
18
17 Director that 1/3 of the project has been completed and approval
by the Community Development Commission.
From each 1/3
19 disbursement Agency shall withhold 10% which amount shall only be
20 disbursed to Participant upon evidence of the payment or
21 satisfaction of all indebtedness relating to the project,
22 including payrolls and bills for materials and equipment (or that
23 with the remaining funds such payment or satisfaction will be
24 achieved), that might subject the Site or Agency to liability.
25 At the option of the Agency it may pay the retained proceeds
26 directly to the holders of any such indebtedness with such
27 payments becoming part of the loaned proceeds.
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2.
[316]
Deed of Trust
To secure said loan, Participant shall execute a
4
Deed of Trust in the form of Attachment No.7.
Said Deed of
5 Trust shall provide for partial releases of the affected Site
6 based on 150% proportionate payments. Said Deed of Trust shall
7 be a First Deed of Trust on the property.
E.
[317]
Mortgage, Deed of Trust, Sale and Lease-Back
Financing; Rights of Holders
1.
[318]
No Encumbrances Except Mortgages, Deeds
of Trust, or Sale and Lease-Back for
Development
Except as otherwise provided in this Agreement,
mortgages, deeds of trust and sales and leases-back are to be
permitted before completion of the construction of the
Participant Improvements, but only for the purpose of securing
loans of funds to be used for financing the construction of the
Participant Improvements or other improvements on the Site, and
any other purposes necessary and appropriate in connection with
development under this Agreement, and only if the instruments
effecting such mortgages, deeds of trust and sales and 1eases-
back contain the provisions of Sections 321 and 322 of this
Agreement.
Participant shall notify Agency in advance of any
mortgage, deed of trust or sale and lease-back financing. The
words "mortgage" and "trust deed" as used hereinafter shall
include sale and lease-back.
Participant shall not enter into
any such conveyance for financing without the prior written
approval of Agency, which approval Agency agrees to give if any
such conveyance for financing is given to a bank, savings and
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2 loan association, or other similar lending institution and such
3 lender shall be deemed approved unless rejected in writing by the
4 Agency within fifteen (15) days after written notice thereof is
5 received by the Agency. The form of approval by Agency shall be
6 in writing which references this Section 318, executed by the
7 Executive Director of the Agency.
8
9
2.
[319]
Holder Not Obligated to Construct
Improvements
The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
Participant Improvements or to guarantee such construction or
completion.
Nothing in this Agreement shall be deemed to
construe, permit or authorize any such holder to devote the Site
to any uses or to construct any improvements thereon, other than
those uses or Participant I.aprovements provided for or authorized
by this Agreement.
3.
[320]
Notice of Default to Mortgagee or Deed
or Trust Holders; Right to Cure
20 With respect to any mortgage or deed of trust
21 granted by Participant as provided herein, whenever Agency shall
22 deliver any notice or demand to Participant with respect to any
23 breach or default by Participant in completion of construction of
24 the Participant Improvements, Agency shall at the same time
25 deliver to each hOlder of record of any mortgage or deed of trust
26 authorized by this Agreement a copy of such notice or demand.
27 Each such holder shall (insofar as the rights of Agency are
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2 concerned) have the right, at its option, within thirty (30) days
3 after the receipt of the notice, to cure or remedy or commence to
4 cure or remedy any such default and to add the cost thereof to
5
the mortgage debt and the lien of its mortgage.
Nothing
6 contained in this Agreement shall be deemed to permit or
7 authorize such hOlder to undertake or continue the construction
8 or completion of the Participant Improvements (beyond the extent
9 necessary to conserve or protect the Participant Improvements or
10 construction already made) without first having expressly assumed
11 the Participant's obligations to Agency by written agreement
12 satisfactory to Agency. The holder, in that event, must agree to
13 complete, in the manner provided in this Agreement, the
14 Participant Improvements to which the lien or title of such
15 hOlder relates, and submit evidence satisfactory to Agency that
16 it has the qualifications and financial responsibility necessary
17 to perform such obligations. Any such holder properly completing
18 such Participant Improvements shall be entitled, upon compliance
19 with the requirements of Section 324 of this Agreement, to a
20 Certificate of Completion (as therein defined).
21
22
23
24
25
26
27
28
4.
[321]
Failure of Holder to Complete
Improvements
In any case where, thirty (30) days after default
by the Participant in completion of construction of Participant
Improvements under this Agreement, the hOlder of any mortgage or
deed of trust creating a lien or encumbrance upon the Site or any
part thereof has not exercised the option to construct or if it
has exercised the option and has not proceeded diligently with
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July 17, 1990
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2 construction, Agency may purchase the mortgage or deed of trust
3 by payment to the holder of the amount of the unpaid mortgage or
4 deed of trust debt, including principal and interest and all
5
other sums secured by the mortgage or deed of trust.
If the
6 ownership of the Site or any part thereof has vested in the
7 hOlder, Agency, if it so desires, shall be entitled to a
8 conveyance from the holder to Agency upon payment to the holder
9 of an amount equal to the sum of the following:
a.
The unpaid mortgage or deed of trust debt at the time
title became vested in the hOlder (less all
appropriate credits, including those resulting from
collection and application of rentals and other income
received during foreclosure proceedings):
b.
All expenses with respect to foreclosure:
c.
The net expense, if any (exclusive of general
overhead), incurred by the holder as a direct result
of the subsequent management of the Site or part
thereof:
d.
The costs of any Participant Improvements made by such
holder: and
e.
An amount equivalent to the interest that would have
accrued on the aggregate of such amounts had all such
amounts become part of the mortgage or deed of trust
debt and such debt had continued in existence to the
f.
date of payment by Agency: less
Any income derived by the lender from operations
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July 17, 1990
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conducted on the Site (the receipt of principal and
3
interest payments in the ordinary course of business
4
shall not constitute income for the purposes of this
5
6
subsection (f)).
5.
[322]
Right of the Agency to Cure Mortgage or
Deed of Trust Default
7
8
9
In the event of a mortgage or deed of trust
default or breach by Participant prior to the completion of any
part thereof and the holder of any mortgage or deed of trust has
not exercised its option to construct, Agency may cure the
default.
In such event, Agency shall be entitled to
reimbursement from Participant of all proper costs and expenses
incurred by Agency in curing such default, and such costs and
expenses shall be included as part of the loan proceeds under
Section 315.
F.
[323]
Right of Agency to Satisfy other Liens on
the Site
18 Prior to the completion of construction of the
19 Participant Improvements, and after Participant has had written
20 notice and has failed after a reasonable time, but in any event
25
26
27
28
bond against,
which are not
shall have the
/ / /
/ / /
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July 18, 1990
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2 or encumbrances and to ~nclude the cost thereof as part of the
3 loan proceeds under Sect~on 315.
4
G.
[324]
Cert~f~cate of Complet~on
5 Promptly after complet~on of all Part~c~pant
6 Improvements ~n conform~ty w~th th~s Agreement, Agency shall
7 furn~sh Part~c~pant w~th a Cert~f~cate of Complet~on (Attachment
8 No.5) upon wr~tten request therefor by Part~c~pant. Agency
9 shall not unreasonably w~thhold any such Cert~f~cate of
10 Complet~on. The Execut~ve D~rector may execute such Cert~f~cate
11
of Complet~on on behalf of Agency.
Such Cert~f~cate of
12 Complet~on shall be a conclus~ve determ~nat~on of sat~sfactory
13 complet~on of the construct~on requ~red by th~s Agreement upon
14 the S~te and the Cert~f~cate of Complet~on shall so state.
15 Agency may also furn~sh Part~c~pant w~th a Cert~f~cate of
16 Complet~on for port~ons of the ~mprovements upon the S~te as they
17 are properly completed and ready to use ~f Part~c~pant ~s not ~n
18
default under th~s Agreement.
After recordat~on of such
19 Cert~f~cate of Complet~on, any party then own~ng or thereafter
20 purchas~ng, leas~ng or otherw~se acqu~r~ng any ~nterest ~n the
21 S~te or the Part~c~pant Improvements shall not (because of such
22 ownersh~p, purchase, lease or acqu~s~t~on), ~ncur any obl~gat~on
23 or l~ab~l~ty under th~s Agreement except that such party shall be
24 bound by any covenants conta~ned in the documents establ~sh~ng
25 covenants on the S~te ~n accordance w~th the prov~s~ons of
26 Sect~on 401 of th~s Agreement which shall be appl~cable accord~ng
27 to ~ts terms.
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July 17, 1990
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2 If the Agency refuses or fails to furnish a
3 Certificate of Completion for the Site, or part thereof, after
4 written request from Participant, the Agency shall, within thirty
5 (30) days of written request therefor, provide Participant with a
6 written statement of the reasons Agency refused or failed to
7
furnish a Certificate of Completion.
The statement shall also
8 contain Agency's opinion of the actions that Participant must
9
take to obtain a Certificate of Completion.
If the reason for
10 such refusal is confined to the immediate availability of
11 specific items of materials for landscaping, Agency will issue
12 its Certificate of Completion upon the posting of a bond by the
13 Participant with Agency in an amount representing the value of
the work not yet completed.
If Agency shall have failed to
15 provide such written statement within said thirty (30) day
16 period, Participant shall be deemed entitled to the Certificate
17 of Completion, and Participant's obligation shall be deemed to be
18 satisfied.
19 Such Certificate of Completion shall not constitute
20 evidence of compliance with or satisfaction of any obligation of
21 the Participant to any holder of any mortgage, or any insurer of
23
22 a mortgage securing money loaned to finance the Participant
Improvements, or any part thereof.
Such Certificate of
24 Completion is not a notice of completion as referred to in the
25 California Civil Code, Section 3093.
26 Prior to the issuance of the Certificate of Completion
27 Participant shall grant to the City of San Bernardino the
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July 17, 1990
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2 Participant improvements which are the subject of this Agreement
3 and such additional right-of-way as described in the improvement
4
plan approved by the City Engineer.
Such grant shall be on a
5 form in a manner approved by the City of San Bernardino.
6
[325]
G.
Conditions, Covenants and Restrictions
7 Prior to the issuance of the Certificate of Completion
8 Participant shall prepare, and following approval by Agency shall
9 record conditions, covenants and restrictions affecting the Site
10 which shall; among other things, contain the nondiscrimination
11 provisions of Section 401, and shall require every grantee,
12 vendee under contract of sale, or lessee of all or any
13 undeveloped portion of the Site to enter into a Development
14
Agreement with the Redevelopment Agency.
The execution of such
15 Agreement shall be a condition precedent to any such deed,
16 contract of sale or lease. Any such deed, contract of sale, or
17 lease given without such Development Agreement may be set aside
18 by the recordation of a Certificate of such failure by the
19 Redevelopment Agency.
20
H.
[326]
Property Acquisition
21 The parties understand and agree that the property
22 between the present termination of Hallmark Parkway and the
24
23 southerly flood control channel is not under the ownership or
control of Participant.
The acquisition of a right-of-way for
26
25 the construction of the roadway improvements as described in this
Agreement is the responsibility of Agency.
If Agency does not
27 acquire such right-of-way within ninety (90) days of the date of
28
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July 17, 1990
20
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2 this Agreement the obligation of Participation to construct that
3
portion of the roadway improvements shall be excused.
Should
4 eminent domain be necessary the ninety (90) day period shall be
5 extended to one hundred eighty (180) days.
6 III. [400] USE OF THE SITE
7
[401]
A.
Uses
8
Participant covenants and agrees for itself, its
9 successors, its assigns, and every successor in interest to the
10 Site or any part thereof, that during construction and
11 thereafter, Participant and such successors and such assignees,
12 shall devote the Site to the uses specified in the Redevelopment
13 Plan as may be amended from time to time for the periods .of time
14
specified therein.
The Participant further covenants and
15 warrants that Participant shall develop improvements on the Site
16 in accordance with the Scope of Development (Attachment No.4).
17 Participant covenants to develop and operate the Site (or cause
18 it to be operated) in conformity with all applicable laws. The
19 foregoing covenants shall run with the land.
20 Participant covenants by and for itself and any
21 successors in interest that there shall be no discrimination
22 against or segregation of any person or group of persons on
23 account of race, color, creed, religion, sex, marital status,
24 age, handicap, national origin or ancestry in the sale, lease,
25 sublease, transfer, use, occupancy, tenure or enjoyment of the
26 Site, nor shall Participant itself or any person claiming under
27 or through it establish or permit any such practice or practices
28
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July 17, 1990
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2 of discrimination or segregation with reference to the selection,
3 location, number, use or occupancy of tenants, lessees,
4
subtenants, sublessees or vendees of the Site.
The foregoing
5 covenants shall run with the land.
6 Participant shall refrain from restricting the rental,
7 sale or lease of the Site on the basis of race, color, creed,
8 religion, sex, marital status, handicap, national origin or
9
ancestry of any person.
All such deeds, leases or contracts
10 shall contain or be subject to substantially the following
12
11 nondiscrimination or non-segregation clauses:
13
14
15
16
17
18
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20
21
22
23
24
25
26
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1.
In deeds:
"The grantee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through them, that there shall be no
discrimination against or segregation of, any person
or group of persons on account of race, color, creed,
religion, sex, marital status, age, handicap, national
origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or
her, establish or permit any such practice or
practices of discrimination or segregation with
reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees
or vendees in the land herein conveyed. The foregoing
DAB/ses/HAB.agr
July 17, 1990
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covenants shall run with the land."
2.
In leases:
"The lessee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through him or her, and this lease is made
and accepted upon and subject to the following
conditions:
"There shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital
status, handicap, age, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person
claiming under or through him or her, establish or
permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees in
the premises herein leased."
3.
In contracts:
"There shall be no discrimination
against or segregation of, any person, or group of
persons on account of race, color, creed, religion,
sex, marital status, age, handicap, ancestry or
national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
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July 17, 1990
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premises, nor shall the transferee himself or herself
or any person claiming under or through him or her,
3
4
establish or permit any such practice or practices of
discrimination or segregation with reference to the
5
6
7
8
9
selection, location, number use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the premises."
[402]
B.
Maintenance of the Site
11 Improvements and all other improvements on the Site and shall
Participant shall maintain the Participant
12 keep the Property free from any accumulation of debris or waste
13 materials.
14 Participant further agrees to maintain the Site in a
15 neat and attractive manner until construction of the improvements
16 described in this Agreement is complete so as not to, in the
17 reasonable determination of an appropriate officer of the City,
18 be a public nuisance, or be detrimental to the health, safety and
19 welfare, or impair value of property within one thousand (1,000)
20 feet of the Site, and agrees that in the event Participant fails
21 to do so, Agency may enter upon the Site for the purposes of
22 performing necessary and desirable maintenance, that Participant
23 will be responsible for the cost of any such maintenance
24 undertaken by Agency, which shall be paid within thirty (30) days
25 after receipt by Participant of written demand therefor.
26 Participant agrees to prepare and record Covenants, Conditions
27 and Restrictions approved by Agency, consistent with this Section
28
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July 17, 1990
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2 402 including the maintenance responsibilities outlined in this
3 Agreement which may not be amended nor revoked without the
4 approval of Agency.
5 Participant shall also maintain the landscaping
6 required to be planted under the Scope of Development (Attachment
7
NO.4) in a healthy condition.
If, at any time, Participant
8 fails to maintain said landscaping, and said condition is not
9 corrected after expiration of thirty (30) days from date of
10 written notice from Agency, Agency may perform the necessary
11 landscape maintenance and Participant shall pay such costs as are
12 reasonably incurred for such maintenance.
13 Issuance of a Certificate of Completion by Agency
14 shall not affect Participant's obligations under this Section.
15
C.
[403]
Rights of Access
16 Agency, for itself and for the City and other public
17 agencies, at their sole risk and expense, reserves the right to
18 enter the Site or any part thereof at all reasonable times for
19 the purpose of construction, reconstruction, maintenance, repair
20 or service of any public improvements or public facilities
21 located on the Site. Any such entry shall be made only after
22 reasonable notice to Participant, and Agency shall indemnify and
23 hold Participant harmless from any costs, claims, damages or
24 liabilities pertaining to any entry. This Section 403 shall not
25 be deemed to diminish or limit any rights which the City or
26 Agency may have by operation of law irrespective of this
27 Agreement.
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July 17, 1990
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[404]
D.
Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
4 The covenants established in this Agreement and the
5 deeds shall, without regard to technical classification and
6 designation, be binding for the benefit and in favor of Agency,
7 its successors and assigns, as to those covenants which are for
8
its benefit.
The covenants contained 'in this Agreement shall
9 remain in effect until the termination date of the Redevelopment
10
Plan.
The covenants against racial discrimination shall remain
11 in perpetuity.
12 Agency is deemed the beneficiary of the terms and
13 provisions of this Agreement and of the covenants running with
14 the land, for and in its own rights and for the purposes of
15 protecting the interests of the community and other parties,
16 public or private, in whose favor and for whose benefit this
17 Agreement and the covenants running with the land have been
18 provided. The Agreement and the covenants shall run in favor of
19 Agency, without regard to whether agency has been, remains or is
20 an owner of any land or interest therein in the Site or in the
21 Project Area. Agency shall have the right, if the Agreement or
22 covenants are breached, to exercise all rights and remedies, and
23 to maintain any actions or suits at law or in equity or other
24 proper proceedings to enforce the curing of such breaches to
25 which it or any other beneficiaries of this Agreement and
26 covenants may be entitled.
27
28
/
/
/
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July 17, 1990
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V.
[500] GENERAL PROVISIONS
3
[501]
Notices, Demands and Communications Between
the Parties
A.
4
Written notices, demands and communications between
5
6
7
8
9
Agency and Participant shall be sufficiently given if delivered
by hand (and a receipt therefor is obtained or is refused to be
given) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of
Agency and Participant.
Such written notices, demands and
communications may be sent in the same manner to such other
addresses as such party may from time to time designate by mail
as provided in this Section 501.
Any written notice, demand or communication shall be
deemed received immediately if deiivered by hand and shall be
deemed received on the tenth day from the date it is postmarked
if delivered by registered or certified mail.
B.
[502]
Conflicts of Interest: Non1iabi1ity
No member, official or employee of Agency shall have
any personal interest, direct or indirect, in this Agreement. No
member, official or employee shall participate in any decision
relating to the Agreement which affects his personal interests or
the interests of any corporation, partnership or association in
which he is directly or indirectly interested.
No member,
official or employee of Agency shall be personally liable to
Participant, or any successor in interest, in the event of any
default or breach by Agency or Participant, or for any amount
which may become due to Participant or its successor or on any
DAB/ses/HAB.agr
July 17, 1990
27
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7
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15
16
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20
21
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24
25
26
27
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2 obligations under the terms of this Agreement.
3 Participant represents and warrants that it has not
4 paid or given, and shall not payor give, any third party any
5 money or other consideration for obtaining this Agreement.
C.
[503]
Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
in default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrection; floods; earthquakes; fires; casualties; acts
of God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of
the City of San Bernardino or any other public or governmental
agency or entity (other than the acts or failures to act of
Agency which shall not excuse performance by Agency); or any
other causes beyond the control or without the fault of the party
claiming an extension of time to perform.
Notwithstanding
anything to the contrary in this Agreement, an extension of time
for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of
the cause, if notice by the party claiming such extension is sent
to the other party within thirty (30) days of the commencement of
the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Agency and
Participant.
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2 Part~c~pant ~s not ent~t1ed pursuant to th~s Sect~on
3 503 to an extens~on of t~me to perform because of past, present,
4 or future d~ff~cu1ty ~n obta~n~ng su~tab1e temporary or permanent
5 f~nanc~ng for the development of the S~te.
6
[504]
Inspect~on of Books and Records
D.
7 Agency has the r~ght at all reasonable t~mes to
8 ~nspect the books and records of Part~c~pant perta~n~ng to the
9 S~te as pert~nent to the purposes of th~s Agreement. Part~c~pant
10 has the r~ght at all reasonable t~mes to ~nspect the pub1~c
11 records of Agency perta~n~ng to the Property as pert~nent to the
12 purposes of the Agreement.
13
14
15
VI.
[600] DEFAULTS AND REMEDIES
A.
[601]
Defaults - - General
Subject to the extens~ons of t~me set forth ~n Sect~on
16 503, fa~lure or delay by any party to perform any term or
17 prov~s~on of th~s Agreement const~tutes a default under th~s
18
Agreement.
The party who so fa~ls or delays must ~mmed~ately
19 commence to cure, correct, or remedy such fa~lure or delay, and
20 shall complete such cure, correct~on or remedy w~th d~l~gence.
21 The ~njured party shall g~ve wr~tten not~ce of default
22 to the party ~n default, spec~fy~ng the default compla~ned of by
23 the ~njured party. Except as requ~red to protect aga~nst further
24 damages, and except for Sect~ons 319 and 321 of th~s Agreement,
25 the ~njured party may not ~nst~tute proceed~ngs aga~nst the party
26 ~n default unt~l th~rty (30) days after g~v~ng such not~ce.
27 Fa~lure or delay ~n g~v~ng such not~ce shall not const~tute a
28
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2 waiver of any default, nor shall it change the time of default.
3
[602]
B.
Legal Actions
4
[603]
1.
Institution of Legal Actions
5
In addition to any other rights or remedies
6 hereunder, Agency or Participant may institute legal action to
7 cure, correct or remedy any default, to recover damages for any
8 default, or to obtain any other remedy consistent with the
9 purpose of this Agreement. Any legal actions initiated pursuant
10 to this Agreement or otherwise with respect to its subject matter
11 must be instituted in the Superior Court of the County of San
12 Bernardino, State of California, in an appropriate municipal
13 court in that county, or in the Federal District Court in the
14 Central District of California, as appropriate.
15
2.
[604]
Applicable Law
16 The laws of the State of California shall govern
17 the interpretation and enforcement of this Agreement.
18
3.
[605]
Acceptance of Service of Process
19 In the event that any legal action is commenced
20 by Participant against Agency, service of process on Agency shall
21 be made by personal service upon the Executive Director or in
22 such other manner as may be provided by law.
23 In the event that any legal action is commenced
24 by any party against Participant, service of process on such
25 party shall be made by personal service upon Participant .or in
26 such other manner as may be provided by law, and shall be valid
27 whether made within or without the State of California.
28
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2
[606]
C.
Rights and Remedies are Cumulative
3 Except as otherwise expressly stated in this
4 Agreement, the rights and remedies of the parties are cumulative,
5 and the exercise by any party of one or more of such rights or
6 remedies shall not preclude the exercise by it, at the same or
7 different times, of any other rights or remedies for the same
8 default or any other default by any other party.
9
[607]
D.
Inaction Not a Waiver of Default
10 Any failures or delays by any party in asserting any
11 of its rights and remedies as to any default shall not operate as
12 a waiver of any default or of any such rights or remedies, or
13 deprive any party of its right to institute and maintain any
14 actions or proceedings which it may deem necessary to protect,
15 assert or enforce any such rights or remedies.
16
17
E.
[608]
Remedies and Rights of Termination
1.
[609]
Damages
18 Prior to the recordation of a Certificate of
19 Completion with respect to all of the Participant Improvements,
20 if either participant or Agency defaults with regard to any of
21 the provisions of this Agreement, the non-defaulting party shall
22 serve written notice of such default upon the defaulting party.
23 If the default is not cured by the defaulting party within thirty
24 (30) days after service of the notice of default, the defaulting
25 party shall be liable to the other for any damages caused by such
26 default.
27
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/
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2.
[610]
Action for Specific Performance
If either Participant or Agency defaults under
any of the provisions of this Agreement prior to the recordation
of a Certificate of Completion for the Participant Improvements
to be made thereon, the non-defaulting party shall serve written
notice of such default upon the defaulting party with a copy to
the remaining party. If the default iS,not commenced to be cured
by the defaulting party within thirty (30) days after service of
the notice of default, the non-defaulting party at its option may
institute an action for specific performance of the terms of this
Agreement.
VII. [700] SPECIAL PROVISIONS
A.
[701]
Submission of Documents to Agency for
Approval.
Whenever this Agreement requires Participant to submit
plans, drawings or other documents to Agency for approval, which
shall be deemed approved if not acted on by Agency within the
specified time, said plans, drawings or other documents shall be
accompanied by a letter stating that they are being submitted and
will be deemed approved unless rejected by Agency within the
stated time.
If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
B.
[702]
Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and
DAB/Ses/HAB.agr
July 17, 1990
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2 ~nure to the benef~t of the he~rs, executors, adm~n~strators,
3 successors and ass~gns of Part~c~pant.
4 Upon the term~nat~on of the restr~ct~ons ~mposed by
5 Sect~on 107 of th~s Agreement, wh~ch term~nate upon the ~ssuance
6 by Agency of a Cert~f~cate of Complet~on w~th respect to all of
7 the part~c~pant Improvements pursuant to th~s Agreement, all of
8 the terms, covenants, cond~t~ons and restr~ct~ons of th~s
9 Agreement wh~ch do not term~nate upon the ~ssuance of such
10 Cert~f~cate of Complet~on shall be deemed to be, and shall,
11 const~tute terms, covenants, cond~t~ons and restr~ct~ons runn~ng
12 w~th the land.
13 VIII. [800] ENTIRE AGREEMENT, WAIVERS
14 Th~s Agreement ~s executed ~n two (2) dupl~cate or~g~nals,
15
each of wh~ch ~s deemed to be an or~g~nal.
Th~s Agreement
16 ~ncludes pages 1 through 37 and Attachments 1 through 7, wh~ch
17 const~tute the ent~re understand~ng and agreement of the part~es.
18 No pr~vate ent~ty shall be deemed to be a th~rd party
19 benef~c~ary w~th respect to any prov~s~ons of th~s Agreement.
20 Th~s Agreement ~ntegrates all of the terms and cond~t~ons
21 ment~oned here~n or ~nc~dental hereto, and supersedes all
22 negot~at~ons or prev~ous agreements among the part~es or the~r
23 predecessors ~n ~nterest w~th respect to all or any part of the
24 subject matter hereof.
25 All wa~vers of the prov~s~ons of th~s Agreement must be ~n
26 wr~t~ng by the appropr~ate author~t~es of Agency and Partic~pant,
27 and all amendments hereto must be ~n wr~ting by the appropriate
28
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2 authorities of Agency and Participant.
3 Each individual signing below represents and warrants that
4 he has the authority to execute this Agreement on behalf of and
5 bind the party he purports to represent.
6
IX.
[900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
7 This Agreement, when executed by Participant and delivered
8 to Agency, must be authorized, executed and delivered by Agency
9 on or before thirty (30) days after signing and delivery of this
10 Agreement by Participant or this Agreement shall be void, except
11 to the extent that Participant shall consent in writing to a
12 further extension of time for the authorization, execution and
13 delivery of this Agreement. The date of this Agreement shall be
14 the date when it shall have been signed by the Agency as
15 evidenced by the date first above shown.
16
17
18
19
20
21
22
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24
25
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/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
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2 IN WITNESS WHEREOF, Agency, and Participant have executed
3 this Agreement on the day and date first above shown.
4 "Agency"
5 REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
6
7
By:
Executive Director
8
9
APPROVED AS TO PROGRAM:
10 By:
Redevelopment Manager
11
APPROVED AS TO FORM
12 AND LEGAL CONTENT:
13
14 Agency Counsel
15 "Participant"
16
17
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20
21
22
23
24
25
26
27
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STATE OF CALIFORNIA
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COUNTY OF SAN BERNARDINO
4
5 On this day of , in the
year , before me, the undersigned, a Notary Public in and
6 for the State of California, personally appeared Robert J. Temple
personally known to me (or proved to me on the basis of
7 sat~sfactory evidence) to be the person who executed this
instrument as the Executive Director of the REDEVELOPMENT AGENCY
8 OF THE CITY OF SAN BERNARDINO and acknowledged to me said Agency
executed it.
9
10
11
12 (SEAL)
13
14
15
16
17
18
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21
22
23
24
Signature of Notary Public
25
26
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July 17, 1990
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On It.u4 u~ !5 I \"~D , before me, the
undersigned, a Notary Public in.!. and for said State, personally
appeared j:h;~,.,< bo. ,&It:.lbJlL !f I.. O. \oY-WI~ ,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person ~ who executed
the within instrument as the President and the ~~~Ag~
of the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the same.
WITNESS my hand and official seal.
f!;J,J ~ ~A1AV
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STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
4
5
6
7
8
9
(SEAL)
f)- OFFICIAL SEAL
. RICHARD E. PENN
Notary Public-Califomia
LOS ANGELES COUNlY
My Comm. Elcp. May 19. 1991
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ATTACHMENT NO. 2
4 That portion of Blocks 45 and 46, and that unnumbered lot
adjoining Block 46 on the west of the lands of Irvington Land and
5 Water Company, as per plat recorded in Book 1, Records of Survey,
Page 32 Records of said County; in Book 3 of Maps, Page 9,
6 Records of said County; and Sections 12 and 13, Township 1 North,
Range 5 West, San Bernardino Base and Meridian; Section 18,
7 Township 1 North, Range 4 West, San Bernardino Base and Meridian,
according to the extension of the lines of the Official
8 Government Survey extended into the Muscupiabe Rancho, all in the
City of San Bernardino, County of San Bernardino, State of
9 California, lying Southwesterly of the Southwesterly line of that
certain Parcel of land, as conveyed to the State of California by
10 deed recorded October 25, 1955, in book 3772, Page 93, Official
Records, as instrument No. 55, as parcel "B"; and Northerly,
11 Northeasterly and Easterly of that certain parcel of land, as
conveyed to the San Bernardino County Flood Control District by
12 Deed recorded July 27, 1948, in Book 2268, Page 146, Official
Records; and Northerly and Northwesterly of that certain parcel
13 of land, as conveyed to said San Bernardino County Flood .Control
District by Deed recorded July 27, 1948, in Book 2268, Page 142,
14 Official Records.
15
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July 17, 1990
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4 1.
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2.
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14 3.
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ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Execution of Agreement
by Agency. Agency
shall approve and
execute this
Agreement, and shall
deliver one (1) copy
the reo f t 0
Participant.
Not later than thirty (30)
days after the date of
execution and submission of
two (2) copies of this
Agreement to Agency by
Participant.
Obtain Design Review
Approval. Agency and
City approve Design
Concept Drawings and
right-of-way alignment
(sufficient time
should be allowed for
possible initial
denial by either
Agency or City).
Obtain Bidding and
S e 1 e c t ion 0 f
Contractor Process
Approval. Agency
approves process for
bidding and selection
of contractor as
required by Section
306.
Not later than ninety (90)
days after the effective
date of this Agreement.
Not later than one hundred
twenty (120) days after the
effective date of this
Agreement.
Submit Completed
Construction and
grading plans.
Participant will
submit completed
construction and
grading plans and all
other plans and
documents required by
Section 304.
Not later than one hundred
eighty (180) days after the
effective date of this
Agreement.
Page 1 of 2
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July 17, 1990
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Obtain plan check
approval, obtain
building permits and
commence construction,
Participant shall
obtain necessary plan
check approval, obtain
all building permits
and beg i n
construction.
Not later than two hundred
seventy (270) days after
the effective date of this
Agreement.
Complete Construction.
Participant shall
complete construction
and obtain a Certi-
ficate of Completion.
Not later than four hundred
fifty (450) days from the
effective date of this
Agreement.
Page 2 of 2
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ATTACHMENT NO.4
3
SCOPE OF DEVELOPMENT
4
I.
GENERAL DESCRIPTION
5 The Site is specifically delineated on the Site Map
(Attachment No.1) and the Legal Description (Attachment No.2)
6 pursuant to Section 103 of this Agreement.
7
II.
DEVELOPMENT
8 Participant shall develop the Site with two bridges
crossing Cable Creek and the concrete flood control channel
9 southerly of the Site and roadways connecting Industrial Parkway
and Hallmark Parkway all to specifications of the City of San
10 Bernardino. Such development shall include curbs, gutters,
sidewalks and facilities for underground electrical power, water,
11 . sewer, telephone, cable TV, natural gas and such other utilities
as designated by the City Engineer.
12
Participant shall complete all of the improvements set
13 forth in this Scope of Development (Attachment No.4) to be
constructed in one phase. All of the improvements to be provided
14 by the Participant on the Site constitute the "Basic Participant
Improvements." The Basic Participant Improvements and all those
15 off-site improvements, which are required in connection with this
development (if any), and which are required to be provided by
16 the Participant (the "Off-Site Improvements") together constitute
the "Participant Improvements".
17
The Participant shall commence and complete the Participant
18 Improvements by the respective times established therefor in the
Schedule of Performance (Attachment No.3).
19
20
III. DEVELOPMENT STANDARDS
The Participant Improvements shall be developed in
21 accordance with City specifications and requirements of the City
Engineer and the following development standards.
22
A. Landscaping. The Participant shall provide and
23 maintain landscaping within the public rights-of-way and the
proposed public rights-of-way and within setback area along all
24 street frontages and conforming with the Design Concept Drawings
as approved by Agency.
25
Landscaping shall consist of trees, shrubs and installation
26 of an automatic irrigation system adequate to maintain such plan
material. The type and size of trees to be planted, together
27
28
Page 1 of 3
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July 17, 1990
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2 wi th a landscaping plan, shall be subject to approval by the
City's Planning Department prior to planting.
3
B. utilities. Sewer, drainage and utility lines,
4 conduits or systems shall not be constructed or maintained above
the ground level of the Site unless such installations are within
5 approved enclosed structures, and shall conform to requirements
of the City of San Bernardino or other applicable governmental or
6 private agency having jurisdiction of the work. Storm drainage
for all hard surfaced areas shall be drained or may be sheet
7 flowed to storm sewers. No drainage shall flow across public
sidewalks. All non polluted waste water, such as waste air
8 conditioning water, shall be drained to the storm or sanitary
drainage systems as permitted by local codes.
9
IV. PUBLIC IMPROVEMENTS AND UTILITIES
Participant, at its own cost and expense, shall provide or
11 cause to be provided the following public improvements within the
time set forth for the completion of the Participant Improvements
12 in the Schedule of Performance (Attachment No.3):
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1.
Improvement as required by the City by resurfacing,
rebuilding or new construction of the existing
streets, alleys or other public rights-of-way
(including catch basins, curbs and gutters, drive and
curb cuts, and drives between the property line of the
Site and the public rights-of-way) traversing the Site
on the alignment approved by the City Engineer. No
street widening is anticipated in connection with the
Property.
Installation of street lighting, signs and fire
hydrants in connection with the Site as may be
required.
Installation of public sidewalks along the frontage of
the roadway traversing the Site or within the rights-
of-way lines of such public streets, and appropriate
street landscaping which Agency or City might require.
Installation or relocation by the public utility
companies of such sewers, drains, water and gas
distribution lines, electric, telephone and telegraph
lines, and all other public utility lines,
installations and facilities as are necessary to be
installed or relocated on or in connection with the
Site by reason of the redevelopment contemplated by
the Redevelopment Plan and the development of the
2.
3.
4.
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Site. Agency shall not be responsible for, nor bear
any portion of the cost of, installing the necessary
utility connections within the boundaries of the Site
between the improvements to be constructed by
Participant and the water, sanitary sewer, and storm
drains, mains or other public utilities owned by the
City or by any public utility company within or
without such boundaries, or e1ectrio, gas, telephone
or other public lines owned by a public utility
company within or without suoh boundaries, and
Participant shall secure any permits required for any
such installation without expense to Agency.
5
6
7
8
Those of the improvements required to be provided pursuant
9 to this Part IV of the Scope of Development (Attachment No.4)
which are located off the Site described in Attachment No. 1
10 oonstitute the "Off-Site Improvements."
11
V.
DEMOLITION AND SOILS
12 Participant assumes all responsibility for surface and
subsurface conditions at the Site, and the suitability of the
13 Site for the Participant Improvements. If the surface and
subsurface conditions are not entirely suitable for such
14 development and use, Participant shall at its cost take all
actions necessary to render the Site entirely suitable for suoh
15 development. Participant has undertaken all investigation of the
Site it has deemed necessary and has not received or relied upon
16 any representations of Agency, the City, or their respective
officers, agents and employees. Participant shall undertake at
17 its cost all demolition required in connection with the
development of Participant Improvements.
18
19
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22
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24
25
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ATTACHMENT NO. 5
3
4
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[Space above for Recorder.]
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
5
6
7
8
9
CERTIFICATE OF COMPLETION FOR
10 CONSTRUCTION AND DEVELOPMENT
11 WHEREAS, pursuant to that certain Owner's Participation
Agreement entered into between the Agency, and H.A.B. Land
12 Development Company, a California Corporation ("Participant")
dated as of ("OPA"), relating to that
13 certain real property described on Exhibit 1, attached hereto and
incorporated herein, the Participant is entitled to the issuance
14 of a Certificate of Completion upon the completion of those
improvements required by the OPA to be developed by the
15 Participant (the "Participant Improvements"); and
16 WHEREAS, such certificate shall be conclusive determination
of satisfactory completion of the construction required by the
17 OPA; and
18 WHEREAS, the Agency has conclusively determined that the
construction on the above described real property required by the
19 OPA has been satisfactorily completed;
20
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/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
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2 NOW THEREFORE,
3 1. The Agency does hereby certify that the construction
of the Participant Improvements has been fully and satisfactorily
4 performed and completed.
5 2. Nothing contained in this instrument shall modify in
any other way other provisions of the Agency Deed or the DDA.
6 All executory obligations of the Participant pursuant to the DDA
shall remain in full force and effect.
7
IN WITNESS WHEREOF, the Agency has executed this
8 certificate this day of , 19
9 REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
Page 2 of 4
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STATE OF CALIFORNIA
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4
COUNTY OF SAN BERNARDINO
5 On this day of ,19 before me,
the undersigned, a Notary Public in and for said State,
6 personally appeared ,
known to me (or proved to me on the basis of satisfactory
7 evidence) to be the person who executed this instrument as the
Executive Director of the Redevelopment Agency of the City of San
8 Bernardino and acknowledged to me that the Redevelopment AGency
of the City of San Bernardino executed it.
Signature of Notary Public
12 (SEAL)
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EXHIBIT 1
3
4 That certain parcel of land in the City of San Bernardino,
County of San Bernardino, State of California, described as
5 follows:
6 That portion of Blocks 45 and 46, and that unnumbered lot
adjoining Block 46 on the West of the Lands of Irvington Land and
7 Water Company, as per plat recorded in Book 1, Records of Survey,
Page 32, Records of said county; in Book 3 of Maps, Page 9,
8 Records of said county; and Sections 12 and 13, township 1 North,
range 5 West, San Bernardino Base and Meridian; Section 18,
9 township 1 North, range 4 West, San Bernardino Base and
Meridian, according to the extension of the lines of the Official
10 Government Survey extended into the Muscupiabe Rancho, all in the
City of San Bernardino, County of San Bernardino, State of
11 California, lying Southwesterly of the Southwesterly line of that
certain parcel of land, as conveyed to the State of California by
12 deed recorded October 25, 1955, in Book 3772, Page 93 Official
Records, as instrument No. 55, as parcel "B"; and Northerly,
13 Northeasterly and Easterly of that certain parcel of land, as
conveyed to the San Bernardino county Flood Control District by
14 deed recorded July 27, 1948, in Book 2268, Page 146, Official
Records;; and Northerly and Northwesterly of that certain parcel
15 of land, as conveyed to said San Bernardino County flood Control
District by deed recorded July 27, 1948, in Book 2268, Page 142,
16 Official Records.
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ATTACHMENT NO. 6
3
4
Deed of trust wi1:h assignment of rent
Deed of trust made on
, 1990, by H.A.B. Land
5 Development Company, a California Corporation, hereinafter called
6 trustor, whose address is 10700 Jersey Blvd., Suite 450, P.o. Box
7 338, Rancho Cucamonga, CA 91730 to First American Title Insurance
8 Company, a California Corporation, hereinafter referred to as
9
trustee, whose business address is
in
10 favor of the Redevelopment Agency of the City of San Bernardino,
11 hereinafter referred to as beneficiary, whose business address is
12 300 North "0" Street, City Hall, San Bernardino, CA 92418.
13
14 trustee in trust, with power of sale, all that property,
Trustor irrevocably grants, transfers, and assigns to
15 including all easements and rights of way used in connection
16 therewith or as a means of access thereto, in the City of San
17 Bernardino, County of San Bernardino, State of California,
18
described as follows:
See Exhibit "A" attached hereto and
20
19 incorporated herein;
Together with the rents, issues, and profits thereof,
21 subject however to the right reserved by trustor in Paragraph B-
22 16 hereof to collect and apply such rents, issues, and profits,
23 prior to any default hereunder;
24 For the purpose of securing payment of the indebtedness
25 evidenced by a promissory note executed by trustor, dated
26 , 1990, in the principal sum of Two Million One
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2 Hundred Thirty Thousand Dollars ($2,130,000.00), payable to
3 beneficiary or order, and each extension thereof: and performance
4 of each agreement to trustor incorporated herein by reference or
5 contained herein.
6
A.
To protect the security of this deed of trust, trustor
7 agrees:
8
1.
To maintain the property in good condition and repair:
9 not to remove or demolish any building or improvement thereon: to
10 complete promptly in workmanlike manner any improvement hereafter
11 constructed thereon and to restore promptly in workmanlike manner
12 any improvement thereon that is damaged or destroyed, and to pay
13 when due all costs incurred therefor or in connection therewith:
14 to comply with all laws, ordinances, regulations, covenants,
15 conditions, and restrictions affecting the property: not to
16 commit or permit any waste thereof or any act upon the property
17 in violation of law or of covenants, conditions, or restrictions
19
18 affecting the property.
2.
To appear in and defend any action or proceeding
20 purporting to affect the security hereof or the rights or powers
21 of beneficiary or trustee: and also, if at any time beneficiary
22 or trustee is a party to or appears in any such action or
23 proceeding, or in any action or proceeding to enforce any
24 obligation hereby secured, to pay all cost and expenses paid or
25 incurred by them or either of them in connection therewith,
26 including, but not limited to, cost of evidence of title and
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2 attorneys' fees in a reasonable sum.
3
3.
To pay (a) at least 10 days before delinquency, all
4 taxes and assessments affecting the property, all assessment upon
5 water company stock, and all rents, assessments, and charges for
6 water appurtenant to or used in connection with the property; (b)
7 when due, all encumbrances, charges, and liens, with interest, on
8 the property or any part thereof, which appear to be prior or
9 superior hereto; and (c) all costs, fees, and expenses of this
10 trust.
11
4.
If trustor fails to make any payment or to do any act
12 as herein provided, then beneficiary or trustee (but without
13 obligation so to do, and with or without notice to or demand upon
14 trustor, and without releasing trustor from any obligation
15 hereOf) may (a) make or do the same in such manner and to such
16 extent as either deems necessary to protect the security hereof,
17 beneficiary or trustee being authorized to enter upon the
18 property for such purpose; (b) appear in or commence any action
19 or proceeding purporting to affect the security hereof or the
20 rights or powers of beneficiary or trustee; (c) pay, purchase,
21 contest, or compromise any encumbrance, charge, or lien that, in
22 the judgment of either, appears to be superior hereto; and in
23 exercising any such power, beneficiary or trustee may incur
24 necessary expenses, including reasonable attorneys' fees.
25
5.
To pay immediately and without demand all sums
26 expended hereunder by beneficiary or trustee, with interest from
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2 date of expenditure at ten and one quarter per cent (10.25%) per
3 annum.
4
B.
It is mutually agreed that:
Any award of damages made in connection with the
5
1.
6 condemnation for public use of or injury to the property or any
7 part thereof is hereby assigned and shall be paid to beneficiary,
8 who may apply or release such moneys received therefor upon any
9 indebtedness secured hereby in such order as beneficiary
10 determines, or at the option of beneficiary the entire amount so
11
received or any part thereof may be released to trustor.
Such
12 application or release shall not cure or waive any default or
13 notice of default hereunder or invalidate any act done pursuant
14 to such notice.
2.
The acceptance by beneficiary of any payment less than
16 the amount then due shall be deemed an acceptance on account only
17 and shall not constitute a waiver of the obligation of trustor to
18 pay the entire sum then due or of beneficiary's right either to
19 require prompt payment of all sums then due or to declare
20
default.
The acceptance of payment of any sum secured hereby
21 after its due date will not waive the right of beneficiary either
23
22 to require prompt payment when due of all other sums so secured
or to declare default for failure so to pay.
No waiver of any
24 default shall be a waiver of any preceding or succeeding default
25 of any kind.
26
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3.
At any time or from time to time, without liability
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2 therefor and with or without notice, upon written request of
3 beneficiary and presentation of this deed and the secured note
4 for endorsement, and without effecting the personal liability of
5 any person for payment of the indebtedness secured hereby or the
6 effect of this deed upon the remainder of the property, trustee
7 may reconvey any part of the property, consent to the making of
8 any map or plat thereof, join in granting any easement, or join
9 in any extension agreement or any agreement subordinating the
10 lien or charge thereof.
11
4.
Upon written request of beneficiary stating that all
12 sums secured hereby have been paid, surrender of this deed and
13 the note to trustee for cancellation and retention, and payment
14 of its fees, trustee shall reconvey, without warranty, the
15 property then held hereunder. The recitals in such reconveyance
shall be conclusive proof of the truthfulness thereof.
The
19
18 persons legally entitled thereto."
17 grantee may be designated in such reconveyance as "the person or
5.
Additional portions of the property subject to the
20 lien of this deed of trust, selected by trustor, but not less
21 than five (5) acre portions, shall be released from the lien
22 hereof from time to time on payment against the outstanding
23 principal balance at the rate of Seventy Six Thousand Two Hundred
24 Thirty Dollars ($76,230) per acre.
25 Regardless of whether trustor prepays any part of the
26 principal of the secured debt, partial release shall be granted
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2 at the rate of one acre for every timely payment of Seventy Six
3 Thousand Two Hundred Thirty Dollars ($76,230) of the principal of
4 such debt with a minimum release of five (5) acres. If trustor
5 sells a lot or lots, or a portion or portions of the property
6 encumbered hereby, and gives written notice of such fact to
7 beneficiary, beneficiary will be deemed to have agreed that it
8 will execute a partial release of such property from the lien
9 hereof whenever the release amount computed as specified above is
10 paid to beneficiary. Trustor may give such notice to beneficiary
11 at any time before there is a trustee's sale of the property. At
12 any time trustor is in default in payments to be made to
13 beneficiary hereunder, any amounts paid to and received by
14 beneficiary for execution of releases pursuant to the terms of
15 this paragraph after notice of default and election to sell has
16 been recorded shall not, unless the requirements of Section 2924c
17 of the Civil Code are fully met by or on behalf of trustor, waive
18 the right of beneficiary to continue its plans to have the
19 property SOld, nor shall they have any effect on the exercise by
20 beneficiary of the acceleration privilege contained herein,
21 except to entitle the person effecting such payment to the
22 release of the property for which the release amount was paid,
23 and insofar as beneficiary is concerned, to constitute a credit
24 against the secured debt.
25 Beneficiary acknowledges that the ability of trustor
26 to procure releases promptly is of the utmost importance.
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2 Therefore, beneficiary will at all times maintain at its
3 principal place of business a person who is authorized to
4 execute such releases on behalf of beneficiary, and such releases
5 will be executed and delivered, when sought in compliance with
6 the provisions contained herein, not later than ten days after
7 written demand for such release has been made on beneficiary.
8
6.
If trustor or any subsequent owner of the property
9 covered hereby shall occupy the property, or any part thereof,
10 after any default in payment of any amount secured by this deed
11 of trust, trustor or such owner shall pay to beneficiary in
12 advance on the first day of each month a reasonable rental for
13
the premises so occupied.
On failure to pay such reasonable
14 rental, trustor or such owner may be removed from the premises by
15 summary dispossession proceedings or by any other appropriate
16 action or proceeding.
17
7.
If default is made in payment of any indebtedness or
18 in performance of any agreement hereby secured, then
19 beneficiary, with or without notice to trustor, may declare all
20 sums secured hereby immediately due and payable by instituting
21 suit for the recovery thereof or for the foreclosure of this
22 deed, or by delivering to trustee a written declaration of
23 default and demand for sale, as well as a written notice of
25
24 default and of election to cause the property to be sold, which
notice trustee shall cause to be filed for record.
If such
26 declaration is delivered to trustee, beneficiary also shall
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2 deposit with trustee this deed, the secured note, and all
3 documents evidencing expenditures secured hereby.
4
8.
Should trustor, without the consent in writing of
5 beneficiary, voluntarily sell, transfer, or convey his interest
6 in the property or any part thereof, or if by operation of law,
7 it be SOld, transferred, or conveyed, then beneficiary may, at
8 its option, declare all sums secured hereby immediately due and
9 payable. Consent to one such transaction shall not be deemed to
10 be a waiver of the right to require such consent to future or
11 successive transactions.
12
9.
After the time then required by law has elapsed after
13 recordation of such notice of default, and notice of sale having
14 been given as then required by law, trustee, with or without
15 demand on trustor, shall sell the property at the time and place
16 fixed in the notice of sale, either as a whole or in separate
17 parcels and in such order as trustee determines, at public
18 auction, to the highest bidder, for cash in lawful money of the
19
United States, payable at time of sale.
Trustee may postpone
20 from time to time sale of all or any portion of the property by
22
21 public announcement at the time and place of sale originally
fixed or at the last preceding postponed time.
Trustee shall
23 deliver to the purchaser its deed conveying the property SOld,
24 but without any covenant or warranty, express or implied. The
25 recitals in such deed of any matters or facts shall be conclusive
26 proof of the truthfulness thereof. Trustor, trustee,
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2 beneficiary, or any other person may purchase at the sale.
3
10. After deducting all costs, fees, and expenses of
4 trustee and of this trust, including cost of evidence of title
5 and reasonable attorney fees in connection with sale, trustee
6 shall apply the proceeds of sale to payment of (a) all sums
7 expended under the terms hereof and not theretofore repaid, with
8 accrued interest at ten and one quarter per cent (10.25%) per
9 annum, and (b) all other sums then secured hereby in such order
10 as beneficiary, in the exercise of its sole discretion, directs.
11 The remainder, if any, shall be paid to the person or persons
12 legally entitled thereto.
11. Before trustee's sale, beneficiary may rescind such
14 notices of default and of election to cause the property to be
15 sold by delivering to trustee a written notice of rescission,
16 which notice, when recorded, shall cancel any prior declaration
17 of default, demand for sale, and acceleration of maturity. The
18 exercise of such a right of rescission shall not constitute a
19 waiver of any default then existing or subsequently occurring, or
20 impair the right of beneficiary to deliver to trustee other
21 declarations of default and demands for sale or notices of
22 default and of election to cause the property to be SOld, or
23 otherwise affect any provision of the secured note or of this
24 deed or any of the rights, obligations, or remedies of
25 beneficiary or trustee hereunder.
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12. Beneficiary may from time to time, as provided by
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2 statute, or by a writing signed and acknowledged by him and
3 recorded in the office of the county recorder of the county in
4 which the land or such part thereof as is then affected by this
5 deed of trust is situated, appoint another trustee in place and
6 stead of trustee herein named: and thereupon, the trustee herein
7 named shall be discharged, and the trustee so appointed shall be
8 substituted as trustee hereunder with the same effect as if
9 originally named trustee herein.
10
13. If two or more persons are designated as trustee
11 herein, any or all powers granted herein to trustee may be
12 exercised by any of such persons if the other person or persons
13 is unable, for any reason, to act. Any recital of such inability
14 in any instrument executed by any of such persons shall be
16
15 conclusive against trustor, his heirs and assigns.
14. All leases now or hereafter affecting the property are
17 hereby assigned and transferred to beneficiary by trustor.
18 Trustor hereby covenants that none of such leases will be
19 modified or terminated without the written consent of
21
20 beneficiary.
15. When requested so to do, trustor shall give such
22 further written assignments of rents, royalties, issues, and
23 profits: of all security for the performance of leases: and of
24 all money payable under any option to purchase, and shall give
25 executed originals of all leases, now or hereafter on or
26 affecting the property.
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16. Trustor reserves the right, prior to any default in
3 payment of any indebtedness or performance of any obligation
4 secured hereby, to collect all such rents, royalties, issues, and
5
profits, as but not before they become due.
Upon any such
6 default, trustor's right to collect such moneys shall cease, not
7 only as to amounts accruing thereafter, but also as to amounts
8
then accrued and unpaid.
In the event of default, beneficiary,
10 security for the indebtedness hereby secured, either in person
9 with or without notice and without regard to the adequacy of
11 or by agent, or by a receiver to be appointed by the court, (a)
12 may enter upon and take possession of the property at any time
13 and manage and control it in beneficiary's discretion and, (b)
14 with or without taking possession, may sue for or otherwise
15 collect the rents, issues, and profits thereof, whether past due
16 or coming due thereafter, and apply the same, less costs and
17 expenses of operation and collection, including reasonable
19
18 attorney's fees, upon any obligation secured hereby and in such
order as beneficiary determines.
None of the aforesaid acts
20 shall cure or waive any default hereunder or invalidate any act
21 done pursuant to such notice. Beneficiary shall not be required
22 to act diligently in the care or management of the property or in
23 collecting any rents, royalties, or other profits that it is
24 hereby authorized to collect, and shall be accountable only for
25 sums actually received.
26
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17. Without affecting the liability of trustor or of any
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2 other party now or hereafter bound by the terms hereof for any
3 obligation secured hereby, beneficiary, from time to time and
4 with or without notice, may release any person now or hereafter
5 liable for performance of such obligation, and may extend the
6 time for payment or performance, accept additional security, and
7 alter, substitute, or release any security.
8
18. In any action brought to foreclose this deed or to
9 enforce any right of beneficiary or of trustee hereunder, trustor
10 shall pay to beneficiary and to trustee attorneys' fees in a
11 reasonable sum, to be fixed by the court.
12
19. No remedy hereby given to beneficiary or trustee is
13 exclusive of any other remedy hereunder or under any present or
15
14 future law.
20. The pleading of any statute of limitations as a
16 defense to any and all obligations secured by this deed is hereby
17 waived, to the full extent permisSible by law.
18
19 indebtedness secured hereby, and if such indebtedness is secured
21. In the event of default in the payment of any
20 at any time by any other instrument, beneficiary shall not be
21 obligated to resort to any security in any particular order; and
22 the exercise by beneficiary of any right or remedy with respect
23 to any security shall not be a waiver of or limitation on the
24 right of beneficiary to exercise, at any time or from time to
25 time thereafter, any right or remedy with respect to this deed.
26
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22. Trustor shall, upon request made by beneficiary,
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2 furnish the beneficiary with annual statements covering the
3 operations of the property.
4
23. Beneficiary may collect a "late charge" not to exceed
5 an amount equal to four per cent (4%) per calender month, or
6 fraction thereof, on the amount past due and remaining unpaid on
7 any instalment that is not paid within ten (10) days from the due
8 date thereof, to cover the extra expense involved in handling
9 delinquent payments.
24. This deed applies to, inures to the benefit of, and
11 binds, all parties hereto, their heirs, legatees, devisees,
12 administrators, executors, successors, successors in interest,
13 and assigns. The term "beneficiary" means the owner and holder,
14 including pledgees, of the note secured hereby, whether or not
15 named as beneficiary herein. In this deed, whenever the context
16 so requires, the masculine gender includes the feminine and
17 neuter, and the singular number includes the plural, and all
19
18 obligations of each trustor hereunder are joint and several.
20 executed and acknowledged, is made a public record as provided
25. Trustee accepts this trust when this deed, duly
21 by law. Trustee is not obligated to notify any party hereto of
22 pending sale under any other deed of trust or of any action or
23 proceeding in which trustor, beneficiary, or trustee is a party
24 unless brought by trustee.
25
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/
/
/
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/
/
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2 Trustor requests that a copy of notice of default and
3 of any notice of sale hereunder shall be mailed to him at the
4 address set out opposite his name, immediately below.
5 MAILING ADDRESS FOR NOTICES
6
H.A.B. Land Development Company
10700 Jersey Blvd., Suite 450, P.O. Box 338
Rancho Cucamonga, California 91730
7
8 Executed at San Bernardino, California-on the date first above
written.
9
[Signature]
Trustor
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STATE OF CALIFORNIA
)
)ss.
)
COUNTY OF SAN BERNARDINO
4
5
On
undersigned, a
appeared
personally
satisfactory
who executed
before me, the
Notary Public in and for said State, personally
6
7
8
9
,
known to me or proved to me on the basis of
evidence to be the person
the within instrument as the President and the
of the corporation that executed the
within instrument, and acknowledged to me that such corporation
executed the same.
WITNESS my hand and official seal.
DAB/ses/HAB.agr
July 17, 1990
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EXHIBIT "A"
3
4 That certain parcel of land in the City of San Bernardino,
County of San Bernardino, State of California, described as
5 follows:
6 That portion of Blocks 45 and 46, and that unnumbered lot
adjoining Block 46 on the west of the lands of Irvington Land and
7 Water Company, as per plat recorded in Book 1, Records of Survey,
Page 32 Records of said county: in Book 3 of Maps, Page 9,
8 Records of said County: and Sections 12 and 13, township 1 North,
range 5 West, San Bernardino Base and Meridian: Section 18,
9 township 1 North, range 4 West, San Bernardino Base and Meridian,
according to the extension of the lines of the Official
10 Government Survey extended into the Muscupiabe Rancho, all in the
City of San Bernardino, County of San Bernardino, State of
11 California, lying Southwesterly of the Southwesterly line of that
certain parcel of land, as conveyed to the State of California by
12 deed recorded October 25, 1955, in book 3772, Page 93, Northerly,
Northeasterly and Easterly of that certain parcel of land, as
13 conveyed to the San Bernardino County Flood COntrol District by
Deed recorded July 27, 1948, in Book 2268, Page 146, Official
14 Records: and Northerly and Northwesterly of that certain parcel
of land, as conveyed to said San Bernardino County Flood Control
15 District by Deed recorded July 27, 1948, in Book 2268, Page 142,
Official Records.
16
17
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ATTACHMENT NO. 7
3
PROMISSORY NOTE SECURED BY DEED OF TRUST
4
$2,130,000.00
Place:
Redevelopment Agency
300 North "D" Street
San Bernardino, CA 92418
5
6 Date:
7 FOR VALUE RECEIVED, the undersigned jointly and severally
8 promises to pay to the Redevelopment Agency of the City of San
9 Bernardino (the "Agency") or its successors, the sum of Two
10 Million One Hundred Thirty Thousand Dollars ($2,130,000.00), and
11 to pay interest on the unpaid principal amount of this Note from
12 the date hereof, at the rate of Ten and one quarter per centum
13 (10.25%) per annum, until paid. Interest only payments on this
14 Note are payable on the First Day of each January, April, July,
15 and October following the date of this Note, with all principal
16 and interest due and payable seven (7) years after the issuance
17 of a Certificate of Completion pursuant to that certain Owners
18 Participation Agreement entered into between the Redevelopment
19 Agency and H.A.B. Land Development Company dated
20 , in lawful money of the United States at the principal
21 office of the Agency, 300 North "D" Street, Third Floor, City
22 Hall, San Bernardino, CA 92418, or at such other place as may
23 from time to time be designated by the Agency in writing. This
24 Note shall become immediately due and payable in the amount of
25 unpaid principal, with interest,upon transfer of title of the
26 property described in the Deed of Trust securing this Note to any
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2 person, firm or corporation other than the undersigned and except
3 as provided in said Deed of Trust, whether such transfer of title
4 be voluntary, involuntary, or by operation of law.
5 The undersigned reserves the right to prepay at any time
6 all or any part of the principal amount of this Note without the
7
payment of penalties or premiums.
All payments on this Note
8 shall be applied first to the interest due on the Note and then
9 to the principal due on the Note, and the remaining balance shall
be applied to late charges, if any.
Except as provided below,
11 all quarterly payments on this Note shall be credited as of the
12 due date thereof without adjustment of interest because paid
13 either before or after such due date.
14 IN THE EVENT the undersigned shall fail to pay the
15 quarterly interest payment when due, and if such failure be
16 subsisting Thirty (30) days thereafter, the unpaid principal
17 amount of this Note, together with accrued interest and late
18 charges, shall become due and payable, at the option of the City,
19
without notice to the undersigned.
Failure of the Agency to
20 exercise such option shall not constitute a waiver of such
21 default. No default shall exist by reason of nonpayment of any
22 required interest payment so long as the amount of optional
24
23 prepayments already made pursuant hereto equals or exceeds the
amount of the required payments.
If the payments on this Note
25 are not paid within Ten (10) days of the due date~ the
26 undersigned shall pay to the Agency a late charge of 4% per
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2 calendar month, or fraction thereof, on the amount past due and
3
remaining unpaid.
If this Note be reduced to judgment, such
4 judgment shall bear the statutory interest rate on judgments.
5 In no event shall the total interest and late charge
6 payable hereunder exceed the maximum amount of interest permitted
7 under the usury laws of the State of California.
8 If suit is instituted by the Agency to recover on this
9 Note, the undersigned agrees to pay all costs of such collection
10 including reasonable attorney's fees and court costs.
11 THIS NOTE is secured by a Deed of Trust of even date, duly
12 filed for record in the office of the County Recorder of the
13 County of San Bernardino, State of California.
14 DEMAND, protest and notice of demand and protest are hereby
15 waived and the undersigned hereby waives, to the extent
16 authorized by law, any and all homestead and other exemption
17 rights which otherwise would apply to the debt evidenced by this
18 Note.
19 IN WITNESS WHEREOF, THIS NOTE has been duly executed by the
20 undersigned, as of its date.
21
22
23
24
25
26
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(witness)
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