HomeMy WebLinkAboutR06-Redevelopment Agency
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DCBLOPMEKT DEPARTMEKT
OF rBE CITY OF SAB" BEIl1WIDIKO
REQUEST FOR COIMISSIOB/COUllCIL ACTIOK
From:
KENNETH J. HENDERSON
Executive Director
Subject:
EMBLEM Deve10Pllent
Housing Project
Date:
August 27, 1992
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SvnoDsis of Previous Commission/Council/Committee Action(s}:
On August 11, 1992, the Housing Committee considered this request for
financial assistance and recommended approval to the Community
Development Commission.
On August 17, 1992, the Community Development Commission approved the
financial assistance in the amount of $472,000 for the development of
fifty-nine (59) low income housing units and authorized agency counsel
to prepare the appropriate Owner Participation Agreement (OPA).
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Recommended Motion(s):
(Communitv Deve100ment Commission)
MOTIOB A: That the Community Development Commission (i) adopt by
resolution the Owner Participation Agreement (OPA) by and
between agency counsel and Emblem Development Corporation,
and, (U) authorize the Chairman, and the Executive
Director to execute said Owner Participation Agreement.
MOlIOB B: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN
OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERN DINO AND
. ~ EMBLEM DEVELOPMENT CORPORATION.
~ I- J. BEImERSOB
Exec ive Director
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Contact Person(s): Ken Henderson/Ed Flores
Phone:
5081
Project Area(s): State ColleRe (SC)
Ward(s): Five (5)
Supporting Data Attached: Staff Reoort
FUNDING REQUIREMENTS:
Amount: $472.000 Source: 20% Set-Aside Fund
Budget Authority:
Reouested
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Commission/Council Botes:
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KJH:e1f:2376B
COMMISSION MEETING AGENDA
Meeting Date: 09/08/1992
Agenda Item Number: ~
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D()ZLOPMZKT DZPARTMZWT
OF rBE CITY OF SAW BERlWlDIKO
STAn' REPORT
Emblem Deve10Dment HousinR Proiect
Emblem Development Corporation has submitted a proposal requesting
financial assistance from the Agency for the development of tract
number 14715 near the intersection of Kendall Road and 4th Avenue in
the City of San Bernardino. The project consist of fifty-nine (59)
detached single family dwelling structures to be occupied by low and
moderate income buyers.
Emblem Development currently owns the land and is seeking financial
assistance in the amount of $8,000 per lot x 59 lots, or a total of
$472,000, to help offset certain costs and to offer housing at a lower
price per square foot than most housing in the area.
The project is to be developed utilizing three floor plans as follows:
1 - 1200 sq. ft.
2 - 1299 sq. ft.
3 - 1320 sq. ft.
2/Br - 2 Bath 1 story
3/Br - 2 Bath 1 story
3/Br/Den - 2 Bath 1 story
The proposed price range is as follows:
Plan 1 - $117,990 - $110.79 per. sq. ft.
2 - $127,990 - $ 98.52 per. sq. ft.
3 - $129,990 - $ 98.48 per. sq. ft.
The pricing of the homes would include the following features that are
usually optional items on homes of this type and in this price range.
1. Drapes
2. Security System
3. Garage door opener
4. Microwave oven
5. Trash Compactor
The homes will also include normal development code requirements of the
City, such as rear yard fencing and front yard landscaping. The homes
design will be Mediterranean Stucco style with tile roofs and
architecturally enhanced accents to provide a pleasing atmosphere.
Thirty-two (32) of the units allow for an optional "Bonus Area" in the
garage which could be utilized as a third car garage or an additional
bedroom. The cost to the consumer for this Bonus Area would be
$6,000.00 or $37.50 per square foot unfinished. In the event the room
is to be finished by the developer in a habitable state, it would cost
$62.50 per square foot.
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KJH:e1f:2376B
COMMISSION MEETING AGENDA
Meeting Date: 09/08/1992
Agenda Item Number: ~
DEVELOPllDr DEP~STAFF REPORT
lOOlLEM DBVELOPIIDr
August 27, 1992
Page lIuIIber -2-
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The financial assistance plus accrued interest would be repaid at the
close of escrow. The interim assistance loan would be subordinated to
the construction financing. Staff will insist that, where possible,
houses be sold to first time homebuyers.
Based upon the foregoing, It is appropriate that interim construction
loan financing assistance be provided for the project subject to the
following terms and conditions:
A 1.5% loan origination fee.
Loan to accrue interest at prime plus two, to be fixed at loan
closing .
The developer will make demonstrated good faith efforts to sell to
first-time homebuyers.
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The loan will not fund until all entitlements have been acquired and
supplemental construction financing obtained. A letter from the
Director of Planning and Building Services indicating the developer
is able to pull building permits will suffice to meet this
requirement. A related letter from a private lending institution
commiting to construction loan financing is also acceptable.
On August 17, the Community Development Commission approved the above
action, and conditions, and authorized agency counsel to prepare an
appropriate Owner Participation Agreement (OPA) which has been completed
and executed by the developer.
Staff recommends adoption of the form motion.
~rll J. IIElQ)ERSOB, Executive Director
Developaent Department
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K.JH:e1f:2376B
COMMISSION MEETING AGENDA
Meeting Date: 09/08/1992
Agenda Item Number: G
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COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, CALIFORNIA
AGENDA
September
, 1992
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION; OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND EMBLEM DEVELOPMENT CORPORATION
Exhibit "A" -
OWner Participation Agreement
12 Action to
be Taken:
Adopt Resolution.
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Certified copy of Resolution to be returned to Sabe , Green, A
16 Professional Corporation.
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08128/92 410
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8 "city")
RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND EMBLEM DEVELOPMENT
CORPORATION
WHEREAS, the city of San Bernardino, California (the
is a municipal corporation and a charter city duly
9 created and existing pursuant to the Constitution and the laws of
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the State of California; and
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13 City of San Bernardino
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WHEREAS, the Community Development Commission of the
(the "Commission")
on behalf of the
Redevelopment
Agency
of the City of
San Bernardino
(the
"Agency"), is a redevelopment agency, a public body, corporate
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and politic of the State of California, organized and existing
pursuant
to
the
Community
Redevelopment
Law
(Part
1
of
Division 24) commencing with Section 33000 of the Health and
19 Safety Code of the State of California (the "Act"); and
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WHEREAS, the City and the Commission have previously
22 approved and adopted the Redevelopment Plan for the State College
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Redevelopment Project Area (the "State College Redevelopment
Plan"); and
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WHEREAS, in connection with the implementation of the
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request from Emblem Development Corporation (the .Participating
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1 OWner") to assist in the development of a certain low- and
2 moderate-income housing project (the "Project") to be located
3 near the intersection of 4th Avenue and Kendall Road, which is
4 within the Project Area subject to the Redevelopment Plan; and
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6 WHEREAS, the Agency deems it desirable to assist the
7 Participating Owner in the development of the Project to the
8 extent that the Agency shall provide a loan to the Participating
9 OWner for the costs of construction of the improvements
10 comprising the Project; and
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WHEREAS, the amount of the Agency assistance shall be
in an amount not to exceed $472,000 and shall be repaid upon the
sale of individual lots which comprise the Project; and
WHEREAS, the Project involves the development of fifty-
nine (59) detached single family dwelling units to be occupied by
low and moderate income families which in turn will improve
housing opportunities within the Project Area; and
WHEREAS, the Agency at this time deems it desirable to
approve that certain OWner Participation Agreement by and between
the Agency and the Participating OWner, a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this
reference which sets forth the terms of the Agency'. assistance.
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1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
2 THE CITY OF SAN BERNARDINO, CALIFORNIA, DOES HEREBY FIND,
3 RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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5 Section 1. The Commission hereby approves the OWner
6 Participation Agreement, a copy of which is attached hereto as
7 Exhibit "A" and incorporated herein by this reference.
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9 Section 2. The Commission hereby authorizes the
10 Chairman and Secretary to execute the OWner Participation
11 Agreement on behalf of the Agency with any such non-substantial
12 changes as may be approved by the Executive Director of the
13 Agency and Agency Counsel.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO AND EMBLEM DEVELOPMENT CORPORATION
Section 3.
This Resolution shall take effect upon
5 its adoption.
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I HEREBY CERTIFY that the foregoing Resolution was duly
8 adopted by the Community Development Commission of the City of
9 San Bernardino at a meeting
10 thereof, held on the day of
11 1992, by the following vote, to wit:
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13 Commission Members: ~ ~ ABSTAIN ABSENT
14 ESTRADA
REILLY
15 HERNANDEZ
MAUDSLEY
6 MINOR
1 POPE-LUDLAM
17 MILLER
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Secretary
The foregoing
day of
resolution is
, 1992.
hereby approved this
W. R. Holcomb, Chairman
Community Development Commission
of the City of San Bernardino
Approved as to form and legal
BY:~
.fC"gency Cou el
content:
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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 foregoing 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
, 1992.
Secretary of the
Community Development
Commission of the City of San
Bernardino
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C:, .1 EXHIBIT "A"
2 OWNER PARTICIPATION AGREEMENT
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SBEOOOOl-46/DOC/601/1w
08/25/92 430
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO , GREEN,
a Professional Corporation
Suite 400
6320 Canoga Avenue
Woodland Hills, California 91367
(Space Above for Recorder'. Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
01IJfER PaRTICIPATION AGREEMENT
(EMBLEM DEVELOPMENT CORPORATION)
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
EMBLEM DEVELOPMENT CORPORATION,
a California corporation
EXHIBIT A
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I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Aqre_ent . . . . . . . . . . . 1
B. [102] The Redevelopment Plan . . . . . . . . . . 2
C. [103] The Site . . . . . . . . . . . . . . . . . 2
D. [104] Parties to the Agre_ent . . . . . . . . . 2
1. [105] The Ag~lncy . . . . . . . . . . . . . . 2
2. [106] Tbe Participant . . . . . . . . . . . 3
3. [107] Prohibition Against Change in
Ownership, Management and
Control of the Participant . . . . . . 3
4. [108] Benefit to Project Area . . . . . . . 5
II. [200] AGENCY ASSISTANCE
A. [201] Improv_ent of the Site . . . . . . . . . . 5
III. [300] IMPROVEMENT OF THE SITE
A. [301] Improv_ent by Participant . . . . . . . . 6
". 1. [302] Scope of Development . . . . . . . . . 6
~", 2. [303 ] Cost of Construction . . . . . . . . . 6
3. [304] Construction Schedule . . . . . . . . 6
4. [305] Bodily Injury and
Property Damage Insurance . . . . . . 7
S. [306] City and Other Governmental
Agency Permits . . . . . . . . . . . . 8
6. [307] Rights of Access . . . . . . . . . . . 9
7. [308] Local, State and Federal Laws . . . . 9
8. [309] Antidiscrimination During
Construction . . . . . . . . . . . . 10
B. [310] Taxes, Assessments, Encumbrances
and Liens . . . . . . . . . . . . . . . . 10
C. [311] Prohibition Against Transfer of
the Site, the BUildings or
Structures Thereon and Assignment
of Agreement . . . . . . . . . . . . . . 10
D. [312] Promissory Note; Deed of Trust . . . . . 11
1. [313] Promissory Note . . . . . . . . . . 11
2. [314] Deed of Trust . . . . . . . . . . . 11
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IV. [400]
A.
B.
C.
V.
A.
B.
C.
D.
VX. [600]
A.
B.
C.
D.
E.
E.
F.
G.
[500]
[315]
1.
2.
3.
4.
5.
[321]
[322]
[401]
[402]
[403]
[501]
[502]
[503]
[504]
[601]
[602]
1.
2.
3.
[606]
[607]
[608]
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Mortgage, Deed of Trust, Sale
and Lease-Back Financing;
Rights of Holders . . . . . . . . . . .. 12
[316 ]
No Encumbrances Except Mortgages,
Deeds of Trust or Sale
and Lease-Back for Development . .. 12
Holder Not Obligated to
Construct Improvements . . . . . .. 13
Notice of Default to Mortgagee
or Deed of Trust Holders;
Right '.to cure . . . . . . . . . .. 13
Failure of Holder to
Complete Improvements .. . . . .. 14
Right of Agency to cure Mortgage
or Deed of Trust Default . . . . .. 15
[317]
[318]
[319]
[320]
Right of Agency to Satisfy Other
Liens on The Site . . . . . . . . . . .. 16
Repayment of Note and Partial Releases
of Deed of Trust . . . . . . . . . . .. 16
USES OF SITE; Al"FORDABILI'1'Y COVENANTS
Uses - Covenants Running With the Lend . 18
Maintenance of the Site . . . . . . . .. 21
Effect of Violation of the Terms
and Provisions of this Agreement
After Completion of Construction .... 22
GENERAL PROVISIONS
Notices, Demands and Communications
Between the Parties . . . . . . . . . .. 23
Conflicts of Interest; Nonliability . .. 23
Enforced Delay; Extension of
Times of Performance . . . . . . . . .. 24
Inspection of Books and Records . . . .. 25
DEFAULTS AND REMEDIES
Defaults - - General
Legal Actions . . . .
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[603]
[604]
[605]
Institution of Legal Actions . . .. 26
Applicable Lew . . . . . . . . . .. 26
Acceptance of Service of Process .. 26
Right. and Remedie. are CUmulative . .. 27
Inaction Not a Waiver of Default .. .. 27
Remedies . . . . . . . . . . . . . . . . 27
[609]
Damages
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VII. [700]
A. [701]
B. [702]
VIII. [800]
IX. [900]
A. [901]
SPECIAL PROVISIONS
Submi.sion of Documents to
Agency for Approval . . . . . . . . .
Succe..ors in Interest . . . . . . .
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ENTIRE AGREEMENT, WAIVERS
. . . . . . . . . .
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
Time for Acceptance
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ATTACHMENT NO. 1 - LEGAL DESCRIPTION
ATTACHMENT NO. 2 - SCOPE OF DEVELOPMENT
ATTACHMENT NO. 3 - SCHEDULE OF PERFORMANCE
ATTACHMENT NO.4 - PROMISSORY NOTE SECURED BY DEED OF TRUST
ATTACHMENT NO. 5 - DEED OF TRUST WITH ASSIGNMENT OF RENTS
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SBBOOOOl-46/DOC/601/1w
08/28/'2 400
OWNER PARTICIPATION AGREEMENT
'!'HIS AGREEKENT IS ENTERED INTO thia 1ST
day of
GAr .I.11i11DU.
, 1992, by and between the REDEVELOPMENT AGENCY OF '!'HE
CITY OF SAN BERNARDINO (the "Aqency") and EMBLEM DEVELOPMENT
CORPORATION, a California corporation (the "Participant"). Aqency
and Participant hereby aqree as follows:
I.
[100]
SUBJECT OF AGREEMENT
A.
[101]
Purnose of Aureement
The purpose of this Aqre_ent is to effectuate the
Redevelopment Plan for the State Colleqe Redevelopment Project (the
"Project") by providinq for Aqency assistance to Participant for
the improv_ent of the Site, which is located in and will benefit
the State Colleqe Redevelopment Project Area (the "Project Area")
of the Project. The completion of the improvements on the Site
pursuant to this Aqre_ent is in the vital and best interests of
the City of San Bernardino, California (the "City") and the health,
safety and welfare of its residents, and in accord with the public
purposes and provisions of applicable state and local laws and
requir_ents under Which the Project has been undertaken. The
C01IIIIIunity Development C01IIIIIission, actinq on behalf of the Aqency,
has determined that the uses cont_plated by this Aqre_ent will
benefit the low- and moderate-income housinq needs of the City and
the Project, and has authorized the use of funds from the Aqency's
f" Low- and Moderate-Income Housinq Fund.
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B.
[102]
The Redevelonment: Plan
The Redevelopment Plan was approved by ordinance of the
Common Council of the City of San Bernardino; said ordinance and
the Redevelopment Plan as so approved (the "Redevelopment Plan")
are incorporated herein by reference.
C.
[103]
The Site
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The Site is that certain real property generally located
near the intersection of Rendall Road and 4th Avenue in the City of
San Bernardino designated as Tract No. 14715 and as aore fully
described in the "Legal Description of the Site", which is attached
hereto as Attachment No. 1 and is incorporated herein by this
reference.
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D.
[104]
Parties to 'the Aareement:.
1.
[105]
'1h. Aaencv
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
.
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, at aIll.)
The principal office of the Agency is located at 201 North "E"
Street, San Bernardino, California '2401.
"Agency", as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino, the
Economic Development Agency of the City of San Bernardino, the
1" Redevelopment Agency of the City of San Bernardino, and any
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assignee of or successor to their rights, powers and
responsibilities.
2.
[106]
The particinant
The principal office and mailing address of the
Participant for purposes of this Agreement is '922 Walker Street,
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Suite .JR, Cypress, California 90630, Attn: Philip Walsh.
The Participant qualifies as en owner participant
pursuant to the Redevelopment Plan and rules promulgated pursuant
thereto pertaining to owner participation.
3.
[107]
Prohibition Aaainst Chanae in Owner.hin.
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Manaa.ment.
and
Control
or
~he
Particinant
The qualifications and identity of the Participant are of
particular concern to the Agency.
It is because of those
qualifications and identity that the Agency has entered into this
Agre8lllent with the Participant.
No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
The Participant shall not assign all or any part of this
Agre8lllent or any rights hereunder without the prior written
approval of the Agency, which approval the Agency ..y grant,
C :, withhold or deny at its discretion. In the event of such transfer
or assignment: (1) the assignee shall expressly a.sume the
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obligations of the Participant pursuant to this Agreement in
writing satisfactory to the Agency; (2) the original Participant
ahall remain fully responsible for the performance and liable for
the obligations of the Participant pursuant to this Agre8lllellt; and
(3) any guarantees provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
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In the absence of apecific written agreement by the
Agency, no auch transfer, assignment or approval by the Agency
ahall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
All of the te1"lll&, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted auccessors and assigns of the
Participant. Whenever the term "Participant" is used herein, auch
term ahall include any other permitted successors and assigns as
herein provided.
The restrictions of this Section 107 shall terminate and
be of no further force and effect upon payment in full of the Note
(as hereinafter defined). Nothing in this Section 107 ahall act to
restrict the sale of completed residential units developed on the
Site to qualified purchasers if aaid aales are otherwise in
compliance with the terms of this Aqreement.
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4.
[108]
Benefit to Pro;ect Area
Aqency has determined that the development of the
property in accordance with this Aqreement will eliainate bliqht
and provide needed low- and moderate-income bousinq to the Project
Area which is needed due to the insufficiency of such housinq
within the Project Area.
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II. [200]
AGENCY ASSISTANCE
A.
[201]
Imnrovement of the Site
Aqency aqrees to provide $472,000 (the -Aqency
Assistance") as an interim construction loan, the proceeds of which
are to be used for the iaprovement of the Site by Participant. The
Aqency Assistance, toqether with a loan origination fee, shall be
reflected in a Promissory Note in favor of Agency, as provided in
Section 312 hereof, and shall be secured by a Deed of Trust as
provided in Section 314 bereof. The Aqency Assistance shall be
subject to the following:
.
1. The funds representing the Agency Assistance sball
be made available only upon receipt by the Participant of all
necessary entitlements and permits as provided in Section 306
hereof, and at such time as the Agency has received an executed
original of this Aqreement, the Promissory Note and the Deed of
Trust.
2. upon disbursement, the funds sball be placed in a
construction fund to be used by Participant solely for the purposes
of causinq the improvement of the Site.
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III. [300] IMPROVEMENT OF THE SITE
A. [301] I:.brov.men~ ~v particinant
Participant and Agency agree that the central purpose of
this Agreement is to provide for the construction on the Site of
fifty-nine (59) detached single family homes in a manner consistent
with the Redevelopment Plan.
All of said homes will be a
mediterranean stucco style with'a tile roof and will be constructed
with a full range of amenities, as described in the Scope of
Development (see Section 302).
Said homes, tOClether with
appurtenant improvements, shall be referred to herein as
.Participant Improvements".
1.
[302]
Scone o~ Dev.loDmen~
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The Site shall be developed by Participant as provided in
the .Scope of Development., which is attached hereto as Attachment
Ro. 2 and is incorporated herein.
2.
[303]
Cost af construction
The cost of constructing all Participant Improvements
ahall be borne by Participant.
The Agency shall have no
Obligations, other than as expressly Get forth herein, with respect
to the funding of the Participant Improvements.
3.
[304 ]
Construction Schedule
Upon execution of this Agreement, Participant will
promptly begin and diligently prosecute to completion the
e :, construction of the Participant Improvements. PartiCipant shall
begin and complete all construction and development of the
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Participant Improvements within the times specified in the
.Schedule of Performance" which is attached bereto as Attachment
No.3 and incorporated berein. Participant shall strictly CO~orm
to all time requirements and limitations set forth in this
Agreement.
4.
;
Bod ilv" rn1urv and PrOD8rt;V Damaae
[305]
Insurance
Participant shall defend, assume all responsibility for
and bold the Agency, the City and their respective Officers, agants
and employees, barmless from all claims or suits for, and damages
to, property and injuries to persons, including accidental death
(including attorneys' fees and costs), which may be caused by any
of Participant's activities under this Agreement, whether such
activities or performance thereof be by the Participant or anyone
directly or indirectly employed or contracted with by Participant
and whether such damage sball accrue or be discovered before or
after termination of this Agreement. Participant shall take out
and maintain a comprehensive liability and property damage policy
in the amount of One Million Dollars ($1,000,000) combined single
limit policy, including contractual public liability, as sball
protect Participant, City and Agency from claims for such damages
until two (2) years after the payment in full of the Note.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a
, form of the insurance carrier setting forth the general provisions
\..
of the insurance coverage. This countersigned certificate shall
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.... t.be CU:y aIIIl ~ Del ~u ~....ft1ve ofUDen, ..-u, IUMl
ap1oye.... acIdiUou11uand8 UDdc' the poUoy. fte oezoUu_te
a.y t.be iMlIZ'anaa oanie .u11 _kill a fteteuJl~ of _Upt:1aD on
the put of the curi_ to DOUty city ad tbe &faor of any
Mtu-ie1 cllange, RIIN11eticm " te1'a1MUon of t:ba ClCIftI:... at
l...~ t:IllRy (SO) lIaye 111 a~ of to .tteG1:ive lIata Of any nab
MtU'la1 oIIUlp, O&ftHUaUon '. ~Uon. ~.". ~
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laReuadw a.y .uUalpaat 1IIaa11 lie ~bIaIy lnnnIIoe UMI DOt
oantdbGtill9 vitll any 1anzouca ..lJ1taiM4 b)" ~ or d.'f' 04
t:ba poUoy 1IIaa11 ClOI\taill nail an an4ClZ'....t. fta ta-anaa poUcry
or t:be oertlfi_ta ot iu1u'anoe ..11 _tdaa a va1... of
8Ubz'avat1oD foZ' t.be llanafit of to City and Apnoy.
.lIZ'tlDlpan't _d1 ~l.b _ Ga.a U 1>>& tunf.bed to
_ana)' av1c1eJloe ..u.t.ato.zoy to _enoy ~t a~ OOIltnOtol' vitb
vtlOll 1t baa contnated to%' tile JlU'tomallce of vorJc on t:ba .ita 0%'
otIau- v1... pIIr.~ to tbla __...t oanle. 1fOZ'JceZ'.'ooll/PU_tion
1ftII..anoe .. zoaquln4 II)' law.
I. [SO'] eih alll! OI:h.r _r_ftbl &a....... ~it:a
..t0Z'8 !lm41nt ot tile _enoy &adatence ClZ' any pon:lon
Gareof and/O%' oomuncaant of t.bII .al1:1c1pant hplOYaaDta ClZ'
otIaar OOIlIItl'UCtiOft or ilevelOpllent of any tNlldlnp, ~tve. 0%'
otbaZ' VOZ'U Of 1Itprovaent a.pon the alte, .lIZ'tla1pant "11, at 1ta
OWD expenae, .eauzoo or oallR to 1>>& ACIU'8Cl anI' aIIIl all para!.u tor
all hceaaary off-aita iII,p1"ovaent. VbiClb ..Y lie ~1nO II)' tile
Cltf or any other ,OVeDMntal a,enoy baving ~1Irll14lotlon over .1aCb
~ion, dave1opllODt 0%' work.
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Nothing contained in this Agreement shall be deemed to be an
approval by the City ot any application or permit required to be
obtained by Participant from the City.
6.
[307]
Riah'ts of Access
For the purpose of assuring compliance with this
,
Agreement, representatives of Agency and the City shall bave the
right of access to the Site, without charges or fees, at normal
construction bours during the period ot work for the purposes of
this Agreement, inClUding, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules. Such representatives ot
Agency or of the City shall be those who are so identified in
writing by the Executive Director of Agency. Agency shall bold the
Participant barmless from any bodily injury or related dUlllges
arising out ot the activities of Agency and the city as reterred to
in this Section 307 and resulting from the gross neglillJence or
willful misconduct of the City or AllJency. This Section 307 shall
.
not be deemed to diminish or limit any rillJhts which the City or
AllJency JIUly have by operation ot law irre.pecti ve ot the Agreement.
7.
[308]
Local. State and P.deral Laws
Participant shall carry out the construction ot the
Participent Improvements and all related activities on the Site in
contormity with all applicable law., inclUding all applicable
federal and state labor standards; provided, however, Participant
r.. and its contractors, successors, a.si9fts, transterees, and lessees
'-.,
are not waiving their rillJhts to contest any such laws, rules or
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, , standards. Participant and its contractors and sub-contractors
1,-"
shall pay prevailing wages to all employees on the project.
8.
[309]
An~idi.crimination Durina Con.~ru~ion
Participant, for itself and successors and assiqns,
aqrees that in the construction of the improvements provided for in
this Agreement, Participant shall not discriminate against any
employee or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
B.
[310]
~axes. A.8ess..n~.. Encumbrance. and ~i.ns
".
iI... .,
Prior to payment in full of the Note, Participant shall
not place or allow to be placed on the Site or any part thereof any
mortgage, trust deed, encumbrance or lien other than as expressly
allowed by Section 315 or any other provisions of this Aqreement.
Participant shall remove or have removed any levy or attachment
IIllde on any of the Site or any part thereof, or assure the
.
satisfaction thereof within a reasonable time but in any event
prior to a sale thereunder.
c.
[311]
Prohibi'tion Aaainst Transfer or tit. Site. the
Buildinas or Strueturas t:haraon and A...iamnent:
of Aare8ment.
Prior to payment in full of the Hote, PartiCipant lIball
not, except as permitted by this Aqreement, without the prior
C., written approval of Agency, IIllke any total or partial sale,
transfer, conveyance, a..iqnment or lease of whole or any part of
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the Site or of the buildings or structures on the Site. This
probibition sball not be deemed to prevent a transfer expr..sly
permitted pursuant to Section 107 of this Agre_ent, or the
granting of temporary or permanent easements or peraits to
facilitate the development of the Site.
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D.
[312]
PromissorY "Note: Deed o~ 'l'rust
1.
[313]
PromissorY Note
Participant sball execute a promis.ory Note (the "Note")
in favor of the Agency in the form of Attachment No. 4 which is
incorporated herein, evidencing the Agency's loan to the
Participant of an amount equal to $472,000 for the purpose of
assisting in the construction of the Site. Participant agree. to
f" pay to Agency a loan origination fee of one end one-half percent
\'1,1
(1.5t) of the principal emount of the loan, which fee is in the sum
of $7,080.00, to be paid in cash at the time of funding of the loan
and not out of loan proceeds. The principal amount of the Note
shall be $479,080. Tbe outstanding balance of the Note ahall bear
.
interest from the time of funding until repayment in full equal to
the prime interest rate plus two as in effect on the date of
funding.
2.
[314]
Deed of 'J'rust
To secure said loan and Note, Participant shall execute
a Deed of Trust in the Form of Attachment No.5.
c.,
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[US]
~8.. ~.d e~ ~t. ..1. aNI 9....__..l!1r
,...
I......
.""aNtilla: .Ietl't. ~ IlAldAra
1.
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W8 "'~"p."e.. heal!rl:. ..PI!8a... _ "'--4.
of 'lIPDat:. er .al.. aN! ...........ak .ep
'-"'1 -,,~
Partlo1paDt iDt.nda \:0 obtaln, a4 Apnoy awn.. tbenu,
. acm8tnctlon loan in ~ QPX4*1aate DouM of ....5',11..
,
Afucy agr... Ulat ita Dud of 'r&'U~ ..11 I:Ie ~1na1:e W ..
lieD of aaid ooutnation loan ~141nv (1) ~ DlNftt of aa14
l1eft dou act UC'nd '.,'.3,11' aDd (11) A;eCIY bU appnYe4 the
Una ot aald ClDn8UUctlon loan ana 4Md of Uwt~, Wbic:h app&oval
..11 Dot I:Ie anr...onabl)' v1t:bhe1d. .ut1c:lpUl~ llbell act ente
iftw aay o~ OOftwrance or l1u for tlnanc:lnv v1tbout the pd..
wltto appl'OYal of ApDc:1', Wb1ah approval av.nor ap''' W vi- if
any .l&Ob oonveyaaae .. 11u for t1ftanc:1NJ 1. .1ftft W a 1IanJc,
fl'
"., "v1n9. ucl loan a.Relation, or ~ atailar lending iDIlUtut:lon
muI the tcu of ..14 t1Danolng are na.onaIIly aGaaptUle \:0
A9enc:y. Appz'oval of INah O'tber aonveyanc. .. l1u f.. t1Danclll9 by
tII. A;enc:y ....11 DOt oonlltlt\lte a aubo~1nat1on of the D..s ot
'II'\wt W aac:h CODYeJUKI. 01' U.n. t'ba fon of .>>....vat by aveney
lIhall lie in wrU:1Dg VIllo1l nfenno.. 1:Iai. leRl_ 111, ~ by
t:he z:nc:u~ive Direotor of the Apftoy. %ft the went tU~ the "Veney
f.U. W .ooept or reject INah len1ar in writing w1t1Wl I:lfteu
(11) _. .Ra- wltteD lIOt1ce.tbanot 18 "oaSoW<< .., th. avencr,
al&Ob 1endar ..11 lie 4.....4 approved.
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2.
[317]
Holder Not Obliaated to Con.~ruet
J:JIlDrOVements
The holder of any mortllalle or deed of trust authorized by
this Allreement shall not be oblillated by the provisions of this
Agreement to construct or complete the Participant Improvements or
to quarantee such construction or completion. Nothinll in this
,
Agreement shall be deemed to construe, permit or authorize any such
bolder to devote the Site to any uses or to construct any
improvements thereon, other than those uses or Participant
Improvements provided for or authorized by this Agreement.
3.
[318]
Notice of Default to Mo~aaa.e or Daad of
Trust Holders: Riaht to CUre
(1M'"
11.,,1
With respect to any mortllalleor deed of trust qranted by
Participant as provided herein, whenever Allency shall deliver any
notice or demand to Participant with respect to any breach or
default by Participant in completion of the construction of the
Participant Improvements, Allency shall at the same time deliver to
.
each bolder of record of any mortllalle or deed of trust authorized
by this Agreement a copy of such notice or demand. Each such
holder shall (insofar as the rillhts of Allency are concerned) bave
the rillht, at its option, within thirty (30) days after the receipt
of this notice, to cure or remedy or cOlllDlence to cure or remedy any
such default and to add the cost thereof to the mortllalle debt and
the lien of its mortllalle. Nothinll contained in this Agreement
shall be deemed to permit or authorize such holder to undertake or
".
",._ continue the construction or completion of the Participant
Improvements (beyond the extent necessary to conserve or protect
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the Participant Improvements or construction already made) without
rirst bavinq expressly assWlled the Participant's oJ:lligations to
Aqency J:ly written aqreement satisractory to Aqency. fte bolder, in
that event, must aqree to complete, in the manner provided in this
Aqreement, the Participant Improvements to wbich the lien or title
of such holder relates, and submit evidence satisfactory to Agency
that it bas the qualifications and financial r.sponsiJ:lility
necessary to perform such oJ:lliqations.
4.
[319J
Failure
of
I{older
'to
COBItl1ete
Imnrovements
In any case where, thirty (30) days after default J:ly the
Participant in completion of construction of Participant
Improvements under this Aqreement, the holder of any aortqaqe or
deed of trust creatinq a lien or encumJ:lrance upon the Site or any
part thereof bas not exercised the option to construct or if it bas
exercised the option and has not proceeded diliqently with
construction, Aqency may purchase the aortqaqe or deed of trust J:ly
.
payment to the holder of the amount of the unpaid aortqaqe or deed
of trust debt, includinq principal and interest and all other SWIIS
secured J:ly the aortqaqe or deed of trust. If the ownership of the
Site or any part thereof has vested in the holder, Aqency, if it so
desires, shall J:le entitled to a conveyance rrom the bolder to
Aqency upon payment to the holder of an amount equal to the SWII of
the rOllowinq:
a. The unpaid aortqaqe or deed of trust deJ:lt at the
time title J:lecame vested in the bolder (less all appropriate
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credits, including those resulting from collection and application
of rentals and other income received during foreclosure
proceedings);
b. All expenses with respect to foreclosure;
;,
c. The net expense, if any (exclusive of general
overbead), incurred by the bolder as a direct result of the
subsequent management of the Site or part thereof;
d. Tbe costs of any Participant Improvements aade by
such bolder; and
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e. An amount equivalent to the interest that Would bave
accrued on the aggregate of such emounts bad all such amounts
become part of the mortgage or deed of trust debt and such debt bad
continued in existence to the date of payment by Agency; lus
.
f. Any income derived by the lender from operations
con4ucted on the Site (the receipt of principal an4 interest
payments in the ordinary course of business ahall not constitute
income for the purposes of this subsection f).
5.
[320]
Riah~ of Aaen~v to CUr. Mo~aaa. or Deed
of Trus~ D8fault
In the event of a mortgage or 4ee4 of trust default or
( ._ breach by Participant prior to the completion of eny part thereof
and the bolder of any mortgage or d.ed of trust bas not exercised
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( its option to complete construction, Agency may cure the default.
--II'
In such event, Agency shall be entitled to reilllburs~t from
Participant of all proper costs and expenses incurred by Agency in
curing such default, and such costs and expenses shall be included
as part of the Note under Section 313.
F.
[321J
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/
Riaht of Aae~cv ~o SatisfY other Liens On The
.&in
t'-
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Prior to the completion of the Participant IlIprov8lllents,
and after Participant has had written notice and has failed after
a reasonable time, but in any event not less than fifteen (15)
days, to challenge, cure, adequately bond against, or satisfy any
liens or encumbrances on the Site which are not otherwise permitted
under this Agreement, Agency shall have the right but not the
Obligation to satisfy any such liens or encumbrances and to include
the cost thereof as part of the Note under Section 313.
G.
[322J
Ret)~VlDent of Note and Partial Releases of Deed
of Trust
Participant shall repay the Note froll the proceeds of the
sales of the individual residences (or lots) to be constructed by
Participant. ~ency agrees to place a partial reconveyance of deed
of trust in the escrow for each residence sold, with a d8llland upon
escrow for $8,120, plus accrued interest thereon froll the date of
the Note, plus any additional charges or amounts owing under the
terms of this Agre8lllent, the Note and/or the Deed of 1'rust, if any,
f
" .' which additional charges or amount. shall be allocated equally
between the remaining unsold residential lots.
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Upon repayment in full of all sums owed under the Note,
this Agreement or the Deed of Trust, Agency aqree. to reconvey the
Deed of Trust. Upon either the recording of a reconveyance of the
full Deed of Trust or upon recording of the last partial
reconveyance of the Deed of Trust relating to the last of the
fifty-nine residences to be sold, any party then owning or
I
thereafter purchasing, leasing or otherwise acquiring any interest
in the Site or the Participant Improvements shall not, as a result
of such ownership, lease or acquisition, incur any obligation or
liability under this Aqreement except that such party shall be
bound by the covenants set forth in Section 401 of this Aqreement,
which shall be applicable, each according to its terms.
Regardless of Participant's ability to complete
construction of the Participant Improvements or to sell the
completed residential units, Participant agrees to repay the Note
in full within three (3) years of the date of execution of this
Aqreement. A failure to do so within thirty (30) days of Agency's
.
written demand shall constitute a material breach of this Aqre..ent
and ahall entitle Agency to declare all sums owed under the Note
to be immediately due and payable, to foreclose upon the Deed of
'l'rust as to any then unsold residential units or lots, and/or to
exercise any other remedies available under this Aqreement, the
Deed of Trust or at law or in equity.
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IV. [400J
USES OF SITE; AFFORDABILITY COVENANTS
A.
[401J
Uses - COVAnant. Runnina With the LAnd
Participant covenants and agrees for it..lf, its
successors, its assigns, and every successor in interest ~o the
Si~e or any part thereof, that for a period of ~en (10) years
commencinq on the date of the issuance by City of the Certificate
of Occupancy on the last of the fifty-nine residences to be
constructed by Participant, all of the fifty-nine sinqle femily
residences to be constructed on the Site will be devo~ed to and
available for sale solely to persons or femilies with an income
which are low and moderate to very low, as those terms are defined
in Health and Safety Code Sections 50093 (low and moderate income)
and 50105 (very low income), with sales coste of .ach r.sid.n~ial
unit to be at an affordable housinq cost (as such term is defined
in Health and Safety Code Section 50052.5).
The foreqoinq covenant shall run with the land for ~en
(10) years co_encinq on the date that the City issues the
.
Certificate of Occupancy on the last of the fifty-nine residences.
The Participant further covenants and warrants that
Participant shall develop improvements on the Site in accordance
with the Scope of Development. Participant covenants to develop
the Site in conformity with all applicable laws. The Covenants of
this paragraph shall run with the land.
Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
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l aga nst or segregation of any person or qroup of persons on account
,-"
of race, color, creed, religion, sex, ..rital status , age,
handicap, national origin or ancestry in the sale, lease, subl_se,
transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall Participant itself or any person claiming under or through it
establish or permit any such practice or practices of
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discrimination or seqregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site. The foregoing covenants shall
run with the land.
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-seqregation clauses:
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1. In deeds: -The qrantee herein Covenants by end tor
himselt or herselt, his or ber beirs, executors, administrators and
assigna, and all persons claiming under or througb them, that there
.
sball be no eUscrimination against or segregation ot, any person or
qroup ot persons on account of race, color, creed, religion, sex,
..rital status, age, bandicap, national origin or ancestry in the
sale, leas., sublease, transfer, use, occupancy, tenure or
enjoyment ot the land berein conveyed, nor sball the qrentee
bi1ll8elf or berselt or any person claiming under or throuqb him or
her, establisb or permit any such practice or practices of
discrimination or seqreqation with reference to the .election,
f'
,,,' location, number, use or occupancy ot tenants, lessees, .ubtenants,
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sUblessees or vendees in the land herein conveyed. The foreqoinq
covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for
hi1ll8elf or herself, his or her heirs, executors, administrators and
assiqns, and all persons claiminq under or throuqh him or her, that
.;,
this lease is made and accepted upon and subject to the followinq
conditions:
"There shall be no discrimination aqainst or
fI'
~,.,
seqreqation of any person or qroup of persons on account of race,
color, creed, reliqion, sex, marital status, handicap, aqe,
ancestry or national oriqin in the leasinq, sUbleasinq,
transferrinq, use, occupancy, tenure or enjoyment sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or
any person claiminq under or throuqh him or her, establish or
permit any such practices or practices of discrimination or
seqreqation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sUblessees, subtenants or vendees
in the premises herein leased."
3.
In contracts:
"There shall be no discrimination
aqainst or seqreqation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status, age,
handicap, ancestry or national oriqin, in the aale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor ahall the transferee himself or herself or any person
C:, Claiming under or through him or her, establish or permit any such
practice or practices of discrimination or seqreqation with
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I reference to the .el.ction, location, number use or occupancy of
'llo.,,"
tenants, l....es, .ubtenants, .ubl.ssees or vendees of the
premi.es."
B.
[402)
Maintenance of 'the site
Participant .hall, until .ale of all of the fifty-nine
re.idential units, maintain any of the Participant Improvements
which relllllin unsold and all other improvements on the Site and
shall keep the Site free from any accumulation of debris or wa.te
IIllterials.
Participant further aqrees to lIllintain the Site in a neat
and attractive IIllnner until construction of the iIIprovements
,
"1"
llo..,1 de.cribed in this Aqreement is complete .0 as not to, in the
rea.onable determination of an appropriate officer of the City, be
a public nui.ance, or be detrimental to the health, safety and
welfare of the public, or impair value of property within one
thou.and (1,000) feet of the Site, and aqree. that in the event
Participant fails to do .0, Aqency may enter upon the Site for the
purpo.es of performinq necessary and desirable maintenance, that
Participant will be responsible for the cost of any .uch
lIllintenance undertaken by Aqency, Which shall be paid wi thin thirty
(30) days after receipt by Participant of written demand therefor.
c.,
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[403 ]
Effect af Violation af 'the 'I'erms and
Provisions of 'this Aar..ment A:r~.r Cmrlnla't.ion
of Construction
'rhe covenants established in this Agreuaent ahall,
without reqard to technical classification and de.iqnation, be
bindinq for the benefit and in favor of Aqency, it. .Uccessors and
I
assiqns, as to those covenants which are for its benefit. 'rhe
covenants contained in this Agreement shall remain in effect until
. the termination date of the Redevelopment Plan unle.s an earlier
date is specified. '1'be Covenants aqainst racial discrimination
shall remain in perpetuity.
Aqency is de_ed the beneficiary of the tU'118 and
provisions of this Aqre..ent and of the covenants runninq with the
land, for and in its own riqhts and for the purposes of protectinq
the interests of the co_unity and other parties, public or
private, in whose favor and for whose benefit this Agre..ent and
the covenants runninq with the land have been provided. '1'be
.
Agre..ent and the covenants shall run in favor of the Aqency,
without reqard to whether Aqency has been, ruaains or is an owner
of any land or interest therein in the Site or in the Project Area.
Aqency shall have the riqht, if the Agreement or covenants are
breached, to exercise all riqhts and remedies, and to aaintain any
actions or suits at law or in equity or other proper proceedinqs to
enforce the curinq of such breaches to which it or any other
beneficiaries of this Agre_ent and covenants may be entitled.
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V.
[500]
GENERAL PROVISIONS
A.
[501]
Notic.s. Demands and Communications BetwAen
the Parties
Written notices, demands and co_unications between
Agency and Participant .hall be .ufficiently qiven if delivered by
hand (and a receipt therefor i. obtained or is refused to be given)
"
or di.patched by registered or certified mail, postage prepaid,
return receipt requested, to the principal offices of Agency and
Participant. Such written notices, demands and cOlDJDunication. IIaY
be sent in the .ame manner to .uch other addr....s as such party
IIaY from time to time designate by _il as provid.d in this
Section 501.
Any written notice, d.lIIllnd or cOlDJDunication shall be
de.med receiv.d ilDJDediately if deliv.red by hand and shall be
d.emed r.ceived on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B.
[502]
Conflicts af Int.r.stt Nonliabilitv
No member, official or employee of Agency or the City
.hall have any personal interest, direct or indirect, in this
Agreement. No member, official or employee shall participate in
any decision relating to the Agreement which affects hi. personal
interests or the interests of any corporation, partnership or
a.sociation in which he i. directly or indirectly intere.ted. No
melllber, official or employee of Agency or the City shall be
(,. personally liable to Participant, or any succe.sor in inter.st, in
,
the event of any default or breach by Agency or Participant, or for
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any amount which may become due to Participant or its successor or
on any obligations under the terms of this Agreement.
Participant represents and warrants that it bas not paid
or given, and shall not payor give, any third party any aoney or
other consideration for obtaining this Agreement.
/
c.
[503)
Enforced Delav: Extension or Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Aqre..ent shall be extended, where delays or defaults are due to:
war; insurrections; floods; earthquakes; fires; casualties; acts of
God; acts of the pUblic enemy; freight IIlIIbargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of the
city or any other public or governmental agency or entity (other
.
than the acts or failures to act of Agency which shall not excuse
performance by Agency); or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform.
NotWithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the
time of the COlllDlencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty
(,. (30) days of the cOlllDlencement of the cause. Times of perforaance
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,-.. under this Agreement may also be extended in writing by the mutual
1,-.,-
agreement of Agency and Participant.
Participant is not entitled pursuant to this Section 503
to an extension of time to perform because of past, present, or
future difficulty in obtaining suitable temporary or permanent
/
financing for the Site.
D.
[504]
InsDection of Books and Records
Agency has the right at all reasonable times to inspect
the books and records of Participant pertaining to the Site as
pertinent to the purposes of this Agreement. Participant bas the
right at all reasonable times to inspect the public records of
,.' Aqency pertaininq to the Site as pertinent to the purposes of the
" ,I
Agreement.
VI. [600]
DEFAULTS AND REMEDIES
A.
[601]
Defaults - - General
Subject to the extensions of time set forth in
Section 503, failure or delay by any party to perform any term or
provision of this Aqreement constitutes a default under this
Agreement.
The party who so fails or delays must illmediately
commence to cure, correct, or remedy such failure or delay, and
sball complete such cure, correction or remedy with diliqence.
The injured party shall qive written notice of default to
,.
,,' the party in default, specifyinq the default complained of by the
injured party.
Except as required to protect aqainst further
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damages, and except for Sections 317 and 319 of this Agreement, the
injured party may not institute proceedings against the party in
default until thirty (30) days after giving such notice. Failure
or delay in giving such notice shall not constitute a waiver of any
default, nor shall it change the time of default.
B.
,
Leaal Actions
[602]
1.
[603]
Institution o~ Leaal Actions
In addition to any other rights or remedies bereunder,
Agency or Participant may institute legal action to cure, correct
or remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2.
[604]
ADDlicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3.
[60S]
AcceDtance of $ervice of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether aade within
or without the State of California.
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[606]
Riahts and Remedies are CUmulative
Except as otherwise expressly .tated in thi. Agreement,
the riqhts and remedies of the parties are cumulative, and the
exercise by any party of one or more of such riqhts or remedies
shall not preclude the ex.rcise by it, at the .... or different
times, of any other riqhts or r,-edies for the .ame default or any
other default by any other party.
D.
[607]
Ynaetion Not a Waiver of Default
,,--
"1-'
Any failures or delays by any party in assertinq any of
its riqht and remedies as to any default shall not operate as a
waiver of any default or of any .uch riqhts or remedies, or deprive
any party of its riqht to institute and maintain any actions or
proceedinqs which it may deem necessary to protect, a.sert or
enforce any such riqhts or remedies.
E.
[608]
Remedies
1.
[609]
Damaaes
.
Prior to the payment in full of all sums due under the
Note, if either Participant or Aqency defaults with reqard to any
of the provisions of this Aqreement, the non-defaultinq party shall
serve written notic. of such default upon the defaultinq party. If
the default is not cur.d or if a cure has not been cOlllDlenced and is
beinq diliqently pursued to completion by the defaultinq party
within thirty (30) days after service of the notice of default, the
defaultinq party shall be liable to the other for any damaqe.
f'" caused by such default, and the non-defaultinq party ahall have the
,"""
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I' riqht to seek specific performance and such other remedies as are
,-,>
available in law or equity.
VII. [700]
SPECIAL PROVISIONS
A.
[701]
Submission of Doouments to Aaenev ~or A.1)1~roval
Whenever this Agreement requires Participant to submit
/
any document to Aqency for approval, which shall be deemed approved
if not acted on by Aqency within the specified time, said document
shall be accompanied by a letter statinq that it is beinq submitted
and will be deemed approved unless rejected by Aqency within the
stated time. If there is not a time specified berein for sucb
Aqency action, Participant may submit a letter requirinq Aqancy
approval or rejection of documents within thirty (30) days after
f'" submission to Aqency or sucb documents shall be deemed approved.
il.""
B.
[702]
Successors in Interest
'l'be terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be bindinq upon and inure to
the benefit of the beirs, executors, administrators, successors and
assigns of Participant.
VIII. [800]
ENTIRE AGREEMENT, WAIVERS
'l'bis Agreement is executed in four (4) duplicate
oriqinals, each of wbich is deemed to be an original.
'l'bis
Agreement includes Attachments 1 throuqh 5, wbich together with
this Agreement constitute the entire understandinq and aqre8lllent of
( :, the parties.
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No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
This Aqreement inteqrates all of the terms and conditions
mentioned herein or incidental hereto, and supers.des all
negotiations or previous aqreements among the parties or their
.-
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Aqreement must be
in writing by the appropriate authorities of the Agency and
Participant, and all amendments hereto Ilust be in writing by the
appropriate authorities of Agency and Participant, except that the
~'
~.. Executive Director of Agency Ilay aqree to non-substantive changes
hereto with concurrence by Agency Counsel.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
IX. [900]
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A.
[901]
~i.e for Acc~~~ance
c.,
This Aqreement, when executed by Participant and
delivered to Agency, Ilust be authorized, executed and delivered by
Agency on or before thirty (30) days after signing and delivery of
this Agreement by Participant or this Aqreement ahall be void,
except to the extent that Participant shall consent in writing to
a further extension of time for the authorization, execution and
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delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed hy the Agency as evidenced
hy the date first above shown.
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IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
.' By:
W.R. Holcomb
Chairman
APPROVED AS TO FORM AND
LEGAL CONTENT:
BY~counsel
By:
Kenneth J. Henderson
Secretary
......
"Participant"
EMBLEM DEVELOPMENT CORPORATION,
a California corporation
..-...,
By:'~--~r u'/luJ,L
By:
Title: J/Il G.J / /J~"; ..--
_\IlOC\601
_400
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STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF SAN BERNARDINO
On this _ day of , 1992, before a., the
undersigned, a Notary Public in and for the State of California,
personally appeared W.R. HOLCOMB and KENNETH J. HENDERSON
personally known to ae (or proved to ae on the basis of
satisfactory evidence) to be the persons who executed this
instrument as the Chairman and Secretary, respectively, of the
REDEVELOPMENT AGENCY OF THE CITY, OF SAN BERNARDINO and ac:lcnowledged
to ae said Agency executed it.
Signature of Notary Public
(SEAL)
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STATE OF CALIFORNIA
COUNTY OF YJII &/WFIU/NO
)
) ss.
)
On this./.1:[ day of kffE:P;B-EP-, 1992, before a., the
undersigned, a Nota Public~n and for the State of california,
personally appeare ,/111' W 'If, If and ------- --- , known
to .e ( roved to .e on the s 8 of satisfactory evidence) to be
the e of EMBLEM DEVELOPMENT CORPORATION, a
californ a corporat on, and acknowledged to .e that they executed
said instrument on behalf of said corporation.
(l c--- /{ /)"k
Signature of ~otary Public
(SEAL)
.-., ..
on'ICIAI. SEAL
Carmen B. Flore.
"" PUIILIG .
OlIN. OCUlI\'
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ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
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ATTACHMENT NO. 1
,
THE ~ REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF SAN IEINAROINO,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLl.OWS: .
Tentatlvl Tract No. 14715, unrecorded, being a SubcUvhlon of:
.
Parcel A:
that POrtion of thl West onl-hal' 0' the Southwest one-quarter 0' Section 16,
Town_hip 1 north, bng. 4 west, San lerlllrdlno lase and Meridian. In the County
of Sin Bernardino, State 0' California, In Rancho NuscUPllbe. un-Iurv..,ed,
Plrtly WIthin and partly without tile County of San lemardlno. described IS
t011M:
Beginning at a point la tile Westerly l1n. 0' laid S.ctlon Ui, 430 tlet North 0'
tIl. tatlrsecUon with tIl. Northerly boundary of acenclal1 Drlvl; thlnce bst 300
'11t= tile North 115 flIt; tIlence West 300 fl.t to thl West Itn. of Section 16:
thlfttl SOUth along the Vest 11ne 115 flet; to thl point of beginning,. .
'ar~l I:
That POrtion of the West one-half of the Southwest one-quarter 0' Section 16.
Town'htp 1 North. Range 4 West. San Blrnardlno lase and Meridian, unsurv.yed In
tha *ancho NuscuPlabe, partly within and partly without the County of San
Bemardlno, described IS f011ows:
Itgl,nlng at a POint In the Vest l1n. 0' Hid Section 16. 100 feet North of the
lntltslctlon with thl Morth Jlae of Kencllll Drive; thlnce East 160 f..t. .r. or
IISI. to the West Ifne of Road tlprovement District No. 38; thence North Ilong
tII. West line of Slid Road IlIIprov_nt District. 330 'eet; till WISt 110 fl.t,
IIOre 'or llU, to thl West I1ne of laid Section 11; tIllnce South along Slid West
llne'330 feet to the point Of beginning.
(LEGAL ~[SCRIPTlClN CONTINUED ON NEXT PAGE)
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1-.. . $15370-90
'age 3
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(LEGAL DESCRIPTION CONTINUED)
Excepting therefrom that portion described as follows:
leglnnlng at a po'nt on the west line of sa'd Sect'on 16, 184.70 f.et north of
Its tntersectlon with the north line of Kendall Drive; thence north along sa'd.
west 11ne of sa'd Section 16. 115.42 feet; thence south 10. 26' list. parallel
to and 260 f.et from perpendlcularl) northeasterly. the northarly right of way
of Kendall Drive. 405 feet, ~re or less, to the southerly 11na of that parcel
Of and conveyed to Frank R. Hardy by Grant Deed Recorded Decllllber 2. 1837. In
look 1226. of Offlc'al Records,.'.ge 270; thence westerly along laid loutherly
11na to a point tn satd ltne that Is 160 f.at northerly ..asured at rIght angles
f~ tha north line ot Kend.,l Drive; thence north .0. 26; west Ilong a line
that Is parallal to and 160 f.et fram, perpendlcularl, northeasterl,. the
Bortharly rIght of way lIne of Kendall DrIve, to the point of b.glnnlng.
Also excepting therefraa that portion descrIbed as follows:
. leglnnlnll at the Intersection of the west line of sltd Saetlon 16 with the
southwesterly lIne of the San lernardlno County Flood Control District's 100
Foot RIght of Way, which rIght of way Is Recorded In look 1168 of Dftlclal
Records, Page 210; thenea south .0. 26' ..st along SlId southwesterly line
1.1..7 feet to the south ltne of satd propert,; thenea south ... 36' west along
satd south l1na 146.90 feet to the southwest corner of satd property; thence
IIOrth O. 24' west Ilong the satd west I1ne 84.70 teet to the point of beginning.
. Also excepting therefrom that portion described as follows:
"gtnntng at the tntersectton of the west l'ne of satd Sactlon 16 w1th the
aorthll'terl, l1na of satd San lernardtno County FloOd Control DIstrict" 100
Foot Right Of Way; thance Ilorth O. 24' west along Mid Wlst Una 11&.15 feet;
theft" b, I 200 foot rldtus curve to the left from a tangent belrlllt of 10Uth O.
24' .ast for a dlstancl of 201.56 f.lt to a point on Slid northllst.rly line
~lch polftt IS south 10. 26; list 115.55 f.et fraa said lntars.ctlon; thence
north 10. 26' west 115.55 feet to the point of beginning.
Parcel C:
Parcel No. I:
Thlt portion of the Wlst one-half of the southwest one-qulrter of Sactlon 16,
Township 1 north, Range 4 WlSt, San Ilrnardlno 8..e and Meridian, unsurveyed In
the Rancho Muscupllbe, In the County of San 8ernardlfto, Sute of Cal "omla,
dascrlbed IS follows:
(LEGAL DESCRIPTION CONTINUED ON NEXT PAGE)
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515370-90
'aile 4
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(LEGAL DESCRIPTION CONTINUED)
.Iegtnn'ng at.a potnt 121 feet north and 300 flet last of the tntlrslctton of the
west ltnl of satd Sect'on 16. and northerly "ne of Kendall Drtve; thlncl last
360 f.et, .ore or less. to a po'nt on the WlSt "ne of the 'arcll conveyed to
orpha Hornacly, a Wtdow, by De.d Rlcorded April 16, 11141, 1n Book 1473, 'aile 386,
Offtc'al Records; thence louth pI~llel to the west 11ne of sa1d $ect1on, 491
flit. .ore Dr "SSt to a po1nt on -:the north 11ne of a 'arcIl conveyed to Frank
R. Hardy, by D.ed Recorded .January 28, 1148. 1n Book 1226. 'aile 270. offtc111
Records; thence Wlst alonll the north 11en of Hardy 'arcel 3&0 flet, .ore or
less. to a potnt, 300 feet lasterly of thl west 11n. of sa1d Seet10n 16; thlnce
north to the potnt of beg1nn1ng.
'arcel 110. 2:
That port10n of the west on.-half of the southWest one-quarter of 5ect10n 16,
Townsh1p 1 north, Range 4 Wlst. (unsurveyed) 1n the Rancho Muscup1ab., IS per
plat therlof Rleorded 1n look 7 of MIps, 'aile 23, Records of satd County, tf
Section ltnes were extended across satd Rancho. descr'bed as follOWS:
legtnn'ng at a potnt tn the west ltne of Fourth AVlnue, as located by Deed
Recorded Mlrch 23, 1927, tn look 212, 'age 174. Off'etll Records, 767.5 feet
south of 1ts 1ntlrs.ctton with the south ltne of -A- Strlet. as Ihown on Map of
Tract No. 1748. Arrowlllld Suburban FlrIIS Tract -E-, as plr Plat thereof Recorded
1n lOOk 25 of Mips. 'aile 59. Records of satd County; thenCI south along the west
l1nl or Fourth AVlnul, 110.S flit; thlnee west 140 flet; thlncl north 110.5
flit; thlnce list to the place of b'lIinntng.
'areel 110. 3:
That portton of Wlst onl-bllf of the southwest on.-quarter of SIct10n 16,
TOWllshtp 1 north, Range ~ west. San I.rnard'no Base and Mertdtan, tn RanchO
Mulcuptabe. unsurveyed, d.lertbed as follows:
..gtnntnll at a potnt tn thl welt 11n. of sa'd SlcUon 16. 121 r..t north of tts
tntlrsletton ~th the nortberly ltne of K.ndall Drtv.; thence east 139 feet to ·
potnt 1n the Wlst.rly ltne of Road Dtstrtct Improvement 110. 38; thence north
along satd Wlst ltne 10 felt, ~rl or llss. to a potnt 300 f.et louth O. 24'
welt of the louth 11nl of .A- Streit; thencI west peran., wtth thl louth ltne
of la1d -A- Street In feet. ~re or lln, to the west 11M of sa1d SecUon 16;
thlnce louth alonll satd welt l1ne of s.ctton 16, 10 feet, ~r. or lell, to the
potnt of begtnntng. .
(LEGAL DESCRIPTION CONTINUED ON IIEXT 'ME)
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515370-90
'Plge 5
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(LEGAL DESCRIPTION CONTINUED)
Excepting that portion of the wist one-half of the southwest one-quarter Of
Section 16, Township 1 north, Range 4 west, Sin Bernardino Base and Mer1dlan,
Rancho Muscuptabe, described as follows:
Beginning at a pOint in the west ',ne of said Section 16, 921 feet north of the
Inters.ction with the northerly line of Kendall Drive; thence last 3DD f..t;
.thenc. north 60 feet, eore or ,.ss, to a point 300 feet south 0" 24' west of the
'south line of "A" Street (now known as 4Znd Str'lt); thence west parallel with
the south llln of Slid 42nd Str.et 300 feet to the west line of Slid S.ction 16;
th.nce south along said w.st line 60 feet. .ore or less, to . point of
IIIglnnlng.
Parcel 0:
That portIon of the southwest one-quarter of Section 16. Township 1 north, Range
4 west, San Bernardtno Bas. and MerIdian, In the Rancho Muscuplabe, In the
Count, of San lernardino, State of CalIfornia, unsurve,ed. descrlb.d as
fo11ows:
leglnnin; at a point in the west l1n. of 4th Avenue, 158 feet south of Its
Intersection with the south line of "A" Str.et; thence south along said west
line of 4th Avenue, 63.5 f..t: th.nc. west to the west line of Road District
Improvement No. 38; thence north along said Road District Improvement Line, 63.5
fl.t: thence east to the point Of begInning.
. Parclll E:
'arcel No.1:
Portion of the west one-balf of the southwest one-quarter of Slctlo~ 16,
Townshtp 1 north, Ranga 4 west, San Blrnard1no lasl and Mer1dtln. Ullsurvl18d, III
the Ranchyo Muscuplabe being partl1 wlthtn and partly outside the City of SIn
Bernardino, described as follows:
leglnlllllg at the tatersectlon of the north line of Kendall Drlv., as now .
10cat.d, and the Wilt Une of Road Improvllllnt Dtstr1ct No. 38; thence
northwesterl1 along said north line 75 feet: thlncl north parall., to satd west
lIne of Road I~rovement District No. 38 to the louth ltne of property conve,ed
to Frank A. Hard,y, by Deed Recorded sept_er 2, 1137 In look 1226, ,.ge 270,
Dffictal Records; thlncl east along the louth ltne of satd Ha~ Land to the
west line of .lld Road Improv...nt DIstrict No. 38; thlnce south alollg laid line
481 feet, eore or 'ISS, to the point of beglnlltng.
ExceptIng therefran that portion of satd 'and l,tng southerl1 and southwesterl,
of the southerl, southwtstlrl1 l11n of the land cOllve,ed to thl SIn Bernardino
Count, Flood Control Dtstrlct, b, Deed Dated F.bruar, 26, 1142 and Recorded
March 3, 1142 In BOOk 15Z5. 'age 10e. Official I.cords.
(LEGAL DESCRIPTIOft CONTINUED ON NEXT PAGE)
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515370.90
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(LEGAl. DESCRIPTION CONTINUED)
'arcel No.2:
Port10n of the wISt one-half of the louthwest one-qulrter of Sect10n 16.
Townsh1p 1 north, Ringe 4 west, SIn lernard1no Ilse Ind Mer1d1ln. 1f sa1d
SIct10n 11nes were extended Icross~lhe Rlncho Nuscujp1abl, be1ng partly w1th1n
and partly outs1de of thl C1ty of San lernard1no, County Of San Bernard1no.
$tate Of Ca11forn1a. IS per ..p Recorded 1n Book' 7 of Maps, 'age 23, 1n the
Off1ce of the County Recorder of .11d County, descr1bld I. follows:
Blg1nn1ng It I p01nt on the north 11ne of Kendall Dr1ve, 75 feet .-asurad along
the 111d north 11ne fraD Its 'ntlrlect'on w,th the Wlst 11nl of Road I.,rovement
D1str'ct No. 38; thencI westerly along thl north l'ne of Kindall Dr'vI, 60 feet:
thence north parallel wttll thl velt l1ne of ..,d Road Iqlrov...nt D1str1ct No.
38 to tile south l1ne Of Property conveyed to frlnk A. Hanly lIy Deed Rlcordld
September 2, Ig37, In BOOk 1226, 'Ige 270, Off1c111 Records: thlnce el.t elong
tile louth line of sa1d Hardy Land to thl west l'ne of Tract conveyed to Luther
. .Lofgren; thence south 110ng the west l1ne of sl1d Lofgren Land to the p01nt of
.lItg1nntng.
Except therefraD thlt port10n of 111d llnd ly1ng louthlrly end southwesterly of
the southerly Ind southwestarly 11ne of the llnd conveyed to SIn lernard1no
COunty flood Control, by Died Rlcorded December 20, 1.40. 'n Book 1446, 'age
.225, OIl1cl.' Records.
hrcel No.3:
Thlt port10n of thl west one-half of thl louthwest onl~qUlrter of sect10n 16,
. Townsh1p 1 north, Range 4 west, San lernard1no B..I 'IncI Mer1dlan. In the Rancho
Nuscup1111e (unsurveyed) descr1bed IS follOWS:
"g1nn'ng at I po'nt on the north l1ne tendall Dr1ve. 135 feet ..Isured
northwesterly along the sa1d north ltne fl'Olll Its 'ntersect'on w1th the west 11ne
of Road Iqlrovement D1Itr'ct No. 38; thence westerly along the north 11ne of
Kendall Dr1ve SO feet; thlnce north parlllel with the vest 11ne of sa'd ROld
Jllprov..nt Dlstr'ct No. 38. to the south 11ne of property conveYld to Frank A.
Hard,y, by Deed R.corded Sept_er 2, 1.37 In look 1226. 'age 270, Ofl1c111
alcords; thence list along tile south l'ne of s.,d HardY Lind to the west line of
Tract convlyed to Edward M. Burd1ck .nd Ruth C. Burd1ck, by Deed Recordld March
. 10, 1131. 'n Book 1332. Plge 311. Off,c1.1 Records; thence louth along the Wlst
. l'ne of ..,d lurdlck Lind to the po'nt Of beg1nn'ng.
Except1ng thlrlfrom that port'on of 111d land ly'ng loutherly and louthwestlrly
Of the southerly and southwesterly 11ne of thl llnd conveJld to the San
lernerd1no County Flood Control D'str'ct. a Body Corporate and Pollt'C. by Deed
Recorded Dec_er 16. 1141, In Book lS09. 'lg. 288, Off1c'al Records.
(LEGAl. DESCRIPTION CONTINUED ON NEXT PAGE)
ATT. 1 - Page 5
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(LEGAL DESCRIPTION CONTINUED)
'arcel ND. 4:
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That portion of the west one-half of the southWest one-quarter of Section 16,
lownSh1p 1 north. Range 4 west, Sin 8ernardino 8.se and Mertdtan, as the l1nes
of the Government Survey ..y be extended across the Rancho Nuscup1abe IS per Map
_Icorded 1n look 7 Of Maps, 'Ige Z3:Records of sa1d County. descr1bed IS
follows:
Commenc1ng It a po1nt on the northeasterly l1ne of the San Bernardino County
flood Control Dtstr1ct Right of Wly 185 flet northwesterly along said
lorthealtlrly l1ne from 1ts tntlrsect10n W1th the west l'ne of Road D'str1ct
J~rov..nt No. 38. for the po'nt of beg1nntng; thence north 17.08 flit MIL to a
po'nt Wh1ch ,S due last of I po1nt 1n thl west 11ne of .a1d SIct10n 100 flet
north Of the 'ntersect'on of the northeasterly l1ne of Kindall Dr1ve and the
west l1ne of satd Sectton, thence west 150.'6 feet, .ore or 11Ss. to ,ts
tnter'lct'on w1th the northeasterly ltne of the San Bernard1no County Flood
Control o.tstr'ct R1ght of way Un., thence south 'D. 2" east 174.04 'lit, .ore
or less. along sa'd r1ght of way to the po'nt of begtnn'ng; and adjacent ....as.
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ATTACHMENT NO. 2
SCOPE 01' DEVELOPMENT
z. GENERAL DESCRIPTION
The Site is
D.scription (Attachment
Agreement.
II. DEVELOPMENT
specifically d.scribed in the Legal
NO.1) pursuant to Section 103 of this
"
Participant shall develop the Site by constructing homes
of varying square footage based upon the following floor plans:
1- 1,200 sq. ft.
2- 1,299 sq. ft.
3- 1,320 sq. ft.
2 br./2 bath - 1 story;
3 br./2 bath - 1 story;
3 br./den/2 bath - 1 story
Each home shall have full amenities and shall include the
following: drapes, security system, garage door opener, microwave
oven and trash compactor. Participant agrees to expend a
construction cost of approximately $45.0tper square foot for each
residence, exclusive of fees, off-siti'"Iiiiprovements, engin.ering or
loan costs. In addition, Participant agrees to construct such off-
site improvements as are required by the Tentative or Final Map on
f" the Site or are otherwise required by City ordinance or requlation.
,-"
All of the improvements to be provided by the Participant
on the Site constitute the -Participant Improvements.-
The Participant shall commence and complete the
PartiCipant Improvements by the respective times .stablished
therefor in the Schedule of Performance (Attachment No.3).
III. DEVELOPMENT STANDAROS
The Participant Improvements shall be developed in
accordance with applicable building and safety codes.
IV. DEMOLITION AND SOILS
Participant assumes all responsibility for surface and
subsurface conditions at the Site, and the SUitability of the Site
for the Participant Improvements. If the surface and subsurface
conditions are not entirely suitable for such dev.lopment and use,
Participant shall at its cost take all actions nec.ssary to r.nder
the Site entirely suitable for such dev.lopment. Participant has
undertak.n all investigation of the Sit. it has d....d n.cessary
and has not r.ceived or r.li.d upon any repr.s.ntations of Aq.ncy,
the City, or their r.spective officers, agents and ..ploy.es.
Participant shall undertake at its cost all demolition r.quired in
connection with the development of Participant Improvem.nts.
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ATTACHMENT NO. 3
SCHEOULE OF PERFORMANCE
1. Execution of ADrea_ant bv
Aaencv. Agency shall approve
and execute this Agreement, and
shall deliver one (1) copy
thereof to Participant.
2. Comnle1:e Construction.-7
Participant shall complete
construction of the Participant
Improvements and obtain
Certificates of OCcupancy on
each of the fifty-nine (59)
residential units.
Not later than thirty (30) days
after the date of execution and
submission of two (2) copies of
this Agreement to Agency by
Participant.
Not later than THREE YEARSfrom the
effective date of this
Agreement.
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ATTACHMENT NO. 4
PROMISSORY NOTE SECURED BY DEED OF TRUST
$479,080.00
Place:
Redevelopment Aqency
201 North "E" Street
Third Floor
San Bernardino, CA 92401
Date:
"
FOR VALUE RECEIVED, the undersiqned promises to pay to
the Redevelopment Agency of the City of San Bernardino (the
"Agency") or its successors, the sum of Four Hundred Seventy Nine
Thousand Eighty Dollars ($479,080.00), and to pay interest on the
unpaid prinCipal amount of this Note which has been funded from the
date hereof, at the rate per annum equal to two points over Bank of
America's published prime rate, as adjusted from time to time,
until paid. Payment of interest and principal shall be made as
follows:
1. The Agency shall be paid from the escrow for the
sale of each of the fifty-nine residential units to be constructed
on the Site [as defined in that certain OWner Participation
Agre..ent executed in connection herewith (the "Agre..ent")] the
principal sum of $8,120, plus accrued interest, plus any other sums
coming due under this Note, the Agreement or the Deed of Trust
securing this Note (the "Deed of Trust"), with such other sums
being equally allocated among any remaining unused residential
units.
2. The Agency shall deposit into the escrow for the
sale of any such residential unit a partial reconveyance of the
Deed of Trust, sufficient to release the Agency's interest ill said
residential unit and its lot, which partial reconveyance shall be
held in escrow by the escrow holder until the Agency has been paid
the sums provided in Paragraph 1 above.
3. Regardless of the completion or sale of the
residential units, the full amount of all unpaid prinCipal and
interest under this Note shall become due and payable three (3)
years from the date of the Agreement.
4. A failure to pay any sum provided for in this Note
when due or a material breach of this Note, the Agre..ent or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Note, the
Agreement or the Deed of Trust.
ATT. 4 - Page 1
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All payments due under this Note shall be made in lawful
money of the United States at the principal office of the Aqency,
201 North "E" Street, City Hall Annex, San Bernardino, CA 92401-
1507, or at such other place as may from time to time be desiqnated
by the Agency in writing.
Notwithstanding any lanquage herein to the contrary, this
Note shall become immediately due and payable in the amount of all
unpaid principal, with interest, upon any transfer in violation of
the Agreement of title of the property described in the Deed of
Trust to any person, firm or corporation other than the undersiqned
and except as provided in said Deed of Trust, whether such transfer
of title be voluntary, involuntary, or by operation of law.
The undersiqned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note shall
be applied first to the interest due on the Note and then to the
principal due on the Note, and the remaining balance shall be
applied to late charges, if any.
IN THE EVENT the undersigned shall fail to pay the
payments when due, and if such failure be Subsisting thirty (30)
days thereafter, the unpaid principal amount of this Note, together
with accrued interest and late charges, shall become due and
payable, at the option of the Agency, without notice to the
undersiqned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due date, the
undersiqned shall pay to the Agency a late charqe of 4' on the
amount past due and remaining paid. If this Note be reduced to
jUdgment, such judgment shall bear the statutory interest rate on
judgments.
In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the State of California.
If suit is instituted by the Agency to recover on this
Note, the undersigned agrees to pay all costs of such collection
including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date,
duly filed for record in the office of the County Recorder of the
County of San Bernardino, State of CAlifornia.
DEMAND, protest and notice of demand and protest are
hereby waived and the undersigned hereby waives, to the extent
authorized by law, any and all homestead and other exemption rights
which otherwise would apply to the debt evidenced by this Note.
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fI"" IN WITNESS WHEREOF, THIS NOTE has been duly executed by
1-.." the undersigned, as of its date.
EMBLEM DEVELOPMENT CORPORATION
By:
Title:
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ATTACHMENT NO. 5
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
)
)
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
"
Deed of trust made on" , 1992, by EMBLEM
DEVELOPMENT CORPORATION, hereinafter called "Trustor," whose
address is , to FIRST AMERICAN TITLE
COMPANY, hereinafter referred to as "Trustee" , whose business
address is 323 Court street, San Bernardino, CAlifornia 92401, in
favor of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
hereinafter referred to as "Beneficiary", whose business address is
201 North "E" Street, Third Floor, San Bernardino, CAlifornia
92401.
Trustor irrevocably grants, transfers, and assiqna to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of CAlifornia, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of CAlifornia, more
particularly described as:
toqether with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and prOfits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
OWner Participation Agreement and payment of the indebtedness
evidenced by a Promissory Note executed by Trustor in the principal
sum of Four Hundred Seventy Nine Thousand Eighty Dollars
($479,080.00), payable to Beneficiary or order and each extension
thereof, both executed in connection with this Deed of Trust; and
performance of each agreement to Trustor incorporated herein by
reference or contained herein.
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i A. , To protect the .ecurity of this Deed of Trust, Trustor agrees:
_tJ'
1. To maintain the property in good condition end
r.pair; not to remove or demolish any builcUng or improvement
ther.on; to compl.te promptly in workmanlike mann.r any improvement
hereafter constructed ther.on and to r.store promptly in
workmanlike mann.r any improvement th.reon that 1. daaa9ed or
destroyed, and to pay when due all co.ts incurred ther.for or in
conn.ction therewith; to comply with all laws, ordinances,
requlations, cov.nants, conditions and r.strictions aff.cting the
property; not to commit or permi1: any waste ther.of or any act upon
the property in violation of law or of covenants, condition. or
r.strictions affecting the property.
2. To appear in and defend any action or proce.ding
purporting to aff.ct the security hereof or the rights or power. of
Beneficiary or Trust.e; and also, if at any tim. Ben.ficiary or
Trustee is a party to or app.ars in any .uch action or proceeding,
or in any action or proce.ding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurr.d by them or
.ither of them in connection th.rewith, inClUding, but not limited
to, cost of .vidence of title and attorneys' f.es in a r.asonable
sum.
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3. To pay (a) at l.ast ten (10) days before
delinquency, all taxes and ass.s.ments affecting the property, all
as.essment upon water company stock, and all r.nts, a.....ments and
charges for water appurt.nant to or u.ed in conn.ction with the
property; (b) when due, all encumbrances, charges and liens, with
inter.st, on the property or any part ther.of, which appear to be
prior or superior her.to; and (c) all costs, f..s and expen..s of
this trust.
4. If Tru.tor fail. to make any payment or to do any
act as herein provided, then B.neficiary or Trust.. (but without
obligation so to do, and with or without notic. to or demand upon
Trustor, and without rel.asing Trustor from any obligation her.of)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security her.of, Ben.ficiary
or Trustee being authorized to enter upon the property for .uch
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Ben.ficiary or Tru.t.e; (c) pay, purchas., cont.st, or compromise
any encumbrance, charge or lien that, in the jUdgJlent of either,
appears to be .uperior her.to; and in .xerci.in9 any such power,
Beneficiary or Trustee aay incur necessary expenses, including
reasonable attorneys' fees.
5. To pay immediat.ly and without demand all sums
expended hereunder by Beneficiary or Trustee, with int.raat from
date of .xpenditure at the annual rate of two percentage points
over Bank of America'. publi.hed prime rate.
c,
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B.
It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof i. hereby assign.d and .hall be paid to Ben.ficiary,
who may apply or r.l.a.. such moneys received ther.for upon any
indebtedn_s secured hereby in .uch order a. Ben.ficiary
determines, or at the option of Beneficiary the entire amount .0
received or any part thereof may be rel.ased to Trustor. Such
application or release shall not cure or waive any default or
notic. of d.fault hereunder or invalidate any act done pursuant to
such notice. ;
2. The acceptance by Beneficiary of any payment less
than the amount then due .hall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the .ntire .um then due or of BenefiCiary'S right .ither to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum s.cured h.reby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secur.d or to d.clare
default for failure so to pay. No waiver of any default .hall be
a waiver of any pr.ceding or .ucc.eding default of any kind.
3. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed and the secured note for
endor.ement, and without effecting the personal liability of any
per.on for payment of the indebtedness .ecured hereby or the effect
of this deed upon the remainder of the property, Trustee may
reconvey any part of the property, con.ent to the making of any map
or plat thereof, join in granting any .asement or join in any
extension agr.ement or any agreement subordinating the lien or
charge thereof.
4. Upon written request of Beneficiary stating that all
.ums secured her.by have been paid, .urrender of this d.ed and the
note to Trustee for cancellation and retention, and paym.nt of its
fee., Trustee .hall reconvey, without warranty the property then
held hereunder. The recitals in such reconv.yance shall be
conclusive proof of the truthfulness thereof. The grantee may be
desiqnated in .uch reconveyance as "the person or per.ona l.gally
entitl.d thereto." In addition, Trustor will be making payment. on
the promi.sory Note from the sale of fifty-nine (59) r.sidential
unit. to be con.tructed by Trustor or the lots pertaining thereto.
Beneficiary agrees to provide Trustor with partial reconv.yance. of
this De.d of Trust, or to in.truct Trust.e to do so, in conn.ction
with the sale of .uch unit. or lot. providing the conditions of
S.ction 322 of the Agr.ement are met. A partial r.conv.yance with
respect to any such unit or lot .hall release only the lien against
such unit or lot and shall not act to release or impair the lien of
this Deed of Trust against any units or lots as to which partial
reconveyances have not been issued.
ATT. 5 - Page 3
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5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee' s sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully .et by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment t~ the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this deed of
trust, Trustor or such owner shall pay to Beneficiary in advance on
the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or
such owner may be removed from the premises by SI1""".ry
dispossession proceedings or by any other appropriate action of
proceeding.
7. If default is made in payment of any indebtedness or
in performance of any agreement hereby secured, then Beneficiary,
with or without notice to Trustor, may declare all sums secured
hareby immediately due and payable by instituting suit for the
recovery thereof or for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
BenefiCiary shall also deposit with Trustee this deed, the secured
note, and all documents evidencing expenditures secured hereby.
8. Should Trustor, without the consent in writing of
Beneficiary, voluntarily sell, transfer or convey his interest in
the property or any part thereof, or if by operation of law, it be
sold, transferred or conveyed, then Beneficiary may, at its option,
declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver
of the right to require such consent to future or successive
transactions.
9. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been viven as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in .eparate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful aoney of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
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announcement at the time and place of .ale originally fixed or at
the last preceding postponed time. Trustee .hall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warrenty, express or implied. The recital. in .uch
deed of any matter. or facts .hall be conclusive proof of the
truthfulness thereof. Tru.tor, Trustee, Beneficiary or any other
person may purchase at the sale.
10. After deducting all costs, fees and expen.es of
Tru.tee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Tru.tee shall
apply the proceeds of sale to -;'payment of (a) all sums expended
under the teras hereof and not theretofore repaid, with accrued
interest at two percentage points over Bank of America '. published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole di.cretion,
directs. The remainder, if any, .hall be paid to the person or
persons legally entitled thereto.
11. Before Trustee's sale, Beneficiary may r_cind .uch
notices of default and of election to cause the property to be .old
by delivering to Trustee a written notice of resci.sion, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of re.ci..ion shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of BenefiCiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Tru.tee
hereunder.
12. Beneficiary may, from time to time a. provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in st..d and of
Trustee herein named; and thereupon, the Trustee herein named shall
be diSCharged, and the tru.tee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
13. If two or more persona are desiqnated as Truste.
herein, any or all powers lJranted herein to Tru.tee ..y be
exercised by any of such persons if the other person or persons is
unable, for any r..son, to act. Any recital of such inability in
any instrument executed by any of such persons shall be concluai ve
against Trustor, hi. heirs and assiqns.
14. All lea.es nor or hereafter affectin9 the property
are hereby assiCjJned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such l...es will be aodified
or terminated without the written con.ent of Beneficiary.
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15. When requested to do 80, Trustor .hall give such
further writt.n assignments of rents, royalties, issues and
profits; of all s.curity for the performance of l.a...; and of all
aoney payable under any option to purchase, and shall Viva ex.cuted
orivinals of all leases, now or hereafter on or aff.cting the
property.
16. Trustor reserves the right, prior to any d.fault in
payment of any indebt.dness or performance of any oblivation
secured hereby, to collect all .uch rents, royalti.., issues and
prOfits, aa but not before they I;lecome due. Upon any such d.fault,
Trustor'. right to collect such :moneys shall c.a.e, not only a. to
amount. accruing thereafter, but also as to amount. th.n accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedne.s hereby secur.d, .ither in person or by agent, or by a
r.c.iv.r to be appoint.d by the court, (a) may enter upon and take
po.s.s.ion of the property at any time and manag. and control it in
Ben.ficiary'. di.cretion, and (b) with or without taking
pos.e.sion, may .ue for or otherwise collect the r.nt., issue. and
profits th.reof, whether past due or coming due ther.after, and
apply the .ame, l.ss costs and expenses of operation and
coll.ction, including rea.onable attorn.y.' f_., upon any
oblivation s.cured hereby and in .uch order as Beneficiary
determine.. None of the aforesaid acts shall cure or waive any
d.fault her.under or invalidate any act done pur.uant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in cOll.cting any rent.,
royalti.s or other profit. that it is hereby authorized to collect,
and shall be accountable only for sums actually r.ceived.
17. Without affecting the liability of Tru.tor or of any
other party now or ber.after bound by the term. her.of, from time
to time and with or without notice, may relea.e any person now or
hereafter liable for performance of .uch Obligation, and ..y ext.nd
the time for payment or performance, accept additional security,
and alter, sub.titut. or r.l.ase any s.curity.
18. In any judicial action brought to for.close this
d.ed or to enforce any right of Beneficiary or of Tru.tee
her.under, Trustor shall pay to Beneficiary end to Tru.tee
attorneys' fees in a reasonable .um, to be fixed by the court.
19. No r.medy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any pr..ent or
future law.
20. The pleading of any statute of limitation. a. a
defense to any and all obligations .ecured by this d..d is hereby
waived, to the full extent permissible by law.
21. In the event of default in the payment of any
indebtedne.s secur.d bereby, and if such indebtedn.ss is s.cured at
any time by any other instrument, Beneficiary shall not be
obligated to re.ort to any s.curity in any particular order; end
ATT. 5 - Page 6
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the exercise by Beneficiary of any right or remedy with respect to
any security shall not be a waiver of or limitation on the right of
Beneficiary to exercise, at any time or from tiae to time
thereafter, any right or remedy with respect to this deed.
22. Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with annual statements covering the
operations of the property.
23. Beneficiary may collect a "late charge" not to
exceed an _ount equal to four percent (4') on the _ount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
24. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assiqns. The term "Beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the sinqular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
25. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, BenefiCiary or Trustee is a party
unless brought by Trustee.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below.
MAILING ADDRESSES FOR NOTICES:
EMBLEM DEVELOPMENT CORPORATION
as Trustor:
ATT. 5 - Page 7
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, Executed at San Bernardino, California, on the date first
above written.
EMBLER DEVELOPMENT CORPORATION
as Trustor
By:
Title:
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ATT. 5 - Page 8
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STATE OF CALIFORNIA
COUNTY OF
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On this day of , 1992, before.., the
undersiqned, a Notary Public in and for the State of California,
personally appeared and ,
known to me (or proved to me on the basis of satisfactory evidence)
to be the of EMBLEM DEVELOPMENT CORPORATION a
California corporation, and acknowledged to me that they executed
said instrument on behalf of sajd corporation.
Siqnature of Notary Public
(SEAL)
ATT. 5 - Page 9
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