HomeMy WebLinkAboutR07-Economic Development Agency
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DEVELOPMENT DEPARTMENT
OF THE CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
REOUEST FOR COMMISSION/COUNCIL ACTION
FROM: KENNETH J. HENDERSON
Executive Director
SUBJECT: FREEWAY HOME CENTER
DATE: September 27, 1994
SvnoD.1s ofP....vlou. Commls.Ion/CouncWComm!ttee Actlon(.),
Over the past ten (10) months, the Community Development Commission has discussed and taken nwnerous actions in
connection with the acquisition and renovation of the Freeway Home Center.
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Recommended MotlonC.),
(Community DevelODment Commls.lon)
MOTION A,
That the Community Development Commission conceptua11y approve an Owner Participation
Agreement with Allen Steward, Inc., substantially in the form as attached and to authorize execution
thereof by the Chairman and Secretary subject and subsequent to approval by the Commission of the
Valley Bank loan docwnents and Agency Guarantee.
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KENNETH J. HENDERSON /
Executive Director
Contact Person(s):
Barbara LindselhlEmilv Wone
5081
Phone:
Project Area(s): Southeast Industrial Park Ward(s): Three (3)
Supporting Data Attached: Staff Report: 9121/94 letter from Allan Steward
FUNDING REQUIREMENTS: Amount: $300.000/$2.200 000 Source: Tax Increment/Loan Guarantee
Budget Authority: AooroVed conceptually 6/6/94
Commission/Council Notes:
BJL:EMW:freeway (adw)
COMMISSION MEETING AGENDA
MEETING DATE: 10/03/1994
Agenda Item Number:
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DE~LOPMENT DEPARTMQT
STAFF REPORT
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Freeway Home Center
On August 1, 1994, the Community Development Commission reviewed the Freeway Home
Center Project and directed staff to provide the Redevelopment Committee with a status report
update on August 18, 1994.
On June 6, 1994, the Community Development Commission conceptually approved financing
($2.5 million) for the Freeway Home Center project, subject to the following deal points:
1. That the Agency loan $300,000 directly to Steward and Associates for physical
rehabilitation, with $135,000 already advanced as deposit to be included as part of the
$300,000.
2. That the Agency guarantee an outside bank loan in the amount of$700,000 to Steward
and Associates in addition to the guarantee of $1. 5 million dollars from Valley Bank.
3. Two hundred thousand dollars ($200,000) of the above $700,000 will be added to the
$1.5 million dollars from Valley Bank to acquire Freeway Home Center for $1.7 million
dollars, with the remaining $500,000 to be utilized to carry the center for approximately
18 months at today's interest rate.
On September 26, 1994, Valley Bank approved a 1.5 million dollar loan contingent upon an
Agency loan guarantee.
According to a representative of Valley Bank, Inland Empire National Bank has expressed interest
in becoming the participating lender of the secondary loan in the amount of$700,000. Valley
Bank has forwarded the loan package to the proposed participating lender and anticipates
receiving a response during the week of September 26,1994.
The appraisal, completed by Edward G. Hill and Associates on August 1, 1994, establishes the
fair market value of the Freeway Home Center Project at $4,150,000, which would provide a
satisfactory 60% total loan to value ratio. Staffhas completed its informal valuation of real
property held by Mr. Steward (corporate and personal). The review indicates there is little equity
in the property holdings submitted by Steward and Associates. This conforms with comments
made by Mr. Steward at a recent Community Development Commission meeting at which time
Mr. Steward indicated most, ifnot all, of his real estate holdings were "highly leveraged" and he
would be unwilling to offer such properties as hard
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BJL:EMW:freeway (adw)
COMMISSIONl\'lUllNG AGENDA
MEETING DATE: 10/03/1994
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Agenda Item Number:
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Development Department ~RePort
Freeway Home Center
Page -2-
September 27,1994
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collateral for the loan. However, staff continues to recommend the Agency take a deed of trust
on each property as security since Mr. Steward's equity position may improve as loans are
gradually paid down and the likelihood of property appreciation increases in the future.
Other developed deal points currently under review involve the following issues:
1. Terms of the proposed $300,000 direct loan, to be commensurate with the size of the loan
2. Stipulated issues and disbursement for the balance of$665,000 (2.5 million (-) 1.7 million
acquisition (-) $135,000 deposit)
3. Adequate security in the form of trust deeds, personal and corporate guarantees.
Enclosed are copies of 2 letters from Allan Steward. The first letter addresses concerns regarding
any potential crime conviction. The second letter proposes terms for the $300,000 direct loan.
Staffis not in full accord with such terms or conditions of said $300,000 loan and Staff has,
together with Agency Counsel, prepared the attached Owner Participation Agreement to reflect
Stafl's view of the intended structure.
After the final loan documents and Agency Guarantee have been received and reviewed by
Agency Staff, the Agency will be required to specifically appove the final forms of the Valley
Bank loan and guarantee documentation.
Staff recommends adoption of the form motion.
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KENNETH J. HENDERSON, EIeeIltlve'Dlrector
Development Department
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BJL:EMW:freeway (adw)
COMMISSIONMmTING AGENDA
MEETING DATE: 10/03/1994
Agenda Item Number:
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69-28-1994 El5: 42PM
FROb Valley Bank MV. CA 92556
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3845434
P.Ell
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MORENO VAUEYOFFJCE
VAL~ BANK
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51rtember 28, 1994
Ci~y of San Bernardino
Economic Development Agency
20~ North E Street, 3rd Floor
San Bernardino, CA 92401
AtFn: Stafford Parker
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REr- Allan Steward, Inc./Freeway Home Center
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De~r Mr. Parker:
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PI~ase be advised that Valley Bank approved
Allan Steward, 'Inc. on September 26. 1994.
ba~ed on the following:
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the loan request of
This apPl:oval is
Loan amount to be $2,200,000.
Inte~est rate to be Bank of America Prime plus 2_75 %,
variable.
Borrower to be Allan Steward, Inc.
Guarantors to be the City of San Bernardino
Redevelopment Agency and Allan Steward.
Loan .terms to be interest only for 18 months, rolling
into .a permanent loan thereafter of 222 monthly
payments of $9,910 principal plus interest (20 year
total) .
An interest reserve of $300,000 (non-interest bearing)
is to be established to cover the 18 month interest
only period. .
This approval is contingent upon Valley Bank finding another bank
to: participate in this facility,'since $2,200,000 is over our
leval lending 1imic. A bank in Riverside has expressed a strong
in~erest and a full loan package was delivered to that financial
in~titution ear.lier this week.
.
Ifiyou should have any questions, 'please contact the undersigned.
Si~cerely,
t fZ/ fL?
Eri Hook
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A.~.k'.J~anagel:: I
C " I
. : \ ORENO VALLeY. CA 92~1S81
. , 0 (909'2~1174' FAX(909)24Z-1903 op.O.SOX188,M . I
2401l}SlJNM'MEAD BLVD., CA ~, " ' - ,- . :
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September 21, 1994
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STEIIVARD
& A SSOC/A TES
COMMERCIAL REAL ESTATE
Mr. Tun Steinhaus
Agency Adminim;rator
Economic Development Agency
201 N. "E" Street, 3rd Floor
San Bernardino, CA 92401
SEP 2 2 f994 ~
CITY OF SAN
ECONOMIC OEVEl%ERNAROINO
PMENT AGENCY
RE: 570 W. Fourth Street
San Bernardino, CA
Dear Mr. Steinhaus:
As an added incentive to the City Council, I have agreed as per Ralph Hernandez's request,
that if I am convicted of any crime that is presently pending in the Riverside County District
Attorney's office, the City will have the right to bring in another developer of their choice
and I will forfeit whatever work and money I have invested in the project. This should be
included in our participation agreement.
Sin~
. Steward
dent, CEO
ABSIks
cc:
Mayor Tom Minor
Councilmember Ralph Hernandez
Councilmember Valerie Pope-Ludlam
Counci1member Eddie Negrete
Councilmember Dr. Freddie Curlin
Councilmember Jerry Devlin
Councilmember Norine Miller
Councilmember David Oberhelman
1887 Business Center Drive, Suite 3 1
San Bernardino, California 92408
Tel. (909) 381-9922 FAX (909) 381-2481
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September 21, 1994
STEIIVARD
& A SSDCIA TES
COMMERCIAL REAL ESTATE
Mr. Tnn Steinhaus
Agency Admini~ator
Economic Development Agency
201 N. "E" Street, 3rd Floor
San Bernardino, CA 92401
RE: 570 W. Fourth Street
San Bernardino, CA
Dear Mr. Steinhaus:
Please find enclosed the commitment letter from Valley Bank. The participating bank will
be Inland Empire Bank but all the paperwork will be as if one loan through Valley Bank.
Also included are the terms and their participation information. Additionally enclosed is
an amortization schedule for the $300,000 loan from the city of San Bernardino to be fully
amortized over a period of twenty (20) years at nine percent (9"10) interest per annum.
We need to get the agreement with the city done immediately along with the city guarantee
to Valley Bank as we should have total loan commitment within a week to ten days. Please
prom y et your end of the work done as I am ready to fmish this deal up posthaste.
yo in advance, I remain,
ard
ABS/ks
enc1s
1887 Business Center Drive, Suite 3 1
San Bernardino. California 92408
Tel. (909) 381-9922 FAX (909) 381.2481
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VALLEY BANK
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ADMINISTRAnON
August 5, 1994
Mr. Gene Wood
E.H. wood & Associates
1811 North "D" Street
San Bernardino, CA 92404
Re: Freeway Horne Center
Dear Mr. Wood:
Pursuant
subject
to lend
to your request relative to the loan proposal for
project, valley Bank is willing to provide a commitment
as follows:
1.
Loan amount to be $2,200,000.'
2. Interest rate to be Bank of America Prime plus 2.75%,
variable.
3. Loan fee to be 3%.
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4. Borrower to be Allen Stewart, Inc.
5. Guarantors to be San Bernardino Redevelopment Agency,
and Allen Stewart.
6. Loan terms to be interest only for 18 months, rolling
into a permanent loan thereafter of 222 monthly payments of
$9,910 plus interest. (20 year total)
7. An interest reserve of $300,000 (non-interest bearing)
to be established to cover the 18 month interest only period.
This commitment to lend is contingent upon Valley Bank finding
another bank to participate in this facility since $2,200,000 is
over our legal lending limit. A bank in Riverside has expressed
a strong interest and a full loan package will be delivered to
them upon receipt of the appraisal and final financial data
from Mr. Stewart.
If there are questions about any of the preceding, please feel
free to contact me at your convenience.
Very truly yours,
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Doug Mills
President/CEO
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09/19/1994 Page 4
Q STEWARD
Date Payment Interest Principal Balance
104 05/19/2003 2,699.18 1,729.43 969.75 229,620.59
105 06/19/2003 2,699.18 1,722.15 977.03 228,643.56
106 07/19/2003 2,699.18 1,714.83 984.35 227,659.21
107 08/19/2003 2,699.18 1,707.44 991.74 226,667.47
108 09/19/2003 2,699.18 1,700.01 999.17 225,668.30
109 10/19/2003 2,699.18 1,692.51 1,006.67 224,661.63
110 11/19/2003 2,699.18 1,684.96 1,014.22 223,647.41
111 12/19/2003 2,699.18 1,677.36 1,021.82 222,625.59
2003 Totals 32,390.16 20,618.05 11,772.11
112 01/1912004 2,699.18 1,669.69 1,029.49 221,596.10
113 02/19/2004 2,699.18 1,661.97 1,037.21 220,558.89
114 03/19/2004 2,699.18 1,654.19 1,044.99 219,513.90
115 04/19/2004 2,699.18 1,646.35 1,052.83 218,461.07
116 05/19/2004 2,699.18 1,638.46 1,060.72 217,400.35
117 06/19/2004 2,699.18 1,630.50 1,068.68 216,331.67
118 07/19/2004 2,699.18 1,622.49 1,076.69 215,254.98
119 08/19/2004 2,699.18 1,614.41 1,084.77 214,170.21
120 09/19/2004 2,699.18 1,606.28 1,092.90 213,077.31
021 10/19/2004 2,699.18 1,598.08 1,101.10 211,976.21
22 11/19/2004 2,699.18 1,589.82 1,109.36 210,866.85
123 12/19/2004 2,699.18 1,581.50 1,117.68 209,749.17
2004 Totals 32,390.16 19,513.74 12,876.42
124 01/19/2005 2,699.18 1,573.12 1,126.06 208,623.11
125 02/19/2005 2,699.18 1,564.67 1,134.51 207,488.60
126 03/19/2005 2,699.18 1,556.16 1,143.02 206,345.58
127 04/19/2005 2,699.18 1,547.59 1,151.59 205,193.99
128 05/19/2005 2,699.18 1,538.95 1,160.23 204,033.76
129 06/19/2005 2,699.18 1,530.25 1,168.93 202,864.83
130 07/19/2005 2,699.18 1,521.49 1,177.69 201,687.14
131 08/19/2005 2,699.18 1,512.65 1,186.53 200,500.61
132 09/1912005 2,699.18 1,503.75 1,195.43 199,305.18
133 10/19/2005 2,699.18 1 ,494.79 1,204.39 198,100.79
134 11/19/2005 2,699.18 1,485.76 1,213.42 196,887.37
135 12/19/2005 2,699.18 1,476.66 1,222.52 195,664.85
2005 Totals 32,390.16 18,305.84 14,084.32
136 01/1912006 2,699.18 1,467.49 1,231.69 194,433.16
137 02/19/2006 2,699.18 1 ,458.25 1,240.93 193,192.23
138 03/19/2006 2,699.18 1,448.94 1,250.24 191,941.99
d 39 04/19/2006 2,699.18 1,439.56 1,259.62 190,682.37
40 05/19/2006 2,699.18 1,430.12 1,269.06 189,413.31
141 06/19/2006 2,699.18 1,420.60 1,278.58 188,134.73
142 07/19/2006 2,699.18 1,411.01 1,288.17 186,846.56
143 08/19/2006 2,699.18 1,401.35 1,297.83 185,548.73 1
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09/19/1994 Page 5
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Date Payment Interest Principal Balance
144 09/19/2006 2,699.18 1 ,391.62 1,307.56 184,241.17
145 10/1912006 2,699.18 1,381.81 1,317.37 182,923.80
146 11/19/2006 2,699.18 1,371.93 1,327.25 181,596.55
147 12/19/2006 2,699.18 1,361.97 1,337.21 180,259.34
2006 Totals 32,390.16 16,984.65 15,405.51
148 01/1912007 2,699.18 1,351.95 1,347.23 178,912.11
149 02/19/2007 2,699.18 1,341.84 1,357.34 177,554.77
150 03/19/2007 2,699.18 1,331.66 1,367.52 176,187.25
151 04/19/2007 2,699.18 1,321.40 1 ,377. 78 174,809.47
152 05/19/2007 2,699.18 1,311.07 1,388.11 173,421.36
153 06/1912007 2,699.18 1,300.66 1,398.52 172,022.84
154 07/19/2007 2,699.18 1,290.17 1,409.01 170,613.83
155 08/19/2007 2,699.18 1,279.60 1,419.58 169,194.25
156 09/19/2007 2,699.18 1,268.96 1 ,430.22 167,764.03
157 10/19/2007 2,699.18 1,258.23 1,440.95 166,323.08
158 11/19/2007 2,699.18 1,247.42 1,451.76 164,871.32
159 12/19/2007 2,699.18 1,236.53 1,462.65 163,408.67
2007 Totals 32,390.16 15,539.49 16,850.67
0160 01/1912008 2,699.18 1,225.57 1,473.61 161,935.06
161 02/19/2008 2,699.18 1,214.51 1,484.67 160,450.39
162 03/19/2008 2,699.18 1,203.38 1,495.80 158,954.59
163 04/19/2008 2,699.18 1,192.16 1,507.02 157,447.57
164 05/19/2008 2,699.18 1,180.86 1,518.32 155,929.25
165 06/19/2008 2,699.18 1,169.47 1,529.71 154,399.54
166 07/19/2008 2,699.18 1,158.00 1,541.18 152,858.36
167 08/19/2008 2,699.18 1,146.44 1,552.74 151,305.62
168 09/19/2008 2,699.18 1,134.79 1,564.39 149,741.23
169 10/19/2008 2,699.18 1,123.06 1,576.12 148,165.11
170 11/19/2008 2,699.18 1,111.24 1,587.94 146,577.17
171 12/19/2008 2,699.18 1,099.33 1,599.85 144,977.32
2008 Totals 32,390.16 13,958.81 18,431.35
172 01/19/2009 2,699.18 1,087.33 1,611.85 143,365.47
173 02/19/2009 2,699.18 1,075.24 1,623.94 141,741.53
174 03/19/2009 2,699.18 1,063.06 1,636.12 140,105.41
175 04/19/2009 2,699.18 1,050.79 1,648.39 138,457.02
176 05/19/2009 2,699.18 1,038.43 1,660.75 136,796.27
177 06/19/2009 2,699.18 1,025.97 1,673.21 135,123.06
178 07/19/2009 2,699.18 1,013.42 1,685.76 133,437.30
er9 08/19/2009 2,699.18 1,000.78 1,698.40 131 ,738.90
80 09/19/2009 2,699.18 988.04 1,711.14 130,027.76
181 10/19/2009 2,699.18 975.21 1,723.97 128,303.79
182 11/19/2009 2,699.18 962.28 1,736.90 126,566.89
183 12/19/2009 2,699.18 949.25 1,749.93 124,816.96
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09/19/1994 Page 7
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Date Payment Interest Principal Balance
222 03119/2013 2,699.18 357.23 2,341.95 45,288.88
223 04/19/2013 2,699.18 339.67 2,359.51 42,929.37
224 05/19/2013 2,699.18 321.97 2,377.21 40,552.16
225 06/19/2013 2,699.18 304.14 2,395.04 38,157.12
226 07/19/2013 2,699.18 286.18 2,413.00 35,744.12
227 08/1912013 2,699.18 268.08 2,431.10 33,313.02
228 09/1912013 2,699.18 249.85 2,449.33 30,863.69
229 10/19/2013 2,699.18 231.48 2,467.70 28,395.99
230 11/19/2013 2,699.18 212.97 2,486.21 25,909.78
231 12/19/2013 2,699.18 194.32 2,504.86 23,404.92
2013 Totals 32,390.16 3,532.53 28,857.63
232 01/1912014 2,699.18 175.54 2,523.64 20,881.28
233 02/19/2014 2,699.18 156.61 2,542.57 18,338.71
234 03/19/2014 2,699.18 137.54 2,561.64 15,777.07
235 04/19/2014 2,699.18 118.33 2,580.85 13,196.22
236 05/19/2014 2,699.18 98.97 2,600.21 10,596.01
237 06/19/2014 2,699.18 79.47 2,619.71 7,976.30
238 07/19/2014 2,699.18 59.82 2,639.36 5,336.94
039 08/19/2014 2,699.18 40.03 2,659.15 2,677. 79
40 09/19/2014 2,699.18 21.39 2,677. 79 0.00
2014 Totals 24,292.62 887.70 23,404.92
Grand Totals 647,803.20 347,803.20 300,000.00
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09/19/1994 Page 8
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Last interest amount increased by 1.31 due to rounding.
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RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
201 N. "E" STREET, THIRD FLOOR
SAN BERNARDINO, CA 92401-1507
DRAFT
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION AGREEMENT
FREEWAY HOME CENTER PROJECT
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
ALLAN STEWARD, INC.
a California corporation
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SBEO!OOOl-97/0PA/FRBEWAY
09/27/9' 3,39 jf
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT IS ENTERED INTO this
day of
, 1994 by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO (the "Agency"), and ALLAN STEWARD, INC. a
California corporation (the "Participant"). Agency and Participant
hereby agree as follows:
I.
[100]
SUBJECT OF AGREEMENT
A.
[101]
Puroose of Aqreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan for the Southeast Industrial Park Redevelopment
Project (the "Redevelopment Plan") by providing for Agency
assistance to Participant in connection with the financing of the
acquisition and rehabilitation of the Site, as hereinafter defined,
which is located within the Southeast Industrial Park Redevelopment
Project Area (the "Project Area") and which will provide for
economic development which will directly benefit the Project Area.
The execution of this Agreement is in the vital and best interests
of the City of San Bernardino, California (the "City") and the
health, safety and welfare of its residents, and in accord with the
public purposes and provisions of applicable state and local laws
and requirements under which the Redevelopment Plan has been
undertaken.
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B. [102] The Redevelopment Plan
The Redevelopment Plan was approved by Ordinance of the
Common Council of the City of San Bernardino; said Ordinance and
the Redevelopment Plan as so approved are incorporated herein by
reference. The Redevelopment Plan provides for the undertaking of
redevelopment activities.
C. [103] The Site
The Site is that certain real property generally located
at 1405 to 1680 South "E" Street between "E" Street and the
Interstate 215 Freeway near the intersection of in
the City of San Bernardino and as more fully described in the
"Legal Description of the Site", which is attached hereto as
Attachment No. 1 and is incorporated herein by this reference.
D. [104] Parties to the Aqreement
1. [105] The Aqencv
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, et seq.)
The principal office of the Agency is located at 201 North "E"
Street, San Bernardino, California 92401.
"Agency", as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino, the
Economic Development Agency of the City of San Bernardino, the
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Redevelopment Agency of the City of San Bernardino and any assignee
of or successor to their rights, powers and responsibilities.
2. [106] The particioant
The principal office and mailing address of the
Participant for purposes of this Agreement is 1887 Business Center
Drive, Suite 3, San Bernardino, California 92408, Attn: Allan
Steward.
3. [107] Prohibition Aaainst Chanae in Ownershio.
Manaaement and Control of the
particioant
The qualifications and identity of the Participant are of
o particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Participant. No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
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The Participant shall not assign all or any part of this
Agreement or any rights hereunder without the prior written
approval of the Agency, which approval the Agency may grant,
withhold or deny at its discretion. In the event of such transfer
or assignment: (1) the assignee shall expressly assume the
obligations of the Participant pursuant to this Agreement in
writing satisfactory to the Agency; (2) the original Participant
shall remain fully responsible for the performance and liable for
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the obligations of the Participant pursuant to this Agreement; and
(3) any guarantees provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
In the absence of specific written agreement by the
Agency, no such transfer, assignment or approval by the Agency
shall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
All of the terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
C Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
The restrictions of this Section 107 shall terminate and
be of no further force and effect upon the repayment in full of the
loan to which the Guaranty (as hereinafter defined) applies.
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4. [108] pendinq Litiqation
The Participant has informed the Agency that its
principal is presently the subject of a certain criminal
investigation pending in Riverside California. The Participant
agrees that in the event Participant's principal is convicted of or
pleads guilty or no contest to any crime in connection with such
investigation, Participant will immediately notify the Agency in
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writing thereon and will, from the date of such conviction or plea,
immediately transfer to the Agency for no consideration all of its
right, title and interest in the Site to the Agency and will
relinquish and forfeit any and all rights it may otherwise have
under the Agreement including those as provided in Section 303
hereof and will further forfeit any moneys, materials or time
invested in the Project as hereinafter defined. In such event, the
Agency, in its sole discretion, shall be entitled to substitute any
other participant and/or developer as it deems desirable in order
to cause the completion of the Project.
5. [109] Benefit to proiect Area
Agency has determined that the rehabilitation of the Site
will eliminate blight and provide a benefit to the Project Area
through an increase in tax increment revenues, the increase in
sales tax revenues and the generation of employment opportunities.
II. [200] IMPROVEMENT OF THE SITE
[201] Improvement bv Participant
The Participant and the Agency agree that the central
purpose of this Agreement is to provide for the acquisition of the
Site and the rehabilitation thereon of a square foot
commercial retain shopping center (the "Project") by the
Participant. Said Project shall enable the Participant to create
additional employment opportunities in the Project Area, to produce
additional tax increment and sales tax revenues for the Project
Area and to provide community-wide benefits through the
reestablishment of a community shopping center.
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The Site shall be rehabilitated by the Participant as
provided in the "Scope of Development", which is attached hereto as
Attachment No. 2 and is incorporated herein by this reference, in
a manner consistent with the provisions of the Redevelopment Plan.
2. [203] Cost of Proiect
Except as otherwise herein provided, the costs of
acquisition and rehabilitation of the Project shall be borne solely
by Participant. The Agency shall have no obligations, other than
as expressly set forth herein, with respect to the funding of the
Project. The Participant shall pay any and all fees, assessments
and/or closing costs related to the acquisition of the Site.
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3.
[204]
Rehabilitation Schedule
Upon execution of this Agreement, the Participant will
promptly begin and diligently prosecute to completion the
acquisition and rehabilitation of the Project. The Participant
shall begin and complete acquisition and rehabilitation of the
Project within the times specified in the "Schedule of Performance"
which is attached hereto as Attachment No. 3 and incorporated
herein by reference. The Participant shall strictly conform to all
time requirements and limitations set forth in this Agreement.
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III. [300] AGENCY ASSISTANCE
A. [301] Aqencv Guarantv
In order to assist in the acquisition of the Project, the
Agency agrees to guaranty (the "Agency Guaranty") repayment by
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Participant of a certain loan in favor of Valley Bank, or such
other lender as the Agency may approve in writing, which loan is to
be in a principal amount not to exceed Two Million Two Hundred
Thousand Dollars ($2,200,000) (hereinafter referred to as the "Bank
Loan"). As consideration for the Agency Guaranty and prior to the
Agency's execution and delivery of said Agency Guaranty, the
Participant shall pay to the Agency a fee for the provision of the
Agency Guaranty in an amount equal to Thirty Three Thousand Dollars
($33,000) (the "Guaranty Fee"). The proceeds of the Bank Loan are
to be used by Participant to cause the acquisition of the Site.
The Agency Guaranty shall be reflected in a certain Guaranty
Agreement in favor of the lender, as provided in Section 412
hereof, and shall be in a form substantially similar to Attachment
No. 4 attached hereto and incorporated herein by reference. In
further consideration for the Agency's provision of the Agency
Guaranty, the Participant shall execute a personal guaranty in
favor of the Agency (the "Personal Guaranty") in the form of
Attachment No. 5 incorporated herein by this reference. In
addition, Participant shall execute certain Deeds of Trust, in the
form of Attachment No. 6 incorporated herein by this reference, in
favor of the Agency conveying title to the Site and to those
certain properties listed on Attachment No.7, incorporated herein
by this reference, all as more fully provided in Section 412
hereof. The Agency's Deed of Trust, with respect to the Site,
shall be subordinate only to the Bank Loan.
The Agency's obligation with respect to the execution and
provision of the Agency Guaranty shall become binding only upon
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written approval by the Agency, in its sole discretion, of the
financing documents, submitted by Valley Bank and at such time as
the Agency has received (i) an executed original of this Agreement,
(ii) the Personal Guaranty (iii) a recorded copy of the Deed of
Trust referenced hereinabove and (iv) the Guaranty Fee.
B. [302] Aaencv Loan
(a) In addition to the provision of the Agency Guaranty
and in order to assist in the development of the Project, the
Agency agrees to loan to the Participant an amount equal to Three
Hundred Thousand Dollars ($300,000) (the "Agency Loan"). The
proceeds of the Bank Loan are to be used by Participant to cause
the rehabilitation of the buildings and improvements located on the
Site. The Participant acknowledges and agrees that it has already
received a portion of the proceeds of the Agency Loan in an amount
equal to One Hundred Thirty Five Thousand Dollars ($135,000) and
that accordingly, Participant shall only receive the balance of the
proceeds in the amount of One Hundred Sixty Five Thousand Dollars
($165,000) upon execution of this Agreement. The Agency Loan shall
be reflected in a certain Promissory Note in favor of the Agency,
as provided in Section 415 hereof, which shall be in a form
substantially similar to Attachment No. 8 attached hereto and
incorporated herein by reference and the Agency Loan shall also be
secured by a Deed of Trust conveying title to the Site in favor of
the Agency as provided in Section 416 hereof which shall be in a
form substantially similar to Attachment No. 6 attached hereto and
incorporated herein by reference. Except as otherwise provided
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herein, said Deed of Trust to the site shall be subordinate only to
the Bank Loan and the Agency Loan.
(b) The Promissory Note shall have a term of ten (10)
years. The Promissory Note shall bear annual interest at the rate
of Bank of America's prime plus two percent (2%) as of the date of
closing with payments of interest only for the first eighteen (18)
months of the Term and thereafter payments of principal and
interest to commence upon the expiration of the eighteenth month
after execution all as more fully described in the Promissory Note.
The outstanding balance of all principal and accrued interest shall
be due and payable in full at the expiration of the term of the
Promissory Note.
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(c) The Agency's obligation with respect to the
provision of the remaining proceeds of the Agency Loan shall become
binding only upon (i) the approval of the Bank Loan in the amount
of Two Million Two Hundred Thousand Dollars ($2,200,000),
(ii) receipt by the Participant of all necessary entitlements and
permits as provided in Section 402 hereof, (iii) the Agency's
receipt of an executed original of this Agreement, (iv) receipt of
a countersigned Certificate of Insurance as provided in Section 401
hereof, and (v) receipt of an ALTA lender's policy provided by
Participant and approved by Agency in the full amount of the Bank.
Item No. (i) of this paragraph shall be satisfied only upon written
approval of all terms and conditions and documents pertaining
thereto which written approval shall be given at the Agency's sole
discretion as determined by the Agency's Executive Director within
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o Director within fifteen (15) business days of the Aqency's receipt;
of all infol:'lll&tion and docwaentation nece.sary and. appropriate for
such determination.
(d) Funds representing the proceeds of the Agency Loan
are to be di.burseel through an Agency approved construction escrow
account or construotion con'trol aUthority.
C. [303] par~icipa~ion
The Agency and Partioipant agree that: both part i_ shall
participate in the dis'tribution of any profits and/or net revenues
9'ensrated frOlll the succe.sful colllpletion of the Project: and/or any
proceeds of any sale, lease or other disposition of th8 site, or
port:ion th~Qf, in the ratio of seventy-five porClmt (751\) in
favor ~f the participant and twenty-five percent (25%) in favor of
o the Agency. Such participation lSball continue until .
IV. (400]
1. [401]
SI'l'B REHABILITATION
Bodilv %n~urv and Pro~V D..AGe
Insurance
Partioipant snall defend, assume all responsibility for
and hol" the Agency, the city and their respective officers, agents
and employeee, barlllless frCll1l all claims or suits for, and dama'iJes
to, property and injurie. to persons, includin9' accidental death
(including attorneys' fee. and costs), Which may be caused by any
of participant'. activiti.. related to this Agreement, whether such
activities or perforJllP1ce thereof' be by the partioipant or anyone
directly or indirectly elllployed or contract.ed with by Participant
and whether such dall\aq. shall accrue or be discovered before or
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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, including contractual public liability, and shall protect
City and Agency from claims for damages arising out of Participants
activities under this Agreement as described hereinabove, until two
(2) years after the expiration of the Agency Guaranty.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent 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 officers, agents, and
employees as additional insureds under the policy. The certificate
by the insurance carrier shall contain a statement of obligation on
the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any such
material change, cancellation or termination. Coverage provided
hereunder by Participant shall be primary insurance and not
contributing with any insurance maintained by Agency or City, and
the policy shall contain such an endorsement. The insurance policy
or the certificate of insurance shall contain a waiver of
subrogation for the benefit of the City and Agency.
Participant shall furnish or cause to be furnished to
Agency evidence satisfactory to Agency that any contractor with
whom it has contracted for the performance of work on the Site or
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otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law.
2. [402] Citv and Other Governmental Aaencv Permits
Prior to the provision of the Agency Loan or Agency
Guaranty, Participant shall, at its own expense, secure or cause to
be secured any and all permits for all necessary construction and
rehabilitation work or ongoing operations on the Site which may be
required by the ci ty or any other governmental agency having
jurisdiction over such activities.
Nothing contained in this Agreement shall be deemed to be
an approval by the City of any application or permit required to be
o obtained by Participant from the City.
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3. [403] Riahts of Access
For the purpose of assuring compliance with this
Agreement, representatives of Agency and the City shall have the
right of access to the Site, without charges or fees, at normal
business hours for the purposes of ensuring compliance with this
Agreement, so long as they comply with all safety rules. Such
representatives of Agency or of the City shall be those who are so
identified in writing by the Executive Director of Agency. Agency
shall hold the Participant harmless from any bodily injury or
related damages arising out of the activities of Agency and the
City as referred to in this Section 403 and resulting from the
gross negligence or willful misconduct of the City or Agency. This
Section 403 shall not be deemed to diminish or limit any rights
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which the City or Agency may have by operation of law irrespective
of this Agreement.
4. [404] Local. State and Federal Laws
Participant shall carry out the Project and all related
activities on the Site in conformity with all applicable laws,
including all applicable federal and state labor standards;
provided, however, Participant and its successors, assigns,
transferees, and lessees are not waiving their rights to contest
any such laws, rules or standards.
5.
[405]
Antidiscrimination
Participant, for itself and successors and assigns,
o agrees that in the operation of the business provided for in this
Agreement, Participant shall not discriminate against any employee
or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
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6. [406] Minoritv Emolovment Oblioations.
Participant will employ or make demonstrated, measurable
good faith efforts to employ fifteen percent (15%) minority-owned
firms and five percent (5%) women-owned firms. Similarly,
Participant will employ or make demonstrated, measurable good faith
efforts to employ ten percent (10%) locally-owned firms as
subcontractors. If Participant fails to meet the employment goals,
it will provide documentation of efforts appropriate and adequate
to meet goals to the Agency. Adequacy of the documentation will be
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determined at the sole discretion of the Agency. Minimum
documentation of efforts will include but not be limited to:
a. Identify and select specific items of the Project
for which the contract will be awarded to be performed by
minorityjwomenjlocal-owned businesses.
b. Advertisement not less than ten (10) days before
award of bid in one local daily newspaper, three or more local
weekly minority oriented publications and at minority contracting
centers.
c. Written notice of interest to minority, women and
locally owned businesses on file with Department of Transportation
<:) and on file with the City of San Bernardino.
d. Documented follow-up of initial solicitations of
interest by contacting enterprises to determine with certainty
whether the enterprises are interested in performing specific items
of the Project.
e. Evidence Participant requested assistance from
minority, women and local business community organizations;
minority, women and local contractor groups; local, state or
federal minority and women business assistance offices; or other
organizations that provide assistance in the recruitment and
placement of minority, women or local business enterprises, if any
are available.
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f. Evidence Participant negotiated in good faith with
the minority, women or local business enterprises, and did not
unjustifiably reject as unsatisfactory bids prepared by any
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minority, women or local business enterprises, as determined by the
Agency.
g. Where applicable, the Participant advised and made
efforts to assist interested minority, women or locally owned
business enterprises in obtaining bonds, lines of credit or
insurance required by the Participant or contractor.
h. The Participant's efforts to obtain minority, women
and local business enterprise participation can be reasonably
expected by the Agency to produce a level of participation
sufficient to meet the goals and requirements of the Agency.
B. [407] Taxes. Assessments. Encumbrances and Liens
Prior to expiration of the Agency Guaranty or the Agency
Loan, which is later, Participant shall not place or allow to be
placed on the Site or any part thereof any mortgage, trust deed,
encumbrance or lien without the express prior written consent of
the Agency. Such written consent shall not be unreasonably
withheld to the extent the Participant is seeking construction or
permanent financing related to the Project.
C. [408] prohibition Aqainst Transfer of the Site.
the Buildinqs or Structures thereon and
Assiqnment of Aqreement
Prior to expiration of the Agency Guaranty and Agency
Loan, Participant shall not, except as permitted by this Agreement,
without the prior written approval of Agency, make any total or
partial sale, transfer, conveyance, assignment or lease of the
whole or any part of the Site or of the buildings or structures on
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the Site. Any such sale or disposition shall be in compliance with
the provision of Section 303 hereof. This prohibition shall not be
deemed to prevent a transfer expressly permitted pursuant to
Section 107 of this Agreement. In addition, Participant agrees
that for a period of ten (10) years from the date hereof, the
Participant shall not move or relocate its business operations,
presently located on the Site, to any location which is outside of
the boundaries of the City of San Bernardino without the express
prior written consent of the Agency, which consent shall be given
only at the Agency's sole discretion.
D. [409] Aqency Guaranty: Deed of Trust
1. [410] Aqency Guaranty
The Agency shall execute the Agency Guaranty in
substantially the form as attached hereto as Attachment No.4 which
Agency Guaranty shall be in favor of the lender described therein.
The Agency's obligation to guaranty the Bank Loan to the
Participant for the purposes of completing the refinancing of the
Site shall be limited to an amount equal to $2,200,000.
2. [411] Deed of Trust/Personal Guaranties
In consideration for the Agency's execution and provision
of the Agency Guaranty, Participant shall execute a personal
guaranty in the form of Attachment No. 5 as well as a Deed of Trust
to the Site and Deeds of Trust to the properties listed on
Attachment No.7, all substantially in the Form of Attachment No.
6, attached hereto and incorporated herein by this reference. The
Deed of Trust pertaining to the Site shall be subordinated only to
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the Bank Loan or such other financing as the Agency may approve in
writing.
E. [412] Promissory Note: Deed of Trust
1. [413] Promissory Note
The Participant shall execute a Promissory Note (the
"Note") in favor of the Agency in substantially the form as
attached hereto as Attachment No. 8 evidencing the Agency Loan from
the Agency to the Participant in an amount equal to $300,000 for
the purpose of assisting in the rehabilitation of the Project.
2. [414] Deed of Trust
To secure the Agency Loan, the Participant shall execute
<:) a second Deed of Trust to the Site also in the Form of Attachment
No.6, attached hereto and incorporated herein by this reference.
The Deed of Trust to the Site shall be subordinated only to such
financing as the Agency may approve in writing for the purposes of
completing the Project.
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F. [415] Mortqaqe. Deed of Trust. Sale and Lease-
Back Financinq: Riqhts of Holders
1. [416] No Encumbrances Except Mortqaqes. Deeds
of Trust or Sale and Lease-Back for
Development
Participant intends to obtain, and Agency agrees thereto,
a loan for the acquisition of the Site in the amount of not to
exceed $2,200,000. Participant shall not enter into any conveyance
or lien for other financing without the prior written approval of
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Agency, which approval Agency may give in its sole discretion.
Approval of such other conveyance or lien for financing by the
Agency shall not constitute a subordination of its Deed of Trust
related to the Project to such conveyance or lien without the
express written approval of the Agency. The form of approval by
Agency shall be in writing which references this Section 416,
executed by the Executive Director of the Agency. In the event
that the Agency fails to accept or reject such lender in writing
within fifteen (15) days after written notice thereof is received
by the Agency, such lender shall be deemed approved.
G. [417] Riaht of Aaencv to Satisfy Other Liens On
The Site
0 Prior to the expiration of the Agency Guaranty or the
Agency Loan and after Participant has had written notice and has
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failed after a reasonable time, but in any event not less than
fifteen (15) days, to challenge, cure, adequately bond against, or
satisfy any liens or encumbrances on the Site which are not
otherwise permitted under this Agreement, Agency shall have the
right but not the obligation to satisfy any such liens or
encumbrances and to seek indemnification therefor from the
Participant.
H. [418] Release of Deed of Trust
Upon the expiration of the Agency Guaranty and the Agency
Loan, Agency agrees to reconvey the Deeds of Trust. Upon the
recording of a reconveyance of the Deeds of Trust, any party then
owning or thereafter purchasing, leasing or otherwise acquiring any
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interest in the Site, or the other properties secured thereby,
shall not, as a result of such ownership, lease or acquisition,
incur any obligation or liability under this Agreement except that
such party shall be bound by the covenants set forth in Section SOl
of this Agreement, which shall be applicable, each according to its
terms.
V. [500] USES OF SITE
A. [SOl] Uses - Covenants Runninq With the Land
Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site or any part thereof, that for a period of ten (lO) years from
the date of this Agreement, the Site will continue to be devoted to
uses as a commercial retail center so long as such uses are still
economically feasible under commercially reasonable standards.
The foregoing covenant shall run with the land for ten
(lO) years commencing from the date of this Agreement.
Participant covenants by and for itself and any
successors in interest 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 Site, nor
shall Participant itself or any person claiming under or through it
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
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location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site. The foregoing covenants shall
run with the land.
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
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,
o 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
covenants shall run with the land."
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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, that
this lease is made and accepted upon and subject to the following
conditions: "There shall be no discrimination against or
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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 enj oyment sale, lease,
sublease, transfer, use, occupancy, tenure or enj oyment 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 practices 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 enj oyment of the
premises, nor shall the transferee 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 of the
premises."
B. [502] Maintenance of the Site
Participant shall maintain the Site and shall keep the
Site free from any accumulation of debris or waste materials.
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Participant further agrees to maintain the Site in a neat
and attractive manner so as not to, in the reasonable determination
of an appropriate officer of the City, be a public nuisance, or be
detrimental to the health, safety and welfare of the public, or
impair value of property within one thousand (1,000) feet of the
Site, and agrees that in the event Participant fails to do so,
Agency may enter upon the Site for the purposes of performing
necessary and desirable maintenance, that Participant will be
responsible for the cost of any such maintenance undertaken by
Agency, which shall be paid within thirty (30) days after receipt
by Participant of written demand therefor. In addition, the
Participant agrees that to the extent it is in violation of the
provisions of this Section 502, the Agency shall have a right to
place a lien against the Site in an amount necessary to cover its
costs associated with such violation.
C. [503] Effect of Violation of the Terms and
provisions of this Aareement After
Completion of Construction
The covenants established in this Agreement shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of Agency, its successors and
assigns, as to those covenants which are for its benefit. The
covenants contained in this Agreement shall remain in effect until
the termination date of the Redevelopment Plan unless an earlier
date is specified in this Agreement. The covenants against racial
discrimination shall remain in perpetuity.
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Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of protecting
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether Agency has been, remains or is an owner
of any land or interest therein in the Site. Agency shall have the
right, if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at law or
in equity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement
and covenants may be entitled.
VI.
A.
[500]
[601]
and
Communications
GENERAL PROVISIONS
Notices. Demands
Between the Parties
Written notices, demands and communications between
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 601.
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Any written notice, demand or communication shall be
deemed received immediately if delivered 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. [602] Conflicts of Interest: Nonliabilitv
No member, official or employee of Agency or the City
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 or the City 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 obligations under the terms of this Agreement.
Participant represents and warrants that it has not paid
or given, and shall not payor give, any third party any money or
other consideration for obtaining this Agreement.
Enforced Delav: 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:
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war; insurrections; 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 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.
Participant is not entitled pursuant to this Section 603
to an extension of time to perform because of past, present, or
future difficulty in obtaining suitable temporary or permanent
financing for the Site.
D. [604] Insoection of Books and Records
Agency has the right at all reasonable times to inspect
the books and records of Participant pertaining to the Site as
pertinent to the purposes of this Agreement. Participant has the
right at all reasonable times to inspect the public records of
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Agency pertaining to the Site as pertinent to the purposes of the
Agreement.
VII. [700] DEFAULTS AND REMEDIES
A. [701] Defaults General
Subject to the extensions of time set forth in
Section 603, failure or delay by any party to perform any term or
provision of this Agreement constitutes a default under this
Agreement. The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
inj ured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of
default.
B. [702] Leqal Actions
1. [703] Institution of Leqal Actions
In addition to any other rights or remedies hereunder,
Agency or Participant may institute legal action to cure, correct
or remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
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or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2. [704] Aoolicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3. [705] Acceotance of Service of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether made within
o or without the State of California.
C. [706] Riohts and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D. [707] Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its right and remedies as to any default shall not operate as a
<:) waiver of any default or of any such rights or remedies, or deprive
any party of its right to institute and maintain any actions or
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proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
E.
1.
[708]
[709]
Remedies
Damaqes
If either Participant or Agency defaults with regard to
any of the provisions of this Agreement, the non-defaulting party
shall serve written notice of such default upon the defaulting
party. If the default is not cured or if a cure has not been
commenced and is being diligently pursued to completion by the
defaulting party within thirty (30) days after service of the
notice of default, the defaulting party shall be liable to the
other for any damages caused by such default, and the non-
e:; defaulting party shall have the right to seek specific performance
and such other remedies as are available in law or equity.
o
Submission of Documents to Aqencv for
Aooroval
Whenever this Agreement requires Participant to submit
any document to Agency for approval, which shall be deemed approved
if not acted on by Agency within the specified time, said document
shall be accompanied by a letter stating that it is being submitted
and will be deemed approved unless rejected by 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.
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VIII. [800]
A. [801]
SPECIAL PROVISIONS
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B. [802] Successors in Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
assigns of Participant and Agency.
IX.
[900]
ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate
originals, each of which is deemed to be an original. This
Agreement includes Attachments 1 through 8, which together with
this Agreement constitute the entire understanding and agreement of
the parties.
c:> No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
o
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements among the parties or their
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and
Participant, and all amendments hereto must be in writing by the
appropriate authorities of Agency and Participant, except that the
Executive Director of Agency may agree to non-substantive changes
hereto with concurrence by Agency Counsel.
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Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
x. [1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [1001] Time for Acceptance
This Agreement, when executed by Participant and
delivered to Agency, must be authorized, executed and delivered by
Agency on or before thirty (30) days after signing and delivery of
this Agreement by Participant or this Agreement shall be void,
except to the extent that Participant shall consent in writing to
a further extension of time for the authorization, execution and
delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency as evidenced
by the date first above shown.
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IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDE~jlljEWI!~CY OF
CITY ~~INO
THE
By:
Executive Director
APPR01)tt rs,.ffGRAM:
Deputy Director
APPROVED AS TO~iM.~
LEGAL CONTE~~r
By:
Special Agency Counsel
"Participant"
ALLAN STEWARD INC.
a CO~~flrporation
By: Allan Steward
Title:
SBEO!OOOl-94/0PA/FREEWAY
09/27/94 11:33 jf
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STATE OF CALIFORNIA
ss.
COUNTY OF
On before me,
personally appeared ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity (ies) , and that by his/her/their signature (s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
Signature
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STATE OF CALIFORNIA
ss.
COUNTY OF
On before me,
personally appeared ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity (ies), and that by his/her/their signature (s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
Signature
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STATE OF CALIFORNIA
ss.
COUNTY OF
On before me,
personally appeared ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity (ies) , and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
Signature
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ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
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ATT. 1 - Page 1
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ATTACHMENT NO. 2
SCOPE OF DEVELOPMENT
DESCRIPTION OF REHABILITATION WORK:
ATT. 2 - Page 1
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ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Open Escrow for Acquisition
Complete Bank Documents
Agency approval of Bank Loan Document
Close Escrow
Commence Rehabilitation Work
Complete Rehabilitation Work
ATT. 3 - Page 1
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ATTACHMENT NO. 4
AGENCY GUARANTY
The REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
CALIFORNIA
("Lender") ,
obligation
("Debtor") ,
Guaranty is
(the "Agency") hereby guarantees to Valley Bank
on the terms and conditions set forth hereinafter, the
of ALLAN STEWARD, INC., a California corporation
as more specifically described hereinafter. This
subject to the following:
1. The Agency's obligations to Lender are solely with
respect to the debt incurred by Debtor by way of the promissory
note and deed of trust entered into by and between Lender and
Debtor, a true and correct copy of which is attached to this
Guaranty as Exhibit "A" (the "Debt"). The Agency's obligation
hereunder shall not extend to any other obligation of Debtor to
Lender, or any third party, whatsoever.
2. The amount of the Agency's obligations to Lender
shall not exceed Two Million Two Hundred Thousand Dollars
($2,200,000), less any payments made on account thereof by Debtor
or any other party. Any obligation of the Agency hereunder shall
cease upon payment in full of all principal and interest due under
said note, regardless of the source of said payment.
3. The obligations of the Agency under this Guaranty do
not extend to any prior, contemporaneous or future debt owed by
Debtor to Lender.
4. Lender may not, without the prior written consent of
the Agency, enter into any modification, amendment, waiver or other
change in the terms, amount or conditions of the Debt, nor renew,
extend, postpone or accelerate the time for payment or otherwise
change the terms of the Debt, nor release any security held
therefor.
5. Lender covenants that it will diligently exercise
all rights accorded to it under the terms of Exhibit "A" or any
collateral or security agreements held by Lender in connection
therewith.
6. Lender expressly waives any right to seek to obtain
in any manner whatsoever any asset of the Agency which may be in
the possession of the Lender at any time, and agrees solely to
exercise its rights under this agreement in accordance with the
terms hereof.
7. In the event of any default by Debtor under the
terms of the Debt, Lender agrees to provide the Agency with notice
thereof within thirty (30) days of the event of said default, so as
to enable the Agency to contact the Debtor and seek to obtain
compliance by the Debtor with the terms of the Debt. Lender
further agrees to provide reasonable notice, which shall not be
ATT. 4 - Page 1
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less than forty-five (45) days, prior to taking any action to
declare a default under the terms of the Debt, accelerate the
indebtedness referenced thereby, act upon any security held by
Lender with respect to said indebtedness, or otherwise enforce any
rights against the Debtor or the Agency.
8. The Agency reserves all rights of subrogation or
indemnification against the Debtor with respect to any and all sums
which may be paid by the Agency on behalf of the Debtor under the
terms of this agreement. After any and all conditions precedent
hereunder to the Agency's obligations hereunder have been
satisfied, Lender may make written demand upon the Agency for
payment of any unpaid portion of the Debt and the Agency shall make
or cause to be made payment thereof in full within sixty (60) days
of receipt of such written demand.
9. Notwi thstanding any other provision of this Guaranty
to the contrary, the total obligation of the Agency to Lender under
the terms hereof shall not exceed the sum of $2,200,000.
10. The Agency may not terminate its obligations under
the provisions of this Guaranty until such time as the Debt has
been paid in full or the amount then owed by the Agency pursuant
hereto has been paid in full; provided, however, in the event (i)
the Debtor has not been in default as set forth in the terms of the
Promissory Note and Deed of Trust for a period of sixty (60) months
from the date hereof and (ii) notice to the Agency pursuant to
paragraph 8 above has not been delivered by the Lender after
satisfaction of all conditions precedent demanding a draw of all or
a portion of the principal amount hereof, then this Guaranty shall
automatically expire and be of no -further force and effect without
any notice from the Agency to the Lender.
11. To the extent the Lender avails itself of its rights
under this Guaranty and is made whole, the Lender shall, upon
written request of the Agency, assign any and all of its rights
under the Debt to and in favor of the Agency.
12. In the event of litigation concerning the terms of
this Guaranty, the prevailing party shall be entitled to reasonable
attorneys' fees.
13. This Guaranty and the respective rights and
obligations created hereby are subject to and are to be construed
according to the laws of the State of California.
14. Lender may assign its rights under this Guaranty,
subject to providing fifteen days' prior written notice thereof to
the Agency.
ATT. 4 - Page 2
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15. The Agency's obligations under this Agreement,
notwithstanding any prior execution hereof by any representative of
the Agency, are subject to the approval of the Community
Development Commission, the legislative body of the Agency.
Dated:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
APPROVED AS TO FORM:
Special Agency Counsel
ATT. 4 - Page 3
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ATTACHMENT NO. 5
PERSONAL GUARANTY OF $2.200.000 NOTE
1. For valuable consideration, the undersigned Allan
Steward (hereinafter called "Guarantor") unconditionally guaranties
and promises to pay to the Redevelopment Agency of the City of San
Bernardino (hereinafter called "Lender"), or order, on demand, in
lawful money of the United States, any and all indebtedness of
Allan Steward, Inc., a California corporation, as borrower,
(hereinafter collectively called "Borrower") to Lender. The word
"indebtedness" is used herein in its most comprehensive sense and
includes any and all advances, debt, obligations, and liabilities
of Borrower or anyone or more of them, heretofore, now, or
hereafter made, incurred or created, whether voluntary or
involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or
undetermined, and whether Borrower may be liable individually or
jointly with others, or whether recovery upon such indebtedness may
be or hereafter become barred by any statute of limitations, or
whether such indebtedness may be or hereafter become otherwise
unenforceable.
2 . The Lender has approved the use of funds in the
amount of Two Million Two Hundred Thousand Dollars ($2,200,000) for
the benefit of the Borrower evidenced by a Owner Participation
Agreement (the "Agreement") and secured by this personal guaranty
(the "Personal Guaranty"). The liability of Guarantor shall not
exceed at anyone time the sum of Two Million Two Hundred Thousand
Dollars ($2,200,000) for principal, together with any and all
interest upon the indebtedness or upon such part thereof as set
forth in the Agreement. Notwithstanding the foregoing, Lender may
permit the indebtedness of Borrower to exceed Guarantor's
liability. This is a continuing guaranty relating to any
indebtedness, including that arising under successive transactions
which shall either continue the indebtedness or from time to time
renew it after it has been satisfied. This Guaranty shall not
apply to any indebtedness created after actual receipt by Lender of
written notice of its revocation as to future transactions. Any
payment by Guarantor shall not reduce his maximum obligation
hereunder unless written notice to that effect be actually received
by Lender at or prior to the time of such payment and agreed to in
writing by Lender.
3. The obligations hereunder are joint and several, and
independent of the obligations of Borrower, and a separate action
or actions may be brought and prosecuted against Guarantor whether
action is brought against Borrower or whether Borrower be joined in
any such action or actions and Guarantor waives the benefit of any
statute of limitations affecting his liability hereunder or the
enforcement thereof.
ATT. 5- Page 1
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4. Guarantor authorizes Lender, without notice or
demand and without affecting his liability hereunder, from time to
time to (al renew, compromise, extend, accelerate, or otherwise
change the time for payment of, or otherwise change terms of the
indebtedness or any part thereof, including increase or decrease of
the rate or rates of interest thereon; (b) take and hold security
for the payment of this Personal Guaranty or the indebtedness
guaranteed, and exchange, enforce, waive, and release any such
security; (cl apply such security and direct the order or manner of
sale thereof as Lender in its discretion may determine; and (dl
release or substitute anyone or more of the endorsers or
guarantors. Lender may, without notice, assign this Personal
Guaranty in whole or in part.
5. Guarantor waives any right to require Lender to (al
proceed against Borrower; (bl proceed against or exhaust any
security held by Borrower; or (cl pursue any other remedy in
Lender's power whatsoever. Guarantor waives any defense arising by
reason of any disability or other defense of Borrower or by reason
of the cessation from any cause whatsoever of the liability of
Borrower. Until all indebtedness of Borrower to Lender shall have
been paid in full, even though such indebtedness is in excess of
Guarantor's liability hereunder, Guarantor shall have no right of
subrogation, and waive any right to enforce any remedy which Lender
now has or may hereafter have against Borrower, and waive any
benefit of, and any right to participate in any security now or
hereafter held by Lender. Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance
of this Guaranty and of the existence, creation or incurring of new
or additional indebtedness.
6. No lien or right of setoff shall be deemed to have
been waived by any act or conduct on the part of Lender, or by an
neglect to exercise such right or setoff or to enforce such lien,
or by any delay in so doing; and every right of setoff and lien
shall continue in full force and effect until such right or setoff
or lien is specifically waived or released by an instrument in
writing executed by Lender.
7. Guarantor agrees to pay reasonable attorney's fees
and all other costs and expenses which may be incurred by Lender in
the enforcement of this Personal Guaranty.
8. This Personal Guaranty shall remain in effect until
such time as all principal, accrued interest and penalty charges,
as applicable, and all other costs, fees and expenses incurred by
Lender pursuant to the Agreement secured by this Guaranty as
executed and delivered by the Borrower to Lender have been paid in
full. At such time as all financial responsibilities of Borrower
to Lender have been extinguished, this Personal Guaranty shall be
of no force and effect and shall be delivered to the Guarantor.
9. In all cases where there is but a single Borrower or
a single Guarantor, then all words used herein in the plural shall
ATT. 5- Page 2
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be deemed to have been used in the singular where the context and
construction so require; and when there is more than one Borrower
named herein, or when this Personal Guaranty is executed by more
than one Guarantor, the word "Borrowers" and the word "Guarantor"
respectively shall mean all and anyone or more of them.
IN WITNESS WHEREOF, the
executed this Personal Guaranty on
undersigned Guarantor has
, 1994.
GUARANTOR
Allan Steward
ACCEPTED BY LENDER:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
SBEO\OOOl-97\OPA\STEWARD
9/27/94 11:33 jrf
ATT. 5- Page 3
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ATTACHMENT NO. 6
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:.
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on by, Allan
Inc., hereinafter called "Trustor", whose address is 1887
Center Drive, Suite 3, San Bernardino, California 92408,
, a California Corporation, hereinafter
to as "Trustee", whose business address is
San Bernardino, California , in favor
of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
hereinafter referred to as "Beneficiary", whose business address is
201 North "E" Street, Third Floor, San Bernardino, California
92401.
Steward,
Business
to
referred
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE ATTACHMENT NO. 1
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
Owner Participation Agreement dated as of (the
"OPA") and performance of each agreement to Trustor incorporated
herein by reference or contained herein.
ATT. 6 - Page 1
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A.
To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
sum.
3. To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting the property, all
assessment upon water company stock, and all rents, assessments and
charges for water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges and liens, with
interest, on the property or any part thereof, which appear to be
prior or superior hereto; and (c) all costs, fees and expenses of
this trust.
4. If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
5. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of five percentage points
over Bank of America's published prime rate.
ATT. 6 - Page 2
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B. It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2. The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either 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 default shall be
a waiver of any preceding or succeeding default of any kind.
3. At any time upon the occurrence of a default,
without liability therefor and with or without notice, upon written
request of Beneficiary and presentation of this deed for
endorsement, and without effecting the personal liability of any
person, Trustee may reconvey any part of the property, consent to
the making of any map or plat thereof, join in granting any
easement or join in any extension agreement or any agreement
subordinating the lien or charge thereof.
4. Upon written request of Beneficiary, surrender of
this deed to Trustee for cancellation and retention, and payment of
its fees, Trustee shall reconvey, without warranty the property
then held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto."
5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
ATT. 6 - Page 3
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6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default, Trustor or such owner shall pay to Beneficiary
in advance on the first day of each month a reasonable rental for
the premises so occupied. On failure to pay such reasonable
rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
7. If default is made in performance of any agreement
hereby secured, then Beneficiary, with or without notice to
Trustor, may institute suit for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall deposit with Trustee this deed, and all documents
evidencing expenditures secured hereby.
8. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
9. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at five percentage points over Bank of America's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
10. Before Trustee's sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
ATT. 6 - Page 4
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declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
11. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
12. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
13. All leases of any structures on the Site which
utilize the Project as defined in the OPA, now or hereafter
affecting the property are hereby assigned and transferred to
Beneficiary by Trustor. Trustor hereby covenants that none of such
leases will be modified or terminated without the written consent
of Beneficiary.
14. If a default is made in the performance of any
agreement hereby secured, Trustor when requested to do so, shall
give such further written assignments of rents, royalties, issues
and profits; of all security for the performance of leases; and of
all money payable under any option to purchase, and shall give
executed originals of all leases, now or hereafter on or affecting
the property.
15. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or 'otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
ATT. 6 - Page 5
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determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
16. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, Beneficiary may release any
person now or hereafter liable for performance of such obligation,
and may extend the time for payment or performance, accept
additional security, and alter, substitute or release any security.
17. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court.
18. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
defense
waived,
19.
to any
to the
The pleading of any statute of limitations as a
and all obligations secured by this deed is hereby
full extent permissible by law.
20.
furnish the
operations of
Trustor shall, upon request made by Beneficiary,
Beneficiary with annual statements covering the
the property.
21. Beneficiary may collect a "late charge" not to
exceed an amount equal to five percent (5%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
22. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the Agreement secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
23. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
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Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below:
MAILING ADDRESSES FOR NOTICES:
Allan Steward, Inc.
as Trustor:
1887 Business Center Drive, Suite 3
San Bernardino, CA 92405
Attn: Allan Steward
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Executed at San Bernardino, California, on the date first
above written.
By:
By: Allan Steward, Inc.
Title: Owner
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STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF
On before me,
personally appeared ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity (ies), and that by his/her/their signature (s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
Signature
Executed at San Bernardino, California, on the date first
above written.
as Trustor
By:
Title:
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ATTACHMENT NO. 7
LIST OF PROPERTIES TO BE SECURED BY
DEEDS OF TRUST IN FAVOR OF THE AGENCY
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ATT. 7 - Page 1
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ATTACHMENT NO. 8
PROMISSORY NOTE SECURED BY DEED OF TRUST
$300,000.00
Place:
Redevelopment Agency
201 North "E" Street
Third Floor
San Bernardino, CA 92401
Date:
FOR VALUE RECEIVED, the undersigned promises to pay to
the Redevelopment Agency of the City of San Bernardino (the
"Agency") or its successors, the sum of Three Hundred Thousand
Dollars ($300,000.00), and to pay interest on the unpaid principal
amount of this Note which has been funded from the date hereof, at
the rate per annum equal to Bank of America prime rate plus two.
Payment of interest and principal shall be made as follows:
1. The undersigned shall make payments of interest only
for the first eighteen (18) months from the date of this Note.
Commencing with the nineteenth (19) month, the undersigned shall
make monthly payments of principal and accrued interest.
2. Regardless of the completion of the Project or the
establishment of permanent financing for the proj ect, the full
amount of all unpaid principal and interest under this Note shall
become due and payable ten (10) years from the date hereof.
3. A failure to pay any sum provided for in this Note
when due or a material breach of this Note, the Agreement or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Note, the
Agreement or the Deed of Trust.
All payments due under this Note shall be made in lawful
money of the United States in the name of the Agency at the
principal office of the Agency, 201 North "E" Street, City Hall
Annex, San Bernardino, CA 92401-1507, or at such other place as may
from time to time be designated by the Agency in writing.
Notwithstanding any language herein to the contrary, this
Note shall become immediately due and payable in the amount of all
unpaid principal, with interest, upon any transfer in violation of
the Agreement of title of the property described in the Deed of
Trust to any person, firm or corporation other than the undersigned
and except as provided in said Deed of Trust, whether such transfer
of title be voluntary, involuntary, or by operation of law.
ATT. 7 - Page 2
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The undersigned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note shall
be applied first to the interest due on the Note and then to the
principal due on the Note, and the remaining balance shall be
applied to late charges, if any.
IN THE EVENT the undersigned shall fail to pay the
payments when due, and if such failure be subsisting thirty (30)
days thereafter, the unpaid principal amount of this Note, together
with accrued interest and late charges, shall become due and
payable, at the option of the Agency, without notice to the
undersigned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due date, the
undersigned shall pay to the Agency a late charge of 4% on the
amount past due and remaining paid. If this Note be reduced to
judgment, such judgment shall bear the statutory interest rate on
judgments.
In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the State of California.
If suit is instituted by the Agency to recover on this
Note, the non-prevailing party agrees to pay all costs of such
collection including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date,
duly filed for record in the office of the County Recorder of the
County of San Bernardino, State of California.
DEMAND, protest and notice of demand and protest are
hereby waived and the undersigned hereby waives, to the extent
authorized by law, any and all homestead and other exemption rights
which otherwise would apply to the debt evidenced by this Note.
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IN WITNESS WHEREOF, THIS NOTE has been duly executed by
the undersigned, as of its date.
ALLAN STEWARD, INC.,
a California corporation
By:
ALLAN STEWARD
ATT. 7 - Page 4
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