HomeMy WebLinkAboutRS01-Redevelopment Agency
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IlEVBLOPIIIIIt DBPA.u..mn.a: OF TIlE
CITY OF SO _ivnlBO
IIBOIJBST FOR COIMISSIlIK/COIJBCIL ACTIOK
From:
Dl'Il'USJ:11 J. HENDERSON
Executive Director
Subject: VEsr SIDB PLlZJ.
CClII__.1t"J: IlEVBLOPIIIIIt
BLOC!: mwr.r FLOAT LOB
Date:
May 3, 1991
Synopsis of Previous ec-ission/Ccnmcil/ec-ittee Action:
In June, 1988 and February, 1991, the Mayor and Common Council approved
a Community Development Block Grant (CDBG) float loan for the West Side
Plaza project.
Rec_ended Action:
(lfavor ..... C. - r.nnn..ill
IIlTIOK A: RESOLDTIlIK OF TIlE IlAYOR J.IID CClIIIlII COlJKIL OF TIlE CITY OF
SO _nDIJIO J.PPROVIJIG A r.RII'I'i TW LOJ.JI Am.,,""WIr BY J.IID
....u...... TIlE IU5WliVs.OPIIIIIt AGBIICY OF TIlE CITY OF SO
_nDtBO J.IID TIlE CITY OF SO _ivnlBO (VEST SIDE PLAZA
PROJECT) .
(Rec_ended ActiOll8 Continued to Kext Page)
~ ~. ......,,~ Mr..."
lleYelol8ent Depa l!Ilt
Contact Person: Ken Henderson/Ed Flores
Phone:
5065: 5081
Project Area(s): Northwest (RW)
Ward(s) :
Sixth (6th)
Supporting Data Attached:
Staff Reoort: Resolutions: Loan ARreement
FUNDING REQUIREMENTS:
Amount: $ N/A
Source:
Budget Authority:
CaaBission/Council Botes:
ICJH:lab:0161N
Agenda Item No: RS. i
DIVILOPMEBr DEPA-J'lIlBQlJlST FOR COUlICIL/COIIIISSIOOrIOIl
West Side Plaza c;Bl'?ioat Loan
Ray 3, 1991
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Recu.leaded ActiOlUl Continued...
IIOTIOIl B:
IIOTIOIl C:
IIOTIOIl D:
lC.-nnttv Deve1ft~...t C.-t..ionl
USOLUTIOlI OF 1'JIB COJl__~n DIVILOPMEBr COIIIISSIOIl OF 1'JIB
CITY OF SAIl BBltlWmIIIO APPltOVIlIG A CRIl'I'UW LOB AGJtJwown BY
All>> BBI'wAAl'l 1'JIB IUWl5VJUA)PMEBr AGDCY OF 1'JIB CIn OF SAIl
R__AImIllO All>> 1'JIB CITY OF SAIl R--A1IntllO (WEST SIDB PLAZA
PJtO.JBCT) .
(Ravor ..... C.-1m Council)
USOLUTIOlI OF TBI IlAYOR All>> COJllOJl COUBCIL OF 1'JIB CITY OF SAlI
_A1InIllO APl'JIIJVDG A r.mrrUW COftIACT BY .lIlD AIIHIG TBI
IUWJIvJUA)1'IIIIIT AGDCY OF TBI CITY OF SAIl -A-IIIO, 1'JIB CIne
01' SAIl _AlmtJlO All>> TBI C01IITY 01' lWI -lmtJlO PDBIlIIlIG
YO TBI un OF r.mrrUlI Clll.__.~ft DB0L01'IIIIIT IILOCZ GUIlT
(CDIIG) rmms (WEST SIBB PLAZA PJtOJJ:CT).
lC-tty Deve1o_ent C.-Ission)
USOLUTIOB OF TBI COJl__~n DIVILOPIIBlIf C<RIISSIOIl OF 1'JIB
CITY OF SJ1I _A1InIllO APl'JIIJVDG A CRIl'I'UW COllDACT BY All>>
.&IIlIIG TBI IUWl5vJUA)PMEBr AGDCY OF TBI CITY 01' SJ1I -A1InIIIO,
1'JIB CITY 01' SAIl -AImIIIO, All>> TBI CUwn:z OF SJ1I BDlWlDIIIO
PDBIlIIIIG YO rill USE OF r.R1I'I'UW COI._..~:n DBVBL01'IIIIIT BLOCK
C3AIIT (CDIIG) PIIlIDS (WEST SIBB PLAZA PJtOJJ:CT).
ltJII:1ab:0161l1
COIIIISSIOIl IIBBTIlIG
lleetina Date: 05/06/91
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DEVELOl'IIBBT DBPARTluIfr
STAFF REPORT
West Side Plazs
C..-nnitv Deve1n_-t Block Grant
Float Loan
On October 15, 1990, the Community Development Commission approved the
Disposition and Development Agreement (DDA) with New Frontier
Commercisl Properties, Inc., for the development of a shopping center
within the Northwest Redevelopment Project Area. The agreement
provides for certain Agency financial assistance, including Community
Development Block Grant (CDBG) funds, to finance certain on and
off-site improvements. In relation to the Disposition and Development
Agreement (DDA) amendment, this item serves to clarify roles and
responsibilities of the City, County, Redevelopment Agency (Development
Department) and developer concerning the West Side Plaza Project.
The County of San Bernardino is contributing $2,750,000 of its CDBG
funds and the City is providing $450,000 of its CDBG monies to finance
the extensive site preparation work prior to construction and the
fixturization of the Viva Market. The float loan mechanism is an
interim use of CDBG funds backed by irrevocable, callable upon demand,
letters of credit.
Elsewhere in the agenda packet is another item dealing with the West
Side Plaza and the proposed increase in the Department's line of credit
with Wells Fargo Bank. The proposed increase of 3.2 million dollars
provides the authority to issue the letters of credit supporting the
use of interim CDBG monies.
The four (4) attached resolutions, if adopted, would approve a loan
agreement between the City and the Redevelopment Agency (Development
Department) and the County of San Bernardino. These resolutions
formalize the roles and responsibilities of all interested parties as
described above and allows the project to proceed as originally
envisioned.
Staff recommends adoption of the attached resolution.
~ONJ Bzecutive Director
Development Departaent
KJH:lab:0161N
COMMISSION MEETING
Meeting Date: 05/06/91
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Action to be
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Item:
To be Published:
Newspaper:
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MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO
AGENDA
April 15, 1991
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN LOAN AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND THE CITY OF
SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
Exhibit "A" - Loan Agreement
Adopt Resolution
N/A
N/A
certified copy of Resolution to be returned to Sabo & Green, A
Professional Corporation.
IIIIlOIOOP2IOII
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN LOAN AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND THE CITY OF
SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
WHEREAS, the Community Development Commission of the
Redevelopment Aqency of the City of
.
San Bernardino
(the
"Aqency"), is a redevelopment aqency, a public body, corporate
and politic of the State of California, orqanized and existinq
pursuant to the Community Redevelopment Law (Part 1 of Division
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24) commencinq with Section 33000 of the Health and Safety Code
of the State of California (the "Act"); and
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by owners thereof or by parties seekinq to acquire real property
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WHEREAS, the Redevelopment Plan for the Northwest
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the Mayor and Common Council of the City
of San Bernardino (the "Council") by Ordinance No. MC-189, dated
July 6, 1982; and
WHEREAS,
the Redevelopment Plan provides for the
redevelopment of real property pursuant to the Redevelopment Plan
from the Aqency; and
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WHEREAS, the Aqency has previouSly entered into a
certain Disposition and Development Aqreement by and between the
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1 Redevelopment Aqency of the City of San Bernardino and New
2 Frontier Commercial Properties, Inc. (the "DDA"), pertaining to
3 the development of a certain shopping center within the project
4 area subject to the Redevelopment Plan (the "Project"); and
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11 WHEREAS, in connection with the proposed amendment to
12 the DDA, the city has found it necessary to enter into a certain
13 Loan Agreement (the "Loan Agreement") by and between the city of
14 San Bernardino (the "City") and the Agency pertaining to the use
15 of certain Community Development Block Grant funds in connection
16 with the development of the Project; and
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23 WHEREAS, the Loan Agreement provides for a loan of
24 Community Development Block Grant funds in an amount of $450,000
25 from the city to the Aqency the proceeds of which are to be used
26 by the Aqency in connection with the development of the Project.
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WHEREAS, in connection with the implementation of the
DDA, the Aqency has found it necessary to cause an amendment to
the DDA pertaininq to the fundinq of certain Aqency redevelopment
assistance as further provided in the DDA; and ~
WHEREAS, the Council deems it desirable to enter into
that certain Loan Agreement, a copy of which is attached hereto
as Exhibit "A" and incorporated herein by this reference, which
pertains to the fundinq of the Project; and
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1 NOW, THEREFORE, BE IT RESOLVED, BY THE MAYOR AND COMMON COUNCIL
2 OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND,
3 RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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8 Section 2. The Council authorizes the Mayor and
9 City Clerk to execute the Loan AlJreement and to execute Such
10 other documents as IIllY be necessary to impl_ent the Loan
11 AlJre_ent and to make any necessary non-substantive changes to
12 the Loan AlJre_ent as may be approved by the City Attorney.
13 III
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Section 1. The Council hereby approves the Loan
Agre_ent, a copy of which is attached hereto as Exhibit "A".
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN LOAN AGREEMENT BY AND BETWEEN THE
2 REDEVELOPMENT AGENCY OF '!'HE CITY OF SAN BERNARDINO AND THE CITY
OF SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
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Sec'tion 3.
This Resolution shall take effect upon
aCloption.
I HEREBY CERTIFY that the foreqoinq resolution was C1uly
aClopteCl by the Mayor anCl Common Council of the City of San
BernarClino at a
,
JIIeetinq thereof, helCl on 'the
Clay of
, 1991, by the followinq vote, to
wit:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foreqoinq resolution is hereby approveCl this
day of , 1991.
Mayor of the City of
San Bernardino
ApproveCl as to form anCl leqal
JAMES F. PENMAN
City Attorney
~y: /
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content:
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1 STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
2 CITY OF SAN BERNARDINO
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I, , Clerk of the City of San
Bernardino, California, DO HEREBY CERTIFY that the foreqoinq and
attached copy of the City of San Bernardino Resolution No.
is a full, true and correct copy of that now on file in this
office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the City of San Bernardino this
day of , 1991.
City Clerk of the
city of San Bernardino
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EXHIBIT "A"
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LOAN AGREEMENT
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,n.a. AI!DWa..._.1.
THIS LOAN AGUEMBBT dated , 1991, by and
between the Redevelopment Aaency of the City of San Beruardino (hereinafter
called the "BORROWER") and the CITY OF SAN BBRRARDIBO (hereinafter called the
"LEmlER").
WHEREAS, the BORROWER has applied to the LEIDER for a Loan for the
purpose of construction of the West Side Plaza on the comer of Baseline and
Medical Center Drive (hereinafter the "PROJECT") aa described in the legal
description set forth in the attached Exhibit "A".
WHEREAS, the purpose of the Loan, as hereinafter defined, is to
enable the future conatruction of a neiahborhood shopping center, resulting in
employment opportunities to the reaion's low and aDderate income work force,
and:
WHEREAS, C_ity Development Block Grant (CDBG) funds have been
made available to the LEIDER by the United States Department of Housing and
Urban Development (BUD) on the condition that the CDBG funds, notwithstanding
the Loan, as hereinafter defined, of 8ame to BORROWER shall, as necessary, be
at all tiaes iamediately available for 8uch CDBG proarammed purposes as may
from time to tiae be determined by LEIDER and BUD, and;
WHEREAS, such short term use of CDBG funds have been found necessary
and appropriate by the Mayor and COIIIIIon Council, and;
WHEREAS, the LEIDER is willing to lIIalte such a loan to the BORROWER on
the terms and conditions set forth.
ROW, TJllREFORE, in consideration of the IIUtual covenants and
aareements contained herein, the parties hereto aaree as follows:
ArrTl!r.W WI"
TBI LOAN
SlmOll 1.01: ",.. Loan. Bote..... Rate
Subject to the terms and conditions of this Loan Aareement, the
LENDER hereby aarees to lend the BORROWER, and the BORROWER hereby agrees to
borrow from the LEIDER and repay the LENDER or its Assians, the amount of
FOUR-BUNDRED, FIfTY-THOUSAND DOLLARS ($450,000.00) (hereinafter called the
"Loan"). The obiigation of the BORROWER to repay the Loan shall be evidenced
by the Promissory Rote (hereinsfter called the "Rote") of the BORROWER in a
form 8Btlafactory to the LENDER (or in the form of Exhibit "B" attached
hereto) dated the date on which the Loan is made (hereinafter known as the
"Closing Date") payable to the order of the LENDER for the amount of the Loan
without interest. The Rote shall be secured by an unconditional, irrevocable
Letter of Credit, payable upon demand (hereafter the "Letter of Credit) in a
form approved by the LEmlER. BORROWER and LEIDER agree that if the Project
costs are less than $450,000.00, the Loan amount shall be reduced to the
actual Project cost. The Project cost shall be construction, siteT
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KJH:lab:1373C
May 3, 1991
EXHIBIT "A"
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improvements, soft costs, professional fses, Letter of Credit, and other
related eliaible costs as permitted b1 BUD reaulations and aareed to by the
LEImER.
SECTIOlI 1.02: ""'" re_ ..... Reo""lI!!Ilt
The term of the Loan shall be for four (4) years, except that the
Note shall be repayable on demand, provided that not less than ten (10) days
written notice is required if the BORROWER is not in default of BORROWER's
obliaationa. If prior demand 18 not made, the paymll!!llt of principal shall be
due and payable on Said paymll!!llt shall be lIade
upon the Letter of Credit beina called b1 LEImER. LEImER lIaltes no cOllllllitllent
to future support and assures no obli.stiona for future support, except as
expressly set forth in th18 Loan Aareement.
SECTIOB 1.03: ParDo.e of Loan
The purpose of the Loan is solely to "conatruct" the real property
(includina on-site improvements, tenant improvements, professional fees,
interim costs and developer profit and overhead) described in the attached
Exhibit "A". BORROWER sarees that it shall apply the funds received by it
under this Loan Aareement in accordance with the uses permitted in this Loan
Aareement. BORROWER further aarees that no application of any funds received
froll LEImER hereunder shall be ..de in violation of the laws of the State of
California, or the aovernina BUD reaulations.
SECTIOB 1.04: Letters of Credit
The Note shall be secured by an unconditional, irrevocable Letter of
Credit, payable upon demand, and in a form of approved b1 LIlmER addressed to
LEImER as beneficiary. The Letter of Credit shall have expiration dates which
shall be one-hundred, twenty (120) days lonaer than the due date as set forth
in the Rote. The Letter of Credit shall be in the amount of FOua-BllRDRED,
FIFTY-THOUSARD DOLLARS ($450,000.00).
Payment on the Letter of Credit shall be on demand but not less than
ten (10) days written notice if the BORROWER is not in default of BORROWER's
obliaationa. Payment on the Letter of Credit shall not be conditioned upon
any action or ollission to take such action on the part of LENDER, whether
under th18 Loan Aareement, or under the terms of any document executed or
delivered hereunder or otherwise. Reither the acceptance of, the transfer of,
or receipt of lIonies under the Letter of Credit shall in any lIanner relieve
BORROWER of any obliaation hereunder or under the terms of any document
executed or aiven herewith, except to the extll!!llt paymll!!llt is actually received
under the Letter of Credit.
.ARTI1!f.. "II"
IlEPRESEII1'.UIOB AIm va_alftS
The BORROWER represents and covenants the followina:
SECTIOR 2.01: Dulv OrB_hed
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May 3, 1991
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rile BORROWER 18 duly orlanized, validly existilll and in lood standing
under the lsws of the State of California and has the power to enter into this
Loan Alreement to borrow.
SBerIOJI 2.02: Daly A"t-l",dzed
rile lIBkilll and the performance by the BORROWER of th18 Loan
Alrelll!lent, and the execution and delivery of the Rote, and ~ security
earelll!lents and instruments have been duly authorized by all necesssry actions
and w111 not violate ~ law, rule, rqu1ation order, writ, judpent, decree,
determination or award presently in effect havilll applicability to the
BORROWER or ~ provision of BORROWER's Articles of Incorparation or resul t in
a breach of ~ credit slreement or ~ other eare..ent or instrument to which
the BORROWER is a party or by which it is or its property I118Y be bound or
affected.
SBcrIOB 2.03: 1~..11v B4ft~fft. Tft-traaent.
When this Loan Alreement 18 executed by the BORROWER and the LENDER,
and when the Rote and the Letter of Credit are fully executed and delivered by
the BORROWER, each such instrument shall constitute the 1elal, vslid, snd
bindilll ob1ilation of the BORROWER and on the financial institution issuing
the Letter of Credit in accordance with its terms.
SBerIO. 2.04: .0 Leaal Acti.....
rIlere are no 1ela1 actions, suits, arbitrations, or proceedillls
pendilll or to the bow1edie of the BORROWER, threatened alainst the BORROWER
or business of the BORROWER, before ~ court or administrative alency, which,
if determined adverSely to the BORROWER, would interfere with the BORROWER's
performance of th18 Loan Alreement or the Project for which the Loan was made.
SBerIO. 2.05: .0 Lt....l A"t-hnrlzation Reeded
Ro authorization, consent or approval or ~ forms1 exemption of any
loverumenta1 body, relu1atory authority (federal, state or local) or
mortlalor, creditor or third party is or was neceasary to the valid execution
and delivery by the BORROWER of this Alrelll!lent, the Rote, the Letter of
Credit, or ~ other document except as provided for under Sections 3.03 and
3.04 herein.
SBerIO. 2.06: Rot in Default
rile BORROWER 18 not in default of ~ oblilation, covenant or
condition contained in ~ bond, debenture, note, or other evidence of
indebtedness or ~ mortlale, Deed of Trust or collateral instrument securing
the same, except as disclosed in writilll to LENDER, and consented by LENDER
and/or LENDER's counsel prior to the C10silll Date.
SBerIOR 2.07: Proiect I_I_entation
rile schedule of activities surroundilll the Project shall adhere to
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the following time sChedule and is so certified by the BORROWER:
A. The escrow for the conatruction of the real property described
in EXhibit "A" shall close on May 1, 1991 or as mutually agreed
upon by both parties.
B. The shoppina center shall open its doors for business on or
before May 1, 1992.
C. Two-hundred, forty-eiiht (248) jobs as required by Section 4.14
will have been created by November 1, 1992.
RCTIOR 2.08: ........s are Paid
The BORROWER has filed all tax returna which are required and has
paid or ..de provision for the payment of all taxes which have or may become
do pursuant to said returna or pursuant to any assessments received by them.
No tax liability has been asserted by the Internal Revenue Service or other
taxing &lency, federal, state, or local for taxes ..terially in excess of
those already provided for and the BORROWER knows of no basis for any such
deficiency assessment.
RCTIOR 2.09: 110 Adverse 1!h....41
The BORROWER certifies that there are no mutUal adverse chanaes since
December 31, 1990 in its financial condition, organization, operation, fixed
properties, real properties, or management personnel of the BORROWER that have
not been disclosed in writing to LEIDER prior to the Loan Closing.
.WII!I.'R "III"
COlIDITIOU 01' LDDDG
The Obligation of the LEIDER to make the Loan shall be subject to the
fulfilllllent at the time of Loan Closing and the continued fulfillment of each
of the following conditional
RCTIOR 3.01: beeuti\lll..... De1iverv of Rote. 1"11.. Loan hreement.
Letter of Cradit: ...... Relat:tI!d Da~M1t.
The funding of the Loan is predicated on receipt of the following
documents:
A. The receipt by LEIDER of suCh documents, certifications and
opinions as may be reasonably satisfactory to LEIDER, evidencing that this
Loan Agreement, the Rote, the Letter of Credit and all other documents given
or executed in connection herewith are duly and validly executed by and on
behalf of and constitute the valid and enforceable obligations of BORROWER
thereunder pursuant to the respective teras of eaCh, and that the execution
and delivery of this Loan Agreement, the Rote, the Letter of Credit and all
other documents executed or liven hereunder and the performance by BORROWER
hereunder will not breaCh or violate any provision of Borrower's Partnership
Agreement, or any law or gove1'lllllental regulation or constitute any breach or
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May 3, 1991
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default under any iDStr1lllent or aareement to which BORROWER may be a party.
B. the continued availability to LERDBR of $450,000.00 in proceeds
of oblicated but not liquidated Community Development Block Grant funds.
C. BORROWER shall have executed and delivered thia Loan Aareement,
the Rote, the Letter of Credit and any and all other documents to LERDER which
LERDER may deem reas0D8bly necessary with respect to the Loan in a form and in
terms and conditioDS satisfactory to LERDER and its cOUDael.
D. the receipt of documentation satisfactory to LERDER eVidencing
the fact that the Loan proceeds are beina used for the cODStruction of the
real property of the Project. the LERDBR shall have the daht to fund the
Loan throush escrow.
SBerIO. 3.02: --cution..... DeliverY of Letter of Credit
BORROWER shall have lendina iDStitution(s) approved by LERDER execute
and deliver to LERDBR an irrevocable Letter of Credit in a form satisfactory
to LERDBR and its COUDael aivina LERDBR a total not to exceed $560,000.00.
Said Letter of Credit is to secure payment of the principal amount of the
Rote, and any other sums due and payable by BORROWER hereunder.
IBerIOB 3.03: "..ft__...~.. 2M1tft. aft" Code.
BORROWER has complied and will continue to comply with all applicable
environmental statutes and reaulatioDS in connection with the development of
the Project. All permits, cODSents, approvals and authorizatioDS by, and
reaistrations and declarati0D8 necessary for the development of the Project,
shall be obtained, and will be valid, adequate and in full force and effect
for any of the development activities for which a permit, c0D8ent, approval or
authorization is necessary. Development of the Project will in all respects
conform to and comply with all covenants, conditioDS, use and buildina codes,
laws, reculati0D8 and ordinances.
SBerIO.3.04: ADIlr_al of Othera
the BORROWER shall secure all neceaaary approvala and cODSents, if
required, of aovernmental bodies havina jurisdiction with respect to any
portion of the cODStruction contemplated. the BORROWER shall secure all
necessary approvals and CODSents required with respect to this transaction by
any mortcacor, creditor or other party havina any financial interest in the
BORROWER.
SBerIO. 3.05: ODf"fon of ,.........el
LERDER ahall receive an Opinion of COUDael from BORROWER stating that
(i) BORROWER's RepresentatioDS and Warranties were true and accurate on the
Cloaina Date; (H) the COnditiODS of the Loan have been duly satisfied as of
the Closina Date, and; (iii) all representati0D8, warranties, covenants and
conditioDS continue to be true, accurate and in effect throushout this Loan
Aareement.
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....,.,.I!r.. WIV"
An'I1III&UVB COVDAlIrS OF rill BODOWBR AIID r:rt&1l'IflOR
BORROWER aareea to comply with the followilll covenmta from the date
hereof until the LElUlBR hal been fully repaid with intereet, unless the LBNDER
or ita Aesians ehall otherwiee consent in writilll.
aCTIOB 4.01: P........t of t-h. Loan
The BORROWER eareee to pay punctually the principal and the Note
accordilll to ite terma and conditione and to pay punctually any other amounts
that may become due and payable to the Lender under or pursuant to the terms
of this Loan Alreement or the Bote.
ueno. 4.02: Satfafaetf.DD. oE Dt:h~r Obl:l..tiftfta
The BORROWER eareee to pay punctually the principal and interest due
on any other indebtedneee now or hereafter, at any tille willi by the BORROWER
to any other lender.
SBCTIOB 4.03: Kambom..... In......e Prooertv
The BORROWER aarees to insure the Project at all timee and at all
timee ..intain &lseta acquired with thie Loan and the Ihoppilll center in such
condition and repair that the value of the land and 1iIprovementa therein wUl
be adequately ..intained and protected. BORROWER aleo aareee to insure the
project and ..intain durina the term of the Loan adequate hazard insurance
policies coverilll fire and extended coveraae and euch other hazards as may be
deemed appropriate in amount I and form satiefactory to LElUlBR, with the LENDER
as an additional ineured with a loes payee clause acceptable to LENDBR.
BORROWER further earees if at any time durilll the life of the Loan the Project
ie declared to be within a flood hazard area, to insure purchaae of Federal
Flood Ineurance if available. Such insurance, to the extent available, shall
be in an amount equal to the areater of: (1) the amount of the Loan; (11) the
insurable value of the Project, or; (iii) the maximum limit of coveraae
available. If the property ie not located in a flood hazard aree at the time
of the Loan Cloeilll date, BORROWER will provide aatiefactory evidence
thereof. BORROWER further aareee to insure the Project and to ..intain
adequate liability and Workere' Compensation Insurance in amounts and form
satiefactory to the LBNDBR.
SBCTIOB 4.04: Pav All 'I'.Y.II
The BORROWER aarees to insure the Project and duly pay and discharge
all taxes, assessments and aovernmental charaes upon it or aaainst its
properties prior to the date on Which the pensltiee attache thereto; except
that the Project shall not be required to pay any such tax, assesament or
aoverniDental charae Which is beina contested by BORROWER in aood faith and by
appropriate proceedillls.
SBerIOB 4.05: Provide '....itl.....l Bauitv
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BORROWER aarees to insure the Project is provided additional equity
funds to cover additional Project costs incurred as a result of overruns or
unanticipated expenaes or chan&es in work orders in the Project.
SBCTIOK 4.06: llaintain bfatence
BORROWER ..rees to maintain its existence, riihta, privileaes, and
franchises within the State of California until the Loan has been repaid to
LEImER in full.
SBCTIOK 4.07: ProTide ".......tal Infomation
Until the Loan is repaid, the BORROWER will insure thst the Project
maintains adequate records and books of accounts, in which complete entries
will be made reflectina all of the Project's business and financial
transactions. Such entries are to be made in accordance with consistently
applied, aenerally accepted account ins principles and practices.
In addition, the BORROWER ..rees to deliver to the LEImER annual
Project financial statements. Annusl financial statements of BORROWER are to
be prepared b7 an independent accountant and certified by an authorized
officer of the BORROWER to be true and accurate copies, and are to be
submitted to LEImER with ninety (90) d87s of the close of the annual period.
BORROWER ..rees to provide any additional financial information on
the Project as it becomes available to BORROWER, includins, but not limited
to, copies of Project income tex returns and instruments and information as
ma7 be reasonably requested b7 the LEImER, its Assians or Counsel.
The BORROWER further ..rees to provide written notice to the LENDER
of any trial, pUblic hearins or meetins before any administrative or other
public aaency which may in any manner, effect the personal property or real
estate of this Project.
SBCTIOK 4.08: Jtiaht to r......ction
BORROWER aarees to arant the LEImER, until the Kote has been fully
repaid, the riaht at all reasonable hours to lnapect the real estate,
improvements placed thereon and all personal propert7 and fixtures of this
Project and the BORROWER further ..rees to provide LEImER free access to the
Project propert7 for the purpo.e of such inspection to determine the condition
of the Project's property and real e.tate.
SICTIOK 4.09: bll ..... Void ,,--...t.
BORROWER aaree. that in the event that any provision of this Loan
Aareement, or any other instrument executed at Closins or the application
thereof, to any person or circumstances, shall be declared null and void,
invalid, or held for any reaaon to be unenforceable b7 a Court of competent
jurisdiction, the remainder of this Aareement shall nevertheless remain in
full force and effect, and to this end, the provisions of all covenants,
conditions, and aareements described herein are deemed separate.
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IBcrIO.4.10: ~"'.ea~" Cla.in. Costs
BOIlOWER qreas to pay all fees, expenses snd charaes in &IIY way
connecte~ to the Loan, its lIIaltiua or transfer, therewith ineludina, but not
limite~ to, the fees an~ out-of-pocket expenses of counsel employe~ by the
LBlmBR an~ &IIY tues, fees snd expenses payable in connection with this
transaction and with the enforcement of this Loan .\areaent, Bote, an~ the
Letter of Cre~it. A reasonable amount ahall be withhel~ frQB ~isbursement of
the Loan procee~s for the payment of these costs snd expenses.
IBerIOB 4.11: Botice of Default
BOIlOWER &lrees to aive written notice to LBlmBR, within fifteen (15)
~ays, of &IIY event which would conatitute an Event of Default un~er this Loan
!areement or that would with notice or lapse of time or both, constitute an
Bvent of Default ~er this Loan !areement.
IBerIOB 4.12: Iud-ificaticm
BOIlOWER &lrees to Wemnify snd aave the LBlmBR snd its Asdps
harmless aaainst &IIY snd all liability with respect to, or resultina from any
obliaation of the BOIlOWER.
acrIOK 4.13: ~._ of Col1eetiaa.. Dr .'oP,.--.t
BOIlOWER aarees, if at &IIY time BOIlOWER defaults on &IIY provision of
this Loan !areement, to pay the LBlmBR or its Asdans, in a~~ition to &IIY
other amounts that may be ~ue from the BOIlOWER an &IIount equal to the costs
snd expenses, of collection, enforcement or correction or waiver of the
~efault incurre~ by the LBlmBR or its Assi&JUI in such collection, enforcement,
correction or waiver of ~efault, includina but not limite~ to attorney fees
snd costs of litilation.
IBerIOB 4.14: Bev _II Retah,"" Po.iti..... Reauird
A. In conaideration for the Loan ma~e by the LBlmBR, BOIlOWER
&lrees to expsnd the Project's aployment base by a minimum of Tvo-Bun~red,
Forty-eiaht (248) permanent, new full time employment positiona or full time
equivalents (FTBs) over an~ above the Project's full time employment baae at
Loan Closina Date which LBlmBR an~ BOIlOWER alree is zero (0).
Full time positions are positions requirina forty (40) hours a week
per employee. For calculation purposes, two (2) part-time employees shall be
considere~ one (1) FTB.
C. BOIlOWER &lrees that at least one-hun~re~, sixty-one (161)
(i.e. sixty-five percent 65X)) of the two-hun~red, forty-eiaht (248) FTE
positions will be (i) held by, or; (ii) ma~e available to qualifie~ persons
(i.e., referral or assistance eliaible) ~er the catelories liste~ on the
attache~ Exhibit "D". Employment Information FOrll or persons whose current
family incQBe level is less than that shown on attache~ Exhibit "D",
Employment Information Form. BOIlOWER alrees to have sll prospective
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I!IIIployment applicmte complete the IIIIployment Information Form.
D. BORROWER aarees to file and ..intain completed employment
information forma separated into four (4) cateaories.
1) Full Time Hires below Income Criteria or
Referral/ABsistmce Iliaible.
2)
Full Time Hires above Income Criteria.
3) Part Time Hires below income Criteria or
Referral/Assistmce Iliaible.
D. Upon documentation of at least two-hundred, forty-eiaht FTE
hires md at least one-hundred, sixty-one (161) income eligible placements,
BORROWER shall submit to LlRDIR, copies of all IIIIployment Information Forms
accompanied by m inventory sheet listin& the number of forma collected under
each of the four (4) categories under Section 4.l4(C).
I. Should the Job creation and income eligible placement goals not
be met by the end of thirty (30) aontha after Lom disbursement, BORROWER
shall at that time, submit all available documentation required under this
Section including documentation for those BOr HIRED.
The purpose is to ascertain proaress towards aeeting projected
overall Job creation aoals, to determine the number of targeted positions
failing short of placement md to determine the number of income eligible
persona that were interviewed (and not hired) to fill the shortfall.
F. Upon review of Section 4.14(1) documentation, LENDER will
determine if satisfactory measures have been taken to make targeted jobs
available to income eliable persona. Job Training md Partnership Act
(hereinafter "JrPA") referrals who are interviewed, althoUah not necessarily
hired, for unfilled taraeted positiona will satis~ this purpose.
Failure to take astisfactory aeasures, as determined by LENDER at its
sole discretion, to make the targeted Jobs available to income eligible
persons 1s m Event of Default.
SECTION 4.15: Third PartY hreementa
A. BORROWER agrees to inaure that when the Project developer
enters into my agreement with a third party Which conveys my leasehold
interest in the real property or improvements covered by the terms of this
Lom Agreement that said third party shall execute m aareement with the
Project developer indicating the third party will use their best efforts to
comply with the auidelines for hiring employees as set forth in Section 4.14.
The agreement shall obligate the third party to provide BORROWER with the
documentation required under Section 4.14 which BORROWER is required to submit
to LlRDER. The use of best efforts by the third party shall not relieve the
BORROWER from its responaibility md obligation to provide employment required
under Section 4.14.
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B. A copy of alreement(s) entered into by the Project developer
with third parties whiCh transfer an interest in the Project or its
improvements shall be delivered to LEIDER within fivs (5) days of the
execution of aaid slreements(s) between the Project developer and any third
party(ies) that conveys the interest. .
.AV'nI!l.1l! "V"
DGArIVB covmwr.rS OF DB BORROWER
BORROWER covenants and sarees that, from the date hereof until
pa,.ent in full of the Rote, 1II11sss the LEIDER or its Assians shall otherwise
conaent in writlna, BORROWER shall ncit enter into aD7 sareement or other
cOBlitllent the perforaance of whiCh would constitute a breach of aD7 of the
covenants contained in this Loan qreement includina but not limited to the
followina covenants:
aCTION 5.01: Sale of the AcauisitiDll Asaets
So lona as the Rote is unpaid the BORROWER ahall not permit the sale,
conveyance, lease (u:cept in the normal course of operation of the Project),
aasiaument, transfer or Other disposition of the Project's Assets unless
approved in writlna by the LEIDER whiCh approval shall not be unreasonably
withheld.
aCTIO. 5.02: I!haft_e o.m.e...1I4D
BORROWER will not permit without the written permission of LENDER,
whiCh permission shall not be unreasonably Withheld, aD7 Ch8D&e in the
ownership structure, control, or operation of the Project developer, inClUding
but not limited to: (1) aerIer into or consolidation with aD7 other person,
firm or corporstion; (ii) Ch8D&es in the composition of its Partners; (iii)
Ch8D&ina the nsture of its business as carried on on the date hereof, or; (iv)
aubstantial distribution, liquidation or other disposal of the Project
developer'S assets to its Owners.
aCTION 5.03: r.h....e the Pro1ect
BORROWER ahall not permit nor allow to exist without prior written
consent from LERDER, whiCh permission shall not be unreasonably withheld, any
material Chanae in the Project's plans and/or specifications which may be
submitted to the LERDER.
AftII!r.W "VI"
BVDrS OF DEFAULT
The entire unpaid principal of the Rote shall become and be
illlllediately due and payable upon the written demand of the LEIDER or its
Assians, without aD7 other notice or demand of aD7 kind or aD7 presentment or
protest, if aD7 one or more of the events listed in this Article (hereinafter
termed an "Event of Default") shall occur, whether voluntarily or
inVOluntarily, with or without limitation, occurrina or brouaht about by
operation of law or pursuant to or in compliance with aD7 jUdpent, decree or
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order of any court or any order, rules or reau1ation of any administrative or
aoverDlllental bOdy, provided, however, that such S1lll Bhall not be then payable
if BORROWER's PllYlllents have been waived, or the time for ..Idna the Borrower's
payments have been extended by the LBBDER.
SBerIO.6.01: Late P--t of 1.0_
If the BORROWER shall fail to make payment when due of any
installment of principal on the .ote, or intereat accrueci thereon the funds
due shall accumulate interest until paid by the BORROWER. Acceptance of any
late PllYlllent Bha11 not constitute a waiver of BORROWER's default with respect
to the overdue amount or satis(y BORROWER's ob1iaation to pay interest on the
late payment, or prevent LBRDER from exercisina any of the other riahts and
remedies available to LEimER. PllYIIIent not paid when due shall bear aimp1e
interest from date due until paid at the rate as set forth on the Note.
SBClIOB 6.02: I1leDrreet. ReDr_entat:f.on Dr VarranN
If representations or warranties contained in, or ..de in connection
with the execution of, or delivery of, this Loan Aareement, or in any
certificate furnished pursuant hereto, Bha11 prove to have been incorrect when
made in any adverse respect.
IBerIOB 6.03: Default in r.-......t.
If the BORROWER shall default in the performance of any other term,
covenant or aareement contained in this Loan Aareement, and if any such
default shall continue unremedied for five (5) days after either: (i) it
becomes known to an executive officer of the BORROWER, or; (ii) written notice
thereof shall have been aiven to the BORROWER by the LBRDER.
IBerIO. 6.04: VoluntarY T...ob........
If the BORROWER Bha11 become insolvent or cease to pay its debts as
they mature or shall voluntarily file a petition in baukruptcy or s petition
seekina reoraanization, or the appointment of a receiver, trustee, or
liquidator for it or a substantial portion of its asaets, or effect a plan or
other arranaement with creditors, or Bha11 be adjudicated baukrupt, or shall
make a voluntary assigoment for the benefit of creditors.
SBCTIO. 6.05: Invo1untarv IIlBo1venev
If any involuntary petition shall be filed aaainst the BORROWER under
any bankruptcy, insolvency or similar law seekina the reoraanization of or the
appointment of any receiver, trustee or liquidator for the BORROWER, or of a
substantial part of the property of the BORROWER or if a writ or warrant of
attaChment or similar process shall be issued acainst a .ubstantia1 part of
the property of the BORROWER, such petition shall not be diamissed or such
writ or warrant of attaChment or similar process shall not be released or
bonded, within fifteen (15) days after filina of levy.
SlCTIO. 6.06: .J.......ents
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If any final judpent for the payment of money that is not fully
covered by liability inaurance and ia in exceas of $10,000.00 shall be
rendered aaainat the BODOWD, and ahall not be diseharaed within thirty (30)
daya, or an appeal therefrom taken and execution thereon effectively stayed
pendina sueh appeal and, if sueh appeal, and if aueh juclament affirmed on such
appeal, the same ahall not be diseharaed within thirty (30) days.
"IPI'II!I.W WVII"
mSI!RI.T."IIRnUS
SBCTIOJI 7.01: Waber of .otice
Bo failure or delay on the part of the LIlmER in exercisina any
riaht, power, or remedy hereunder ahall operate as a waiver thereof, nor shall
any ainale or partial exercise of any aueh riaht, power, or remedy preclude
any other or further exercise thereof or the exerciae of any other riaht,
power or remedy hereunder. Bo modification or waiver of any provision of this
Loan Aareement or of the Bote or of the Letter of Credit, nor any conaent to
any departure by the BORROWER therefrom, ahall in any event be effective
unle.. the aame ahall be in writina and then neh waiver or conaent shall be
effective only in the apecific inatance and for the apecific purpose for which
aiven. Bo notice to or demand on the BORROWER ahall in any case entitle the
BORROWER to any other or further notice or dl!llllU1d in aWler or other
circUllBtancea.
SBCTIOJI 7.02: &.-....il!!D.t.
The BORROWER, LIlmER and its Asaiana hereby ezpressly reserve all
riaht. to amend any provisions of thia Loan Aareement, to conaent to or waive
any departure from the proviaiona of this proviaiona of the Bote, or to
release or otherwiae deal with any collateral aecurity for payment of the Note
provided, however, that all neh amendments be in writina and executed by
LENDER or its Aaaiana, and BORROWER.
SECTION 7.03: .otic..
All noticea, conaenta, requeata, dl!llllU1da and other communications
hereunder shall be in writina and be duly aben to a party hereto by personal
delivery or mailed by certified mail, prepaid, to the LIlmER or BORROWER at
their addresses set forth at the aianature of the partiea to this Loan
Aareement, or at auch other addresses as any party I18Y have desianated in
writina to any other party hereto and Whieh notice shall be effective upon
receipt. Receipt shall be five (5) days after mailina.
aCTIO. 7.04: Survival of Renreaentat:i""a 11ft" Warranties
All eareements, representationa, and warranties made by the BORROWER
herein or any other document or certificate delivered to the LIlmER in
connection with the tranaactiona contemplated by this Loan Aareement shall
survive the delivery of this Aareement, the Note and the Letter of Credit, and
shall continue in full force and effect so lona as the Rote is unpaid.
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SlCTIO.7.05: IDee-.-Dra 8ftd Aa.l~.
ThiB Loan Aare_ent eJiall be bindina upon the BORROWER, their
Successors and A88iane, except that the BORROWER IUI7 not Heian or transfer
their riahte without prior written consent of the LElDBR. ThiB Loan Aareement
shell inure to the benefit of the LElDBR, its Successors and Assigns, and,
except as otherwise expressly provided in particular provisions hereof, all
subsequent holders of the Bote.
nerIOR 7.06: .blIl.I;
LEIDER shell heve the riaht to require BORROWER to provide within a
reasonable tille, a financial audit of BORROWER, b7 an independent certified
public accountant chosen b7 LEIDER and paid for b7 BORROWER, if BORROWER is in
default of &n7 of its covenants or obligations to LElDBR.
ncrxOR 7.07: CcnmterDarts
ThiB Loan .lare_ent IUI7 be executed in &n7 number of counterparts,
each of which ahell be deemed an oridnal, but all of which together shall
constitute one and the sUle inatrument.
ncrxOR 7.0&: CloY.....f"" Law
This Loan .lareement, the Bote and the Letter of Credit, shall be
deemed contracts made under the laws of the State of California and for all
purposes shell be construed in accordance with the lava of said state. In the
event that &n7 action, at law or in equity, be c_enced b7 &n7 party against
&n7 other party, the parties earee thet Jurisdiction and proper venue shell
lie solely with the Superior Court of the State of California for the County
of San Bernardino, or if the UIount in controverllY iB not sufficient for the
jurisdiction of the Superior Court, then the venue and forum for such action
ahell be the Municipal Court of the State of California for the County of San
Bernardino.
nerIOR 7.09: Attorlll!!V's Feu
In the event either party ahell bring an action to enforce the terms
and conditions of this Loan .lar._ent, the prevailing party ahell be entitled
to recover all of its costs and expenses, includina, but not limited to,
reasonable attorney's fees as determined b7 the court.
SBerIOB 7.10: Conf1ict of Interest
Bo member, official or employee of LElDBR shell heve &n7 personal
interest, direct or indirect, in the subject matter of this Loan Agreement,
nor ahall &n7 member, official or employee participate in &n7 decision
relatina to this Loan Agreement which effects whether directly or indirectly,
his or~her personal interests or the interests of &n7 corporation, partnership
or association in which he or she has an interest.
SBerIOB 7.11: Article"'~ Section R~~~f"".
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Article and Section BeadiD&8 used in thi8 Aareement are for
convenience on11< and shall not affect the construction of thiB Aareement.
IN WITHESS WHEREOF, the partie8 hereto have each cau8ed thi8 Loan
Aareement to be du11< executed a8 of the da1< and the 1<ear first written above.
LBIIDBJl :
BODOlIBR:
crrr OP SAN _AIlnDO
OFFICE OF CDII_ul DIVBLOl'IIIIr
buJ5vAloOrnur AGIIICY OP 'fill CITY
SAN _AltftIllO
By:
By:
1'ltle:
Title:
Dated:
Dated:
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_Iwn IID'rJI:
For value received, the underaiped, the Cit,. of San Bernardino
Redeve101llDent Aaency, whoae principal office ia located at 300 Borth "D"
Street, Fourth Floor, San Bernardino, California 92418 ("BORROWER"), promises
to P87 to the order of the Departaent of Communit,. Devel01llDent of the City of
San Bernardino (the "City"), a pUblic body corporate and pOlitic, at 300 North
"D" Street, San Bernardino, California 92418, Attention: Mr. Eenneth J.
Benderaon (or at auCh other addreaa as the Cit,. ..,. direct), the principal sum
of FOUR-IIUlUlRID, nFrY-TJlOUSAlID DOLLARS (t450,000.00) or ao muCh thereof as
ma,. be advanced hereunder frOll time to time, on the earlier of (i) LINDER's
demand; (11) fort:y-ei&l1t (48) _the from the date hereof, unleaa extended, in
the aole and abaolute diacretion of ita IXecutive Director, b7 written notice
to the BORROWER liven at leaat thirty (30) da"8 prior to the fort,.-eiaht (48)
month maturit,. date hereinabove aet forth, or; (iii) as otherwise provided in
the Aareement (aa defined below).
Th18 Demand Bote 18 ..de pursuant to the terma of the Loen Aareement dated as
of , 1991 (the "Aareement") entered into between
BORROWER and the Cit,., and 18 aecured b7 an irrevocable, unconditional and
callable upon de.aa4 letter of credit (the "Letter of Credit") iS8ued by Wells
Farao Bank for the account of BORROWER, in favor of the Cit,..
BORROWER ahall, upon de.aa4 b7 the Cit:y, p8:J to the City, aandatory
prepayment8 (aa hereinafter defined) of principal at .auCh ttae8 and in 8uch
amount8 aa the Cit,. ..,. dete~ne from time to time in ita aole discretion.
As u8ed herein, ~datory Prepayment" means a demand for prepayment by the
Cit,. for the partial or total prepayment of the principal due on the Loan
evidenced b7 Wa De.aa4 Bote. In the event of a Mandatory Prepayment, the
City &hall aive BORROWER ten (10) da:ya written notice prior to the date such
prepayment is due.
BORROWER shall al80 have the ri&l1t to make optional prepayments, at any time,
without penalty, upon at least thirt,. (30) d878 prior written notice to the
Cit,., provided any auCh notice of optional prepayment shall be irrevocable,
and failure of BORROWER to malte auCh prep87aent within the time specified in
8uCh notice ahall conatitute a default hereunder.
BORROWER hereb7 waives diliaence, preaentaent, demand, prote8t and notice of
any kind what80ever. In the event of a default in the payment of principal or
of interest on th18 Demand Bote, the City..,., among other remedies, declare
the unpaid balance hereOf, toaether with accrued intere8t thereon, to be
immediately due and payable. The Reference Rate shall be the announced prime
or reference rate of Bank of America or a reasonably comparable bank chosen b
the City. Overdue principal ahall bear intereat at the Reference Rate plus
two-percent (2%) per annum (the "Default Rate") changing as and when such
Reference Rate ..,. be changed, payable from the date of declaration of default
by the City until payment to the Cit,. b7 BORROWER of all C08ts incurred in
connection with the enforcement of this Demand Bote, inClUding attorneys' fees
and costs, whether or not auit i8 filed, as is further provided in Section
4.13 of the Aareement.
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Upon occurrence of UI7 Event of Default ..t forth in the Aareement, and
subject to UI7 applicable notice requirements and cure periods provided by the
Aareement, the City may declare this Demand Rote ~ediately due and payable.
If the Letter of Credit is not extended or renewed beyond each expiration date
of the Letter of Credit, the Lender ahal1 have the riaht to make .immediate
demand on the Rote and the Letter of Credit.
Thia Demand Rote shall be construed in accordance with and loverned by the
laws of the State of California. Failure of the City to exerdse any ri&ht or
remedies hereunder shall not constitute a waiver of UI7 future or other
default. Amendlllents to this Demand Rote shall be in writina and sianed by the
party alainst who such amendlllent is sou&ht to be enforced.
Dated as of:
IUWJliv5L01IIa1' AGBIICt OF mE CIn
OF SAIl _nnnro
By:
Executive Director
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9 Item:
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COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO
AGENDA
April 15, 1991
RESOLUTION OF THE COMMUNITY DEVELOP){ENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN LOAN AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND THE CITY OF
SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
EXHIBIT "A" - Loan Agreement
Action to be
Taken:
Adopt Resolution
To be Published:
NIA
NIA
Newspaper:
Certified copy of Resolution to be returned to Sabo , Green, A
Professional Corporation.
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN LOAN AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND THE CITY OF
SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
WHEREAS, the COIIIIlunity Development Commission of the
City of San Bernardino (the "Commission") on behalf of the
Redevelopment Aqency of the City of San Bernardino (the
"Aqency"), is a redevelopment aqency, a public body, corporate
and politic of the State of California, orqanized and existinq
pursuant to the Community Redevelopment Law (Part 1 of Division
24) commencinq with Section 33000 of the Health and Safety Code
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approved and adopted by ,the Mayor and Common Council of the City
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of the State of California (the "Act"); and
WHEREAS, the Redevelopment Plan for the Northwest
Redevelopment Project (the "Redevelopment Plan") was previously
of San Bernardino (the "Council") by Ordinance No. MC-189, dated
July 6, 1982; and
WHEREAS,
the Redevelopment Plan provides for the
redevelopment of real property pursuant to the Redevelopment Plan
by owners thereof or by parties seekinq to acquire real property
from the Aqency; and
WHEREAS, the Aqency has previously entered into a
certain Disposition and Development Aqreement by and between the
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1 Redevelopment Agency of the City of San Bernardino and New
2 Frontier Commercial Properties, Inc. (the "DDA"), pertaining to
3 the development of a certain shopping center within the. project
4 area subject to the Redevelopment Plan (the "Project"); and
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6 WHEREAS, in connection with the implementation of the
7 DDA, the Agency has found it necessary to cause an amendment to
8 the DDA pertaining to the funding of certain Agency redevelopment
9 assistance as provided in the DDA; and .
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11 WHEREAS, in connection with the proposed amendment to
12 the DDA, the Agency deems it desirable to enter into a certain
13 Loan Agreement (the "Loan Agreement") by and between the Agency
14 and the City of San Bernardino (the "City") pertaining to the use
15 of certain Community Development Block Grant funds in connection
16 with the development of the Project; and
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18 WHEREAS, the Agency deems it desirable to enter into
19 that certain Loan Agreement, a copy of which is attached hereto
20 as Exhibit "A" and incorporated herein by this reference, which
21 pertains to the funding of the Project; and
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23 WHEREAS, the Loan Agreement provides for a loan of
21 Community Development Block Grant funds in an amount equal to
25 $450,000 from the City to the Agency the proceeds of which are to
26 be used by the Agency in connection with the development of the
27 Project.
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1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
2 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
3 SAN BERNARDINO, CALIFORNIA, DOES HEREBY RESOLVE, DETERMINE AND
4 ORDER AS FOLLOWS:
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9 Seet:ion 2. The COIDJIIission authorizes the Executf ve
10 Director of the Agency to execute the Loan Agreement and to
11 execute such other documents as may be necessary to implement the
12 Loan Agreement and to make any necessary non-substantive changes
13 to the Loan Agreement as may be approved by Agency Counsel.
14 III
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20 III
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25 III
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Section 1. The Commission hereby approves the Loan
Agre_ent, a copy of which is attached hereto as Exhibit "A".
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAIN LOAN AGREEMENT BY AND BETWEEN
2 THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE
CITY OF SAN BERNARDINO (WEST SIDE PLAZA PROJECT)
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ESTRADA
REILLY
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UDSLEY
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POPE-LUDLAM
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Section 3.
This Resolution shall take effect upon
adoption.
I HEREBY CERTIFY that the foreqoinq resolution was duly
adopted by the Community Development Commission of the City of
San Bernardino at a
meetinq thereof, held on
the
day of
, 1991, by the followinq vote, to
wit:
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AID
ABSTAIN
lfAU
Secretary
ay of
The foreqoinq resolution is hereby approved this
, 1991.
w. R. Holcomb, Chairman
Community Development
Commission
of the City of San Bernardino
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
2 CITY OF SAN BERNARDINO )
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I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foreqoinq and attached copy of Community
Development Commission of the City of San Bernardino Resolution
No. is a full, true and correct copy of that now on
file in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission
of the City of San Bernardino this day of
, 1991.
.
Secretary of the
Community Development
Commission
of the City of San Bernardino
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EXHIBIT "A"
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LOAN AGREEMENT
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In.... ...~..--K_'I
TIllS LOAIf AGIlIBMBM' dated , 19.91, by and
between the Redevelopment !aency of the City of San Bernardino (hereinafter
called the "BORROWER") and the CITY OF SAR BEIl1tUDIRO (hereinafter called the
"LEImER") .
WHEREAS, the BORROWER has applied to the LEImER for a Loan for the
purpose of construction of the West Side Plaza on the corner of Baseline and
Medical Center Drive (hereinafter the "PROJECT") as described in the legal
description set forth in the attached Exhibit "A".
WHEREAS, the purpose of the Loan, as hereinafter defined, is to
enable the future construction of a nei&hborhood shopping center, resulting in
employment opportunities to the resion's low and moderate income work force,
and:
WHEREAS, COIIIIIUIlity Development Block Grant (CDBG) funds have been
made available to the LEImER by the United States Department of Rousing and
Urban Development (BUD) on the condition that the CDBG funds, notwithstanding
the Loan, as hereinafter defined, of same to BORROWER shall, as necessary, be
at all times immediately available for such CDBG prosrammed purposes as may
from time to time be determined by LEImER and BUD, and;
WHEREAS, such short term use of CDBG funds have been found necessary
and appropriate by the Mayor and Common Council, and;
WHEREAS, the LEImER is Willing to make such a loan to the BORROWER on
the terms and conditions set forth.
ROW, THEREFORE, in consideration of the IlUtud covenants and
agreements contained herein, the parties hereto agree as follows:
ArrYI!r.W "I"
THE LO.O'
HCTIOR 1.01: ",.. Loan. Rote ..... lIate
Subject to the terms and conditions of this Loan !areement, the
LERnER hereby agrees to lend the BORROWER, and the BORROWER hereby agrees to
borrow from the LEImER and repay the LEImER or its AssiSns, the amount of
FOUR-HURDlED, FIFTY-THOUSAND DOLLARS ($450,000.00) (hereinafter called the
"Loan"). The oblisation of the BORROWER to repay the Loan shall be evidenced
by the Promissory Rote (hereinafter called the "Rote") of the BORROWER in a
form satisfactory to the LERnER (or in the form of Exhibit "B" attached
hereto) dated the date on which the Loan is made (hereinafter known as the
"Closing Date") payable to the order of the LERnER for the amount of the Loan
without interest. The Rote shall be secured by an unconditional, irrevocable
Letter of Credit, payable upon demand (hereafter the "Letter of Credit) in a
form approved by the LERnER. BORROWER and LERnER agree that if the Project
costs are less than $450,000.00, the Loan amount shall be reduced to the
actual Project cost. The Project cost shall be construction, site
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EXHIBIT "A"
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improvements, soft costs, professional fees, Letter of Credit, and other
related eligible costs as permitted b7 BUD regulations and agreed to by the
LENDER.
UcrIOR 1.02: 'I'll.. rem...... .-....t
The term of the Loan shall be for four (4) years, except that the
Rote shall be repayable on demand, provided that not less than ten (10) days
written notice is required if the BORROWER is not in default of BORROWER's
obligations. If prior demand is not ...de, the payment of prinCipal ahall be
due and payable on . Said payment shall be made
upon the Letter of Credit being called b7 LENDER. LENDER ukes no cODIIDitment
to future support and assures no obligations for future support, except as
expressly set forth in this Loan Agreement.
UcrIOR 1.03: ParDose of Loan
The purpose of the Loan is solely to "conatruct" the real property
(inclUding on-site improvements, tenant improvements, professional fees,
interim costs end developer profit and overhead) described in the attached
Exhibit "A". BORROWER acress that it shall apply the funds received by it
under this Loan Agreement in accordance vith the uses permitted in this Loan
Agreement. BORROWER further acrees that no application of any funds received
from LENDER hereunder shall be ...de in violation of the laws of the State of
California, or the governing BUD regulations.
UcrIOR 1.04: Letters of Credit
The Rote shall be secured b7 an unconditionsl, irrevocable Letter of
Credit, payable upon demand, and in a form of approved b7 LENDER addressed to
!.ENDER as beneficiary. The Letter of Credit shall have expiration dates which
shall be one-hundred, twenty (120) days longer than the due date as set forth
in the Rote. The Letter of Credit shall be in the amount of FOUR-BUNDRED,
FIFTY-THOUSAND DOLLARS ($450,000.00).
Payment on the Letter of Credit shall be on demand but not less than
ten (10) days written notice if the BORROWER is not in default of BORROWER's
obliaations. Payment on the Letter of Credit shall not be conditioned upon
any action or omission to take such action on the part of LENDER, whether
under this Loan Agreement, or under the terms of any document executed or
delivered hereunder or otherwise. Reither the acceptance of, the transfer of,
or receipt of monies under the Letter of Credit shall in any manner relieve
BORROWER of any obliaation hereunder or under the terms of any document
executed or aiven herewith, except to the extent payment is actually received
under the Letter of Credit.
AftJr.U! "II"
IIPIISBIIUTIOR A1ID vana1lfS
The BORROWER represents and covenants the following:
SEcrIOR 2.01: Dulv Or..nfzed
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The BORROWER is duly oraanized, v.lid1y existiq and in aood standing
under the 1.ws of the St.te of C.liforni. and has the power to enter into this
Loan Aareement to borrow.
SBCTIOB' 2.02: Dal" ~n..1t"rized
The III81dq and the perforunce by the BORROWER of this Loan
Aareement, and the execution and delivery of the lIote, and UIY security
..reements and instr1llllents have been duly .uthorized by all necen.ry .ctions
and will not vio1.te UIY 1.w, rule, reau1ation order, writ, judament, decree,
determination or .ward pre.ent1y in effect havina app1ic.bi1ity to the
BORROWER or UIY provision of BORROWER's Articles of Incorp.r.tion or result in
. breach of UIY credit aareement or UIY other ..reement or 1natr1llllent to which
the BORROWER is . party or by which it is or its property ..y be bound or
.ffected.
OcrIOB 2.03: laa..l1... .tftll",. Tft.~....--~.
When this Loan Aareement is executed by the BORROWER and the LENDER.
and when the lIote and the Letter of Credit .re fully executed and delivered by
the BORROWER, e.ch such inatr1llllent shall conatitute the l'aal, valid, .nd
bindiq ob1ia.tion of the BORROWER and on the financi.1 inatitution issuing
the Letter of Credit in .ccordance with it. terms.
SICTIOll 2.04: 110 Lead Actf.....
There are no 1ea.1 .ctiona, suits, .rbitr.tions, or proceedings
pendina or to the kIlow1.dae of the BORROWER," thre.tened ..ainat the BORROWER
or business of the BORROWER, before UIY court or .dministr.tive aaency, which,
if determined .dversely to the BORROWER, would interfere with the BORROWER's
perforunce of this Loan Aareement or the proj.ct for which the Loan was made.
aCTIO. 2.05: a, LI!..l Aut-'h"rlutlcm. .eeded
lIo .uthorization, conaent or .pproval or UIY formal exemption of any
government.1 body, r'au1atory .uthority (fed.r.1, st.te or local) or
mortaaaor, creditor or third p.rty is or was neceas.ry to the v.1id execution
end delivery by the BORROWER of this Aareement, the lIote, the Letter of
Credit, or any other document except .s provided for under Sections 3.03 and
3.04 herein.
SBCTIOll 2.06: .ot in Def.u1t
The BORROWER is not in default of UIY obliaation, covenant or
condition contained in any bond, debenture, note, or other evidence of
indebtedness or any morta.... Deed of Trust or collateral inatr1llllent securing
the same, except .s disclosed in writiq to LBlIDIR, and conaented by LENDER
end/or LElIDER's counsel prior to the Closing Date.
SBCTIOll 2.07: Profect T....1..ent.tion
The schedule of .ctivities surrOunding the Project shall adhere to
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the following time .Chedule and i. .0 certified ~ the BORROWER:
A. The ..crow for the conetruction of the r.al property described
in EXhibit "A" .hall clo.e on May 1, 1991 or a. mutually agreed
upon by both partie..
B. The .hoppina center .hall open its door. for buaineaa on or
before May 1, 1992.
C. Two-hundred, forty-eiiht (248) jobs a. required by Section 4.14
will have been created ~ Rovember 1, 1992.
SBCTIOK 2.08: ,....... are Paid
The BORROWER has filed all tax returns Which are required and has
paid or made provision for the payment of all taxes whiCh have or may become
do pur.uant to .aid returns or pur.uant to 8D1 a......ent. received ~ them.
Ro tax liability has been a..erted ~ the Internsl Revenue Service or other
taxing agency, federal, .tate, or local for tax.. materially in exce.. of
tho.e already provided for and the BORROWER know. of no ba.i. for 8D1 .uch
deficiency ..se...ent.
SBCfI01I 2.09: Be>> AttY.". I!h~.e
The BORROWER certifies that there ar. no mutUal adver.e Change. .ince
December 31, 1990 in it. financial condition, oraanization, operation, fixed
propertie., real propertie., or management per.onnel of the BORROWER that have
not been di.clo.ed in writing to LEIDER prior to the Loan clo.ing.
ArrII!I.w "III"
COlIDrrIOIIS OF LllDIlIG
The obligation of the LEIDER to lUke the Loan mall be .ubject to the
fulfillment at the time of Loan Clo.ing and the continued fulfillment of each
of the following conditional
nCTIOK 3.01: -.eutian..... DeUverY of Ko~e. 111.. Loan Aueement.
Letter of Crl!d.lt ..... R.lated DDP-I'allllt.
The funding of the Loan i. predicated on receipt of the fOllowing
docUlllents :
A. The receipt ~ LEIDER of .uch docUlllent., certifications and
opiniona a. may be rea.onably sati.factory to LEIDER, evidencing that this
Loan Agreement, the Rote, the Letter of Credit and all other docUlllents given
or executed in connection herewith are duly and validly executed by and on
behalf of and conetitute the valid and enforceable obligatione of BORROWER
thereunder pursuant to the re.pective terms of each, and that the execution
and delivery of this Loan Aareement, the Rote, the Letter of Credit and all
other docUlllent. executed or given hereunder and the performance by BORROWER
hereunder will not breach or violate any provision of Borrower'. Partnership
Aareement, or 8D1 law or governmental reaulation or constitute any breach or
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default under an:y iutl'Ulllent or ..reement to which BORROWER IIaY be a party.
B. The continued availability to LBBDBR of $450,000.00 in proceeds
of Obligated but not liquidated C_ity Development Block Grant funds.
C. BORROWER shall have executed and delivered this Loan Acreement,
the Rote, the Letter of Credit and an:y and all other documents to LBRDBR which
LEl'lDER may deem reasonably necessary with respect to the Loan in a form and in
terms and conditiou satisfactory to LBBDER and its counsel.
D. The receipt of documentation satisfactory to LEl'lDER eVidencing
the fact that the Loan proceeds are being used for the construction of the
real property of the Project. The LEl'lDER shall have the right to fund the
Loan through escrow.
SBcrIOB 3.02: beeutlon ...... Deliyer9 of' Letter of Credit
BORROWER shall have lending iutitution(s) approved by LEl'lDER execute
and deliver to LBRDIR an irrevocable Letter of Credit in a form satisfactory
to LBRDER and its counsel giVing LBRDER a total not to exceed $560,000.00.
Said Letter of Credit is to secure payment of the principal amount of the
Rote, and an:y other s_ due and payable by BORROWER hereunder.
acrID 3.03: CaY"'Mlta. 2tmf.... -..d CeNtea
BORROWER has complied and will continue to comply with all applicable
environmental statutes and regulations in connection with the development of
the Project. All permits, consents, approvals and authorizations by, and
registrations and declarations necessary for the development of the Project,
shall be obtained, and will be valid, adequate and in full force and effect
for an:y of the deVelopment activities for which a permit, conaent, approval or
authorization is necessary. Development of the Project will in all respects
conform to and comply with all covenants, cOnditiona, use and building codes,
lsws, regulations and ordinances.
SICTION 3.04: ADDrova1 of Others
The BORROWER aha11 secure all necessary approvals and consents, if
required, of governmental bodies having jurisdiction with respect to an:y
portion of the coutruction contemp1sted. The BORROWER shall secure all
necessary approvals and consents required with respect to this transaction by
an:y mortgagor, creditor or other party having an:y financial interest in the
BORROWER.
SECTION 3.05: Doh.fon of "..._ad
LBBDER shall receive an Opinion of Counsel from BORROWER stating that
(i) BORROWER's Representationa and Warranties were true and accurate on the
Closing Date; (ii) the conditions of the Loan have been duly satisfied as of
the Closing Date, and; (iii) all representations, warranties, covenants and
conditions continue to be true, accurate and in effect throughout this Loan
Acreement.
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ArrTl!r.. -IV"
APPIlIIIlnVI COVDAftS OF '!III BOIlROVD A1ID QI&I!&1ITOR
BORROWER aarees to cOllply with the followina covenents froll the date
hereof untll the LlRDER has been fully repeid with interest, unle88 the LENDER
or its Assigns shall otherwise consent in writina.
acrIO. 4.01: P___I: of the Loan
The BORROWER aarees to pay punctually the principal and the Rote
accordina to its terms and conditions and to pay punctually 8Dy other amounts
that lIay becolle due and payable to the Lender under or pursuant to the terms
of this Loan Agreement or the lfote.
acrIOII 4.02: S.~l.f.et:ian Df O.h_r Obll..tions
The BORROWER agrees to pay punctually the principal and interest due
on 8Dy other indebtedness now or hereafter, at 8Dy tille owina by the BORROWER
to 8Dy other lender.
acrIolf 4.03: lIa:lnta:ln..... Tn...... ProDf!rtv
The BORROWER agrees to insure the Project at all tilles and at all
tilles maintain assets acquired with this Loan and the shoppina center in such
condition and repair that the value of the land and improvements therein will
be adequately l18inteined and protected. BORROWER also aare.s to insure the
project and maintain durina the term of the Loan adequate hazard insurance
policies coverina fire and extended coverage and such other hazards as lIay be
deemed appropriate in amounts and form satistactory to LlRDER, with the LENDER
as an additional insured with a loss payee clause acceptable to LINDER.
BORROWER further aarees if at 8Dy time durina the life of the Loan the Project
is declared to be within a flood hazard area, to insure purchase of Federal
Flood Insurance if available. Such insurance, to the extent available, shall
be in an amount equal to the areater of: (1) the amount of the Loan; (ii) the
insurable value of the Project, or; (iii) ths maximum limit of coverage
avallab1e. If the property is not located in a flood hazard area at the time
of the Loan C10sina date, BORROWER w111 provide satisfactory evidence
thereof. BORROWER further 8&rees to insure the Project and to maintain
adequate liability and Workers' Compenaation Insurance in amounts and form
satisfactory to the LINDER.
SEcrIOlf 4.04: Pav All "._.
The BORROWER aarees to insure the Project and duly pay and diSCharge
all taxes, assesSllents and governmental charaes upon it or 8&ainst its
properties prior to the date on which the penalties attache thereto; except
that the Project shall not be required to pay 8Dy such tax, ..sesament or
lovernmental charge which is beina contested by BORROWER in aood faith and by
appropriate proceedinas.
acrIolf 4.05: Provide '..diU.....t Ilauitv
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BOllOWER aarees to insure the Project is provided additional equity
funds to cover additional Project costs incurred as a result of overruns or
unanticipated expenses or ehau&es in work orders in the Project.
acrIO. 4.06: .in!:_'" RYt.t:"'ee
BORROWER aarees to maintain ita existence. riahts. priVileges. and
franchises wi thin the State of California until the Loan has been repaid to
LERnER in full.
acrIO. 4.07: ProYlde ""MI.-tal Tft'oraatlon
Until the Loan is repaid. the BOlIOWER will insure that the Project
maintains adequate records and books of accounts. in which complete entries
will be made reflecting all of the Project's business and financial
tranaactions. Such antries are to be made in accordance with consistently
applied. generally accepted accounting principles and practices.
In addition. the BOllOWER aarees to deliver to the LERnER annual
Project financial Itatements. Annual financial Itatements of BOlIOWER are to
be prepared by an independent accountant and certified by an authorized
officer of the BOllOWER to be true and accurate copies. and are to be
submitted to LERDER with ninety (90) days of the close of the annual period.
BOllOWER agrees to provide aay additional financial information on
the Project as it becomes available to BOlIOWER. inCluding. but not limited
to. copies of Project income tax returns and instruments and information as
may be reasonably requested by the LERDER. its Assiena or Counsel.
The BOlIOWER further agrees to provide written notice to the LENDER
of any trial. public hearing or meeting before aay administrative or other
public aaency which may in aay manner. effect the personal property or real
estate of this Project.
SEerIO. 4.08: Riaht to Tn-veetion
BOllOWER acrees to crant the LERDER. until the .ote has been fully
repaid. the right at all reasonable hours to inspect the real estate.
improvements placed thereon and all personal property and fixtures of this
Project and the BORROWER further agrees to provide LERDER free access to the
Project property for the purpose of such inspection to determine the condition
of the Project's property and real estate.
SBCTIO. 4.09: 111111 _II Void r:...._."t.
BOllOWER agrees that in the event that aay provision of this Loan
Agreement. or aay other instrument executed at Closing or the application
thereof. to aay person or circumstances. shall be declared null and void.
invalid. or held for aay reason to be unenforceable by a Court of competent
jurisdiction. the remainder of this Agreement shall nevertheless remain in
full force and effect. and to this end. the provisions of all covenants.
conditions. and agreements described herein are deemed separate.
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nerIOI' 4.10: bn.n_tPl8.ftft Cla.tft. Costs
BORROWER aarees to pay ,all fees, expenses and charles in any way
connected to the Loan, its lI8ltilll or tranafer, therewith including, but not
limited to, the fees and out-of-pocJtet expenses of COUD8e1 employed by the
LEImER and any tues, fees and expenses payable in connection with this
tranaaction and with the enforcement of this Loan Alre_t, Bote, and the
Letter of Credit. A reasonable amount shall be withheld from disbursement of
the Loan proceeds for the paJaent of these costs and expenses.
HCTIO.4.ll: .DUce of Default
BORROWER alrees to live written notice to LEImER, within fifteen (15)
days, of any event which would conatitute an Event of Default under this Loan
Aireement or that would with notice or lapse of time or both, constitute an
Event of Default UDder this Loan Aireament.
HCTIO. 4.12: r....-ffieaUon
BORROWER aareea to indaarlfy and save the LEImER and ita !asians
harmless alainst any and all liability with respect to, or resulting from any
ob1ilation of the BORROWER.
SBCrIOlI 4.13: ............. oE Call1u!tian Dr ......"re--ent
BORROWER sarees, if at any time BORROWER defaults on any provision of
this Loan Aireement, to pay the LEImER or its Assiana, in addition to any
other amounts that .ay be due from the BORROWER an amount equal to the costs
and expenses, of collection, enforcement or correction or waiver of the
default incurred by the LEIDER or its !adana in such collection, enforcement,
correction or waiver of default, inc1udilll but not limited to attorney fees
and costs of litilation.
HcrIO.4.14: .ew _II Reta"'''' PositiOlUl Recmired
A. In conaideration for the Loan ..de by the LEIDER, BORROWER
alrees to expand the Project's employment base by a minimum of Two-Bundred,
Forty-eiaht (248) permanent, new full time employment positiona or full time
equivalents (FTEs) over and above the Project's full time employment base at
Loan Closing Date which LEIDER and BORROWER alree is zero (0).
Full time positiona are positiona requiring forty (40) hours a week
per employee. For calculation purposes, two (2) part-time employees shall be
considered one (1) FTE.
C. BORROWER aarees that at least one-hundred, sixty-one (161)
(i.e. sixty-five percent 65%)) of the two-hundred, forty-eiaht (248) FTE
positions will be (i) held by, or; (ii) made available to qualified persons
(i.e., referral or assistance e1ilib1e) UDder the catelories listed on the
attached EXhibit "D", Employment Information Form or peraona whose current
family income level is less than that shown on attached EXhibit "D",
Employment Information Form. BORROWER alrees to have all prospective
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employment applicants complete the Employment Information Form.
D. BORROWER acrees to file and aaintain completed employment
information forma separated into four (4) cateaories.
1) Full Time Bires below Income Criteria or
Referral/Assistance Iliaible.
2) Full Time Bires above Income Criteria.
3) Part Time Bires below income Criteria or
Referral/Assistance Iliaible.
D. Upon documentation of at least two-hundred, forty-eieht FIE
hires and at least one-hundred, sixty-one (161) income eliaible placements,
BORROWER ahall submit to LODIR, copies of all Employment Information Forms
accompanied by an inventory sheet listina the number of forma collected under
each of the four (4) cateaories under Section 4.l4(C).
I. Should the jOb creation and income eliaible placement aoals not
be met by the end of thirty (30) monthe after Loan diSbursement, BORROWER
shall at that time, submit all available documentation required under this
Section ineludina documentation for those BOT BIIID.
The purpose is to ascertain proaress towards meetina projected
overall job creation aoals, to determine the number of taraeted positions
failina short of placement and to determine the number of income eligible
persona that were interviewed (and not hired) to fill the shortfall.
F. Upon review of Section 4.14(1) documentation, LlDER wUl
determine if satisfactory measures have been taken to malte taraeted jobs
avaUable to income eliable persons. Job Trainina and Partnership Act
(hereinafter "JTPA") referrals Who are interviewed, althouch not necessarily
hired, for unfilled taraeted positions will aatisfY this purpose.
FaUure to take satisfactory measures, as determined by LlDER at its
sole discretion, to malte the taraeted jobs available to income eligible
persona is an Ivent of Default.
SECTIO.4.15: Third PartY hream_ts
A. BORROWER agrees to insure that When the Project developer
enters into any agreement with a third party which conveys any leasehold
interest in the real property or improvements covered by the terms of this
Loan Aareement that said third party shall execute an aareement with the
Project developer indicatina the third party will use their best efforts to
comply with the auidelines for hirina employees as set forth in Section 4.14.
The aareement shall obliaate the third party to provide BORROWER with the
documentation required under Section 4.14 Which BORROWER is required to submit
to LODIR. The use of beat efforts by the third party shall not relieve the
BORROWER from its responsibility and obliaation to provide employment required
under Section 4.14.
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B. A copy of aareement(a) entered into by the Project developer
with third partiea which trenefer en intereat in the Project or its
improvementa eh8ll be delivered to LIlmIR within five (5) daya of the
execution of aaid aareementa(s) between the Project developer end any third
partY(ies) that conveys the interest. .
A....-.:I!r.. "V"
IIIGArIV1 COVIDJIrS OP DB BORROVIR
BORROWER covenant a and aerees that, from the date hereof until
payment in full of the Bote, unleaa the LIlmER or ita Aaaiena ahall otherwise
consent in writinc, BORROWER shall not enter into any aareement or other
commitment the performance of Which would constitute a breach of any of the
covenants contained in this Loen Acreement lncludinc but not limi tad to the
followinc covenantal
OcrIOB 5.01: S.l. Qf t.h. .A.emd.81t:10Il AIIaeta
So lone .. the Bote is unpaid the BORROWER shall not permit the sale,
conveyance, leaae (except in the normal courae of operation of the Project),
aaaien-ent, trenefer or other diapoaition of the Project'a Assets unleas
approved in writine by the LIlmIR which approval shall not be unreasonably
withheld.
ACTIOS 5.02: r.h....e OvIuoPdlfD
BORROWER will not permit without the written permisaion of LINDER,
which permiaaion shall not be unreaaonably withheld, any Chance in the
ownerahip atructure, control, or operation of the Project developer, including
but not limited to: (1) ..reer into or consolidation with any other person,
firm or corporation; (ii) Chan&ea in the compoaition of its Partnera; (iii)
Chancinc the nature of ita busineaa .. carried on on the date hereOf, or; (iv)
aubatantial diatribution, liquidation or other diaposal of the Project
developer'a aaaeta to ita OWnera.
SlCTIOB 5.03: r.h....e the Pro1ect
BORROWER shall not permit nor allow to exist without prior written
consent from LlIDIR, which permiaaion shall not be unreaaonably withheld, any
material Chance in the Project's plene and/or specifications which may be
aubmitted to the LIlmIR.
.AJrrIt!I.1r "VI"
&Y&nr:i OP DlPADLT
The entire unpaid principal of the Bote ahall become and be
illllllediately due and payable upon the written demand of the LIlmIR or its
Aasiena, without any other notice or deaand of any kind or any preaentment or
protest, if any one or more of the events listed in thia Article (hereinafter
termed an "Ivent of Default") ahall occur, Whether VOluntarily or
inVOluntarily, with or without limitation, occurrinc or broucht about by
operation of law or pursuant to or in compliance with any jUdpent, decree or
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order of any court or any order, rulea or reaulation of any adminiatrative or
aoverDlllental bOdy, provided, however, that auch allll ahall not be then payable
if BORROWER'a p.,.enta have been waived, or the time for lD81tina the Borrower's
paymenta have been extended by the LIlUlBR.
nerIOR 6.01: Late ,......ornt of Laan
If the BORROWER ahall faU to ID81te payment when due of any
inatallment of principal on the Bote, or intereat accrued thereon the funds
due ahall acc1lllUlate intereat until paid by the BORROWER. Acceptance of any
late payment ahall not conatitute a waiver of BORROWER'a default with reapect
to the overdue amount or aatiary BORROWER'a obliaation to pay intereat on the
late payment, or prevent LIlUlIR from exercbina any of the other riahta and
remediea avaUable to LIlUlBR. Payment not paid when due ahall bear aimple
intereat from date due until paid at the rate aa aet forth on the Bote.
SBcrIOR 6.02: Tnporrttet RMlr_f!Iltat:f.an or Varrann
If repreaentationa or warrantiea contained in, or made in connection
with the execution of, or delivery of, thia Loan Aare..ent, or in any
certificate furniahed purauant hereto, ahall prove to have been incorrect when
made in any adverae reapect.
nerIOB 6.03: Default in CclY......u
If the BORROWER ahall default in the performance of any other term,
covenant or aareement contained in thb Loan Aareellent, and if any auch
default ahall continue unraedied for five (5) daya after either: (i) it
becomea known to an executive officer of the BORROWER, or; (ii) written notice
thereof ahall have been aiven to the BORROWER by the LIlUlBR.
I.ClIO. 6.04: Valmtt:.rv tnaDly...ev
If the BORROWER ahall become inaolvent or ceaae to pay ita debta as
they mature or ahall voluntarily file a petition in bankruptcy or a petition
aeekina reoraanization, or the appointment of a receiver, trustee, or
liquidator for it or a aubstantial portion of ita aaaeta, or effect a plan or
other arrangement with creditora, or ahall be adjudicated bankrupt, or shall
make a voluntary assignment for the benefit of creditora.
SlerIOR 6.05: Involuntarv IJUlolvenl!V
If any involuntary petition ahall be filed aaainat the BORROWER under
any bankruptcy, inaolvency or aimUar law aeeking the reoraanization of or the
appointment of any receiver, truatee or liquidator for the BORROWER, or of s
subatantial part of the property of the BORROWER or if a writ or warrant of
attachment or aimilar procea. shall be ia.ued aaainat a .ubstantial part of
the property of the BORROWER, such petition ahall not be di.mi.aed or such
writ or warrant of attachment or aimilar procea. .hall not be released or
bonded, within fifteen (15) day. after fUina of levy.
neTIOR 6.06: Jnd-lI!!D.ta
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If aDy final judpent for the paYllent of IIOne)T that is not fully
covered by liability insurance and is in excess of $10,000.00 shall be
rendered ..ainat the BORROWER, and shall not be diSchar,ad within thirty (30)
days, or an appeal therefrom taken and execution thereon effectively stayed
pendina such appeal and, if such sppeal, and if auch judpent affirmed on such
appeal, the aame ahall not be discharled within thirty (30) days.
.&1PI'T1!r.W -vII"
IIISI!RI.l..&1nQUS
acrIOlI 7.01: Vafyer of IIotice
Bo faUure or delay on the part of the LlRDER in exercidna aDy
right, power, or remedy hereunder ahall operate as a waiver thereof, nor shall
aDy sinale or partial exercise of aDy such right, power, or remedy preclude
aDy other or further exercise thereof or the exerciae of aDy other right,
power or remedy hereunder. Bo modification or waiver of aDy provision of this
Loan Agreement or of the Bote or of the Letter of Credit, nor aDy consent to
aDy departure by the BORROWER therefrom, ahall in any event be effective
unleas the aame shall be in vritina and then auch waiver or conaent shall be
effect!ve only in the specific instance and for the apecific purpose for which
given. Bo notice to or demand on the BORlOWER ahall in aDy case entitle the
BORROWER to any other or further nodce or demand in simUar or other
circ_tances.
DcrIOB 7.02: .a............t.
The BORROWER, LlRDER and its Asdans hereby expressly reserve all
rights to amend any provisions of this Loan Agreement, to conaent to or waive
aDy departure from the provisiona of this proviaiona of the Bote, or to
release or otherwise deal with any collateral security for paYllent of the Note
provided, however, that all such amendments be in writina and executed by
LlRDER or ita Asdans, and BORROWER.
SBerIOK 7.03: Botices
All notices, conaents, requests, demands and other communications
hereunder shall be in writina and be duly liven to a party hereto by personal
delivery or mailed by certified mail, prepaid, to the LlRDBR or BORROWER at
their addresses set forth at the aiansture of the parties to this Loan
Agreement, or at such other addresses as aDy party may have designated in
writina to any other party hereto and Which notice shall be effective upon
receipt. Receipt shall be five (5) days after mailina.
naZOR 7.04: Survi....l of Reoreaentat:iftfta Jtft" Varra.t.ies
All ..reements, representations, and warranties made by the BORROWER
herein or aDy other document or certificate delivered to the LERnBR in
connection with the transactions contemplated by this Loan Agreement shall
survive the delivery of this Agreement, the Note and the Letter of Credit, and
shall continue in full force and effect ao lona as the Rote is unpaid.
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SBC1'IO. 7.05: Succ...or...... AII.i....
Thi. Loan Aare_ent ahall be bindina upon the BORROWER, their
Succe.son and A..i&D8, except that the BORROWER IUIY not ualp or transfer
their ripta without prior written cOIlSent of the LEIDER. This Loan Aareement
shall inure to the benefit of the LIBDIR, its Succes.ors and Assips, and,
except a. otherwi.e expressly provided in particular provisi_ hereof, all
subaequent holden of the Bote.
SBerIOlf 7.06: Udl1
LEIDER .hall have the ript to require BORROWER to provide within a
reasonable time, a financial audit of BORROWER, by an independent certified
public accountant chosen by LEIDER and paid for by BORROWER, if BORROWER is in
default of any of its covenants or oblilatiollB to LEIDER.
SBerIOlf 7.07: C01IIlterDart.
Thb Loan Aare_ent IUIY be executed in any n1lllber of counterparts,
each of which lIhall be deemed anorillllal, but all of which tOlether shall
cOllStltute one and the same illBtrument.
SBC1'IOlf 7.08: Gove_f... Law
This Loan Aare_ent, the Bote and the Letter of Credit, shall be
deemed contracts made under the laws of the State of California and for all
purpo.es shall be cOllBtrued in accordance with the laws of said state. In the
event that any action, at law or in equity, be c~enced by any party alainst
any other party, the parties alree that jurisdiction and proper venue shall
lie solely with the Superior Court of the State of California for the County
of San BerllBrdino, or if the amount in controversy 18 not sufficient for the
juriSdiction of the Superior Court, then the venue and forum for such action
shall be the Municipal Court of the State of California for the County of San
BerllBrdino.
SBerIOlf 7.09: AttorlU!9'. Fee.
In the event either partY'lIhall brina an action to enforce the terms
and conditiollB of this Loan Aare_ent, the prevailina party shall be entitled
to recover all of its costs and expBllBes, includina, but not limited to,
reasonable attorney's fees ss determined by the court.
SBerIOlf 7.10: Conflict of Interest
Bo member, official or employee of LElDBR shall have any personal
interest, direct or indirect, in the subject matter of this Loan Alreement,
nor shall any member, official or employee participate in any decision
relatina to this Loan Aareement which effects whether directly or indirectly,
his or her persollBl interests or the interests of any corporation, partnership
or association in which he or she has an interest.
SBC1'IOlf 7.11: Article"'~ Section Headf....
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0 1 Article and Section Beadings used in this Aareement are for
2 convenience only and shall not affect the construction of this Aareement.
3 IR WITRESS WHEREOF, the parties hereto have each cauaed this Loan
Agreement to be duly executed as of the day and the year first written above.
4
5 T.1nIn'Q : &ODOWD:
6 CI'l'! OF lWI 1l1!IIII& II1lIJlO REbJi;ym.Ohuuu AGDCY OF DB CIn
7 OFFICI OF CIII1....i_J.:n DBVELOl'IIBlft' lWI 1l1!IIII& II1lIJlO
8
9 By: By:
10 Title: Title:
11 Dated: Dated:
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nw.&1In lIOD
For value received, the undersiened, the City of San Bernardino
Redevelolllllent Aaeney, whose priDeipal office is located at 300 Rorth "D"
Street, Fourth Floor, San BernardillO, California 92418 ("BORROWER"), promises
to pay to the order of the Department of C_ity Develolllllent of the City of
San Bernardino (the "City"), a public body corporate and politic, at 300 North
"D" Street, San Bernardino, California 92418, Attention: Mr. ~enneth J.
Benderson (or at suCh other address as the City may direct), the principal aum
of lOUR-JIUlIDUD, FIrrY-TBOUSAIm DOLLARS ($450,000.00) or so IIUCh thereof as
Ilay be advanced hereunder from tille to tille, on the earlier of (1) LENDER's
demand; (ii) forty-eiaht (48) IlOntha from the date hereOf, unless extended, in
the sole and absolute discretion of its Ezecutive Director, by written notice
to the BORROWER liven at least thirty (30) days prior to the forty-eilht (48)
month maturity date hereinabove set forth, or; (iii) as otherwiae provided in
the Aareement (aa defiDed below).
This Demand Rote is Ilade pursuant to the terms of the Loan Aareement dated as
of , 1991 (the "Aareement") entered into between
BORROWER and the City, and is secured by an irrevocable, unconditional and
callable upon demand letter of credit (the "Letter of Credit") iasued by Wells
Farlo Bank for the account of BORROWER, iD favor of the City.
BORROWER shall, upon demand by the City, pay to the City, Ilandatory
prepayments (as hereinafter defined) of priDcipal at .suCh tillea and in such
amounts aa the City IlaY deteraine from time to time iD its sole discretion.
As used herein, "Mandatory Prepayment" Ileana a demand for prepayment by the
City for the partial or total prepayment of the principal due on the Loan
evidenced by this Demand Rote. In the event of a Mandatory Prepayment, the
City shall live BORROWER ten (10) days written notice prior to the date such
Prepayment is due.
BORROWER shall also have the riaht to Il&ke optional prepayments, at any time,
without penalty, upon at least thirty (30) days prior written notice to the
City, provided any suCh IlOtice of optional prepayment shall be irrevocable,
and failure of BORROWER to Il&ke suCh prepayment within the time specified in
suCh notice shall constitute a default hereunder.
BORROWER hereby waives dililence, presentment, demand, protest and notice of
any kind whatsoever. In the event of a default in the payment of principal or
of interest on this Demand Rote, the City Ilay, amona other remedies, declare
the unpaid balance hereOf, tOlether with accrued intereat thereon, to be
immediately due and payable. The Reference Rate shall be the announced prime
or reference rate of Bank of America or a reasonably comparable bank chosen b
the City. Overdue principal shall bear interest at the Reference Rate plus
two-percent (2%) per ann1llll (the "Default Rate") Chanaina as and when such
Reference Rate IlaY be Chanaed, payable from the date of declaration of default
by the City until payment to the City by BORROWER of all costs incurred in
connection with the enforcement of this Demand Rote, inclucUna attorneys' fees
and costs, whether or not suit is filed, as is further provided in Section
4.13 of the AareelDent.
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May 3, 1991
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Upon occurrence of any Event of Default .et forth in the Aareement, and
.ubject to amy applicable notice requirement. and cure period. provided by the
Aareement, the City -.y declare thia Demand lote immediately due and payable.
If the Letter of Credit ia not extanded or renewed beyond each ezpiration date
of the Letter of Credit, the Lender aha11 have the ri&ht to .ate immediate
demand on the Rote and the Letter of Credit.
Thia Demand Rote shall be conatrued in accordance with and lovemed by the
lava of the State of California. Failure of the City to exerc1ae any rilht or
remediea hereunder aha11 not conatitute a waiver of amy future or other
default. Amendment. to thi. Demand Rote ahall be in writing and dined by the
party alainat who auch aIIendment ia aoulht to be enforced.
Dated as of:
IWmV5LC)PIIIlft' AGIIICr OF 1'JIB CITY
01' SO -&lInuo
By:
Ixecutive Director
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May 3, 1991
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Action to be
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MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO
AGENDA
April 15, 1991
Item:
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN CONTRACT BY AND AMONG THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, THE CITY OF SAN BERNARDINO
AND THE COUNTY OF SAN BERNARDINO PERTAINING
TO THE USE OF CERTAIN COMMUNITY DEVELOPMENT
BLOCK GRANT FUNDS (WEST SIDE PLAZA PROJECT)
Exhibit "A" - County Contract
Adopt Resolution
To be Published:
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Newspaper:
Certified copy of Resolution to be returned to Sabo & Green, A
Professional Corporation.
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city of San Bernardino (the "Commission") on behalf of the
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN JsERNARDINO APPROVING A
CERTAIN CONTRACT BY AND AMONG THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, THE CITY OF SAN BERNARDINO
AND THE COUNTY OF SAN BERNARDINO PERTAINING
TO THE USE OF CERTAIN COMMUNITY DEVELOPMENT
BLOCK GRANT FUNDS (WEST SIDE PLAZA PROJECT)
WHEREAS, the Community Development Commission of the
Redevelopment
Agency of the City of
San Bernardino
(the
"Agency"), is a redevelopment agency, a public body, corporate
and politic of the state of California, organized and existing
ursuant to the Community Redevelopment Law (Part 1 of Division
24) commencing with Section 33000 of the Health and Safety Code
f the State of California (the "Act"); and
WHEREAS, the Redevelopment Plan for the Northwest
edevelopment Project (the "Redevelopment Plan") was previously
pproved and adopted by the Mayor and Common Council of the City
f San Bernardino (the "Council") by Ordinance No. MC-189, dated
uly 6, 1982; and
WHEREAS,
the Redevelopment Plan provides for the
edevelopment of real property pursuant to the Redevelopment Plan
y owners thereof or by parties seeking to acquire real property
rom the Agency; and
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1 WHEREAS, the Agency has previously entered into a
2 certain Disposition and Development Agreement by and between the
3 Redevelopment Agency of the City of San Bernardino and New
4 Frontier Commercial Properties, Inc. (the "DDA"), pertaining to
5 the development of a certain shopping center project (the
6 "Project") within the project area subject to the Redevelopment
7 Plan; and
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9 WHEREAS, in connection with the implementation of he
10 DDA, the Agency had deemed it necessary to cause an amendment to
11 the DDA pertaining to the funding of certain Agency redevelopment
12 assistance as further provided in the DDA; and
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14 WHEREAS, in connection with the proposed amendment to
15 the DDA, the City of San Bernardino (the "City") and the Agency
16 deem it desirable to enter into a certain contract by and among
17 the City, the Agency and the County of San Bernardino (the
18 "County") pertaining to the use of certain Community Development
19 Block Grant funds in connection with the development of the
20 project (the "county Contract"); and
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22 WHEREAS, the City deems it desirable to enter into that
23 certain County Contract, a copy of which is attached hereto as
24 Exhibit "A" and incorporated herein by this reference, which
25 ertains to the funding of the Agency's redevelopment assistance
26 in connection with the development of the Project; and
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1 WHEREAS, the County Contract provides for a loan from
2 the County to the developer of the Project under the DDA of
3 certain Community Development Block Grant funds the proceeds of
4 which are to be used for certain qradinq work, site clearinq and
5 public improvements and which loan shall be secured by a letter
6 of credit obtained by the Aqency.
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15 Section 2. The Council hereby authorizes the Mayor
16 and City Clerk to execute the County Contract and to execute such
17 other documents as may be necessary to implement the County
18 Contract and to make any necessary non-substantive chanqes to the
19 County Contract as may be approved by the City Attorney.
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NOW, THEREFORE, BE IT RESOLVED, BY THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY F~ND,
RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. The Council hereby approves the County
Contract, a copy of which is attached hereto as Exhibit "A".
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN CONTRACT BY AND AMONG THE
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CZTY OF
SAN BERNARDINO AND THE COUNTY OF SAN BERNARDINO PERTAINING TO THE
3 USE OF CERTAIN COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS (WEST SIDE
PLAZA PROJECT)
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Sect:ion 3.
This Resolution shall take effect upon
adoption.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of ~an
.
Bernardino at a
meeting thereof, held on the
day of
, 1991, by the following vote, to
it:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing resolution is hereby approved this
day of , 1991.
Mayor of the City of
San Bernardino
pproved as to form and legal
AMES F. PENMAN
ity Attorney
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1 STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
2 CITY OF SAN BERNARDINO
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I, , Clerk of the City of San
. Bernardino, California, DO HEREBY CERTIFY that the foregoing and
attached copy of the city of San Bernardino Resolution No.
is a full, true and correct copy of that now on file in this
office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official .eal of the City of San Bernardino this
day of , 1991.
City Clerk of the
City of San Bernardino
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EXHIBIT "A"
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COUNTY CONTRACT
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E New Vendor Code Dept. Contr.ct Number
M Ch,nge SC A
X Cencel ECD
County Department Dept. Orgn. eanlr.Clar',license No.
.NIl -. PIIENT ECD ECD
County Department Contrect Rep,nenutive Ph. EX!. Amount of Contract
1'IIOIIAS R. LAURIN 4594 N/A
Fund I Dept. I Orglniution I Ap",. I Objlllev Source Actlvlty I GRCIPROJ/JOB Number
SM ECD PRO.1 200 2005 0??oo735
Commodity Code Eetimeted Pevment Toto! by Fiecel Veer
FV Amount lID FY Amount I/O
Project Nlme N/A N/A
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Fifth Dietrict: West Side - - -
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PI.E. Shnnnino C@n~__r - - - -
(#350-13323)
FOR COUNTY USE ONL Y
County of San Bem8fdlno
FAS
CONTRACT TRANSMITTAL
CONTRACTOR
City of San Bernardino
Birth Date
NIA
Faderal 10 No. or Social Security No.
RIA
Contractor's Representative
Kenneth J. Henderson. Executive Director of Development Department
Address
300 North "D" Street, San Bernardino. CA. 92418
Phone
714-384-5065
Nature of Contract: (Briefly describe the genera' terms of the contractl
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On November 19. 1990, the San Bernardino County Board of Supervisors
authorized the use of $ 2.750.000 of Community Development Block Grant
(CDBG) funds for an Interim Loan for the development of the West Side
Plaza Shopping Center. The term of the loan will be for two (2) years.
A contract for the interim loan will be between the County and the
project developer, New Frontier Commercial Propertiea. Inc. The project
will involve conatruction of a 95.150 square foot commercial shopping
center to be located at the northeast corner of Medical Center Drive and
Baseline Avenue in San Bernardino. The .hopping center will consist of
a supermarket. drugstore, fast food restaurants and various small
retailers. This loan will be part of a $ 12.000.000 total funding
package for the development of the West Side Plaza Shopping Center.
This contract identifies the actions to be taken by the City of San
Bernardino. the Redevelopment Agency of the City of San Bernardino,
and the County in a cooperative venture to bring about the development
of the West Side Plaza Shopping Center. The City and the Redevelopment
Agency will provide funding and ensure compliance with all CDBG statutes
and regulations.
ttach this transmittal to all contracts not prepared on the "Standard Contrect" form.)
Reviewed II to Affim\llt;ve Action
Reviewed lor Proeeesing
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Agency Adminia"etor/CAO
Oete
O.te
1<!YRTTJ:TlT' 11""
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CONTRACT
This Contract is made and entered into this day of
, 19 , by and between the County of San Bernardino,
hereinafter referred to as MCOUNTYM, the City of San Bemardino, hereinafter referred
to as MCITYM, and the Redevelopment Agency of the City of San Bernardino, hereinafter
referred to as MAGENcyM.
VITNESSETH
lIHEREAS, COUNTY has entered into a contract with the United States of America
through its Department of Housing and Urban Development, hereinafter referred to as
MHUnM, to execute the COUNTY'S Community Development Block Grant program, hereinafter
referred to as "CDBGM, under the Housing and Community Development Act of 1974, as
amended, hereinafter referred to as the MACTM; and
lIHEREAS, COUNTY Department of Economic and Community Development, hereinafter
referred to as MECDM, is authorized to act on behalf of COUNTY in administering
COUNTY's CDBG program; and,
WHEREAS, CITY and AGENCY, jointly and severally, have entered into a
Development and Disposition Agreement, hereinafter referred to as MDDAM, with New
Frontier Commercial Properties, Inc., for the development of the Vest Side Pleza,
hereinaftel' referred to as MPlAZAM, a shopping center to be located at the northeast
comer of Medical Center Drive and Baseline Street in San Bemardino; and,
WHEREAS, AGENCY is providing a 10.1 acre parcel of land located at the
northeast comer of Medical Center Drive and Baseline Street and CITY is providing
a $450,000 loan for the purpose of the development of the Vest Side Plaza; and,
WHEREAS, HUn is providing CITY with an -Urban Development Action GrantM (UDAG)
of $1,848,000 for the purpose of the development of the Vest Side Plaza; and,
WHEREAS, New Frontier Commercial Properties, Inc., hereinafter referred to as
MDEVELOPERM, is the developer of the Vest Side Plaza and will secure a construction
loan of $5,700,000 from a private lender for the purpose of the development of the
Vest Side Plaza; and,
WHEREAS, COUNTY Board of Supervisors has authorized a CDBG interim loan in an
amount not to exceed $2,750,000, secured by an MAAM rated, unconditional, irrevocable
and payable on demand Letter of Credit, for the purpose of the development of the
Vest Side Plaza; and,
WHEREAS, COUNTY, CITY and AGENCY, recognize the public benefit in providing
commercial and retail services to the residents of the Vest Side of San Bernardino
and the unincorporated community of Muscoy.
NOV THEREFORE, in consideration of the mutual covenants herein set forth and
the mutual benefits to be derived therefrom, the parties agree as follows.
1.
PURPOSE
The purpose of this Contract is to identify the actions to be taken by CITY,
AGENCY, and COUNTY in a cooperative venture to bring about the development of
PlAZA.
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2.
PROJECT DESCRIPTION
PLAZA will be located at the northeast corner of Baseline Street and Medical
Center Drive in San Bernardino. PLAZA will consist of 95.150 square feet of
retail and co_ercial buildings which will include a supermarket,. drug store,
fast food restaurants and various small retailers and services.
3.
FUNDING
COUNTY will provide an interim loan to DEVELOPER in an _aunt not to exceed
two million seven hundred and fifty thousand dollars ($2.750,000) for the
purpose of the development of PlAZA. The loan will be funded from COUNTY CDBG
funds and will be made available upon the execution of a separate Loan
Agreement between COUNTY and DEVELOPER. Said Loan Agreement will be for a
maxi_ two (2) year term at a three percent (3%) interest rate. The Loan is
payable On Demand and the demand shall be made at the sole and absolute
discretion of the COUNTY. An additional two (2) year term may be negotiated
upon the conclusion of the first two (2) year term upon approval by COUNTY
Board of Supervisors.
Said Loan Agreement will require DEVELOPER to secure its' performance with an
appropriate ~M~ rated Letter of Credit acceptable to COUNTY in its sole
discretion. Said letter of credit will be unconditional and irrevocable.
Furthermore, it shall be payable upon demand by COUNTY. Payment of CDBG funds
by COUNTY to DEVELOPER shall be in the form of reimbursement of COUNTY
authorized expenses accrued by DEVELOPER for the development of PIA2A.
CITY and AGENCY, jointly and severally, shall provide sufficient funding to
complete PLAZA.
4.
COUNTY CONDITIONS
COUNTY enters into this Contract in reliance on CITY, AGENCY, and DEVELOPER
having entered into a DDA, and any other agreements necessary for the
completion of PLAZA and the securing of all financing necessary for completion
of PLAZA.
5. CONSIDERATION TO CITY AND AGENCY
CITY and AGENCY, and each of them. acknowledge receipt of valuable
consideration from COUNTY through operation of this Contract, including, but
not limited to COUNTY'S loan of funds to DEVELOPER.
6. MAINTENANCE AND OPERATION
CITY and AGENCY, jointly and severally, shall cause PLAZA to be maintained and
operated to a professional standard for the term of this Contract. Said PLA2A
shall be sufficiently maintained to allow for operations at all times during
the useful life of PlAZA.
7. DESIGN REVIEIJ
COUNTY shall, in the course of the design phase, have the right
plans and specifications relating to the construction of PlAZA.
included in the design review on behalf of COUNTY.
to review all
ECD shan be
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8.
ON-SITE INSPECTION
COUNTY it. officer.. agent., employees, per.on. under contract with COUNTY and
repre.entative. of HOD will have the privil.ge and right to on-alte inspection
of PlAZA for the duration of this Contract. CITY and AGENCY. jointly and
.everally, will ensure that th.ir employee. or agent. furni.h any information,
that in the judge_nt of COUNTY and HOD repr.sentative., _y b. relevant to a
qu..tion of compliance with contractual conditions, HOD directives, or the
eff.ctiv.n.ss. legality and achi.vement. of the CDBG program.
9.
HOLD ~SS
CITY and AGENCY, jointly and .everally. .hall indemnify, rei.mburse (including,
but not limited to. attorney f... and court co.t.), defend and hold COUNTY,
it. offic.r., ag.nt.. and employ.... haml... froll and against any loss,
liability. claill or ~ge that ...y arise or re.ult froll activiti.s of CITY,
AGENCY, DEVELOPER, their offic.rs, ag.nts and employ..., pursuant to this
Contract. CITY and AGENCY. jointly and sev.rally, .hall. at their own cost,
.xpense and ri.k, def.nd any l.gal proc..ding. that ...y b. brought against
COUNTY, it. offic.rs. agent. and employ.e.. on any liability claim or demand
and .atisfy any judgement that ...y be r.nder.d against any of thell arising or
r.sulting from activities of CITY, AGENCY, DEVELOPER, their officers, agents
and employee.. pursuant to this Contract. CITY and AGENCY, and .ach of them,
are obligat.d to promptly notify COUNTY in writing of the occurrence of any
such 10.. or damage.
CITY and AGENCY. jointly and .everally, .hallindemnify, rei.mburse, defend and
hold harmless COUNTY against any liability, claims, lo.ses, demands and
actions incurred by COUNTY. as a result of a determination by the United
States Department of Housing and Urban D.velopment or its .uccessor that
activiti.s undertak.n by CITY and AGENCY. or either of them, under the program
or program(s) fail to comply with any laws, r.gulations or policies applicable
thereto or that any funds billed by and disbursed to DEVELOPER pursuant to the
Loan Agr.ement identifi.d in paragraph 3, Funding, und.r this Contract were
improperly .xpended. Furthermore. CITY and AGENCY, and each of them, shall
indemnify, defend and hold harmless, COUNTY again.t any liability, claims,
losses. demands and actions by CITY, AGENCY, or DEVELOPER against the COUNTY
as a result of COUNTY demand for payment of the Letter of Credit, identified
in paragraph 3, Funding, of this Contract.
CITY and AGENCY, jointly and severally, unconditionally guarantee to COUNTY,
its .ucces.ors and as.igns, the due and punctual payment of the principal and
int.re.t and all oth.r .ums payable. with r.spect to the Loan Agreement Note,
hereafter "'NOTE-. of the DEVELOPER to COUNTY. The NOTE, and the interes t
th.reon and all other .um. payable with respect thereto, including all sums
due under the Loan Agreement, are hereafter collectively called -LIABILITIES-.
CITY and AGENCY, jointly and ..verally, waive any notice of the incurring by
the DEVELOPER, at any time, of any LIABILITIES, and waiv.. any and all
pr..entment, demand, protest or notice of di.honor, nonpayment, or other
default with respect to any of the LIABILITIES. The CITY and AGENCY, jointly
and .everally. hereby grant to COUNTY full power, in it. sole di.cretion and
without notice to the CITY, AGENCY, or either of them, but subject to the
provisions of any agreement between the DEVELOPER and COUNTY at the time in
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force, to deal in any manner with the LIABILITIES and the Letter of Credit,
including, but without limiting the generality of the foregoing, the following
powers:
(a) To modify or otherwise change any terms of all or any part of the
LIABILITIES (but not to increase the principal aaount of the Note of the
DEVElDPER to COUNTY), to grant any extension or renewal t:hereof and any
other indulgence with respect t:hereto, and to effect any release,
compromise or settlement with respect thereto;
(b) To enter into any agr.....nt of forbearance with respect to all or any
part of the LIABILITIES, or in r.spect to all or any part of the Letter
of Credit, and to change the terms of any such agr.ement;
(c) To forbear from calling for additional collateral to secure any of the
LIABILITIES. The COUNTY will not substitut. collateral without the
prior written consent of CITY and AGENCY, jointly and severally, which
consent shall not be unreasonably withheld;
(d) To consent to the substitution, exchange, or release of all or any part
of the collateral whether or not the collat.ral, if any, received by
COUNTY upon any such substitution, exchange, or release shall be of the
sam. or of a differ.nt character or value than the collateral
surrendered by COUNTY;
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(e) In the event of the nonpayment wh.n due, wh.ther by acceleration or
otherwise, of any of the LIABILITIES, or in the event of default in the
perforasnce of any obligation secured by the collateral, to foreclose on
the collateral or any part thereof, as a whole or in such parts or
subdivided interests as the COUNTY may elect, at any public or private
sale or sales, for cash or on credit or for future delivery, without
demand, advertisement or notice of the time or place of sale or any
adj ournment th.reof (th. CITY and AGENCY, jointly and sev.rally, hereby
waiving any such demand, advertisement and notice to the extent
permitted by law), or by foreclosure or otherwise, or to forbear from
realizing thereon, all as COUNTY in its uncontrolled discretion may deem
proper, and to purchase all or any part of the collateral for its own
account at any such sale or foreclosure, such powers to be exercised
only to the extent permitted by law.
The obligations of the CITY and AGENCY, and each of them, shall not be
released, discharged or in any way affected, nor shall the CITY and AGENCY,
and each of them, have any rights or recourse against COUNTY, by r.ason of any
action COUNTY may take or omit to take under the for.going powers.
All obligations of the CITY and AGENCY, and .ach of them, and representations
of the CITY and AGENCY, and each of th.m, to the COUNTY shall continue in full
force and effect until the LIABILITIES are paid in full and all oth.r duties
and obligations of the parties have been discharged.
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In case the DEVELOPER shall fail to pay all or any part of the LIABILITIES
when due, the CITY and AGENCY, jointly and severally, immediat.ly upon the
written demand of COUNTY, will pay to COUNTY the amount due and unpaid by the
DEVELOPER. COUNTY shall not be required, prior to any such demand on, or
payment by, the CITY or AGENCY, or .ither of them, to make any demand upon or
pursue or exhaust any of its rights or rem.dies against the DEVELOPER or
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others with respect to the payment of any of the LIABILITIES, or to pursue or
exbaust any of its rights or remedies with respect to any part of the
collateral. The CITY and AGENCY, and each of them, shall have no right of
subrogation whatsoever with respect to the LIABILITIES or the collateral
unless and until COUNTY shall have received full payment of all the
LIABILITIES. The COUNTY will attempt to obtain payments under the terms of
the Letter of Credit. The COUNTY'S failure or inability to exercise its
rights under the Letter of Credit shall not relieve the CITY and AGENCY, and
each of them, from its obligations to pay to the COUNTY the LIABILITIES owed
by the DEVELOPER. The CITY and AGENCY, and each of thea, are aware and
understand that the COUNTY can demand payment from the DEVELOPER, the CITY,
and the AGENCY, jointly and severally, at the sole and absolute discretion of
the COUNTY.
10.
FIRE INSURANCE
CITY and AGENCY, and each of them, shall cooperate with COUNTY to obtain and
deliver to COUNTY for COUNTY'S approval, certification(s) or policy(s) of
standard fire insurance with extended coverage and vandelism and malicious
mischief endorsements for the full replacement value of PLAZA. In the event
of any damage or destruction to the improvements covered by the insurance,
CITY and AGENCY, and each of them, shall use the entire insurance proceeds to
restore the improvements. The insurance required under this paragraph shall
be maintained by CITY and by AGENCY, at their sole expense for the term of
this Contract. Said insurance shall contain endorsements providing that the
insurance company issuing the insurance will not cancel or reduce the
insurance coverage without thirty (30) days prior written notice to COUNTY.
CITY, or AGENCY, or both of them, shall inform COUNTY in writing of any
change, expiration or renewal of said insurance within (30) days of the
effective date of change.
COMPLIANCE YITH lAYS
All actions taken by CITY and AGENCY, and by each of them, shall comply with
the provisions of the Housing and Community Development Act of 1974 and any
amendments thereto (Federal Title 42, U.S.C. Section 5301, ~ ~). the
Federal regulations and guidelines now or hereafter enacted pursuant to said
Act (Federal Title 24 CFR, Part 570), Administrative Requirements for Grants
(Federal Title 24, CFR, Part 85), Section 3 of the Housing and Urban
Development Act of 1968 (Federal Title 24 CFR, Part 135) and all other Federal
and State statutes and regulations applicable thereto. COUNTY reserves the
right to review any action or decision related to applicable regulations.
CITY and AGENCY, and each of them, shall provide to COUNTY within 10 days of
written request of COUNTY, any and all docUlllents pertaining to this paragraph
as requested by COUNTY.
CONFLICT OF INTEREST
CITY and AGENCY, jointly and severally, and COUNTY, their agents and employees
shall comply with all Federal, State and County laws and regulations governing
conflicts of interest. To this end, CITY and AGENCY, jointly and severally,
and COUNTY will make available to their agents and employees, copies of all
applicable Federal, State and County laws and regulations governing conflict
of interest.
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ASSIGNMENT
CITY and AGENCY, and each of them, shall not assign this Contract or any
interest therein, or the DDA or any interest therein, unless COUNTY has
previously given its written consent. Provided, however, that any approved
assignment shall be subject to all the teras, covenants, and conditions of
this Contract and of the DDA. If CITY or AGENCY, or both of them, attempt to
effect any unauthorized assignment, or if any transfer occurs by operation of
law, or if this Contract or any interest herein, or the DDA or any interest
therein, is subjected to garnishment or sale under any execution of any suit
or proceeding brought against or by CITY and AGENCY, or either of them, or if
CITY and AGENCY, or either of them, are adjudged bankrupt or insolvent by any
court or upon CITY or AGENCY, or both of them, making an assignment for the
benefit of creditors, COUNTY may, at its option, forthwith terminste this
Contract upon written notice thereof to CITY and to AGENCY, and thereupon, no
one but COUNTY shall have any further rights hereunder.
VIOlATION OF CONTRACT
In the event that CITY and AGENCY, jointly and severally, or their successors,
violates any of the terms and conditions of this Contract, COUNTY shall give
written notice of violation and demand for correction. If, within thirty (30)
days from receipt of written notice, CITY and AGENCY, or either of them, have
not corrected the violation or shown acceptable cause therefore, COUNTY has
the right to terminate this Contract and/or proceed with whatever other legal
rights it may have against the CITY, the AGENCY, and each of them, under the
terms of this Contract and/or under the laws of the State of California.
REDUCTION IN FUNDING
Notwithstanding Section 14, Violation of Contract, above, COUNTY may
immediately terminate this Contract upon the termination, suspension,
discontinuation or substantial reduction in HOD Community Development Block
Grant funding of the Contract activity.
16. REVERSION OF ASSETS
All real property acquired or improved in whole or in part with CDBG funds in
excess of $25,000 under this Contract must continue in the use that provides
the service benefits and national objectives for which it was funded until
five years after expiration of this Contract as set forth in the Federal
Regulation at 24 CFR 570, or such longer period of time as determined by
COUNTY; or it must be disposed of in a manner resulting in a reimbursement to
COUNTY in the amount of the current fair market value of the property less any
portion thereof attributable to expenditures of non-CDBG funds for the
acquisition of, or improvement to, the property.
17. MODIFICATIONS
This Contract may be amended or modified only by a written agreement signed by
all parties. Failure by any party to enforce any provision(s) of this
Contract shall not be construed as a waiver of the right to compel enforcement
of such provision(s) thereafter.
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18.
NOTICES
All notices shall be served in writing. The notices shall be sent by prepaid
certified First Class Hail to the following addresses:
COUNTY
County of San Bernardino
Departaent of Economic
and COllllllUl1ity Development
474 West Fifth Street
San Bernardino, CA 92415-0040
CITY AND Acmcy
City of San Bernardino
Redevelopment Agency
300 North wDw Street
San Bernardino, CA 92418
19. EFFECTIVE DATE
20.
21.
This Contract shall be effective upon approval by COUNTY Board of Supervisors
and shall expire concurrently with the aforementioned interim Loan Agreement
between DEVELOPER and COUNTY.
INVALID CONDITIONS
If, for any reason, anyone or more of the terms, provisions, sections,
promises, covenants or conditions of this Contract or DDA is judged by s court
of competent jurisdiction to be partially or wholly invalid, unenforceable,
void or voidable, all of the remaining terms, provisions, sections, promises,
covenants and conditions shall remain valid and enforceable. However, should
such judicial decision materislly affect the powers and duties of any of the
parties to this Contract, the parties shall, if possible in light of the
decision of the court, negotiate such amendment to this Contract as is
necessary to carry out the intent of the parties hereto. If it is not
possible to so _end this Contract, then the parties shall, to the extent
reasonably possible, return each other to the position each party occupied
prior to entering this Contract.
BINDING INTEREST
This Contract shall be binding on the parties, successors in interest, heirs
and assigns.
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IN VITNESS WEREOF. the parties have caused this Contract to be executed as of
the day and year written above.
COUNTY OF SAN BERNARDINO
By:
Chaiman
Dated:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUKENT HAS BEEN DELIVERED TO
THE CHAIRKAN OF THE BOARD
EARLENE SPROAT
Clerk of the Boerd of Supervbors
of the County of San Bernardino
By:
Dated:
APPROVED AS TO LEGAL FORM
By:
Dated:
AGHTS/PLAZA.AGT
3/l8/91/BT/bjj
5/2/9l/BT/pn
CITY OF SAN BERNARDINO
By:
Mayor
Dated:
By:
City Attorney
Dated:
CITY OF SAN BERNARDINO
REDEVELOPKENT AGENCY
By:
Dated:
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To be Published:
Newspaper:
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COMMUNITY DEVELOPMENT COMMISSION
CITY OF SAN BERNARDINO
AGENDA
April 15, 1991
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY or SAN BERNAROINO
APPROVING A CERTAIN CONTRACT BY AND AMONG
THE REDEVELOPMENT AGENCY OF THE CITY. OF
SAN BERNARDINO, THE CITY OF SAN BERNARDINO
AND THE COUNTY OF SAN BERNARDINO PERTAINING
TO THE USE OF CERTAIN COMMUNITY DEVELOPMENT
BLOCK GRANT FUNDS (WEST SIDE PLAZA PROJECT)
EXHIBIT "An - County Contract
Adopt Resolution
N/A
N/A
Certified copy of Resolution to be returned to Sabo & Green, A
PrOfessional Corporation.
SIIIlOIOO92I02O
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN CONTRACT BY AND AMONG
THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, THE CITY OF SAN BERNARDINO
AND THE COUNTY OF SAN BERNARDINO PERTAINING
TO THE USE OF CERTAIN COMMUNITY DEVELOPMENT
BLOCK GRANT FUNDS (WEST SIDE PLAZA PROJECT)
WHEREAS, the Community Development Commission of the
.
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City of San Bernardino (the "Commission") on behalf of the
Redevelopment Aqency of the City of San Bernardino (the
"Aqency"), is a redevelopment aqency, a public body, corporate
and politic of the State of California, orqanized and existinq
pursuant to the Community Redevelopment Law (Part 1 of Division
24) commencinq with Section 33000 of the Health and Safety Code
of the State of California (the "Act"); and
WHEREAS, the Redevelopment Plan for the Northwest
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the Mayor and Common Council of the City
of San Bernardino (the "Council") by Ordinance No. MC-189, dated
July 6, 1982; and
WHEREAS, the Redevelopment Plan provides for the
redevelopment of real property pursuant to the Redevelopment Plan
by owners thereof or by parties seekinq to acquire real property
from the Aqency; and
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1 WHEREAS, the Agency bas previously entered into a
2 certain Disposition and Development Aqreement by and between the
3 Redevelopment Agency of the City of San Bernardino and New
4 Frontier Commercial Properties, Inc. (the "DDA"), pertaining to
5 the development of a certain sbopping center project (the
6 "Project") within the project area subject to the Redevelopment
7 Plan; and
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9 WHEREAS, in connection with the implementation of ~he
10 DDA, the Agency bad deemed it necessary to cause an amendment to
11 the DDA pertaining to the funding of certain Agency redevelopment
12 assistance as further provided in the DDA; and
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14 WHEREAS, in connection with the proposed amendment to
15 the DDA, the Agency and the City of San Bernardino (the "City")
16 deem it desirable to enter into a certain contract by and among
17 the Agency, the City and the County of San Bernardino (the
18 "County") pertaining to the use of certain community Development
19 Block Grant funds in connection with the development of the
20 Project (the "County Contract"); and
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22 WHEREAS, the Commission deems it desirable to enter
23 into that certain County Contract, a copy of wbich is attached
24 hereto as Exhibit "A" and incorporated berein by this reference,
25 which pertains to the funding of the Agency's redevelopment
26 assistance in connection with the development of tbe Project; and
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1 WHEREAS, the County Contract provides, for a loan from
2 the county to the developer of the Project under the DDA of
3 certain Community Development Block Grant funds the proceeds of
4 which are to be used for certain gradinq work, site clearinq and
5 public improvements and which loan shall be secured by a letter
6 of credit obtained by the Aqency.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON
BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDI:NO,
CALIFORNIA, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. The Commission hereby approves the
ounty Contract, a copy of which is attached hereto as
Exhibit "A".
Section 2. The Commission hereby authorizes the
airman and Secretary of the Aqency to execute the County
ontract and to execute such other documents a8 may be necessary
o implement the County Contract and to make any necessary non-
ubstanti ve chanqes to the County Contract as may be approved by
e Aqency Counsel.
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAIN CONTRACT BY AND AMONG THE
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, THE CITY OF
SAN BERNARDINO AND THE COtJNTY OF SAN BERNARDINO PERTAINING TO THE
3 USE OF CERTAIN COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS (WEST SIDE
PLAZA PROJECT)
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Section 3.
This Resolution shall take effect upon
adoption.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Community Development Commission of the City of
San Bernardino at a
meeting thereof, held on
the
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, 1991, by the following vote, to
day of
wit:
commission v_.hAra:
AID
BAD
ABSTAIN
ESTRADA
REILLY
FLORES
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
Secretary
day of
The foregoing resolution is hereby approved this
, 1991.
Approved as to
form and l8gal content:
By: ./A,/UA~dOh.l2../
~~~:l~
W. R. Holcomb, Chairman
Community Development
Commission
of the City of San Bernardino
SIIIIOVlOII2IDO
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
2 CITY OF SAN BERNARDINO )
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I, Secretary of the Community
DeveloPJllent Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foreqoinq and attached copy of Community
DeveloPJllent Commission of the city of San Bernardino Resolution
No. is a full, true and correct copy of that now on
file in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission
of the city of San Bernardino this day of
, 1991.
.
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Secretary of the
Community Development
Commission
of the City of San Bernardino
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EXHIBIT "A"
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COUNTY CONTRACT
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FOIl co~ ONLY
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E New Vendor Code Dopt. Contrect Number
M Chenge SC A
X Cancel ECD
County Deportment Dopt. Orgn. Contractor', Ucenle No.
ANn BCD """
County Department ContrRt Repr..entiitive Ph. EXl. Amount of Contrlct
1BlIlAS R. LAURIN 4594 RIA
Fund I Dopt. I Orgonlution I Appr. I Objlllov Source ActIvity I GRCIPROJ/JOB Number
SBA leD PROJ 200 2005 00000735
Commodity Code EstImated Poymont Toto! by Fiocol Voor
FV Amount lID FY Amount I/O
Project Nome ..l!1l... RIA.
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Fifth Diotrict: West Side - - -
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'1.7-8 ~nftfttn. C@nter - - - -
(#350-13323)
County of San Bern8rdlno
FAS
CONTRACT TRANSMITTAL
CONTRACTOR
Citv of San Bernardino
Birth Date
NIA
Federal 10 No. or Social Security No.
RIA
Contractor's Representative
Kenneth J. Henderson. Executive Director of Development Department
Address
300 North "D" Street. San Bernardino. CA. 92418
Phone
714-384-5065
Nature of Contract: (Briefly descril>> the ~nerB/ terms of the contrBctl
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On November 19, 1990, the San Bernardino County Board of Supervisors
authorized the use of $ 2,750,000 of Community Development Block Grant
(CDBG) funds for an Interim Loan for the development of the West Side
Plaza Shopping Center. The term of the loan will be for two (2) years.
A contract for the interim loan will be between the County and the
project developer. New Frontier Commercial Properties, Inc. The project
will involve construction of a 95,150 square foot commercial shopping
center to be located at the northeast corner of Medical Center Drive and
Baseline Avenue in San Bernardino. The shopping center will consist of
a supermarket, drugstore, fast food restaurants and various small
retailers. This loan will be part of a $ 12,000,000 total funding
package for the development of the West Side Plaza Shopping Center.
This contract identifies the actions to be taken by the City of San
Bernardino, the Redevelopment Agency of the City of San Bernardino,
and the County in a cooperative venture to bring about the development
of the West Side Plaza Shopping Center. The City and the Redevelopment
Agency will provide funding and ensure compliance with all CDBG statutes
and regulations.
ttBch this trsnsmittBl to B/I contrllet8 not prepared on the "StandBrd ContrBct" form.1
Appro Reviewed o. to Afflrmsti.e Action
Reviewed for Processing
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Agency Administrator/CAD
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CONTRACT
This Contract is made and entered into this day of
, 19 , by and between the County of San Bernardino,
hereinafter referred to as MCOUNTYM, the City of San Bernardino, hereinafter. referred
to as MCITYM, and the Redevelopment Agency of the City of San Bernardino, hereinafter
referred to as MAGENcyM.
VITNESSETH
WEREAS, COUNTY has entered into a contract with the United States of America
through its Department of Housing and Urban Development, hereinafter referred to as
"'HIJDM, to execute the COUNTY'S Community Develop.ent Block Grant program, hereinafter
referred to as MCDOOM, under the Housing and Community Development Act of 1974, as
amended, hereinafter referred to as the MACTM; and
WEREAS, COUNTY Department of Economic and Community Development, hereinafter
referred to as MECDM, i. authorized to act on behalf of COUNTY in administering
COUNTY's CDOO program; and,
WHEREAS, CITY and AGENCY, jointly and severally, have entered into a
Development and Disposition Agreement, hereinafter referred to as MDDAM, with New
Frontier Commercial Properties, Inc., for the development of the Vest Side Plaza,
hereinafter referred to as MpLAZAM, a shopping center to be located at the northeast
corner of Medical Center Drive and Baseline Street in San Bernardino; and,
WEREAS, AGENCY is providing a 10.1 acre parcel of land located at the
northeast corner of Medical Center Drive and Baseline Street and CITY is providing
a $450,000 loan for the purpose of the development of the Vest Side Plaza; and,
WEREAS, BUD is providing CITY with an WUrban Development Action GrantM (UDAG)
of $1,848,000 for the purpose of the development of the Vest Side Plaza; and,
WHEREAS, New Frontier Commercial Properties, Inc., hereinafter referred to as
MDEVELOPERM, is the developer of the Vest Side Plaza and will secure a construction
loan of $5,700,000 from a private lender for the purpose of the development of the
Vest Side Plaza; and,
WEREAS, COUNTY Board of Supervisors has authorized a CDBG interim loan in an
amount not to exceed $2,750,000, secured by an MMM rated, unconditional, irrevocable
and payable on demand Letter of Credit, for the purpose of the development of the
Vest Side Plaza; and,
WHEREAS, COUNTY, CITY and AGENCY, recognize the public benefit in providing
commercial and retail services to the residents of the Vest Side of San Bernardino
and the unincorporated community of Muscoy.
NOV THEREFORE, in consideration of the mutual covenants herein set forth and
the mutual benefits to be derived therefrom, the parties agree as follows.
1.
PURPOSE
The purpose of this Contract is to identify the actions to be taken by CITY,
AGENCY, and COUNTY in a cooperative venture to bring about the development of
PLAZA.
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2.
PROJECT DESCRIPTION
PLAZA will be located at the northeast corner of Baseline Street and Medical
Center Drive in San Bernardino. PLAZA will consist of 95,150 square feet of
retail and co_ercial buildings which will include a supermarket,_ drug store,
fast food restaurants and various small retailers and services.
3.
FtlNDING
COUNTY will provide an interim loan to DEVELOPER in an aaount not to exceed
two million seven hundred and fifty thousand dollars ($2,750,000) for the
purpose of the development of PLAZA. The loan will be funded from COUNTY CDBG
funds and will be made available upon the execution of a separate Loan
Agreement between COUNTY and DEVELOPER. Said Loan Agreement will be for a
maximum two (2) year term at a three percent (3%) interest rate. The Loan is
payable On Demand and the demand shall be made at the sole and absolute
discretion of the COUNTY. An additional two (2) year term may be negotiated
upon the conclusion of the first two (2) year term upon approval by COUNTY
Board of Supervisors.
Said Loan Agreement will require DEVELOPER to secure its' performance with an
appropriate -M- rated Letter of Credit acceptable to COUNTY in its sole
discretion. Said letter of credit will be unconditional and irrevocable.
Furthermore, it shall be payable upon demand by COUNTY. Payment of CDBG funds
by COUNTY to DEVELOPER shall be in the form of reimbursement of COUNTY
authorized expenses accrued by DEVELOPER for the development of PIAZA.
CITY and AGENCY, jointly and severally, shall provide sufficient funding to
complete PLAZA.
COUNTY CONDITIONS
COUNTY enters into this Contract in reliance on CITY, AGENCY, and DEVELOPER
having entered into a DDA, and any other agreements necessary for the
completion of PLAZA and the securing of all financing necessary for completion
of PLAZA.
5. CONSIDERATION TO CITY AND AGENCY
CITY and AGENCY, and each of them, acknowledge receipt of valuable
consideration from COUNTY through operation of this Contract, including, but
not limited to COUNTY'S loan of funds to DEVELOPER.
6. MAINTENANCE AND OPERATION
7.
CITY and AGENCY, jointly and severally, shall cause PLAZA to be maintained and
operated to a professional standard for the term of this Contract. Said PlAZA
shall be sufficiently maintained to allow for operations at all times during
the useful life of PLAZA.
DESIGN REVIEY
COUNTY shall, in the course of the design phase, have the right to review all
plans and specifications relating to the construction of PLAZA. ECD shall be
included in the design review on behalf of COUNTY.
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8.
ON-SITE INSPECTION
COUNTY its officers, agents, employees, persons under contract with COUNTY and
representatives of BUD will have the privilege and right to on-site inspection
of PlAZA for the duration of thb Contract. CITY and AGENCY, jointly and
severally, will ensure that their employees or agents furnish any inf!lrmation,
that in the judgement of COUNTY and BUD representatives, _y be relevant to a
question of compliance with contractual conditions, BUD directives, or the
effectiveness, legality and achievements of the CDBG program.
9.
HOLD IlARM1ESS
CITY and AGENCY, jointly and severally, shallindellIlify, reimburse (including,
but not l1lllited to, attorney fees and court costs). defend and hold COUNTY,
its officers, agents, and employees, haraless from and against any loss,
liability, claim or cSamage that ..y artse or result from activities of CITY,
AGENCY, DEVELOPER, their officers, agents and employees, pursuant to this
Contract. CITY and AGENCY, jointly and severally, shall, at their own cost,
expense and risk, defend any legal proceedings that ..y be brought against
COUNTY, its officers, agents and employees, on any liability claim or demand
and satisfy any judgement that ..y be rendered against any of them arising or
resulting from activities of CITY, AGENCY, DEVELOPER, their officers, agents
and employees, pursuant to this Contract. CITY and AGENCY, and each of them,
are obligated to promptly notify COUNTY in writing of the occurrence of any
such loss or cSamage.
CITY and AGENCY, jointly and severally, shall indellIlify, reimburse, defend and
hold harmless COUNTY against any liability, claims, losses, demands and
actions incurred by COUNTY, as a result of a determination by the United
States Department of Housing and Urban Developllent or its successor that
activities undertaken by CITY and AGENCY, or either of them, under the program
or program(s) fail to comply with any laws, regulations or policies applicable
thereto or that any funds billed by and disbursed to DEVELOPER pursuant to the
Loan Agreement identified in paragraph 3, Funding, under this Contract were
improperly expended. Furthermore, CITY and AGENCY, and each of them, shall
indemnify, defend and hold harmless, COUNTY against any liability, claims,
losses, demands and actions by CITY, AGENCY, or DEVELOPER against the COUNTY
as a result of COUNTY demand for payment of the Letter of Credit, identified
in paragraph 3, Funding, of this Contract.
CITY and AGENCY, jointly and severally, unconditionally guarantee to COUNTY,
its successors and assigns, the due and punctual payment of the principal and
interest and all other sums payable, with respect to the Loan Agreement Note,
hereafter -NOTE-, of the DEVELOPER to COUNTY. The NOTE, and the interest
thereon and all other sums payable with respect thereto, including all sums
due under the Loan Agreement, are hereafter collectively called -LIABILITIES".
CITY and AGENCY, jointly and severally, waive any notice of the incurring by
the DEVELOPER, at any time, of any LIABILITIES, and waives any and all
presentment, demand, protest or notice of dishonor, nonpayment, or other
default with respect to any of the LIABILITIES. The CITY and AGENCY, jointly
and severally, hereby grant to COUNTY full power, in its sole discretion and
without notice to the CITY, AGENCY, or either of them, but subject to the
provisions of any agreement between the DEVELOPER and COUNTY at the time in
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force, to deal in any ..anner with the LIABIUTIES and the Letter of Credit,
including, but without limiting the generality of the foregoing, the following
powers:
(a) To modify or otherwise change any tera. of .11 or any part of the
LIABILITIES (but not to incra..e tha principal _t of the Note of the
DEVELOPER to COUNTY), to grant any extenaion or renew.1 thereof and any
other indulgence with reapect thereto. and to effect any release,
compro..iae or aettlement with r.ap.ct thereto;
(b) To .nt.r into any agr.ement of forbearance with resp.ct to all or any
part of the LIABILITIES, or in r.ap.ct to .11 or any part of the Letter
of Cr.dit, .nd to chang. the t.rms of any auch .gr....nt;
(c) To forb.ar fro. calling for additional collat.ral to s.cure .ny of the
LIABILITIES. Th. COUNTY will not substitute collat.ral without the
prior written conaent of CITY and AGENCY, jointly and aev.rally, which
cons.nt shall not be unreaaonably withh.ld;
(d) To consent to the substitution, .xchange. or rel.... of all or any part
of the col1at.ral Whether or not the collateral. if any. received by
COUNTY upon any auch subatitution. exchange, or r.1.as. shall be of the
same or of a different character or va1u. than the collateral
surrendered by COUNTY;
(.)
In the .vent of the nonpayment when du., wh.ther by acceleration or
otherwise. of any of the UABILITIES, or in the ev.nt of default in the
performance of any obligation secured by the collateral, to foreclose on
the collateral or any part thereof, as a Whole or in such parts or
subdivided interests .s the COUNTY ...y elect, at any public or private
sale or aales, for cash or on credit or for future delivery, without
de..and. advertiaement or notice of the time or place of sale or any
adjournment thereof (the CITY and AGENCY. jointly and severally, hereby
waiving any such demand. advertise..ent and notice to the extent
permitted by law). or by foreclosure or oth.rwise. or to forbear fro..
r.alizing thereon. all as COUNTY in its uncontrolled discretion ..ay deem
proper, and to purchase all or any part of the collateral for its own
account at any such sale or forecloaure, such powers to be exercised
only to the extent permitted by law.
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The obligations of the CITY and AGENCY. and .ach of the.. shall not be
re1.ased. discharged or in any way aff.ct.d, nor shall the CITY and AGENCY.
and each of them. have any rights or r.cours. against COUNTY, by r.ason of any
action COUNTY may take or o..it to take under the foregoing powers.
All obligations of the CITY and AGENCY. and each of the., and representations
of the CITY and AGENCY, and each of th.... to the COUNTY shall continue in full
forc. and .ffect until the LIABILITIES are paid in full and all other duties
and obligations of the parties have be.n discharged.
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In case the DEVELOPER shall fail to pay all or any part of the LIABILITIES
When due, the CITY and AGENCY. jointly and severally. iDaediately upon the
written demand of COUNTY, will pay to COUNTY the UIOunt due and unpaid by the
DEVELOPER. COUNTY shall not be r.quired. prior to any such de...nd on, or
payment by. the CITY or AGENCY, or eith.r of th.., to make any d....nd upon or
pursue or exhaust any of its rights or remedi.s against the DEVELOPER or
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others with respect to the payment of any of the LIABILITIES, or to pursue or
exhaust any of its rights or remedies with respect to any part of the
collateral. The CITY and AGENCY, and each of them, shall have no right of
subrogation whataoever with respect to the LIABILITIES or the collateral
unless and until COUNTY shall have received full payment of all the
LIABILITIES. The COUNTY will attempt to obtain payments under the terms of
the Letter of Credit. The COUNTY'S failure or inability to exercise its
rights under the Letter of Credit shall not relieve the CITY and AGENCY, and
each of them, from its obligations to psy to the COUNTY the LIABILITIES owed
by the DEVELOPER. The CITY and AGENCY, and each of them, are aware and
understand that the COUNTY can demand payment from the DEVELOPER, the CITY,
and the AGENCY, jointly and severally, at the sole and absolute discretion of
the COUNTY.
10.
FIRE INSURANCE
CITY and AGENCY, and each of them, shall cooperate with COUNTY to obtain and
deliver to COUNTY for COUNTY'S approval, certification(s) or policy(s) of
standard fire insurance with extended coverage and vandalism end malicious
mischief andorsements for the full replace_nt value of PlAZA.. In the event
of any damage or destruction to the improvements covered by the insurance,
CITY and AGENCY, and each of them, shall use the entire insurence proceeds to
restore the improvements. The insurance required under this paragraph shall
be maintained by CITY and by AGENCY, et their sole expense for the term of
this Contract. Said insurance shall contain endorsements providing that the
insurance company issuing the insurance will not cancel or reduce the
insurance coverage without thirty (30) days prior written notice to COUNTY.
CITY, or AGENCY, or both of them, shall inform COUNTY in writing of any
change, expiration or renewal of said insurance within (30) days of the
effective date of change.
COMPLIANCE YITH LAWS
All actions taken by CITY and AGENCY, and by each of them, shall comply with
the provisions of the Housing and Community Development Act of 1974 and any
amendments thereto (Federal Title 42, U.S.C. Section 5301, ~ .H.lI....). the
Federal regulations and guidelines now or hereafter enacted pursuant to said
Act (Federal Title 24 CFR, Part 570), Administrative Requirements for Grants
(Federal Title 24, CFR, Part 85), Section 3 of the Housing and Urban
Development Act of 1968 (Federal Title 24 CFR, Part 135) and all other Federal
and State statutes and regulations applicable thereto. COUNTY reserves the
right to review any action or decision related to applicable regulations.
CITY and AGENCY, and each of them, shall provide to COUNTY within 10 days of
written request of COUNTY, any and all documents pertaining to this paragraph
as requested by COUNTY.
CONFLICT OF INTEREST
CITY and AGENCY, jointly and severally, and COUNTY, their agents and employees
shall comply with all Federal, State and County laws and regulations governing
conflicts of interest. To this end, CITY and AGENCY, jointly and severally,
and COUNTY will make available to their agents and employees, copies of all
applicable Federal, State and County laws and regulations governing conflict
of interest.
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14.
15.
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13.
ASSIGNMENT
CITY and AGENCY, and each of them, shall not assign this Contract or any
interest therein, or the DDA or any interest therein, unless COUNTY has
previously given its written conaent. Provided, however, that any approved
assignment shall be subject to all the terms, covenants, and conditions of
this Contract and of the DDA. If CITY or AGENCY, or both of theil, attempt to
effect any unauthorized assignment, or if any transfer occurs by operation of
law, or if this Contract or any interest herein, or the DDA or any interest
therein, is subjected to garnishment or sale under any execution of any suit
or proceeding brought against or by CITY and AGENCY, or either of them, or if
CITY and AGENCY, or either of them, are adjudged bankrupt or insolvent by any
court or upon CITY or AGENCY, or both of theil, making an assignment for the
benefit of creditors, COUNTY may, at its option, forthwith terminate this
Contract upon written notice thereof to CITY and to AGENCY, and thereupon, no
one but COUNTY shall have any further rights hereunder.
VIOlATION OF CONTRACT
In the event that CITY and AGENCY, jointly and severally, or their successors,
violates any of the terms and conditions of this Contract, COUNTY shall give
written notice of violation and dell8nd for correction. If, within thirty (30)
days from receipt of written notice, CITY and AGENCY, or either of them, have
not corrected the violation or shown acceptable cause therefore, COUNTY has
the right to terminate this Contract and/or proceed with whatever other legal
rights it I18Y have against the CITY, the AGENCY, and each of them, under the
terms of this Contract and/or under the laws of the State of California.
REDUCTION IN FUNDING
Notwithstanding Section 14, Violation of Contract, above, COUNTY may
immediately terminate this Contract upon the termination, suspension,
discontinuation or substantial reduction in MUD Community Development Block
Grant funding of the Contract activity.
16. REVERSION OF ASSETS
17.
All real property acquired or improved in whole or in part with CDBG funds in
excess of $25,000 under this Contract must continue in the use that provides
the service benefits and national objectives for which it was funded until
five years after expiration of this Contract as set forth in the Federal
Regulation at 24 CFR 570, or such longer period of time as determined by
COUNTY; or it must be disposed of in a I18nner resulting in a reimbursement to
COUNTY in the amount of the current fair I18rket value of the property less any
portion thereof attributable to expenditures of non-CDBG funds for the
acquisition of, or improvement to, the property.
MODIFICATIONS
This Contract may be amended or modified only by a written agreement signed by
all parties. Failure by any party to enforce any provision(s) of this
Contract shall not be construed as a waiver of the right to compel enforcement
of such provision(s) thereafter.
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18.
NOTICES
All notices shall be served in writing. The notices shall be sent by prepaid
certified First Class Mail to the following addresses:
COUNTY
County of San Bernardino
Department of Economic
and COIDUtIity Development
474 Vest Fifth Street
San Bernardino, CA 92415-0040
CITY AND AGENCY
City of San Bernardino
aedevelopment Agency
300 North -D- Street
San Bernardino, CA 92418
19. EFFECTIVE DATE
20.
21.
Thb Contract shall be effective upon approval by COUNTY Board of Supervisors
and shall expire concurrently with the aforementioned interim Loan Agreement
between DEVELOPER and COUNTY.
INVALID CONDITIONS
If, for any reason, anyone or Dore of the terms, provisions, sections,
promises, covenants or conditions of this Contract or DDA is judged by a court
of competent jurisdiction to be partially or wholly invalid, unenforceable,
void or voidable, all of the remaining terms, provisions, sections, promises,
covenants and conditions shall remain valid and enforceable. However, should
such judicial decision materially affect the powers and duties of any of the
parties to this Contract, the parties shall, if possible in light of the
decision of the court, negotiate such amendment to this Contract as is
necessary to carry out the intent of the parties hereto. If it is not
possible to so amend this Contract, then the parties shall, to the extent
reasonably possible, return each other to the position each party occupied
prior to entering this Contract.
BINDING INTEREST
This Contract shall be binding on the parties, successors in interest, heirs
and assigns.
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IN WITNESS WEREOF. the parties have caused thb Contract to be executed as of
the day and year written above.
COUNTY OF SAN BERNARDINO
By:
Chairman
Dated:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUHENT HAS BEEN DELIVERED TO
THE CHAIRHAN OF THE BOARD
E,t.IIT RNE SPROAT
Clerk of the BOard of Supervisors
of the County of San Bernardino
By:
Dated:
APPROVED AS TO LEGAL FORM
By:
AGMTS/pIAZA.AGT
3/l8/9l/BT/bjj
5/2/9l/BT/pn
CITY OF SAN BERNARDINO
By:
Mayor
Dated:
By:
City Attorney
Dated:
CITY OF SAN BERNARDINO
REDEVELOPMENT AGENCY
By:
Dated:
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